(c) Requisites of Property:

BOOK II 1. Utility, or the capacity to satisfy human wants:

2. Individuality and substance, or having a separate and
PROPERY, OWNERSHIP, AND ITS MODIFICATIONS autonomous existence; and
3. Susceptibility of being appropriated.

[Title I — Classification of Property]

Impossibility or difficulty of appropriation.
[Preliminary Provisions]
The following are not considered property because of sheer
(Art. 414, NCC)
physical impossibility or difficulty of subjecting to human control:
(a) Property, defined:
1. Things which, because of their distance, their depth, or their
Properties are things which are capable of satisfying human wants and immensity, are not capable of human control such as the sun,
are susceptible of appropriation. the stars and the ocean; and
2. Forces of nature, such as lightning and rain, because of
b) Things and property, distinguished: impossibility of appropriation in their diffused state. However,
when they are brought under human control through the help of
Property Things
science, i.e., electricity, they may now be regarded as property.
In the traditional notion
are those things which are are all that can be possessed (e) Importance of classification of properties into "immovable" (real
already possessed and found in property) and "movable" (personal property):
the possession of man
Under the Civil Code Movable properties Immovable properties
Is not confined to things which are already appropriated or possessed In acquisitive prescription
by man but also extends to those susceptible of such appropriation, are acquired through four or eight acquired through 10 or 30 years
although yet appropriated. years of prescription. of prescription
As object of accessory contract
HENCE, under the CC, things and property are identical to each In pledge and chattel mortgage, while in real estate mortgage,
other. the subject matter is a personal the subject matter is a real
property property
As to formal requirements in donation
If what is donated is a personal If what is donated is a real
property and the value of which property, the donation and the
exceeds P5,000, the donation and acceptance must be embodied
the acceptance must be in writing, in a public instrument, otherwise,
otherwise, the donation is void the donation is void
In extrajudicial deposit

1
The object must be personal
property
In criminal law
Only a personal property can be the object of the crime of
the object of the crimes of theft usurpation of real property is a
and robbery real property
In procedural law
otherwise,( personal property) the If the action affects title to or
venue of the action is either the possession of a real property or
residence of the plaintiff or any interest therein (referred to
defendant, at the option of the as "real action), its venue is in
former the place where the property is
situated;

2
[Title I — Classification of Property] (b) Kinds of Immovable Property:
[Chapter 1: Immovable Property]
(Art. 415, NCC) 1. Immovable by nature those which by their essence and
Real Property, In General nature are immovable or cannot be
moved from one place to another, such
(a) Enumeration: The Civil Code does not define immovable or real as lands, roads, mines, quarries and
property but enumerates what are considered as such, as follows: slug dumps
2. Immovable by those which are treated as immovable
1. land, buildings, roads and constructions of all kinds adhered to the incorporation by reason of their attachment or
soil; incorporation to an immovable in such
2. trees, plants, and growing fruits, while attached to the land or forming manner as to be an integral part thereof,
an integral part of an immovable; such as buildings and constructions of
3. everything attached to an immovable in a fixed manner, in such a all kinds adhered to the soil;
way that it cannot be separated therefrom without breaking the trees, plants and growing fruits attached
material or deterioration of the object; to the land or forming an integral part of
4. statues, reliefs, paintings or other objects for use or " ornamentation, an immovable:
placed in buildings or on lands by owner of the immovable in such a and those that are attached to an
manner that it reveals the intention to attach them permanently to the immovable in the manner provided for in
tenements; paragraph 3 of Article 415
5. machinery, receptacles, instruments or implements intended by the 3. Immovable by those which are essentially movable,
owner of the tenement for an industry or works which may be carried destination but by the purpose for which they have
on in a building or on a piece of land, and which tend directly to meet been placed in an immovable, partake
the needs of the said industry or works; of the nature of the latter because of the
6. animal houses, pigeon-houses, beehives, fish ponds or breeding added utility derived therefrom, such as
places of similar nature, in case their owner has placed them or those mentioned in pars. 4, 5, 6, 7 and
preserves them with the intention to have them permanently attached 9 of Article 415
to the land, and forming a permanent part of it, and the animals in 4. Immovable by those that are mentioned in par. 10 of
these places are included; analogy Article 415.
7. fertilizer actually used on a piece of land;
8. mines, quarries and slug dumps, while the matter thereof forms part
of the bed, and waters either running or stagnant;
9. docks and structures which, though floating, are intended by their Buildings
nature and object to remain at a fixed place on a river, lake, or coast; (a) A building is always immovable under the Code
and
10. contracts for public works, and servitudes and other real rights over  But a building that is merely superimposed on the soil or is sold
immovable property. for immediate demolition is considered as movable or personal
property. The "building" that is referred to in Article 415 (1)

3
 of the Civil Code is a "true building," or one that is not merely
superimposed on the soil but permanently attached to the land.
 A building by itself is a real or immovable property distinct from
the land on which it is constructed and therefore can be a
separate subject of contracts.
 The mere fact that the parties to a contract seem to have dealt
with it separate and apart from the land on which it stood in no
wise changed its character as immovable property.
 Thus, a building by itself may be mortgaged apart from the land
on which it has been built.
(b) It is an immovable by incorporation.
 Hence, once the house is demolished, it ceases to exist as such
and hence its character as an immovable likewise ceases.
 A building is an immovable property, irrespective of whether or
not said structure and the land on which it is adhered to belong
to the same owner or whether the building is erected by the
owner of the land or by a usufructuary or lessee.
 To hold it the other way, the possibility is not remote that it
would result in confusion, for to cloak the building with an
uncertain status made dependent on the ownership of the land,
would create a situation where a permanent fixture changes its
nature or character as the ownership of the land changes
hands.
(c) Principle of estoppel applies.
 However, if the parties will treat a building as a movable, as
between them, they are estopped from alleging the contrary.
 But in applying the principle of estoppel, the character of the
building as a real property is not altered because the same is
provided for by law and cannot be changed by mere agreement
of the parties.
 Under the principle of estoppel, the parties are simply barred
from questioning the validity of the agreement they voluntarily
entered into and from which they derived benefits.
 However, the foregoing principle or view is not applicable to
strangers to said contract As far as third persons, who are not
parties to the contract, the house (or building) is considered as
an immovable property.
 With more reason that the principle cannot be applied, if there is
no contract whatsoever with respect to the status of the
building.
 However, the Register of Deed may not refuse the registration
of a chattel mortgage on the pretext that the subject matter
thereof is not a personal property, for the duties of the register
of deeds in respect to the registration of chattel mortgages are
of purely ministerial in character
Construction Adhered to the Soil
Requisites:
1. the construction must be attached permanently to the land, and
2. it must not be of provisional or temporary character but fixed or
integral.
Application:
Thus, the steel towers in one case were not considered real property
because they were "removable and merely attached to a square metal
frame by means of bolts, which when unscrewed could easily be
dismantled and moved from place to place."
However, the pipeline system in another case was considered real
property because it is attached to the land in such a way that it cannot
be separated therefrom without dismantling the steel pipes which were
welded to form the pipeline.
4
Trees, Plants, and Growing Fruits Application of principle of estoppel:

Trees and plants:
 They are immovable by reason of their incorporation to the soil
or because they form an integral part of an immovable.
 If, therefore, the trees or plants are cut or uprooted for purposes
of making them firewood or timber they become movable
property except when the timber constitutes the natural product
of the tenement and, therefore, forms an integral part of the
immovable.34
 However, the fact that the machineries are heavy, bolted or
cemented on the real property, for example, does not make
them ipso facto immovable under Article 415(3) as between the
parties, since their intent has to be looked into.
 Thus, if the parties treat the machinery as chattels, they are
bound by their agreement under the principle of estoppel38
notwithstanding the fact the machinery may have been attached
to an immovable in a fixed manner and may not be separated
there from without breaking the material or deterioration of the
object to which it is attached.

Growing fruits:

 They are considered as real property so long as they are still Requisites of par. 4:
attached to the soil. 1. they must be placed in buildings or on lands by the owner of the
 But for certain purposes and while still attached to the soil, immovable or by his agent; and
growing fruits may exceptionally be treated as personal property 2. the attachment must be intended to be permanent.
pursuant to the provisions of Article 416(2) of the New Civil
Code.
 By way of example, ungathered fruits are considered personal
(d) Pars. 3 and 4. distinguished:
property for the purpose of sale of the whole or part of the
crops. Par 3 Par 4
 In addition, ungathered fruits have the nature of personal while it is immaterial as to who the incorporation must be made
property for purposes of attachment and execution and in makes the incorporation in par. 3; by the owner of the immovable
applying the provisions of the Chattel Mortgage Law either personally or through an
agent
Immovable Property Under Pars. 3 and 4 of Article 415 the incorporation in par. 3 must in par. 4, separation is possible
Requisites of Par. 3: be such that separation is not without deterioration of the
possible; immovable or destruction of the
1. To become immovable, the property must be placed in a fixed material
manner in another immovable and
2. in such a way that it cannot be separated therefrom without
breaking the material or deterioration of the object.

Machinery, Receptacles, Instruments or Implements (Par. 5)

5
Requisites for immovability:
1. The property must be machineries, receptacles, instruments or
implements.
2. They must be destined for use in the industry or work in the
tenement and must be essential and principal elements of the
industry or works.
3. The industry or work must be carried on in a building or on a
piece of land
4. They must be placed by the owner of the tenement. If placed by
a tenant, they are not immobilized except when the tenant acts
as an agent of the owner as when the tenant places it there
pursuant to a contract that it shall belong to the owner.
However, such rule applies only to the tenant, his assignees
and creditors who had sufficient notice of the agreement or
stipulation.
Application of principle of estoppel:
Although the machineries are essential and principal elements of the
industry, they can be proper subjects of a writ of replevin if the parties
have treated the same as personal property
Docks and Structures (Par. 9)
 They are considered immovables, though floating, as long as
they are intended by their nature and object to remain at a fixed
place on a river, lake, or coast.
 Provincial Assessor of Batangas City assessed a real estate tax
on the power barges operated by FELS Energy, Inc., which
power barges were moored at Balayan Bay in Calaca,
Batangas. The Court held that the power barges are
categorized as immovable properties by destination pursuant to
the provisions of Article 415(9) of the NCC, being in the nature
of machinery and other implements intended by the owner for
an industry or work which may be carried on in a building or on
a piece of land and which tend directly to meet the needs of
said industry or work
Immovable by Analogy (Par. 10)
 Except for rights arising from contracts for public works which
are classified as real property under par. 10 of Article 415, all
personal rights will fall under personal property regardless of the
subject matter thereof.
 With respect to real rights, however, the classification thereof
will depend on its subject matter. If the subject matter of the real
right is a real property, then such real right is a real property.
 This is clear from par. 10 of Article 415 which classifies as real
property "real rights over immovable property."
 This, a real estate mortgage is a real right and a real property
by itself.
 Article 2126 of the Civil Code describes the real nature of a
mortgage:
o it is a real right following the property, such that in
subsequent transfers by the mortgagor, the transferee
must respect the mortgage. A
o registered mortgage lien is considered inseparable
from the property inasmuch as it is a right in rem
 Easement (or servitude) is also a real property under par. 10
because it is a real right that is exercised over an immovable
property belonging to another person.
 On the other hand, if the subject matter of the real right is a
personal property, as in the case of chattel mortgage, such real
right is classified as a personal property.
6
Definition of Real Property in Real Property Taxation
 As between the Civil Code, a general law governing property
and property relations, and the Local Government Code, a
special law granting local government units the power to impose
real property tax, the latter prevails for the purpose of
determining which property is subject to real property tax.51
Furthermore, in Caltex (Philippines), Inc. v. Central Board of
Assessment Appeals, the Court acknowledged that it is a
familiar phenomenon to see things classed as real property for
purposes of taxation which on general principle might be
considered personal property."
 Therefore, for determining whether machinery is real property
subject to real property tax, the definition and requirements
under the Local Government Code are controlling.
 While the Local Government Code does not provide for a
specific definition of "real property," Sections 199(o) and 232 of
the said Code, respectively, gives an extensive definition of
what constitutes "machinery" and unequivocally subjects such
machinery to real property tax.
 The machinery subject to real property tax under the Local
Government Code may or may not be attached, permanently or
temporarily to the real property"; and the physical facilities for
production, installations, and appurtenant service facilities,
those which are mobile, self-powered or self-propelled, or are
not permanently attached must
o (1) be actually, directly, and exclusively used to meet
the needs of the particular industry, business, or
activity; and
o (2) by their very nature and purpose, be designed for,
or necessary for manufacturing, mining, logging,
commercial, industrial, or agricultural purposes. In other
words, the Local Government Code considers as real
property machinery which "may or may not be
attached, permanently or temporarily to the real
property," and even those which are "mobile.
 Under the Local Government Code, in order to classify
"machinery" as realty for taxation purposes, what is important is
that the same must be "essential" or "necessary" to the
operation of the business or industry.
 If so, it is classified as realty subject to real property tax, even if
the other requirements of par, (5) of Article 415 of the New Civil
Code may not be present. Thus, in Caltex (Phils.), Inc. v. CBAA,
the equipment and machinery therein involved were held to be
subject to realty tax because they "are necessary to the
operation of the gas station, for without them the gas station
would be useless," even if the same were placed thereon not by
the owner of the land
 As to whether a structure constitutes an improvement so as to
partake of the status of realty for purposes of imposition of
realty tax, will depend, according to the Court, upon the degree
of permanence intended in its construction and use.
o In the case of Benguet Corp. v. CBAA, et a.,the
petitioner questioned the imposition of real estate taxes
on the failings dam it constructed, arguing that that the
dam cannot be subjected to realty tax as a separate
and independent property because it does not
constitute an "assessable improvement" on the mine.
o In sustaining the imposition of realty tax over the
failings dam, the Court held that the dam falls within the
definition of an "improvement" because it is permanent
in character and it enhances both the value and utility
of petitioner's mine.
o The same ruling was made by the Supreme Court in
the case of Manila Electric Co. u. CBAA№ involving
7
two storage tanks, which while not embedded in the
land were nonetheless considered as improvements on
the land because: (1) they enhanced its utility and
rendered it useful to the oil industry and (2) they have
been installed with some degree of permanence as
receptacles for the considerable quantities of oil
needed by MERALCO for its operations.

8
[Chapter 2: Movable Property]
(Arts. 416-418, NCC)
Movable Property
(a) In general, all things susceptible of appropriation which can be
transported from place to place without impairment of the real property
to which they are fixed and are not included in the enumeration in Article
41560 are classified as personal or movable property.
(i) For example, interest in business was declared to be personal
property since it is capable of appropriation and not included in the
enumeration of real properties.
(ii) Business is likewise not enumerated as real property under the Civil
Code. Just like interest in business, however, it may be appropriated.
Following the ruling in Strochecker u. Ramirez, business should also be
classified as personal property. Since it is not included in the exclusive
enumeration of real properties under Article 415, it is therefore personal
property.
The act of conducting International Simple Resale (ISR) operations by
illegally connecting various equipment or apparatus to PLDT's telephone
system, through which a person or entity is able to resell or re-route
international long distance calls using PLDT's facilities but without
passing through the toll center of PLDTs International Gateway Facility
(IGF), is theft. In a much earlier case,the Court ruled that international
long distance calls and the business of providing telecommunication or
telephone services by PLDT are not personal properties that can be the
subject of theft.
In resolving the motion for reconsideration of the same case decided by
the Court en banc, it was ruled however that PLDT's telephone service
or its business of providing this was appropriable personal property and
was, in' fact, the subject of appropriation in an ISR operation, facilitated
by means of the unlawful use of PLDT's facilities.
In granting the motion for reconsideration, the Court ruled that even prior
to the passage of the Revised Penal Code, jurisprudence is settled that
Many personal property, tangible or intangible, corporeal or incorporeal,
capable of appropriation can be the object of theft." This jurisprudence,
in turn, applied the prevailing legal meaning of the term "personal
property" under the old Civil Code as "anything susceptible of
appropriation and not included in the foregoing chapter (not real
property)" This ruling was reiterated in a subsequent case.66
(b) In addition, the following property are expressly declared to be
personal (or movable):
a. Real property which by any special provision of law is considered
as personally, such as growing fruits although attached to the land
for purposes of the sale of the whole crops, for purposes of the
Chattel Mortgage Law, or for purposes of attachment or execution.
b. Forces of nature which are brought under control by science,such
as ga and electricity;
c. In general, all things which can be transported from place to place
without impairment of the real property to which they are fixed,such
as vessel;
d. Obligations and actions which have for their object movables or
demandable sums, but a mortgage loan is considered real property
because it is a real right over an immovable property and,
therefore, considered real by analogy; and
e. Shares of stocks of agricultural, commercial and industrial entities,
although they may have real estate.
9
Consumable and non-consumable:

A consumable non-consumable
is a movable which cannot be is a movable which can be used
used in a manner appropriate to in a manner appropriate to its
its nature without itself being nature without itself being
consumed consumed.
The classification applies to movables and to corporeal objects only.

In classifying movables into consumable or non-consumable, the basis

of the classification is the very nature of the corporeal object itself.

(d) Fungible and non-fungible:

fungible Non-fungible
as if, by the intention of the otherwise
parties, it can be replaced by
another of the same kind
the basis of the classification of movables into fungible or non-fungible is
simply the intention of the parties.

10
[Chapter 3: Property in Relation to the Person to Whom It Belongs]
(Arts. 419-426, NCC)
Classification of Property (From Viewpoint of Ownership)
(a) In relation to the State, its properties are either of public dominion
or patrimonial;
(b) In relation to the political subdivisions (provinces, cities and
municipalities), their properties are either of public dominion (for
public use) or patrimonial; and
(c) In relation to persons and entities other than the State and its
political subdivisions — or private persons, either individually or
collectively — their properties are classified as that of private
ownership.
Properties of the State (Classified as Public Dominion)
3 kinds: In relation to the State, there are three kinds of property of
public dominion:
(1) those that are intended for public use;
(2) those that are intended for some public service; and
(3) those that are intended for the development of national wealth.
Public dominion, as "public ownership":
 In a sense, the term "public dominion" means ownership by the
public in general or "public ownership."
 As used in this sense, the ownership referred to is a "special
collective ownership for the general use and enjoyment, an
application to the satisfaction of collective needs, and resides in
the social group
 Viewed in this light, the State holds these properties not in the
concept of an owner but only in consequence of its territorial
integrity.
Hence, the relation of the State to these properties arises from the fact
that the State is the juridical representative of the social group, and as
such it takes care of them, preserves them and regulates their use for
the general welfare.
(iii) Since the ownership of these properties belong to the public in
general and not to the State,
the latter may not make them the object of commerce unless they are
properly converted into patrimonial properties pursuant to the provisions
of Article 422 of the NCC.
(c) Public dominion, as state ownership
 In another sense, the term "public dominion may also mean
properties or things held by the State by regalian right.
 Under Section 2 of Article XII of the 1987 Philippine
Constitution, which reaffirms the regalian doctrine or jura regalia
earlier enshrined in the 1935 Philippine Constitution, all lands of
the public domain as well as all natural resources are owned by
the State.While these properties are owned by the State, they
remain to be part of the public dominion.
 Properties under this category may not be alienated but are not
totally outside the commerce of man as the Constitution allows
the State to enter into co-production, joint venture or production-
sharing agreements with private individuals or corporations for
their exploration, development and utilization. Fishponds, for
example, which are likewise owned by the State, may not be
alienated but they may be the subject of fishpond lease
agreement.
(d) Reminders:
 In order to be classified as property of public dominion, an
intention to devote it to public use or to public service is
11
 sufficient and it is not necessary that it must actually be used
as such
 Public use is that "use which is not confined to privileged
individuals, but is open to the indefinite public.
 Hence, properties for public use may be distinguished from
properties intended for public service in that the former may be
used indiscriminately by the public while the latter, although
used for the benefit of the public, cannot be used
indiscriminately by anyone but only by those that are authorized
by proper authority.
Property of Public Dominion (Pertaining to State):
Intended For Public Use
(a) Properties of public dominion intended for public use: Roads, canals,
rivers, torrents, ports and bridges constructed by the State; banks,
shores, roadsteads, and others of similar character.97
(b) Canals:
(i) If the canal is situated within a public property98 or the same is
constructed by the State and devoted to public use, it is a
property of public ownership."
(ii) On the other hand, canals constructed by private persons
within their private lands and devoted exclusively for private use
are of private ownership. However, its owner may lose any right
over it by prescription if he will allow said canal to be used by the
public for navigation and fishing purposes for a very long period of
time.
(c) Rivers:
(i) "Rivers" is a composite term which includes:
(1) the running waters,
(2) the bed, and
(3) the banks.
And since rivers are of public ownership, it is implicit that all the
three component elements be of the same nature also.
(ii) The "natural bed" or "channel" of a creek or river is the ground
covered by its waters during the highest floods."
(iii) The phrase "banks of a river" is understood to be those
"lateral strips or zones of its beds which are washed by the
stream only during such high floods as do not cause inundations."
In other words, the banks refer to the lateral lines or strips
reached by the waters when the river is at high tide.
(iv) Accretions on river banks, however, belong to the owner of
lands adjoining the banks, provided that the deposit is due to the
effects of the current of the river.
Where the deposit of land was not formed solely by the natural
effect of the water current of the river bordering said land, but is
also the consequence of the direct and deliberate intervention of
man, it is deemed a man-made accretion and, as such, part of the
public domain
(d) Ports:
(i) The term "ports" in Article 420(1) of the NCC includes seaports and
airports.
(ii) The Airport Lands and Buildings of the Manila International Airport
Authority (MIAA) and Mactan-Cebu International Airport Authority
(MCLAA) constitute a "port" constructed by the State.
 These properties are devoted to public use because they are
used by the public for international and domestic travel and
transportation and the fact that the MIAA and the MCIAA collect
terminal fees and other charges from the public does not
remove the character of the Airport Lands and Buildings as
properties for public use.
12
 Hence, these properties cannot be subjected to levy,
encumbrance or disposition through public or private sale.
 In MCAA v. Court of Appeals MIAA v. City of Pasay and MCIAA
u. City of Lapu-Lapu, the Court ruled that the MIAA and MCIAA
are both instrumentality of the government, with their real
properties being owned by the Republic of the Philippines, and,
therefore, exempt from real estate tax imposed by the local
government.
 The only exception is when MIAA or MCIAA leases its real
property to a "taxable person" as provided in Section 234(a) of
the Local Government Code, in which case the specific real
property leased becomes subject to real estate tax.
 Thus, only portions of the Airport Lands and Buildings leased to
taxable persons like private parties are subject to real estate
tax.
 In the same vein, the port built by the State in the Iloilo fishing
complex, known as the Iloilo Fishing Port Complex (IFPC), is a
property of the public dominion and cannot therefore be sold at
public auction.
 In Philippine Fisheries Development Authority v. Court of
Appeals, the Court also ruled that the Philippine Fisheries
Development Authority is not a GOCC but an instrumentality of
the national government which is generally exempt from
payment of real property tax.
 However, said exemption does not apply to the portions of the
Iloilo Fishing Port Complex (IFPC) which the Authority leased to
private entities.
 With respect to these properties, the Authority is liable to pay
real property tax. Nonetheless, the IFPC, being a property of
public dominion cannot be sold at public auction to satisfy the
tax delinquency.
 In Curata u. Philippine Ports Authority, the Court ruled that the
Philippine Ports Authority is likewise not a GOCC but a
government instrumentality and that the docks, piers and
buildings it administers are owned by the Republic and, thus,
outside the commerce of man.
 Such being the case, the Court also ruled that PPA's monies,
facilities and assets are government properties which are
exempt from execution whether by virtue of a final judgment or
pending appeal.
(e) Shores and foreshores
"Shore"
 is understood to be that space which is alternately covered and
uncovered by water with the movements of the tides.
 Its interior or terrestrial limit is the line reached by the highest
equinoctial tides.
 Where the tides are not appreciable, the shore begins on the
landside at the line reached by the sea during ordinary storms
or tempests.
 Shores are properties of public dominion
 Thus, when the sea advances and private properties are
permanently invaded by the waves, the properties so invaded
become part of the shore or beach and they then pass to the
public domain.
 The owner thus dispossessed does not retain any right to the
natural products resulting from their new nature; it is a de facto
case of eminent domain, and not subject to indemnity.
 Accretions and alluvial deposits caused by the action of the sea
are governed by Article 4 of the Spanish Law of Waters of
1866, an old but still valid law.
13
 o Under said law, "lands added to the shores by
accretions and alluvial deposits caused by the action of
the sea, form part of the public domain."
o The accretion on the foreshore of the Manila Bay,
the latter being an inlet or an arm of the sea, for
example, is part of the public domain.
 On the other hand, the Laguna de Bay is a lake the accretion on
which, by the mandate of Article 84 of the Spanish Law of
Waters of 1866, belongs to the owner of the land contiguous
thereto.
 Foreshore lands are also part of the public dominion.
 It is not capable of private appropriation.
 Foreshore land is that part of the land immediately in front of the
shore; the part which is between high and low water marks, and
alternately covered with water and left dry by the flux and reflux
of the tides. It is indicated by a middle line between the highest
and lowest tides."
 However, the land's proximity alone to the waters does not
necessarily make it a foreshore land.
 To qualify as foreshore land, it must be shown that the land lies
between the high and low water marks and is alternately wet
and dry according to the flow of the tide.
 Thus, in Republic v. Lensico,135 the Court held that although
the two comers of the subject lot adjoins the sea, the lot cannot
be considered as foreshore land since it has not been proven
that the lot was covered by water during high tide.
 In Almagro v. Kwan, the Court similarly ruled that when it is
clearly proven that the disputed land remained dry even during
high tide, the same is not foreshore but private land.
 Natural lakes and lagoons and their beds belong to the State
and are part of public dominion.
 Lakes and lagoons naturally occurring on private lands also
belong to the State.
 The Laguna de Bay has long been recognized as a lake
 As such, the accretion occurring therein, by mandate of Article
84 of the Spanish Law of Waters of 1866, belongs to the owner
of the land contiguous thereto.
 The natural bed or basin of lakes, ponds, or pools, is the ground
covered by their waters when ay their highest ordinary depth. In
Republic v. Alagad,
 the Supreme Court defined the highest ordinary depth of the
waters of the Laguna de Bay as the highest depth of the waters
during the dry season or such depth being the regular, common,
natural, which occurs always or most of the time during the
year.
 Otherwise stated, where the rise in water level is due to the
"extraordinary" action of nature, rainfall for instance, the portions
inundated thereby are not considered part of the bed or basin of
the body of water in question.
 In Pelbel Manufacturing Corp. v. Court of Appeals, the Court
ruled that the parcels of land subject of the application for land
registration form part of the lake bed or basin of Laguna Lake
because the areas sought to be registered are below the
statutory minimum elevation of 12.50 meters, as required by
Section 41(11) of R.A. No. 4850.
 It was explained that lands located at and below such elevation
are public lands which form part of the bed of said lake.
14
Creeks:
 A creek is defined as a recess or arm extending from a river and
participating in the ebb and flow of the sea.
 It is a property belonging to the public domain which is not
susceptible to private appropriation and acquisitive prescription,
and, as public water, it cannot be registered under the Torrens
System in the name of any individual.
 It is included in the phrase "others of similar character" in
paragraph 1 of Article 420 of the New Civil Code.
Military Reservation
 In Navy Officers' Village Association, Inc. u. Republic,the
Republic sought to cancel the sale it entered into with NOVAI on
the ground that the subject matter thereof is a parcel of land that
is part of the Fort Andres Bonifacio Military Reservation
(FBMR).
 The Court ruled that parcels of land classified as reservations
for public or quasi-public uses:
o (1) are non-alienable and non-disposable in view of
Section 88 (in relation with Section 8 of C.A. No. 141
specifically declaring them as non-alienable and not
subject to disposition; and
o (2) they remain public domain lands until they are
actually disposed of in favor of private persons.
 Also, from the perspective of the general Civil Code provisions
on Property, lands which are intended for public use or public
service such as reservations for public or quasi-public uses are
property of the public dominion and remain to be so as long as
Water Works System:
they remain reserved.
 As property of the public dominion, public lands reserved for
public or quasi-public uses are outside the commerce of man.
 They cannot be subject to sale, disposition or encumbrance;
any sale, disposition or encumbrance of such property of the
public dominion is void for being contrary to law and public
policy.
 To be subject to sale, occupation or other disposition, lands of
the public domain designated as reservations must first be
withdrawn, by act of Congress or by proclamation of the
President, from the public or quasi-public use for which it has
been reserved or otherwise positively declared to have been
converted to patrimonial property, pursuant to Sections 8 and
88 of CA No. 141 and Article 422 of the Civil Code.
 Without such express declaration or positive governmental act,
the reserved public domain lands remain to be public dominion
property of the State.
 In Republic v. Bacas, involving parcels of land occupied and
utilized as part of the Camp Evangelista Military Reservation
but were fraudulently titled in the name of private individuals,
the Court ordered the cancellation of the titles on the ground
that said parcels of land are property of public dominion.
 The Court explained that when a property is officially declared a
military reservation, it becomes inalienable and outside the
commerce of man, may not be the subject of a contract or of a
compromise agreement and continues to be part of the public
domain, not available for private appropriation or ownership,
until there is a formal declaration on the part of the government
to withdraw it from being such.
 The Court also ruled that land of the public domain is not ipso
facto converted into a patrimonial or private property by the
mere possession and occupation by an individual over a long
period of time.
 In General Mariano Alvarez Services Cooperative, Inc. v.
NHA,the Bureau of Public Works (BPW) turned over to the NHA
a completed water works system in General Mariano Alvarez,
Cavite. NHA, in turn, turned over the same water works system
to GEMASCO, a cooperative water company. In a labor case
15
 filed against GEMASCO, the sheriff attached and scheduled for
auction sale three water tanks forming part of the water system.
 The Supreme Court ruled that the attachment is not valid
because the water works system in General Mariano Alvarez,
Cavite, including the three water tanks subject of the assailed
writ of execution, is devoted to public use and thus, property of
public dominion.
 The Court further ruled that properties of public dominion, being
for public use, are not subject to levy, encumbrance or
disposition through public or private sale and any encumbrance,
levy on execution or auction sale of any property of public
dominion is void for being contrary to public policy.
 Otherwise, essential public services would stop if properties of
public dominion would be subject to encumbrances,
foreclosures, and auction sale.
Reclaimed Lands of Public Estates Authority:
 In the case of Chavez v. Public Estates Authority and AMARI
Coastal Development Corporation, the Court held that foreshore
and submerged areas irrefutably belonged to the public domain
and were inalienable unless reclaimed, classified as alienable
lands open to disposition and further declared no longer needed
for public service. The fact that alienable lands of the public
domain -were transferred to the Public Estates Authority (now
Philippine Reclamation Authority, or PRA) and issued land
patents or certificates of title in PEA'S name did not
automatically make such lands private.
 The Court also held therein that reclaimed lands retained their
inherent potential as areas for public use or public service.
 In Republic v. City of Paranaque, when the City of Paranaque
issued Warrants of Levy on PRA's reclaimed properties for non-
payment of real estate taxes, specifically portions of the
foreshore and offshore areas of Manila Bay, the Court held that
reclaimed lands such as the subject lands in issue are reserved
lands for public use. They are properties of public dominion, the
ownership of which remains with the State unless they are
withdrawn by law or presidential proclamation from public use.
 Being properties of public dominion, they are not subject to
execution or foreclosure sale.
 The Court thus declared invalid the assessment, levy and
foreclosure made on the subject reclaimed lands by the City of
Paranaque.
Property of Public Dominion (Pertaining to State):
Intended for Public Service and for Development of National Wealth
Intended for Public Service:
 Those which belong to the State, without being for public use,
and are intended for some public service, such as government
buildings, military camps and navy ships. Another example of a
property falling under this category is the Roppongi property,
which under the Reparations Agreement, was specifically
designated to house the Philippine Embassy.
For Development of National Wealth:
 Those which belong to the State, without being for public use,
and are intended for the development of the national wealth,
such as mineral lands, forest or timber lands and other natural
resources.
(i) Under the "Regalian Doctrine," all lands of the public domain,
waters, minerals, coal, petroleum, and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State.
(ii) Natural resources are not available for alienation but the State may
enter into co-production, joint venture, or production-sharing
16
 agreements with Filipino citizens, or corporations or associations at
least 60% of whose capital is owned by such citizens, in connection
with the exploration, development and utilization of the same.
Included in the foregoing are the fishponds, which are owned by the
State and may not be alienated but only leased. A watershed
reservation and submerged lands are part of the State's natural
resource and cannot therefore be alienated.
(iii) Land, which is an immovable property, may be classified as either of
public dominion or of private ownership. Land is considered of public
dominion if it either: (a) is intended for public use; or (b) belongs to
the State, without being for public use, and is intended for some
public service or for the development of the national wealth. Land
belonging to the State that is not of such character, or although of
such character but no longer intended for public use or for public
service forms part of the patrimonial property of the State. Land that
is other than part of the patrimonial property of the State, provinces,
cities and municipalities is of private ownership if it belongs to a
private individual.
Alienable and Disposable Lands of the State.:
(i) Alienable and disposable lands of the State fall into two categories, to
wit:
(a) patrimonial lands of the State, or those classified as lands
of private ownership under Article 425 of the Civil Code,
without limitation; and
(b) lands of the public domain, or the public lands as provided
by the Constitution, but with the limitation that the lands
must only be agricultural. Consequently, lands classified as
forest or timber, mineral, or national parks are not
susceptible of alienation or disposition unless they are
reclassified as agricultural.
 A positive act of the Government is necessary to enable such
reclassification. and the exclusive prerogative to classify public
lands under existing laws is vested in the Executive
Department, not in the courts.
 If, however, public land will be classified as neither agricultural,
forest or timber, mineral or national park, or when public land is
no longer intended for public service or for the development of
the national wealth, thereby effectively removing the land from
the ambit of public dominion, a declaration of such conversion
must be made in the form of a law duly enacted by Congress or
by a Presidential proclamation in cases where the President is
duly authorized by law to that effect.
 Thus, until the Executive Department exercises its prerogative
to classify or reclassify lands, or until Congress or the President
declares that the State no longer intends the land to be used for
public service or for the development of national wealth, the
Regalian Doctrine is applicable.
(ii) In Heirs of Mario Malabanan u. Republic, the Court clarified that
lands of the public domain, whether declared alienable and disposable
or not, are property of public dominion and thus insusceptible to
acquisition by prescription.
 Stated otherwise, for as long as the property belongs to the
State, although already classified as alienable or disposable, it
remains property of the public dominion if when it is intended for
some public service or for the development of the national
wealth.
 Accordingly, there must be an express declaration by the State
that the public dominion property is no longer intended for public
service or the development of the national wealth or that the
property has been converted into patrimonial. Without such
express declaration, the property, even if classified as alienable
or disposable, remains property of the public dominion,
pursuant to Article 420(2), and thus incapable of acquisition by
prescription.
 It is only when such alienable and disposable lands are
expressly declared by the State to be no longer intended for
public service wealth for the development of national wealth that
the period of acquisitive prescription can begin to run.
17
 Such declaration shall be in the form of a law duly enacted by
Congress or a Presidential Proclamation in cases where the
President is duly authorized by law.
 The operation of the foregoing interpretation can be illustrated
by an actual example. R.A. No. 7227, more commonly known
as the BCDA law, authorizes the sale of certain military
reservations and portions of military camps in Metro Manila,
including Fort Bonifacio and Villamor Air Base.
 For purposes of effecting the sale of the military camps, the law
mandates the President to transfer such military lands to the
Bases Conversion Development Authority (BCDA).
 From the moment the BCDA law was enacted the subject
military lands have become alienable and disposable. However,
said lands did not become patrimonial, as the BCDA law itself
expressly makes the reservation that these lands are to be sold
in order to raise fands for the conversion of the former American
bases at dark and Subic. Such purpose can be tied to either
public service or the development of national wealth under
Article 420(2).
 Thus, at that time, the lands remained property of the public
dominion under Article 420(2) of the Civil Code, notwithstanding
their status as alienable and disposable. It is upon their sale as
authorized under the BCDA law to a private person or entity that
such lands become private property and cease to be property of
the public dominion.
Rules Relative to Disposition of Lands of Public Domain:
General rule:
 As a general rule and pursuant to the Regalian Doctrine, all
lands of the public domain belong to the State and are
inalienable.
 Lands that are not clearly under private ownership are also
presumed to belong to the State and, therefore, may not be
alienated or disposed.
Exceptions to general rule:
The following are excepted from the general rule, to wit:
(a) Agricultural lands of the public domain are rendered alienable and
disposable through any of the exclusive modes enumerated under
Section 11 of the Public Land Act (C.A. No. 141). If the mode is judicial
confirmation of imperfect title under Section 48(b) of the Public and Act,
the agricultural land subject of the application needs only to be classified
as alienable and disposable as of the time of the application, provided
the applicant's possession and occupation of the land dated back to
June 12, 1945, or earlier.
 Thereby, a conclusive presumption that the applicant has
performed all the conditions essential to a government grant
arises, and the applicant becomes the owner of the land by
virtue of an imperfect or incomplete title.
 By legal fiction, the land has already ceased to be part of the
public domain and has become private property.
(b) Lands of the public domain subsequently classified or declared as no
longer intended for public use or for the development of national wealth
are removed from the sphere of public dominion and are considered
converted into patrimonial lands or lands of private ownership that may
be alienated or disposed through any of the modes of acquiring
ownership under the Civil Code.
18
Characteristics of Property of Public Dominion
(a) They are outside the commerce of man.
 They cannot be subject to sale, disposition or encumbrance;
any sale, disposition or encumbrance of such property of the
public dominion is void for being contrary to law and public
policy.
 They cannot likewise be leased or otherwise be the subject
matter of contracts.
 Hence, the right of the public to use public property may not be
bargained away through contract.
Reminder:
 With respect to natural resources, however, the Constitution
allows the State to enter into coproduction, joint venture or
production-sharing agreements with private individuals or
corporations for their exploration, development and utilization.
 With respect to fishponds which are likewise owned by the
State, they may be leased although they may not be alienated.
 Under Section 45 of R.A. No.8550 otherwise, known as "The
Philippine Fisheries Code of 1998, public lands such as tidal
swamps, mangroves, marshes, foreshore lands and ponds
suitable fishery operations shall not be disposed or alienated
but they may be the subject matter of a fishpond lease
agreement.
(b) They are not susceptible to private appropriation and cannot be
acquired by acquisitive prescription.
 Since properties of public dominion are not subject to private
appropriation, they cannot be registered under the Land
Registration Law and be the subject of a Torrens Title.
(c) They are not subject to levy, encumbrance or disposition through
public or private sale.
 Any encumbrance levy on execution or auction sale of any
property of public dominion is void for being contrary to public
policy
 Essential public services will stop if properties of public
dominion are subject to encumbrances, foreclosures and
auction sale.
(d) They cannot be burdened by any voluntary easement.
Patrimonial Property of the State
Concept:
 All other property of the State, which is not of the character
stated in Article 420 of the NCC. is patrimonial property.
 It is considered as a property of the State in what may be called
the private sense.
 Otherwise stated, patrimonial property is private property of the
government.
 It is said that over this kind of property the State has the same
rights and has the same power of disposition as private
individuals subject, of course, to existing rules and regulations.
Examples of patrimonial property of the State:
(i) Friar lands over which the Government holds title are not public lands
but private or patrimonial property of the State. However, they can be
alienated only upon proper compliance with the requirements of Act No.
1120 or the Friar Lands Act.194
(ii) Lands of the public domain subsequently classified or declared as no
longer intended for public use or for the development of national wealth
are removed from the sphere of public dominion and are considered
converted into patrimonial lands or lands of private ownership that may
be alienated or disposed through any of the modes of acquiring
ownership under the Civil Code.
19
Patrimonial property may be acquired through prescription: are expressly declared by the State to be no longer intended for
public service or "for the development of the national wealth that
 In Alonso v. Cebu Country Club, Inc., it was held that the period of acquisitive prescription can begin to run.
"possession of patrimonial property of the Government whether  Such declaration shall be in the form of a law duly enacted by
spanning decades or centuries, can not ipso facto ripen into Congress or a Presidential Proclamation in cases where the
ownership" President is duly authorized by law.
 But in Heirs of Mario Malabanan v. Republic, the Court ruled
that patrimonial property of the State may be acquired by
prescription, citing Article 1113 of the Civil Code.
Conversion of property of public dominion into patrimonial:
 However, it was clarified in the resolution of the motion for
reconsideration in Heirs of Mario Malabanan v. Republic of the  In order to convert property of public dominion into patrimonial
Philippines, that only lands of the public domain subsequently property, there must be an affirmative act, either on the part of
classified or declared as no longer intended for public use or for executive or the legislative, to reclassify property of the public
the development of national wealth, or removed from the sphere dominion into patrimonial.
of public dominion and are considered converted into  The intention to reclassify must be clear, definite and must be
patrimonial lands or lands of private ownership, may be based on correct legal premises.
alienated or disposed through any of the modes of acquiring  Hence, the conversion can no longer be inferred from the non-
ownership under the Civil Code. And if the mode of acquisition use alone of the property for the purpose to which it is intended.
is prescription, whether ordinary or extraordinary, it must first be
 In the case of lands of the public domain, however, a
shown that the land has already been converted to private
declaration that property of the public dominion is alienable and
ownership prior to the requisite acquisitive prescriptive period.
disposable does not ipso facto convert it into patrimonial
Otherwise, Article 1113 of the Civil Code, which provides that
property.
property of the State not patrimonial in character shall not be
 Accordingly, there must be an express declaration by the State
the subject of prescription, applies.
that the public dominion property is no longer intended for public
 Otherwise stated, for as long as the property belongs to the
service or the development of the national wealth or that the
State, although already classified as alienable or disposable, it
property has been converted into patrimonial.
remains property of the public dominion if when it is intended for
 Without such express declaration, the property, even if
some public service or for the development of the national
classified as alienable or disposable, remains property of the
wealth.
public dominion, pursuant to Article 420(2), and thus incapable
 Accordingly, there must be an express declaration by the State
of acquisition by prescription.
that the public dominion property is no longer intended for public
 It is only when such alienable and disposable lands are
service or the development of the national wealth or that the
expressly declared by the State to be no longer intended for
property has been converted into patrimonial^ Without such
public service or for the development of the national wealth that
express declaration, the property, even if classified as alienable
the period of acquisitive prescription can begin to run.
or disposable, remains property of the public dominion,
 Such declaration shall be in the form of a law duly enacted by
pursuant to Article 420(2), and thus incapable of acquisition by
Congress or a Presidential Proclamation in cases where the is
prescription. It is only when such alienable and disposable lands
duly authorized by law.

20
Property of Political Subdivisions (Provinces, Cities and
Municipalities)
How classified:
 The nature of the properties owned by political subdivisions in
this country is determined by the character of the use or service
for which they are intended or devoted.
 Properties which are intended for public use or from some
public service are properties for public use.
 All others are patrimonial property.
Examples of property of political subdivisions for public use:
Provincial roads, city streets, municipal streets, the squares, fountains,
public waters, promenades, and public works for public service paid for
by said provinces, cities, or municipalities. Also classified as public
property are the provincial capital sites and city or municipal halls and
auto trucks used by the municipality for street sprinkling, the police patrol
automobile, police stations and concrete structures with the
corresponding lots used as markets.
Characteristics:
 The property of provinces, cities and municipalities for public
use is governed by the same principles as property of public
dominion of the same character.
 Hence, a public street is property for public use and hence
outside the commerce of man.
 Being outside the commerce of man, it may not be the subject
of lease or other contract.
 Town or public plazas are likewise properties of public
dominion, to be devoted to public use and to be made available
to the public in general and, therefore, beyond the commerce of
man and cannot be the subject of lease or any other contractual
undertaking.
Reclaimed lands by the LGUs:
 Unless the State, through Congress, grants this right, it is only
the National Government that can undertake reclamation work
and assert title to reclaimed land.
 It was only with the passage of RA. No. 1899 in 1957 that
Congress granted to chartered cities and municipalities a
general authority to reclaim foreshore lands bordering their
respective territories.
 R.A. No. 7160, otherwise known as the Local Government
Code of 1991, likewise empowers local government units to
undertake reclamation projects by themselves or through
contractors.
Nature of lands reclaimed by the LGUs:
 Whether reclaimed lands transferred to a public or municipal
corporation are public in nature or patrimonial depends upon the
legislative intent.
 Since the city or municipality may alienate lands it reclaimed
pursuant to R.A. No. 1899220 or it may pay a portion of the
reclaimed lands pursuant to Section 302 of the Local
Government Code, it appears that the lands reclaimed by local
government units pursuant to the aforesaid laws are patrimonial
in character unless said local government concerned reserves
certain portions of the reclaimed area for public use such as for
plazas, schools or hospitals, in which case, the reclaimed land
is characterized as land of the public domain.
21
TITLE II- OWNERSHIP Right to Enjoy

CHAPTER 1 Ownership in General Basic limitations on owner's right to enjoy:

Art 427-439
Rights Included in Ownership
Ownership, defined
An independent right of exclusive enjoyment and control of the thing for
the purpose of deriving therefrom all advantages required by the
reasonable needs of the owner(holder of the right) and promotion of the
general welfare but subject to the restrictions imposed by law and the
right of others.
1. An owner must not abuse his right. He cannot make use thereof
in such manner as to injure the rights of a third person. The
owner is liable for damages in cases when there is an abuse of
rights and the absence of good faith is essential to abuse of
rights.
2. If the exercise of the right is done in good faith, there is no
liability for damages under the principle of damnum absque
injuria.
To use a thing consists in employing it for the purpose for which it is fit,
without destroying it, and which employment can therefore be repeated.
Hence, the phrase jus utendi is used in contradistinction to the jus
abutendi. The latter right involves consumption of the thing by its use.

Object of Ownership:
Right to Recover:
 The subject matter of ownership may either be things or rights.
Must resort to judicial processes:

 Undeniably, under the law, jus possidendi is a necessary

Rights Included:
incident of ownership.
1. Right to enjoy, which includes the  However, the owner cannot exercise this right to the prejudice
 right over the fruits (jus fruendi), of a party whose possession is predicated on a contract like
 right to possess (jus possidendi), agency, trust, pledge or lease.
 right to use (jus utendi) and  A party vested with the right of possession to the property may
 right to consume or abuse (jus abutendi), set up this right even against the owner thereof.
2. Right to dispose;  Under Article 539 of the Civil Code, every possessor has a right
3. Right to recover; to be respected in his possession and, if deprived of such right,
4. Right to exclude others from the property; the law shall restore it to him.
5. Right to enclose or fence his property;  Thus, the owners or possessors of a property have no authority
6. Right to compensation in case of eminent domain; to use force and violence to eject alleged usurpers who were in
7. Right to the surface, the sub-surface and the space above the land; prior physical possession of it.
8. Right to hidden treasure; and  Without a doubt, the registered owner of real property is
9. Right of accession entitled to its possession.

22
  However, the owner cannot simply wrest possession thereof
from whoever is in actual occupation of the property.237 If he
does, he becomes liable for all the necessary and natural
consequences of his illegal act.
 Under the law, one who claims to be the owner of a property
possessed by another must bring the appropriate judicial action
for its physical recovery.
 The term judicial process could mean no less than an ejectment
suit or reivindicatory action, in which the ownership claims of the
contending parties may be properly heard and adjudicated.
Actions for recovery of possession of real property:
Under existing law and jurisprudence, there are three kinds of actions
available to recover possession of real property:
 The objective of the plaintiffs in accion publiciana is to recover
possession only, not ownership.
 However, where the parties raise the issue of ownership, the
courts may pass upon the issue to determine who between the
parties has the right to possess the property.
 This adjudication is not a final determination of the issue of
ownership; it is only for the purpose of resolving the issue of
possession, where the issue of ownership is inseparably linked
to the issue of possession.
 The adjudication of the issue of ownership, being provisional, is
not a bar to an action between the same parties involving title to
the property.
 The adjudication, in short, is not conclusive on the issue of
ownership.

1. accion interdictal; Accion interdictal comprises two distinct causes of action, namely,
2. accion publiciana; and forcible entry (detentacion) and unlawful detainer (desahuico).
3. accion reivindicatoria.

forcible entry unlawful detainer

An accion reivindicatoria, one is deprived of physical one illegally possession after the
 or an action for the recovery of possession of the real property Possession of real property by expiration or termination of his
as an element of ownership. means of force, Intimidation, right to hold possession any
strategy, threats, or stealth contract, express or implied
An accion publiciana, or an accion plenaria de posesion
Distinctions:
 is an ordinary civil proceeding to determine the better right of
possession of realty independently of title. Among foregoing actions:
 It also refers to an ejectment suit filed after the expiration of one
year from the accrual of the cause of action or from the unlawful  The issue in accion interdictal is limited to the right to physical
withholding of possession of the realty. possession or possession de facto, independently of any claim
 In other words, if at the time of the filing of the complaint more of ownership that either party may set forth in his or her
than one year had elapsed since defendant had turned plaintiff pleadings, albeit the court has the competence to delve into and
out of possession or defendant's possession had become resolve the issue of ownership but only to address the issue of
illegal, the action will be an accion publiciana. priority of possession.

23
 Both actions must be brought within one year from the date Between forcible entry and unlawful detainer:
of actual entry on the land
Forcible entry Unlawful detainer
forcible entry unlawful detained the plaintifif must prove that he the plaintiff need not have been
and from the date of last When the dispossession or was in prior physical possession in prior physical possession;
demand to vacate following unlawful deprivation has of the premises until he was
the expiration of the right to lasted more than one year, deprived thereof by the defendant
possess one may avail himself of the possession of the land by the , the possession of the defendant
accion publiciana to defendant is unlawful from the is inceptively lawful but it
determine the better right of beginning as he acquires becomes illegal by reason of the
possession, or possession possession thereof by force, termination of his right to the
dejure, of realty intimidation, threat, strategy or possession of the property under
independently of title stealth his contract with the plaintiff
the law does not require a the plaintiff must first make such
previous demand for the demand, which is jurisdictional in
 The objective of the plaintiff in accion publiciana is to recover defendant to vacate the nature
possession only, not ownership. premises,
 However, where the parties raise the issue of ownership, the In a long line of cases, the Court possession by a party was
courts may pass upon the issue to determine who between the reiterated that the fact of prior originally legal, as it was
parties has the right to possess the property. physical possession is an permitted by the other party on
 This adjudication is not a final determination of the issue of indispensable element in forcible account of an express or implied
ownership; it is only for the purpose of resolving the issue of entry cases. contract between them. However,
possession, where the issue of ownership is inseparably linked the possession became illegal
to the issue of possession. The plaintiff must prove that he when the other party demanded
 The adjudication of the issue of ownership, being provisional, is was in prior physical possession that the possessor vacates the
not a bar to an action between the same parties involving title to of the premises long before he subject property
the property. was deprived thereof by the
 The adjudication, in short, is not conclusive on the issue of defendant. Hence, the plaintiff because of the expiration or
ownership. cannot succeed where it appears termination of the right to
 An accion reinvindicatoria, on the other hand, is a suit which that, as between himself and the possess under the contract, and
has for its object the recovery of possession over the real defendant, the latter had the possessor refused to heed
property as owner. possession antedating his own. the demand
 It involves recovery of ownership and possession based on the
said ownership.  The importance of making a demand cannot be
overemphasized, as it is jurisdictional in nature.
 The one-year prescriptive period for filing a case for unlawful
detainer is tacked from the date of the last demand, the reason

24
 being that the other party has the right to waive the right of
action based on previous demands and to let the possessor
remain on the premises for the meantime.
Jurisdiction:
 In 2001, Congress approved RA. No. 7691 which expanded the
MTCs jurisdiction to include other actions involving title to or
possession of real property (accion publiciana and
reinvindicatoria) where the assessed value of the property does
not exceed P20,000, or P50,000, for actions filed in Metro
Manila.
 Hence, the doctrine that all cases of recovery of possession or
accion publiciana lies with the regional trial courts regardless of
the value of the property no longer holds true.
 As things now stand, the test of whether an action involving
possession of real property has been filed in the proper court no
longer depends solely on the type of action filed but also on the
assessed value of the property involved.
 More specifically, since MTCs now have jurisdiction over accion
publiciana and accion reinvindicatoria (depending, of course, on
the assessed value of the property), jurisdiction over such
actions has to be determined on the basis of the assessed
value of the property.
 The jurisdiction of the court over an action involving title to or
possession of land is now determined by the assessed value of
the said property and not the market value thereof.
 The assessed value of real property is the fair market value of
the real property multiplied by the assessment level. It is
synonymous to taxable value.
 The fair market value is the price at which a property may be
sold by a seller, who is not compelled to sell, and bought by a
buyer, who is not compelled to buy.
Requisites of accion reivindicatoria:
 A possessor of real estate property is presumed to have title
thereto unless the adverse claimant establishes a better right.
 Moreover, under Article 541 of the Civil Code, one who
possesses in the concept of owner has in his favor the legal
presumption that he possesses with a just title, and he cannot
be obliged to show or prove it.
 Similarly, Article 433 of the Civil Code provides that actual
possession under a claim of ownership raises a disputable
presumption of ownership
 Under Article 434 of the Civil Code, to successfully maintain an
action to recover the ownership of a real property, the person
who claims a better right to it must prove two things: first, the
identity of the land claimed; and
second, his title thereto.
 In regard to the first requisite, in an accion reinvindicatoria, the
person who claims that he has a better right to the property
must first fix the identity of the land he is claiming by describing
the location, area and boundaries thereof.
 It bears stress that in an action to recover real property, the
settled rule is that the plaintiff must rely on the strength of his
title, not on the weakness of the defendants title.
 This requirement is based on two reasons:
o first, it is possible that neither the plaintiff nor the
defendant is the true owner of the property in dispute,
and
o second, the burden of proof lies on the party who
substantially asserts the affirmative of an issue for he
who relies upon the existence of a fact should be called
upon to prove that fact.
Right to Exclude Others
25
Right to enclose or fence:
 Article 430 of the Civil Code gives every owner the right to
enclose or fence his land or tenement by means of walls,
ditches, hedges or any other means.
Doctrine of state of necessity:
 The right to fence flows from the right of ownership.
 As owner of the land, a property owner may fence his property
subject only to the limitations and restrictions provided by law
 Absent a clear legal and enforceable right, a neighbor cannot
restrain a landowner from fencing his own land.
Doctrine of self-help:
 In excluding others from the enjoyment of a property, the owner
or lawful possessor thereof may even use reasonable force to
repel or prevent an actual or threatened unlawful physical
invasion or usurpation of his property.
 The employment of such reasonable force in defense of his
property is what is known in juridical science as the doctrine of
self-help.
Who may invoke:
 The doctrine of self-help is available not only to owners of the
property but also to any of its "lawful possessor
Requisites of state of necessity:
When can it be invoked:
 The doctrine of self-help can only be exercised at the time of
actual or threatened dispossession.
 When possession has already been lost, the owner must resort
to judicial process for the recovery of the property.
 In People v. Narvaez, the Supreme Court credited the accused
with the special mitigating circumstance of incomplete defense
of property although the actual physical invasion of accused's
property was not coupled with an attack on his person.
 The SC invoked the doctrine of self-help under Article 429 of the
NCC.
 In the exercise of the right to exclude others from the enjoyment
of his property, the owner of a parcel of land or tenement also
has the right to enclose or fence the same by whatever means.
 In the enjoyment of his property, the owner cannot, however,
prohibit the interference by another if the same is necessary to
avert an imminent danger and the threatened damage,
compared to the damage arising to the owner from the
interference, is much greater
 This is known as the doctrine of state of necessity.
 The owner may, however, demand from the person benefited
indemnity for the damage to him.
 Thus, if the doctrine of state of necessity applies, the owner or
the lawful possessor may not resort to the doctrine of self-help.
Reason: the invasion or usurpation of his property is not
unlawful.
1. There must be a situation of grave peril, an actual or imminent
danger, either upon the person of the actor or a third person or
their property
2. The interference is necessary to avert such danger;
3. The threatened damaged, compared to the damage arising to
the owner from the interference, is much greater;
4. The state of necessity must not be brought about by the
intentional provocation of the party invoking the same
26
Right to Surface, Sub-surface and Airspace
 It is a well-known principle that the owner of piece of land has
rights not only to its surface but also to everything underneath
and the airspace above it up to a reasonable height, and he can
construct thereon any works, or make any plantations and
excavations which he may deem proper.
 However, such right of the owner is not absolute and is subject
to the following limitations:
o (1) servitudes or easements
o (2) special laws,
o (3) ordinances,
o (4) reasonable requirements of aerial navigation, and
o (5) rights of third persons.
 For example, Article 684 of the Civil Code provides that no
proprietor shall make such excavations upon his land as to
deprive any adjacent land or building of sufficient lateral or
subjacent support.
 An owner, by virtue of his surface right, may make excavations
on his Iand, but his right is subject to the limitation that he shall
not deprive any adjacent land or building of sufficient lateral or
subjacent support
 Between two adjacent landowners, each has an absolute
property right to have his land laterally supported by the soil of
his neighbor, and if either, in excavating on his own premises,
he so disturbs the lateral support of his neighbors land as to
cause it, or, in its natural state, by the pressure of its own
weight, to fall away or slide from its position, the one so
excavating is liable.
Right to sub-surface:
 The ownership of land extends to the surface as well as to the
subsoil underneath.
 This principle was applied to show that rights over lands are
indivisible and, consequently, requires a definitive and
categorical classification.
 A land cannot, therefore. be classified as half-agricultural and
half-mineral.
 In an expropriation case, the Court uphold the CA ruling which
deleted the inclusion of the value of the excavated soil in the
payment for just compensation because there is no legal basis
to separate the value of the excavated soil from that of the
expropriated properties.
 The Court, citing Article 437 of the Civil Code and the case of
National Power Corporation v. Ibrahim, explained that in the
context of expropriation proceedings, the soil has no value
separate from that of the expropriated land and that just
compensation ordinarily refers to the value of the land to
compensate for what the owner actually loses.
 The landowners' right extends to such height or depth where it
is possible for them to obtain some benefit or enjoyment, and it
is extinguished beyond such limit as there would be no more
interest protected by law.
 Hence, when a landowner cannot dig upon his property
motorized deep wells and was prevented from doing so by the
authorities precisely because of the construction and existence
of tunnels underneath the surface of his property constructed by
the NAPOCOR without the knowledge and consent of the
owner, the latter is entitled to recover the full compensation for
the land because the nature of the easement deprives the
owner of its normal beneficial use.
Right to airspace:
 If the landowner is to have full enjo3^ment of the land, he must
have exclusive control of the "immediate reaches of the
enveloping atmosphere."
 However, when it is said that man owns, or may own, to the
heavens, that merely means that no one can acquire a right to
27
 the space above him that will limit him in whatever use he can
make of it as a part of his enjoyment of the land.
 In other words, the landowner owns at least as much of the
space above the ground as he can occupy or use in connection
with the land
 To the extent that one’s land includes air space above the land,
any unauthorized physical entry into that space is to be
considered a trespass, if done by a private person, or a case of
“taking” of private property, if done under governmental authority.
 Thus, in the case of United States v. Causby, it was held that
repeated flights at low levels directly over private land may amount
to a taking for which just compensation must be paid to the
landowner.
 Limitations on owner's right to airspace
1. He is bound by height restrictions annotated on the certificate of
title if he acquired the property subject to such restrictions
following the principle that “contractual obligations between
parties have the force of law between them.”
2. For properties situated near the airport, their owners cannot
complain of the reasonable requirements of aerial navigation.
Right to Hidden Treasure
 Concept of hidden treasure:
 For a property to be considered as “hidden treasure,” the
following requisites must be satisfied:
a. the deposit of money, jewelry or other precious objects
must be hidden or unknown; and
b. the lawful ownership of which must not appear.”
 In case of natural resources, such as gold mines, diamond
mines, oil deposit, etc., the Regalian Doctrine applies and not
the provisions on hidden treasures.
 The Regalian Doctrine reserves to the State all natural wealth
that may be found in the bowels of the earth even if the land
where the discovery is made be private.
 Rule on hidden treasure:
 If the finder is the owner of the property on which the treasure
is found, the treasure is all his.
 If the finder is a trespasser, the treasure solely belongs to the
owner of the property on which the treasure is found.”
 If the finder is a third person who is not a trespasser and the
finding of the treasure is “by chance,” the finder is entitled to 1/2
of the treasure.
 The other half goes to the owner of the property.
 Rule in treasure hunting:
 If the search for the hidden treasure is deliberate, or otherwise
known as “treasure hunting,” a permit must be obtained from the
National Heritage Commission if the activity is for the purpose of
recovering treasures which are of cultural and historical values;
otherwise, the permit must be obtained from the Department of
Environment and Natural Resources.
 The net proceeds of the treasure hunting activity shall be
distributed, as follows:
i. For treasure hunting within public lands 75% to the Government
and 25% to the permit holder;
ii. For treasure hunting in private lands 30% to the Government and
70% to be shared by the permit holder and the landowner; and
iii. For shipwreck/sunken vessel recovery 50% to the Government and
50% to the permit holder.
28
 Limitations on Right of Ownership
 General limitations pursuant to the exercise of the inherent
sowers of the State:
 Police Power
 It is usually exercised in the form of mere regulation or restriction
in the use of liberty or property for the promotion of the general
welfare.
 It does not involve the taking or confiscation of property with
the exception of a few cases where there is a necessity to
confiscate private property in order to destroy it for the purpose
of protecting the peace and order and of promoting the general
welfare as for instance, the confiscation of an illegally
possessed article, such as opium and firearms.
 Thus, in police power, the owner does not recover from the
government for injury sustained in consequence thereof.
 Power of Eminent Domain
 The exercise of the power of eminent domain is constrained by
two constitutional provisions:
a. that private property shall not be taken for public use without
just compensation under Article III (Bill of Rights), Section 9
and
b. that no person shall be deprived of his/her life, liberty, or
property without due process of law under Article III, Section 1.
 In eminent domain, the property involved is wholesome and
intended for a public use.
 In police power, the property condemned is noxious or
intended for a noxious purpose.
 Hence, in the latter, the confiscation of property is not
compensable. In the former, however, the taking of property
requires the payment of just compensation to the owner.
 Power of Taxation
 Specific limitations imposed by law, such as:
 Legal easements which can be enforced by law and, therefore,
may be established even against the will of the owner of the
servient estate.”
 During a period of acute public want or emergency, thoughtless
extravagance in expenses for pleasure or display may be
stopped by order of the courts at the instance of any
government or private charitable institution
 Lands acquired under free patent or homestead cannot be
subject to encumbrance or alienation within five years from the
issuance of the patent.
 Inherent Limitations arising from conflicts with other rights
 It is a well-settled principle, growing out of the nature of well-
ordered civil society, that every holder of property, however
absolute and unqualified may be his title, holds it under the implied
liability that his use of it shall not be injurious to the equal
enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the rights of the community.
Examples:
 Limitation on owner's right to use:
 In relation to the exercise of the right to use property, Article
431 of the NCC mandates that “the owner of a thing cannot
make use thereof in such a manner as to injure the rights of a
third person.”
 Limitation on right of excluding others:
 While an owner is entitled to exclusive and undisturbed
possession of his property and has the right to exclude other
persons from its enjoyment and disposal, such right is
unavailing if the interference by a third person is borne out of a
state of necessity.
29
  This is provided for in Article 432 of the NCC.

 Limitations imposed by the owner himself:

 A testator may prohibit alienation of the property given by will
but such prohibition cannot exceed 20 years.

 A perpetual prohibition against alienation is, however, void for

being contrary to public policy.

 When, for example, the vendee of a parcel of land was

prohibited from selling the subject property except to the
vendor or to the latter’s heirs or successors, the Court held that
such prohibition to sell to third parties is contrary to public
policy because the same virtually amounts to a perpetual
restriction to the right of ownership, specifically the owner’s
right to freely dispose of his properties

 A provision in the deed of restrictions which required a

purchaser of a parcel of land to pay association fees is a valid
stipulation.

30
 (Title I] Ownership] payment of the interest, if owing, and thereafter to the principal of
(Chapter 2: Right of Accession] his credit.
(Arts. 440 -475, NCC) iv. A possessor in good faith is entitled to the fruits received by him
before his possession is legally interrupted.
Accession, In General v. Fruits naturally falling upon adjacent land belong _to the owner of
 Concept: Accession is the right of the owner of a thing to become the said land and not to the owner of the tree.
the owner of everything that is produced thereby or which may be
inseparably attached or incorporated thereto, either naturally or  Three kinds of fruits:
artificially. 1. Natural fruits
 Kinds of accession: There are two kinds of accession: There are two kinds of natural fruits namely:
a. Accession discreta; and a. The spontaneous products of the soil those that appear without the
b. Accession continua. intervention of human labor, such as the wild fruits in the forest,
herbs, and common grass; and
Accession discreta Accession continua b. The young and other products of animals, such as milk, hair, wool,
the right of the owner of a has been defined as that which
horn, hide, eggs, and animals dung or manure.
property to whatever is produced takes place when the property of
 If the young or offspring is a product of animals belonging to
thereby or to the fruits of the another is incorporated to ours,
different owners, “the young belongs to the owner of the female
same. or the right to acquire whatever is
parent,” in the absence of agreement to the contrary, based on
attached or incorporated naturally
the maxim partus sequitur ventrem the offspring follows the
or artificially to our things.
condition of the mother.
Accession Discreta
 Basic rule on accession discreta:
 To the owner belongs: 2. Industrial fruits
1. the natural fruits;  Those produced by lands of any kind through cultivation or labor.
2. the industrial fruits;  Hence, for a fruit to be classified as an industrial fruit, it must
3. the civil fruits. satisfy two requirements:
a. it is produced by the land; and
b. it is produced through cultivation or labor.
 Exceptions:
 Examples of industrial fruits are the coffee beans in a coffee
 When owner is not entitled to the fruits
plantation; mango fruits in a mango plantation: palay, corn, sugar
i. In usufruct, the usufructuary shall be entitled to all the natural,
cane produced by farmers.
industrial and civil fruits of the property in usufruct
ii. In lease of rural land, the lessee is entitled to the natural and
3. Civil fruits
industrial fruits of the thing leased while the lessor is entitled to civil
 These are fruits which are produced not because of the fecundity
fruits in the form of the rent paid by the lessee.*"
of the principal thing owned but rather because of the socio-
iii. In antichresis, the creditor acquires the right to receive the fruits of
juridical relationship in which the thing enters.
an immovable of his debtor, with the obligation to apply them to the
 Civil fruits are the rents of building, the price of leases of lands
and other property and the amount of perpetual or life annuity or

31
 other similar income.
 Expenses for production, gathering and preservation of fruits:
 This rule applies to a situation where the recipient of the fruits was
not the same person who incurred the expenses in connection with
its production, gathering and preservation.
 In this situation, the recipient of the fruits “has the obligation to pay
the expenses made by a third person in their production, gathering
and preservation,” whether the third person acted in good faith or
in bad faith.
 For example, the possessor in bad faith is obliged to reimburse the
fruits received by him and those which the legitimate possessor
could have received, but he is entitled to recover the expenses he
incurred in the production, gathering and preservation of fruits
 Article 443 of the NCC applies only when the fruits are already
harvested and gathered since the article refers to persons “who
receives the fruits.
 Hence, the article does not apply to a situation where the fruits
are still pending.
 In the latter case, for example, the provisions of Article 449 of the
NCC wall apply if the planter acted in bad faith while the
landowner who recovered the land had acted in good faith, in
which case the planter in bad faith will lose the fruits without the
right to recover the expenses mentioned in Article 443.
Accession Continua, In General
 Forms of accession continua:
 Accession continua may refer to immovable property or
movable property.
 Accession continua with regard to immovable property may
either be accession industrial or accession natural.
 Accession industrial may take the form of building, planting or
sowing while accession natural may either be alluvion, avulsion,
change of course of river or formation of islands.
 Accession continua with respect to movable property may either
be:
 adjunction or conjunction,
 commixtion or confusion and
 specification.
 Adjunction or conjunction may furthermore take place b:
 inclusion or engraftment,
 soldadura or attachment,
 tejido or weaving,
 pintura or painting, or
 escritura or writing.
 Basic principles governing accession continua:
1. That the union or attachment or the incorporation of two or more
things belonging to different owners to each other or to one
another must be such that they cannot be separated from each
other or from one another without causing a substantial physical or
juridical injury to any one, to some, or to all of the things involved.
 If such separation is possible without injury, their respective
owners retain their ownership without effects on the others.
 There is no accession.
2. That the accessory follows the principal (“accessio cedit
principali”).
3. That no one shall unjustly enrich himself at the expense of
another.
4. That good faith exonerates a person from punitive liability and
damages. He who acts in good faith may be held responsible for
his act, but he should not be penalized.
5. That bad faith subjects a person to damages and other
unfavorable consequences.
32
 6. That bad faith of one party neutralizes the bad faith of the other
and, therefore, both should be considered as having acted in good
faith.
 Three forms of industrial accession:
1. Building
2. Planting; and
3. Sowing.
 Three scenario in industrial accession:
1. Building, planting or sowing on one’s own land with materials
belonging to another, governed by Article 447 of the NCC;
2. Building, planting or sowing with one’s own materials on the land
of another, governed by Articles 448 up to 454 of the NCC; and
3. Building, planting or sowing on the land of another with materials
belonging to a third person, governed by Article 455 of the NCC, in
relation to other articles.
Building, Planting or Sowing on One’s Own Land With Materials
Belonging to Another
1. If both the land owner (LO) and the owner of the materials (OM)
acted in good faith
 LO can appropriate what he has built, planted or sown. And having
acted in good faith, he cannot be liable for damages.
 However, he must pay the value of the materials, otherwise, he
would be enriching himself unjustly at the expense of OM.
 The option is with him being the owner of the principal.
 LO may, instead of appropriating the materials and paying for their
value, return the materials to OM, if the materials can be returned
to the latter in exactly the same form and substance and without
causing injury to the land because in such a case there is no
accession, and the rules stated in Article 447 of the NCC will not
apply.
 There is accession only when the accessory thing (the materials)
is inseparably attached or incorporated to the land in such a way
that it loses its form and substance or cannot be separated from
the land without causing destruction to the land or to the
materials. If there is no accession, OM may likewise demand for
the removal and return of his materials.
2. If both LO and OM acted in bad faith
 Following the principle that the bad faith of one party is
neutralized by the bad faith of the other and, therefore, both
should be considered as having acted in good faith, the legal
effects discussed in Section 150.1 shall likewise apply in the
present situation.
3. If LO acted in bad faith and OM acted in good faith
 Having acted in bad faith, LO becomes liable for damages and
other unfavorable consequences.
 OM is instead given the options of:
a. demanding the value of his materials plus damages; or
b. demanding the return of his accessory thing in any event,
i.e., even if injury is caused thereby to the land, at the
expense of LO, plus damages.
 This is also without prejudice to the criminal liability of LO for the
unlawful taking and use of the materials without the knowledge
and consent of OM.
4. If LO acted in good faith and OM acted in bad faith
 This situation is not governed by Article 447 since the latter
Article presumes that the owner of the materials is in good faith.
 Instead, what applies, by analogy, are the provisions of Articles
455 and 449 to the effect that the owner of the materials who
acted in bad faith loses his materials without any right
whatsoever and is furthermore liable to the landowner for
damages.
 Meaning of good/bad faith of the parties:
33
  LO acted in good faith if he made use of the materials belonging
to OM thinking that the materials were his.
 He discovered that the materials were not his only after he made
use of them.
 OM, on the other hand, acted in good faith if he had no
knowledge that LO was using his materials at the time of the
building, planting or sowing.
 He learned of the same only after his materials had been used
by LO.
Building, Planting or Sowing With One’s Own Materials on the Land
of Another
Four scenarios:
1. If both the landowner (LO) and the builder, planter or sower (BPS),
who is at the same time the owner of the materials, acted in good
faith, governed by Article 448 of the NCC;
2. If LO acted in good faith and BPS acted in bad faith, governed by
Articles 449 up to 452 of the NCC;
3. If both acted in bad faith, governed by Article 448 of the NCC, in
relation to Article 453 of the NCC; and
4. If LO acted in bad faith and BPS acted in good faith, governed by
Article 447 of the NCC, in relation to Article 454 of the NCC.
 Concept of builder in good faith
 General rule or limited definition: Article 448 of the Civil Code
applies when the builder believes that he is the owner of the land
or that by some title he has the right to build thereon, or that, at
least, he has a claim of title thereto
 It does not apply when the interest is merely that of a holder, such
as a mere tenant, agent or usufructuary.
 From these pronouncements, good faith ‘is identified by the belief
that the land is owned; or that by some title one has the right to
build, plant, or sow thereon
 To be deemed a builder in good faith, it is essential that a person
asserts title to the land on which he builds, i.e., that he be a
possessor in concept of owner, and that he be unaware that there
exists in his title or mode of acquisition any flaw which invalidates
it.
 As a consequence, the following were held not to be builders in
good faith:
 The buyers of a parcel of land who constructed a house thereon
are builders in bad faith if they are not innocent purchasers for
value.
 In Heirs of Victorino Sarili v. Lagrosa
- the buyers of the property relied on a forged special power of
authority (SPA) which did not indicate the own?er’s
community tax certificate (CTC) number.
- Relying solely on said document and without any further
investigation on the seller’s capacity to sell, the buyers still
chose to proceed with its purchase and even built a house
thereon.
- The Court ruled that they are not innocent purchasers for
value, hence not builders in good faith, because they should
have known from the very beginning that they were dealing
with a person who possibly had no authority to sell the
subject property considering the palpable irregularity in the
subject SPA’s acknowledgment.
- Thus, the Court held that they were actually aware of a flaw
or defect in their title or mode of acquisition and consequently
built the house on the subject property in bad faith under legal
contemplation.
 Mirallosa v. Carmel Development, Inc.
 then President Marcos issued P.D. No. 293 in 1973 invalidating
the title of Carmel Development, Inc. over the Pangarap Village
in Caloocan City and declared said property open for disposition
to the members of the Malacanang Homeowners Association,
Inc. (MHAI).
 In 1988, the Supreme Court promulgated Tuason v. The Register
of Deeds, 241 Phil. 650, declaring P.D. No. 293 as
unconstitutional and void ab initio in all its parts. In 1995, or
34
 approximately seven years after the Tuason case was
promulgated, Mirallosa built the structures on the premises.
 The Court ruled that he is not a builder in good faith because he
ought to have been aware of the binding effects of the Tuason
case and the subsequent unconstitutionality of PD. No. 293
since all judicial decisions form part of the law of the land,
therefore, their existence is a matter of mandatory judicial notice.
 If the builder’s occupation of the subject property was by mere
tolerance, he is aware that his tolerated possession may be
terminated any time and he cannot be considered as builder in
good faith.
 It is well settled that both Article 448 and Article 546 of the New
Civil Code, which allow full reimbursement of useful
improvements and retention of the premises until reimbursement
is made, apply only to a possessor in good faith, i.e., one who
builds on land with the belief that he is the owner thereof.
 Verily, persons whose occupation of a realty is by sheer
tolerance of its owners are not possessors in good faith.
 At the time he built the improvements on the premises, he knew
that his possession was by mere permission and tolerance of the
owner; hence, he cannot be said to be a person who builds on
land with the belief that he is the owner thereof.
 But in Rosales v. Castelltort,
 where the spouses Castelltort purchased Lot 16 but erroneously
constructed their house on the adjacent Lot 17 because the
geodetic engineer pointed to Lot 17 as the Lot 16, the Court
declared them to be builders in good faith because they were not
aware of the error committed by the geodetic engineer. \
 Exception or expanded definition:
 However, in some special cases, the Court applied Article 448 of
the Civil Code beyond the recognized and limited definition of
good faith, e.g., cases where the builders knew that they were
not the owners of the land but they constructed improvements on
the land of another with the consent of the owner.
 In those cases, the Court found that the owners knew and
approved of the construction of improvements on the property.
 Hence, the Court ruled therein that the structures were built in
good faith, even though the builders knew that they were
constructing the improvement on land owned by another.
 The expanded definition of good faith was applied, as follows:
 The Court applied Article 448 in Macasaet notwithstanding the
fact that the builder therein knew they were not the owners of the
land.
 In said case, the parents who owned the land allowed their son
and his wife to build their residence and business thereon.
 As found by the Court, their occupation was not by mere
tolerance but upon the invitation of and with the complete
approval of their parents, who desired that their children would
occupy the premises.
 Soon after, conflict between the parties arose.
 The parents demanded their son and his wife to vacate the
premises.
 The Court thus ruled that as owners of the property, the parents
have the right to possession over it.
 However, they must reimburse their son and his wife for the
improvements they had introduced on the property because they
were considered builders in good faith even if they knew for a
fact that they did not own the property.
 As a general rule, Article 448 on builders in good faith does not
apply where there is a contractual relation between the parties.
 But in Communities Cagayan, Inc. case,
 Where there exists a contract to sell between the parties, the
Court also applied Article 448 even if the builders do not have a
claim of title over the property since ownership still remains with
the seller.
 In said case, the Court ruled that respondent-spouses were
builders in good faith because no evidence was presented to
35
 show that petitioner opposed or objected to the improvements
introduced by the respondent spouses.
 The Court further ruled that the petitioner could be presumed to
have consented to the improvements being constructed because
being a subdivision developer, petitioner must have given the
respondent spouses permits to commence and undertake the
construction.
 Sarmiento v. Agana
 the builders were found to be in good faith despite their reliance
on the consent of another, whom they had mistakenly believed to
be the owner of the land.
 Builder-owner
 Javier v. Javier
 the Court deemed the son to be in good faith for building the
improvement (the house) with the knowledge and consent of his
father, to whom belonged the land upon which it was built.
 Involving right of repurchase:
 Rule in possession by tolerance
 If the builder’s occupation of the subject property was by mere
tolerance, he is aware that his tolerated possession may be
terminated any time and he cannot be considered as builder in
good faith.
 It is well-settled that both Article 448 and Article 546 of the New
Civil Code, which allow full reimbursement of useful
improvements and retention of the premises until reimbursement
is made, apply only to a possessor in good faith, i.e, one who
builds on land with the belief that he is the owner thereof.
 Verily, persons whose occupation of a realty is by sheer
tolerance of its owners are not possessors in good faith.
 At the time he built the improvements on the premises, he knew
that his possession was by mere permission and tolerance of the
owner; hence, he cannot be said to be a person who builds on
land with the belief that he is the owner thereof.
 But in the recent case of Department of Education v. Casibang,
 the Court considered’ the Department of Education a builder in
good faith despite being a mere possessor by tolerance because
the landowner permitted the construction of building and
improvements to conduct classes on his property.
 In the 2006 case of Feliciano v. Zaldivar, the Court also applied
Article 448 even if the possession by the builder was by mere
tolerance because the Court found the parties mutually in bad faith
considering that the landowner did not lift a finger to prevent the
construction of the house despite knowledge thereof.
 The concept of builder in good faith or bad faith presupposes
ownership in another.*' If a person builds on his own land with his
own materials, he is not merely a builder in good faith he is a
builder owner.
 Article 448 is inapplicable in cases involving contracts of sale with
right of repurchase; it is inapplicable when the owner of the land is
the builder, sower, or planter.
 If for example, the vendee a retro introduced improvements on
the subject property prior to the repurchase, Article 448 will not
apply because it will be absurd to compel him to buy the land
which he owns.
 In a sale with right of repurchase, the applicable provisions are
Articles 1606 and 1616 of the Civil Code, not Article 448.
 Under Article 1616, the vendor a retro may exercise his right of
redemption by paying the vendee a retro
1. the price of the sale,
2. the expenses of the contract,
3. legitimate payments made reason of the sale, and
4. the necessary and useful expenses made on the thing sold.
 Useful expenses include improvements which augment the value
of the land.
36
 When ownership of land is lost:
 Article 448 does not apply to a case where the owner of the land is
the builder, sower, or planter who then later loses ownership of the
land by sale or donation.
 The provision does not apply to a case where a person
constructs a building on his own land, for then there can be no
question as to good or bad faith on the part of the builder.
 In the exceptional case of Pecson v. Court of Appeal
 the landowner (Pecson) lost his lot for failure to pay realty taxes.
In the auction sale, only the land was sold but not the
commercial building which he constructed on the said lot.
 In determining the respective rights of the buyer of the land and
Pecson over the commercial building, the Court ruled that the
provision of Article 448 of the Civil Code on indemnity may be
applied by analogy considering that the primary intent of Article
448 is to avoid a state of forced co-ownership, in addition to the
fact that the parties are in agreement that Articles 546 and 448 of
the Code are applicable and indemnity for the improvements
may be paid although they differ as to the basis of the indemnity.
 When builder is a co-owner:
 Ordinarily, Article 448 of the Civil Code cannot apply where a co-
owner builds, plants or sows on the land owned in common for
then he did not build, plant or sow upon land that exclusively
belongs to another but of which he is a co-owner.
 The co-owner is not a third person under the circumstances, and
the situation is governed by the rules of co-ownership.
 However, in Spouses Del Campo v. Abesia, this provision was
applied to one whose house, despite having been built at the
time he was still co-owner, overlapped with the land of another.
 Thus, when the co-ownership is terminated by a partition, and it
appears that the house of an erstwhile co-owner has encroached
upon a portion pertaining to another co-owner, but the
encroachment was in good faith, then the provisions of Article
448 should apply to determine the respective rights of the
parties.
 Lessee as builder:
 Not Builder in good faith: Jurisprudence is replete with cases
which categorically declare that Article 448 covers only cases in
which the builders, sowers or planters believe themselves to be
owners of the land or, at least, have a claim of title thereto, but not
when the interest is merely that of a holder, such as a mere tenant,
agent or usufructuary.
 A tenant cannot be said to be a builder in good faith as he has no
pretension to be owner. In a plethora of cases, the Court has held
that Article 448 of the Civil Code, in relation to Article 546 of the
same Code, which allows full reimbursement of useful
improvements and retention of the premises until reimbursement is
made, applies only to a possessor in good faith, i.e., one who
builds on land with the belief that he is the owner thereof.
 It does not apply where one’s only interest is that of a lessee
under a rental contract; otherwise, it would always be in the
power of the tenant to improve his landlord out of his property.
 Article 1678 is the applicable law
 The introduction of valuable improvements on the leased
premises does not give the lessee the right of retention and
reimbursement which rightfully belongs to a builder in good faith.
 Otherwise, such a situation would allow the lessee to easily
improve the lessor out of its property.
 A lessee is neither a builder in good faith nor in bad faith that
would call for the application of Articles 448 and 546 of the Civil
Code.
 Instead, the law on lease under the New Civil Code has specific
rules concerning useful improvements introduced by a lessee on
the property leased under Article 1678 thereof.
 Rule as to useful improvements
 Under the first paragraph of Article 1678, it is the lessor who is
given the option, upon termination of the lease contract, either to
appropriate the useful improvements by paying 1/2 of their value
at that time, or to allow the lessee to remove the improvements.
37
  This option solely belongs to the lessor as the law is explicit that
“should the lessor refuse to reimburse said amount, the lessee
may remove the improvements, even though the principal thing
may suffer damage thereby.”
 Stated otherwise, the lessor has the primary right (or the 1st
move) reimburse the lessee for 50% of the value of the
improvements at the end of the lease.
 If the lessor refuses to make the reimbursement, the subsidiary
right of the lessee to remove the improvements, even though the
principal thing suffers damage, arises.
 Consequently, on the lessor rests the primary option to pay for
one-half of the value of the useful improvements.
 It is only when the lessor refuses to make the reimbursement
that the lessee may remove the improvements.
 Should the lessor refuse to exercise the option of paying for one-
half of the value of the improvements, he cannot be compelled to
do so. It then lies on the lessee to insist on his subsidiary right to
remove the improvements even though the principal thing suffers
damage but without causing any more impairment on the
property leased than is necessary.
 Hence, the lessee cannot claim reimbursement, as a matter of
right, for useful improvements he has made on the property, nor
can he assert a right of retention until reimbursed.
 His only remedy is to remove the improvement if the lessor does
not choose to pay its value; but the court cannot give him the
right to buy the land.
 Note that this is the only situation where the law allows the
exercise of right of remotion even if the removal will cause injury
or damage to the principal thing.
 Rule as to ornaments
 Under the second paragraph of Article 1678, it is the lessor who
is given the option, upon termination of the lease contract, either
to appropriate the ornaments by paying their value at that time,
or to allow the lessee to remove the ornamental objects.
 If the lessor refuses to appropriate the ornaments, the subsidiary
right of the lessee to remove the same arises, provided no
damage has been caused to the principal thing.
 Usufructuary as builder:
 Not builder in good faith
 Since Article 448 covers only cases in which the builders, sowers
or planters believe themselves to be owners of the land or, at
least, have a claim of title thereto and not when the interest is
merely that of a holder, a mere usufructuary cannot be said to be
a builder in good faith as he has no pretension to be owner;
otherwise, it would always be in the power of the usufructuary to
improve the naked owner out of his property.
 Articles 579 and 580 govern:
 A usufructuary who introduced useful improvements or
ornaments on the property subject matter of the usufruct is
neither a builder in good faith nor in bad faith that would call for
the application of Articles 448 and 546 of the Civil Code.
 His rights are governed by the provisions of the Civil Code on
usufruct, specifically Articles 579 and 580 thereof. Under Article
579, he is not entitled to be indemnified for the value of the
improvements or ornaments but he may remove the same
provided that he does not cause damage to the property.
 Note that the right to remove the improvements is potestative
upon the usufructuary; he can always remove the same if no
damage is caused to the principal thing and he may not be
prevented by the naked owner from doing so even if the latter
should offer to pay its value.
 Under Article 580, the usufructuary may, instead of removing the
improvements, choose to set off such improvements against any
damage he may have caused to the property.
 Article 448 can be invoked by successor-in-interest of the builder
in good faith.
38
  Good faith of the landowner
 The landowner, on the other hand, is said to have acted in good
faith if he did not know or was not aware that something was
being built, planted or sown on his land; he learned of it only
after the act was done.
Building, Planting or Sowing With One’s Own Materials on the Land
of Another: Where Both LO and BPS Acted in Good Faith or Acted
in Bad Faith
 The options are given to the landowner, either to:
1. Appropriate as his own the works, sowing or planting after
payment to the builder, planter or sower the necessary and useful
expenses, and in the proper cases, expenses for pure luxury or
mere pleasure, incurred by the latter; or
2. Oblige the one who built or planted to pay the price of the land, if
the value of the land is not considerably more than that of the
building or trees, and the one who sowed, the proper rent.
 It is the owner of the land who is authorized to exercise the option,
because his right is older,” and such rule is in accord with the
principle of accession, i.e., that the accessory follows the principal
and not the other way around.
 The landowner has to make a choice between appropriating the
building by paying the proper indemnity or obliging the builder to
pay the price of the land.
 But even as the option lies with the landowner, the grant to him,
nevertheless, is preclusive.
 He must choose one.
 He cannot, for instance, compel the owner of the building to
remove the building from the land without first exercising either
option.
 It is only if the owner chooses to sell his land, and the builder or
planter fails to purchase it where its value is not more than the
value of the improvements, that the owner may remove the
improvements from the land.
 The owner is entitled to such remotion only when, after having
chosen to sell his land, the other party fails to pay for the same.*”
The obvious benefit to the builder under Article 448 is that,
instead of being outrightly ejected from the land, he can compel
the landowner to make a choice between aforementioned two
options.
 Option to appropriate
 What indemnity consist of
 If the landowner chooses to acquire the building, he must pay
the builder the indemnities provided for in Articles 546 and 548 of
the NCC
 In short, the landowner must pay the necessary and useful
expenses, and in the proper case, expenses for pure luxury or
mere pleasure.
 Basis of indemnity
 Pecson v. Court of Appeals
 the Supreme Court, citing previous cases, categorically held that
“it is the current market value of the improvements which should
be made the basis of reimbursement.
 Pending reimbursement builder has right of retention
 In addition to the right of the builder in good faith to be paid the
value of his improvement, Article 546 of the NCC gives him the
corollary right of retention of the property until he is indemnified
by the owner of the land
 This is so because the right to retain the improvements while the
corresponding indemnity is not paid implies the tenancy or
possession in fact of the land on which it is built, planted or sown
 The right of retention is considered as one of the measures
devised by the law for the protection of builders in good faith. Its
object is-to guarantee full and prompt reimbursement as it
permits the actual possessor to remain in possession while he
has not been reimbursed (by the person who defeated him in the
case for possession of the property) for those necessary
39
 expenses and useful improvements made by him on the thing
possessed.
 Accordingly, a builder in good faith cannot be compelled to pay
rentals during the period of retention nor be disturbed in his
possession by ordering him to vacate.
 In addition, the owner of the land is prohibited from offsetting or
compensating the necessary and useful expenses with the fruits
received by the builder-possessor in good faith.
 Otherwise, the security provided by law would be impaired.
 This is so because the right to the expenses and the right to the
fruits both pertain to the possessor, making compensation
juridically impossible; and one cannot be used to reduce the
other.
 Payment of rentals from interruption of good faith:
 Possession acquired in good faith does not lose this character
except in the case and from the moment facts exist which show
that the possessor is not unaware that he possesses the thing
improperly or wrongfully.
 The good faith ceases or is legally interrupted from the moment
defects in the title are made known to the possessor, by
extraneous evidence or by implies the tenancy or possession in
fact of the land on which it is built, planted or sown.
 The right of retention is considered as one of the measures
devised by the law for the protection of builders in good faith. Its
object is-to guarantee full and prompt reimbursement as it
permits the actual possessor to remain in possession while he
has not been reimbursed (by the person who defeated him in the
case for possession of the property) for those necessary
expenses and useful improvements made by him on the thing
possessed.
 Accordingly, a builder in good faith cannot be compelled to pay
rentals during the period of retention nor be disturbed in his
possession by ordering him to vacate.
 In addition, the owner of the land is prohibited from offsetting or
compensating the necessary and useful expenses with the fruits
received by the builder-possessor in good faith.
 Otherwise, the security provided by law would be impaired.
 This is so because the right to the expenses and the right to the
fruits both pertain to the possessor, making compensation
juridically impossible; and one cannot be used to reduce the
other.
 Payment of rentals from interruption of good faith:
 Possession acquired in good faith does not lose this character
except in the case and from the moment facts exist which show
that the possessor is not unaware that he possesses the thing
improperly or wrongfully.
 The good faith ceases or is legally interrupted from the moment
defects in the title are made known to the possessor, by
extraneous evidence or by suit for recovery of the property by
the true owner.
 From the time the good faith of the possessor ceases, the
payment of reasonable rent should accordingly commence at
that time since he can no longer avail of the rights provided
under the law for builders in good faith.
 The payment of rentals should continue until the landowner
serves notice of its option upon the builder and the court; that is,
if such option is for the landowner to appropriate the
improvements and/ or structures.
 If the option chosen by petitioners is compulsory sale, however,
the payment of rent should continue up to the actual transfer of
ownership.
 Option to sell the land:
 The owner of the land may also oblige the builder or planter to
purchase and pay the price of the land.
 If the owner chooses to sell his land, the builder or planter must
purchase the land, otherwise the owner may remove the
improvements thereon.
40
  The builder or planter, however, is not obliged to purchase the
land if its value is considerably more than the building or
planting.
 In such case, the builder or planter must pay rent to the owner of
the land.
 If the parties cannot come to terms over the conditions of the
lease, the court must fix the terms thereof.
 This option is available only against the builder or planter.
 With respect to the sower, the landowner can only compel him to
pay the proper rent, in case the landowner does not choose to
appropriate the crops.
 In the event the builder or the planter refuses to pay the price of
the land (if the value of the same is not considerably more than
that of the building or trees), the landowner does not automatically
become the owner of the improvements without paying any
indemnity.
 The recourse or remedy left to the parties in such eventuality
where the builder fails to pay the value of the land is any of the
following:
They may decide to leave things as they are and assume the
relation of lessor and lessee, and should they disagree as to the
amount of the rental then they can go to the court to fix that
amount.
 Note that in this situation, a lease may not be “forced” upon the
builder or the planter because this option is available only in
situations where the value of the land is considerably more than
that of the building or trees.
 Should the parties not agree to leave things as they are and to
assume the relation of lessor and lessee, another remedy is
suggested in the case of Ignacio v. Hilario, wherein the court has
ruled that the owner of the land in entitled to have the
improvement removed when after having chosen to sell his land to
the other party, i.e., the builder in good faith fails to pay for the
same.
 A further remedy is indicated in the case of Bernardo v. Bataclan
where the Court approved the sale of the land and improvement in
a public auction applying the proceeds thereof first to the payment
of the value of the land and the excess, if any, to be delivered to
the owner of the house in payment thereof.
 Reckoning period for valuing property
 In the case of Ballatan v. Court of Appeals
 the Court has settled that the time of taking is determinative of
just compensation in expropriation proceedings but not in a case
where a landowner has been deprived of the use of a portion of
this land for years due to the encroachment of another.
 In the event that the seller elects to sell the lot, the price must be
fixed at the “prevailing market value.”
 The reckoning period for valuing the property in case the
landowner exercised his rights in accordance with Article 448
shall be at the time the landowner elected his choice.
 Still under the second option, if the present or current value of
the land turns out to be considerably more than that of the
building built thereon, the builder cannot be obliged to pay for the
subject property, but he must pay the owner reasonable rent for
the same.
 The parties must agree on the terms of the lease; otherwise, the
court will fix the terms.
 If both acted in bad faith: If there was bad faith on both parties,
the rights of one and the other shall be the same as though both
had acted in good faith.
 Thus, Article 448 also governs this situation.
 Feliciano v. Zaldivar
41
  the Court applied Article 448, in relation to Article 453 of the Civil the landowner.
Code, after declaring both the builder and the landowner to be
mutually in bad faith. b. The right to demand the demolition of whatever has been built,
 Despite being a possessor by mere tolerance when he built his planted or sown in bad faith in any event even if damages will
house, the builder was declared entitled to the benefits granted be caused by the separation plus damages.
under Article 448 because the landowner had knowledge of the
construction and she did not lift a finger to prevent it.
c. The right to compel the builder or planter in bad faith to pay the
price of the land, even if the price of the land is considerably
 Torbela v. Rosario
more than the building or trees, plus damages.
 Court ruled that both the Torbela siblings (as landowners) and
Dr. Rosario (as builder) are deemed in bad faith because the  Limited right of builder, planter, or sower in bad faith:
Torbela siblings were aware of the construction of a building by
 The foregoing rights of the landowner are alternative, i.e., he can
Dr. Rosario on their lot, while Dr. Rosario proceeded with the
exercise only one of them as his option.
said construction despite his knowledge that said belonged to
 But in all cases, “the builder, planter or sower in bad faith is
the Torbela siblings.
entitled to reimbursement for the necessary expenses of
Building, Planting or Sowing with One’s Own Materials on the Land preservation of the land.
of Another: LO Acted in Good Faith and BPS Acted in Bad Faith  However, being a builder in bad faith, he does not have the right of
retention over the premises.
 Legal effects and/or consequences  The builder, planter or sower is deemed to have acted in bad faith
 The alternative options that may be exercised by the landowner if he knows that the land is not his or if he has knowledge of any
are the following: flaw or defect in his title or mode of acquisition of the land.
a. The right to appropriate whatever has been built, planted or
sown in bad faith without need of paying indemnity,‘ plus
damages,‘ and that the builder in bad faith has no right to a
Building, Planting or Sowing with One’s Own Materials on the Land
refund of any improvement built therein.
of Another: LO Acted in Bad Faith and BPS Acted in Good Faith
If there are pending fruits, the landowner will likewise be  If the landowner acted in bad faith and the builder, planter or
entitled to appropriate them without need of paying any sower acted in good faith, the provisions of Article 447 of the NCC
indemnity. shall apply.

However, with respect to fruits that have already been received

 Thus, the builder, planter or owner may exercise any of the
by BPS or could have been received by LO, the latter is obliged
following options: namely:
to pay the expenses incurred by BPS in bad faith in the
a. to demand the value of his materials and reasonable
“production, gathering and preservation of the fruits,” upon the
compensation for his labor, plus damages; or
return by the builder in bad faith of the value of the said fruits to
b. to demand the return of his materials in any event, plus
damages.

42

 Bad faith of the landowner
 It is understood that there is bad faith on the part of the landowner
whenever the act was done with his knowledge and without
opposition on his part.
Building, Planting or Sowing on the Land of Another with Materials
Belonging to a Third Person
 If the owner of the materials OM acted in bad faith:
 The owner of the materials loses his materials without any right
whatsoever.
 This is so because, if he knew that his materials were being used
by another but did not object thereto, it is as if he was the one who
built, planted or sowed with his materials in bad faith on the land of
another.
 The builder, planter or sower would be considered merely an
agent of the owner of the materials.
 Therefore, pursuant to Article 449 of the NCC, the owner of the
materials loses what has been built, planted or sown without any
right to indemnity.
 He is even liable for damages.
 If the owner of the materials acted in bad faith, the landowner can
claim what has been built, planted or sown on his land without any
obligation to indemnify the owner of the materials.
 This is pursuant to the principle stated in Articles 449 and 455 of
the NCC.
 On the part of the builder, planter or sower, if he acted in good
faith in that he thought honestly that both the land and the
materials belonged to him, he may claim from the landowner a
reasonable compensation for his labor.
 This is based on the principle that no person should be unjustly
enriched at the expense of another.
 If he acted in bad faith, in that he knew that the materials he was
using belonged to somebody else or that he had no right to the
land, then he is not entitled to anything.
 He may instead be made to pay damages to the landowner.
 If the owner of the materials acted in good faith:
 If the owner of the materials acted in good faith, he must be paid
the value of the materials.
 The builder, planter or sower is primarily liable to make such
payment to the owner of the materials without damages if he
(builder, planter or sower) acted in good faith and with damages if
he acted in bad faith.
 If such payment is made by the builder, planter or sower, he
becomes the owner of the materials and the case would be the
same as that of building, planting or sowing with one’s own
materials on the land of another.
 Hence, to determine the rights and obligations of the builder,
planter or sower and the landowner against each other, we will
apply the rules in the following four situations:
a. if both the landowner and the builder, planter or sower acted in
good faith (Art. 448);
b.if the landowner acted in good faith and the builder, planter or
sower acted in bad faith (Arts. 449, 450, 451 and 452);
c. if both parties acted in bad faith (Art. 448, in relation to Art. 453);
and
d.if the landowner acted in bad faith and the builder, planter or
sower acted in good faith (Art. 447, in relation to Art. 454.
 Subsidiary liability of landowner
 The landowner is subsidiarily liable for the payment of the value of
the materials.
 This subsidiary liability of the owner of the land will attach only if
the following conditions are met:
43
 a. the builder, planter or sower (the one primarily liable) is
insolvent; and
b. the owner of the land chooses to appropriate the building,
planting or sowing. Consequently, the owner of the land is not
liable to the owner of the materials if the former chooses to
order the demolition of the construction or the removal of the
building, planting or sowing, which he has the right to do in
case the builder, planter or sower acted in bad faith.
 If the landowner, however, pays for the value of the materials, he
becomes the owner thereof. In such a situation, he may demand
damages from the builder, planter or sower if the latter acted in
bad faith, or pay the builder, planter or sower a reasonable
compensation for his labor if the latter acted in good faith.
 Four Forms of Natural Accession
1. Alluvion;
2. Avulsion;
3. Change of course of rivers; and
4. Formation of island.
 Alluvion
Alluvium Accretion
is the soil deposited on the is the process whereby the soil
estate fronting the river bank is deposited
 Rule on alluvion
 Article 457 of the NCC provides that “to the owners of lands
adjoining the banks of rivers belong the accretion which they
gradually receive from the effects of the currents of the waters.”
 The riparian land, or the land adjoining the bank of the river, is the
principal and the alluvial deposits accumulated gradually along
such riparian land constitute the accessory.
 The alluvium, by mandate of Article 457, is automatically owned by
the riparian owner from the moment the soil deposit can be seen.
 Accordingly, therefore, alluvial deposits along the banks of a creek
or a river do not form part of the public domain as the alluvial
property automatically belongs to the owner of the estate to which it
may have been added.
 The only restriction provided for by law is that the owner of the
adjoining property must register the same under the Torrens
system; otherwise, the alluvial property may be subject to
acquisition through prescription by third persons.
 Requisites of alluvium
 Accretion as a mode of acquiring property under Article 457
requires the concurrence of the following requisites:
1. that the accumulation of soil or sediment be gradual and
imperceptible;
2. that it be the result of the action of the waters of the river; and
3. that the land where the accretion takes place is adjacent to the
bank of the river.
 Thus, it is not enough to be a riparian owner in order to enjoy the
benefits of accretion.
 One who claims the right of accretion must show by preponderant
evidence that he has met all the conditions provided by law.
 First requisite: This distinguishes alluvion from avulsion.
 In alluvion, the deposit of soil is gradual and imperceptible;
whereas in avulsion, it is sudden and abrupt.
 The drying up of the river is not accretion.
 The process of drying up of a river to form dry land involved the
recession of the water level from the river banks, and the dried-up
land did not equate to accretion, which was the gradual and
imperceptible deposition of soil on the river banks through the
effects of the current. In accretion, the water level did not recede
and was more or less maintained.
44
 Hence, the dried up river bed belongs to the State as property of
public dominion, not to the riparian owner, unless a law vests the
ownership in some other person.
 Second requisite: Alluvion must be the exclusive work of nature.
 Thus, in Tiongco v. Director of Lands, et al.,“where the land was
not formed solely by the natural effect of the water current of the
river bordering said land but is also the consequence of the direct
and deliberate intervention of man, it was deemed a man-made
accretion and, as such, part of the public domain.“
Third requisite: Under Article 457, the accretion must take place on
a land adjacent to the bank of the river.
 In the case of Ignacio v. Director of Lands and Valeriano, the
SC considered the Manila Bay as a sea for purposes of
determining which law on accretion is to be applied.
 Hence, an accretion that takes place on the bank of the Manila
Bay, it being an inlet or an arm of the sea, is part of the public
domain pursuant to Article 4 of the Spanish Law of Waters of
1866.
 The Laguna de Bay, on the other hand, is a lake the accretion on
which, by the mandate of Article 84 of the Spanish Law of Waters,
belongs to the owners of the land contiguous thereto
 Under Article 84 f the Spanish Law of Waters, “accretions deposits
gradually upon land contiguous to creeks, streams, rivers and lakes,
by accessions or sediments from the water thereof, belong to the
owners of such lands.”
In Office of the City Mayor of Parariaque City v. Ebio, the subject
land was formed from the alluvial deposits that have gradually
settled along the banks of Cut-cut creek.
 The Court then ruled that the law governing ownership over the
accreted portion is Article 84 of the Spanish Law of Waters of
1866, which, according to the Court, remains in effect.
 Article 84 of the Spanish Law of Waters of 1866 specifically covers
ownership over alluvial deposits along the banks of a creek.
 It is therefore explicit from the foregoing provisions that alluvial
deposits along the banks of a creek do not form part of the public
domain as the alluvial property automatically belongs to the owner
of the estate to which it may have been added.
 The only restriction provided for by law is that the owner of the
adjoining property must register the same under the Torrens
system; otherwise, the alluvial property may be subject to
acquisition through prescription by third persons.
 Hence, while it is true that a creek is a property of public dominion,
the land which is formed by the gradual and imperceptible
accumulation of sediments along its banks does not form part of the
public domain by clear provision of law.
 Right of riparian owner to alluvium is ipso jure
 The right of the owners of the bank adjacent to rivers to the
accretion which they receive by virtue of the action of the waters of
the river is ipso jure and there is no need of an action of the owner
of the bank to possess the new addition since it belongs to him by
the very fact of the addition.”
 Stated otherwise, the riparian owner v/hose land receives the
gradual deposits of soil does no* need to make an express act of
possession, and that no acts of possession are necessary in that
instance because it is the law itself that pronounces the alluvium to
belong to the riparian owner from the time that the deposit created
by the current of the water becomes manifest.
 However accretion does not automatic all become registered
land:
 Accretion does not automatically become registered land just
because the lot which receives such accretion is covered by
Torrens title.
 Thus, the accretion to registered land does not preclude
acquisition of the additional area by another person through
prescription.
45
  In the same vein, the registration under the Torrens system does
not protect the riparian owner against the diminution of the area of
his registered land through gradual changes in the course of an
adjoining stream.
 The owners of estates adjoining ponds or lagoons do not acquire
the land left dry by the natural decrease of the waters, or lose that
inundated by them in extraordinary floods.“
 Avulsion
 Avulsion has been defined as the accretion which takes place when
the current of a river, creek or torrent segregates a known portion of
land from an estate on its banks and transfers it to another estate.
 Requisites of avulsion:
1. it takes place only along the banks of rivers, creeks, streams and
lakes;
2. it is caused only by the force of the current of the water
independently of the act of man;
3. the deposit of soil is sudden and abrupt; and
4. the detached portion can be identified. In the absence of
evidence, however, that the change in the course of river was
sudden or that it occurred through avulsion, the presumption is
that the change was gradual and caused by accretion and
erosion.
 Rule on avulsion
 In accordance with Article 459 of the NCC, the owner of the land
from where the portion is detached retains the ownership thereof
but he is required to remove the same within two years.
 The article requires the owner to physically remove the portion
detached from his land. A mere claim is not enough.
 The foregoing rule should be distinguished from the case of trees
uprooted, where a mere claim by the owner within six months is
sufficient to retain ownership of the tree.
Change of Course of Rivers
 Rule as to ownership of river beds
 Article 502 of the Civil Code expressly declares that rivers and
their natural beds are public dominion of the State.
 Subject to the exceptions defined in Article 461 of the Civil Code
(which declares river beds that are abandoned through the natural
change in the course of the waters as ipso facto belonging to the
owners of the land occupied by the new course, and which gives
to the owners of the adjoining lots the right to acquire only the
abandoned river beds ipso facto belonging to the owners of the
land affected by the natural change of course of the waters only
after paying their value), all river beds remain property of public
dominion and cannot be acquired by acquisitive prescription
unless previously declared by the Government to be alienable and
disposable.
 Rule in case of change of course of rivers:
 River bed which are abandoned through the natural change in the
course of the waters ipso facto belong to the owners whose lands
are occupied by the new course in proportion to the area lost.
 However, the owners of the lands adjoining the old bed shall have
the right to acquire the same by paying the value thereof, which
value shall not exceed the value of the area occupied by the new
bed.
 Requisites for application of rule:
 If indeed a property was the former bed of a river or creek that
changed its course and passed through the property of the
claimant (owner whose land is occupied by the new course), then,
pursuant to Article 461, the ownership of the old bed left to dry by
the change of course was automatically acquired by the claimant.
 Before such a conclusion can be reached, the fact of natural
abandonment of the old course must be shown, that is, it must be
proven that the river or creek indeed changed its course without
artificial or man-made intervention.
 Thus, the claimant must prove three key elements by clear and
convincing evidence.
 These are:
a. the old course of the river or creek,
46
 b. the new course of the river or creek, and
c. the change of course of the river or creek from the old location
to the new location by natural occurrence.
 Baes v. Court of Appeals
 Article 461 of the NCC was applied even if the change in the
course of the waters is done artificially, but the change in the
course of the river was the result of a deliberate act on the part of
the government. It was held that there is all the more reason to
compensate the owner of the land thru which the new river bed
passes when the change in the course of the river was the result
of a deliberate act on the part of the government.
 In this case, the owner of the land was prejudiced because the
man-made canal totally occupied his property.
 Celestial v. Cachopero
 where the dried-up portion of Salunayan Creek became dry as a
result of the construction of an irrigation canal by the National
Irrigation Administration, Article 461 was not applied because the
river simply dried up and there was not even an allegation that the
Salunayan Creek changed its course.
 Ronquillo v. CA
 however, the provision was not applied because the drying up of
the river was without the intervention of the government but was
actually caused by the dumping of garbage therein by the people
of the surrounding neighborhood.
 Ownership passes ipso jure
 Once the river bed has been abandoned through the natural
change of the course of the river, the owners of the land through
which the new river bed passes become the owners of the
abandoned bed to the extent provided by Article 461.
 There need be no act on their part to subject the old river bed to
their ownership, as it is subject thereto ipso jure from the moment
the mode of acquisition becomes evident, without need of any
formal act of acquisition.
 State may restore the river to its original courts
 Under Article 58 of the Water Code of the Philippines, the owners
of the affected lands (referring to the owners of the land where the
new river bed passes) cannot restrain the government from taking
steps to revert the river or stream to its former course but they may
not compel the government to restore the river to its former bed.
 And if the government decides to revert back the river or stream to
its former course, the owners of the lands thus affected are not
entitled to compensation for any damage sustained thereby.
 When river simply dries up
 If the river simply dries up and did not change its course or without
opening a new bed, it is clear that the provisions of Article 461 of
the NCC will not apply.
 In such a situation, commentators are of the opinion that the dry
river bed remains property of public dominion.
 Whether the dried-up river bed may be susceptible to acquisitive
prescription or not was a question that the Court resolved in favor
of the State in Celestial v. Cachopero, a case involving the
registration of land found to be part of a dried-up portion of the
natural bed of a creek.
 The Court ruled therein that dried-up river bed remains property of
the public dominion, which is not susceptible to private
appropriation and acquisitive prescription.
 Formation of islands
 Under Article 463 of the NCC:
1. Here, the current of a river divides itself into branches, leaving a
piece of land or part thereof isolated, thus forming an island. The
rule is that the owner of the land retains his ownership.
2. This rule is applicable to all kinds of rivers, whether navigable or
floatable or not.
 Under Article 464 of the NCC:
47
 1. Here, it talks of islands formed on the seas within the jurisdiction of
the Philippines, on lakes and on navigable or floatable rivers. The
rule is that those islands belong to the State.
2. This island which belongs to the State according to Article 464 of
the NCC forms part of the patrimonial property of the State and,
may therefore, be sold by the State.
 Under Article 465 of the NCC:
a. Here, the island is formed through successive accumulation of alluvial
deposit and it is formed in non-navigable or non-floatable rivers.
b.In such a case, the rule shall be:
a. The island so formed belongs to the owners of the margins or
banks nearest to the island.
b.If the island is in the middle of the river, it shall belong to the
owners of both margins, in which case it shall be divided
longitudinally in halves.
c. If, however, a single island thus formed be more distant from one
margin than from the other, the owner of the nearer margin shall be
the sole owner.
 Accession Continua With Respect to Movable Property
1. Adjunction or Conjunction;
2. Commixtion or confusion; and
3. Specification.
 Adjunction or Conjunction
 Concept:
1. Adjunction takes place when two movables belonging to different
owners are so inseparable that their separation would impair their
nature making up thereafter a single object. Or, the union of one
thing with another when each belongs to a different owner.
2. The distinguishing features of adjunction in general are two:
a. that between the things united there be such a relation that
they constitute a new thing; and
b. each one of the things making up the new one preserves its
own nature.
 Rule in adjunction:
 If effected in good faith: the owner of the principal thing
acquires the accessory by indemnifying the former of the value
of the accessory.
 Separation can only be demanded by the respective owners if
the things can be separated without injury.
 However, if the accessory is much more precious than the
principal, its owner may demand its separation, even though
the thing to which it has been incorporated may suffer some
injury.
 If effected in bad faith:
1. By the owner of the accessory: he shall lose his thing and he shall be
liable for damages.
2. the owner of the principal: the owner of the accessory has the option
of:
a. demanding payment for the value of the accessory, plus damages;
or
b. demanding separation, even if the same will result in injury to the
principal thing, plus damages.
 The second option, however, does not apply if the same is not
practicable as in the case of painting (which cannot be separated
from the canvass) or writing (which cannot be separated from the
paper).
 In such a situation, the owner of the accessory is limited only to the
first option of demanding payment for the value of the accessory.
 Test in determining which is principal:
1. that to which the other has been united as ornament or for its
use or perfection is the principal, the thing added is the
accessory;*
2. if the first test cannot be applied, then the thing of greater value
is the principal and the other the accessory;
48
 3. if both things are of equal value, then the one of greater volume
is the principal and the other the accessory;
 However, in the case of painting, sculpture, writings, printed matter,
engraving and lithographs, the board, metal, stone, canvas, paper or
parchment shall be deemed the accessory thing.
 Commixtion or Confusion
 Concept: Commixtion or confusion
 is the mixture of things solid or liquid pertaining to different
owners. If the things mixed are solid, it is called commixtion;
 if the things are liquid, it is called confusion.
 The legal effect of commixtion or confusion depend upon the
manner it is effected:
1. Co-ownership arises if the mixture was caused by:
a. chance or fortuitous event;
b. by the will of both owners; and
c. by the will of only one owner acting in good faith.
 In all these cases, each owner shall acquire a right proportional to
the part belonging to him, bearing in mind the value of the things
mixed or confused.
2. If the commixtion or confusion was caused by only one owner
acting in bad faith, he loses the thing belonging to him thus
mixed or confused, besides being obliged to pay indemnity for
the damages caused to the owner of the thing with which his
own was mixed or confused.
 The legal consequences of specification depend good faith or
bad faith of the worker:
 If the worker acted in good faith, he shall appropriate the thing
thus transformed as his own, indemnifying the owner of the
material for its value.
 The exception to this rule is when the material is more precious than
the transformed thing or more valuable, in which case, its owner
may, at his option:
a. appropriate the new thing to himself after paying
indemnity for the value of the work; or
b. demand indemnity for the material.
 If the worker acted in bad faith, the owner of the material has two
options:
a. to appropriate the work for himself without paying anything to
the maker; or
b. to demand of the latter that he indemnify him for the value of
the material and the damages he may indemnify him for the
value of the material and the damages he may have suffered.
 The exception is in case the value of the work, for artistic or
scientific reasons, is considerably more than that of the material, the
owner of the material cannot appropriate the work.

 Specification
 Concept
 Specification is the imparting of a new form to the material of
another.
 Or, it takes place whenever the work of a person is done on the
material of another, such material, in consequence of the work
itself, undergoing a transformation.
 In specification, there are actually two things involved: the labor
or work of one person and the material of another.

49
 Title II Ownership
Chapter 3: Quieting of Title
(Arts. 476 481, NCC)
[Chapter 4: Ruinous Buildings and Trees in Danger of
Falling]
(Arts. 482 483, NCC)
 Quieting of Title
 Concept:
 Definition: Quieting of title is a common-law remedy for the
removal of any cloud or doubt or uncertainty on the title to real
property by reason of any instrument, record, claim, encumbrance,
or proceeding that is apparently valid or effective, but is, in truth and
in fact, invalid, ineffective, voidable, or unenforceable, and may be
prejudicial to said title.
 In such an action, the competent court is tasked to determine
the respective rights of the complainant and other claimants to
place things in their proper place and to make the one who has
no rights to said immovable respect and not disturb the other.
 The action is for the benefit of both, so that he who has the
right would see every cloud of doubt over the property
dissipated, and he can thereafter fearlessly introduce any
desired improvements, as well as use, and even abuse the
property.
 Purpose: Originating in equity jurisprudence, its purpose is to
secure an adjudication that a claim of title to or an interest in
property, adverse to that of the complainant, is invalid, so that the
complainant and those claiming under him may be forever afterward
free from any danger of hostile claim.
 Nature of action
 An action to quiet title is characterized as a proceeding quasi in
rem. In an action quasi in rem, an individual is named a
defendant and the purpose of the proceeding is to subject his
interests to the obligation or loan burdening the property.
 Actions quasi in rem deal with the status, ownership or liability
of a particular property but which are intended to operate on
these questions only as between the particular parties to the
proceedings and not to ascertain or cut off the rights or
interests of all possible claimants.
 The judgment therein is binding only upon the parties who
joined in the action.
 Jurisdiction
 Actions for reconveyance of or for cancellation of title to or to
quiet title over real property are actions that fall under the
classification of cases that involve “title to, or possession of,
real property, or any interest therein.
 Under the present law, original jurisdiction over cases the
subject matter of which involves “title to, possession of, real
property or any interest therein” under Section 19(2) of B.P.
Blg. 129 is divided between the first and second level courts
with the assessed value of the real property involved as the
benchmark.
 R.A. No. 7691 expanded the exclusive original jurisdiction of the first
level courts to include “all civil actions which involve title to, or
possession of, real property, or any interest therein where the
assessed value of the property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed Fifty thousand
pesos (P50,000.00) exclusive of interest, damages of whatever kind,
attorney’s fees, litigation expenses and costs.
 Requisites of an action to quiet title:
 Two requisites: For an action to quiet title to prosper, two
indispensable requisites must concur:
a. the plaintiff or complainant has a legal or equitable title or
interest in the real property subject of the action; and
b. the deed, claim, encumbrance, or proceeding claimed to be
casting a cloud on his title must be shown to be in fact invalid
50
 or inoperative despite its prima facie appearance of validity or
legal efficacy.
 Legal or equitable title
 In an action for quieting of title, the subject matter is the title
sought to have quieted.
 Title is not limited to the certificate of registration under the
Torrens System (i.e., OCT or TCT).
 It was held that title to real property refers to that upon which
ownership is based.
 It is the evidence of the right of the owner or the extent of his
interest, by which means he can maintain control and, as a
rule, assert a right to exclusive possession and enjoyment of
the property.
 It can connote acquisitive prescription by possession in the
concept of an owner thereof, for example.
 In order that an action for quieting of title may proper, it is
essential that the plaintiff must have legal or equitable title to,
or interest in, the property which is the subject-matter of the
action.
 Legal title denotes registered ownership, while equitable title
means beneficial ownership.
 In the absence of such legal or equitable title, or interest, there
is no cloud to be prevented or removed.
 Cloud on title
 A “cloud on title” is an outstanding instrument, record, claim,
encumbrance or proceeding which is actually invalid or
inoperative, but which may nevertheless impair or affect
injuriously the title to property.
 The matter complained of must have a prima facie appearance
of validity or legal efficacy.
 The cloud on title is a semblance of title which appears in some
legal form but which is in fact unfounded.
 The invalidity or inoperativeness of the instrument is not
apparent on the face of such instrument, and it has to be
proved by extrinsic evidence.
 Thus, the cloud on title consists of:
1. any instrument, record, claim, encumbrance or proceeding;
2. which is apparently valid or effective;
3. but is in truth and in fact invalid, ineffective, voidable, or
unenforceable; and
4. may be prejudicial to the title sought to be quieted.
 As a general rule, a cloud which may be removed by suit to quiet
title is not created by mere verbal or parol assertion of ownership of
or an interest in property.
 This rule is subject to qualification, where there is a written or
factual basis for the asserted right.
 Thus, a claim of right based on acquisitive prescription or
adverse possession has been held to constitute a removable
cloud on title.
 Prescriptive period:
 If plaintiff is not in possession: In an action to quiet title, the
plaintiff need not be in possession of the property.
 If the plaintiff is not in possession, the action prescribes after
thirty years.
 An action for quieting of title to real property is indubitably a
real action. Article 1141 of the Civil Code plainly provides that
real actions over immovables prescribe after 30 years.
 Hence, an action to quiet title is a real action over immovables,
which prescribes after 30 years.
 Nevertheless, Article 1141 of the Civil Code also clearly states that
the 30year prescriptive period for real actions over immovable is
“without prejudice” to what is established for the acquisition of
ownership and other real rights by prescription.
 Thus, the acquisitive prescription periods of ownership and
other real rights must also be looked into.
51
  Acquisitive prescription of dominion and real rights may be
ordinary or. extraordinary.
 Ordinary acquisitive prescription requires possession of
things in good faith and with just title for the time fixed by law.
 In the case of ownership and other real rights over immovable
property, they are acquired by ordinary prescription through
possession of 10 years.
 On the other hand, ownership and other real rights over
immovables also prescribe through uninterrupted adverse
possession thereof for 30 years, without need of title or of good
faith, known as extraordinary acquisitive prescripition.
 If plaintiff is in possession:
 On the issue of prescription, the settled rule is that an action
for quieting of title is imprescriptible where the person seeking
relief is in possession of the disputed property.
 A person in actual possession of a piece of land under claim of
ownership may wait until his possession is disturbed or his title
is attacked before taking steps to vindicate his right, and that
his undisturbed possession gives him the continuing right to
seek the aid of a court of equity to ascertain and determine the
nature of the adverse claim of a third party and its effect on his
title.
Obligation of Owners of Ruinous Buildings and Falling Trees
 Rule on Ruinous Building
 Owners of buildings, walls, columns or other constructions in danger
of falling are obliged to either demolish it or to execute the
necessary work in order to prevent it from falling.
 If he does not comply with the foregoing obligation, the
administrative authorities may order the demolition of the structure
at his expense, or to take measures to insure public safety.
 Further, if by reason of lack of necessary repairs, a building or
structure causes damage resulting from its total or partial collapse,
the proprietor thereof shall be responsible for the damages.
 However, if the reason for the collapse should be any defect in the
construction mentioned in Article 1723 of the NCC, the liability shall
fall upon the engineer or architect or contractor in accordance with
the said article, within the period therein fixed.”
 Rule on Falling Trees:
 Whenever a large tree threatens to fall in such a way as to cause
damage to the land or tenement of another or to travellers over a
public or private road, the owner of the tree shall be obliged to
fell and remove it; and should he not do so, it should be done at
his expense by order of the administrative authorities.
 In paragraph 3 of Article 2191 of the NCC, proprietors are liable for
the falling of trees situated at or near highways or lanes, if the same
is not caused by force majeure.
 Under Article 493 of the NCC, however, the owner thereof shall
be deemed liable even if the reason for the fall be fortuitous
event, such as typhoon or earthquake, because in this case the
owner is already negligent for failing to take the necessary
measures to insure public safety.
[Title III Co-ownership]
52
 (Arts. 484 -501, NCC)
Co-ownership, In General
 Concept and Requisites:
 Concept:
 There is co-ownership whenever the ownership of an undivided
thing or right belongs to different owners. Co-ownership is also
defined as the right of common dominion which two or more
persons have in a spiritual part of a thing, not materially or
physically divided.
 Requisites:
 The requisites for co-ownership to exist are:
1. Plurality of subjects, who are the co-owners;
2. Unity of or material indivision, which means that there is a single
object which is not materially divided, and which is the element
which binds the subjects; and
3. The recognition of ideal shares, which determines the rights and
obligations of the co-owners.
 Consequences:
 The juridical concept of co-ownership is unity of the object or
property and plurality of subjects.
 As a consequence, a co-owner of an undivided parcel of land is
an “owner of the whole, and over the whole he exercises the
right of dominion, but he is at the same time the owner of a
portion which is truly abstract.
 Hence, his co-owners have no right to enjoin a co-owner who
intends to alienate or substitute his abstract portion or substitute
a third person in its enjoyment.
 Hence, each co-owner of property which is held pro indiviso
exercises his rights over the whole property and may use and
enjoy the same with no other limitation than that he shall not
injure the interests of his co-owners.
 The underlying rationale is that until a division is made, the
respective share of each cannot be determined and every co-
owner exercises, together with his co-participants, joint
ownership over the pro indiviso property, in addition to his use
and enjoyment of the same.
 The foregoing being the case, there is no co-ownership when the
different portions owned by different people are already
concretely determined and separately identifiable, even if not yet
technically described, or that said portion is still embraced in one
and the same certificate of title does make said portion less
determinable or identifiable, or distinguishable, one from the
other, nor that dominion over each portion less exclusive, in their
respective owners.
 Effect of partition or division:
 The co-ownership exists so long as the property remains
undivided. Once partition is effected, or once the property is
subdivided and distributed among the co-owners, the
coownership is terminated.
 Thus, there is no co-ownership when the different portions
owned by different people are already concretely determined
and_ separately identifiable, even if not yet technically described.
 By way of illustration, the exercise of the right of legal redemption
granted under Article 1620 of the NCC presupposes the
existence of co-ownership at the time the conveyance is made
by a co-owner and when it is demanded by the other co-owner or
co-owners
 Hence, where the property had already been partitioned judicially
or extrajudicially’” or where the portion belonging to the parties
has been identified and localized, the right of legal redemption
can no longer be invoked.
 Cannot claim a definite portion:
 By the nature of a co-ownership, a co-owner cannot point to
specific portion of the property owned in common as his own
because his share therein remains intangible.
 During the existence of the co-ownership, therefore, no co-owner
can claim title to any definite portion of the community property
until the partition thereof, and prior to the partition, all that the co-
53
 owner has is an ideal or abstract quota or proportionate share in  An agreement to keep the thing undivided for a certain period, not
the entire land or thing. exceeding ten years, shall be valid. This term may be extended by
a new agreement.
 Exception:
 In Vda. de Cabrera v. Court of . Appeals 2. Succession:
 however, the Supreme Court, had the occasion to hold that  Where there are two or more heirs, the whole estate of the
where the transferees of an undivided portion of the land allowed decedent is, before its partition, owned in common by such heirs,
a co-owner of the property to occupy a definite portion thereof, subject to the payment of debts of the deceased.
the possessor is in a better condition or right than said  The testator may likewise prohibit the partition of the estate among
transferees. (Potior est condition possidentis) the heirs for a period not to exceed 20 years.
 Such undisturbed possession, according to the Court, had the
effect of a partial partition of the co-owned property which 3. Fortuitous event or chance
entitles the possessor to the definite portion which he occupies.  Co-ownership will arise if two things of the same kind or different
kinds are mixed by chance and the things are not separable
 Sources of co-ownership: without injury.
1. Law:
a. Co-ownership will arise if by the will of their owners two things of 4. Occupancy
the same kind or different kinds are mixed.  As when two or more persons catch a wild pig or get forest
 Coownership will likewise arise if by the will of only one owner, products or when a hidden treasure is accidentally discovered by a
but in good faith, two things of the same or different kinds are stranger, who is not a trespasser, on the land of another.
mixed or confused.
b. When a man and woman, who are capacitated to marry each
other, live exclusively with each other as husband and wife without
the benefit of marriage or under a void marriage, the property
acquired by both of them through their work or industry shall be
governed the rules on co-ownership.
c. In cases of cohabitation not faling under Article 147 of the Family
Code, only the properties acquired by both of the parties though
their actual joint contribution of money, property, or industry shall
be owned by them in common in proportion to their respective
contributions.

2. Contract

 Co-ownership Distinguished From Partnersnip

54
 Co-ownership Partnership  Share in Benefits and Charges
As to may exist without the requires the a. Determination of interest in co-ownership
creation: necessity of a contract. existence of a  The share of the co-owner in the thing owned in common is
contract in order to determined by their agreement and, in default thereof, such share
arise.
shall be presumed to be equal.
As to does not possess a juridical Has juridical
personality: personality distinct from the personality separate b. Determination of share in benefits and charges:
co-owners. and distinct from that  The share of each co-owner in the benefits, as well as in the
of each of the charges, shall be proportionate to his interest in the coownership.
partners.  Any stipulation to the contrary is void.
As to This is absent, however, in In order to constitute
purpose: co-ownership, which is only a partnership, it is
 Use of the Property Owned in Common
for the purpose of common important that there
enjoyment of the thing must be an Right to use:
owned in common. agreement to divide  A co-owner may make use of the thing owned in common, even
the profits among the without the consent of the other co-owners, so long as the use is in
partners. accordance with the purpose for which it is intended and in a
As to an agreement not to divide there is no limit as to manner not injurious to the interest of the other co-owners.
duration: the property for more than the time of its
 Each co-owner of property held pro indiviso exercises his rights
10 years is not valid with existence.
respect to the excess. over the whole property and may use and enjoy the same with no
As to the the death of a co-owner but in partnership the other limitation than that he shall not injure the interests of his co-
effect of does not dissolve the co- death of a partner owners, the reason being that until a division is made, the
death: ownership brings about the respective share of each cannot be determined and every co-
dissolution of the owner exercises, together with his co-participants joint ownership
partnership over the pro indiviso property, in addition to his use and enjoyment
As to the a co-owner may freely but a partner has no of the same.
disposal of dispose of his share power of disposal so
share: as to make the buyer  Stated otherwise, a co-owner is an owner of the whole, and over
a partner unless the whole he exercises the right of dominion, but he is at the same
agreed upon by all time the owner of a portion which is truly abstract.
the other partners to
the owner to act with  Limitations on right to use:
third persons 1. It is use for the purpose intended;
As to the a co-owner does not but a partner usually
2. It must be use in such a way as not to injure the interest of the
power to act represent the co- ownership; represents the
with third partnership and may other co-owners; and
person bind the partnership. 3. Such use does not prevent the other co-owners from making
use thereof according to their own right.

55
 Consequences:
 The right of enjoyment by each co-owner is limited by a similar
right of the other co-owners.
 Thus, a co-owner cannot devote common property to his exclusive
use to the prejudice of the coownership.
 Hence, if the subject is a residential house, all the co-owners may
live there with their respective families to the extent possible.
 However, if one co-owner alone occupies the entire house without
opposition from the other co-owners, and there is no lease
agreement, the other co-owners cannot demand the payment of
rent.
 The co-owners can either exercise an equal right to live in the
house, or agree to lease it.
 If they fail to exercise any of these options, they must bear the
consequences.
 It would be unjust to require the co-owner to pay rent after the co-
owners by their silence have allowed him to use the property
 Conversely, if there is an agreement to lease the house, the co-
owners can demand rent from the co-owner who dwells in the
house.
 In case the co-owners agree to lease a building owned in
common, a co-owner cannot retain it for his use without paying the
proper rent.
 Moreover, where part of the property is occupied exclusively by
some co-owners for the exploitation of an industry, the other co-
owners become co-participants in the accessions of the property
and should share in its net profits.
 A co-owner cannot give valid consent to another to build a house
on the co-owned property, which is an act tantamount to devoting
the property to his or her exclusive use.
 Article 486 states each co-owner may use the thing owned in
common provided he does so in accordance with the purpose for
which it is intended and in such a way as not to injure the interest of
the co-ownership or prevent the other co-owners from using it
according to their rights.
 Giving consent to a third person to construct a house on the co-
owned property will injure the interest of the co-ownership and
prevent other co-owners from using the property in accordance
with their rights.
 Right to File Ejectment Case
 Rule: Any one of the co-owners may bring an action in ejectment.
 A co-owner may thus bring an ejectment action without joining the
other co-owners, the suit being deemed instituted for the benefit of
all.
 While all co-owners are real parties-in-interest in suits to recover
properties, anyone of them may bring an action for the recovery of
co-owned properties.
 Only the co-owner who filed the suit for the recovery of the co-
owned property becomes an indispensable party thereto
 The other co-owners are not indispensable parties.
 They are not even necessary parties, for a complete relief can he
afforded in the suit even without their participation, since the suit is
presumed to have been filed for the benefit of all co-owners.
 The term, “action in ejectment,” in Article 487 of the NCC not only
includes a suit of forcible entry (detentacion) or unlawful detainer
(desahucio) but all kinds of actions for the recovery of possession,
including an accion publiciana and a reivindicatory action.
 In Basbas v. Sayson, the Court pointed out that even just one of
the co-owners, by himself alone, can bring an action for the recovery
of the co-owned property, even through an action for revival of
judgment, because the enforcement of the judgment would result in
such recovery of property.
 Thus, it is not necessary in said action that all of the parties, in
whose favor the case for partition was adjudged, be made plaintiffs
to the action for revival of judgment.
56
  Any which one of said prevailing parties, who had an interest in the
enforcement of the decision, may file the complaint for revival of
judgment, even just by himself.
 Must be instituted for all
 A co-owner may file suit without necessarily joining all the other
co-owners as co-plaintiffs because the suit is deemed to be
instituted for the benefit of all.
 However, if the action is for the benefit of the plaintiff alone who
claims to be the sole owner and entitled to the possession thereof,
the action will not prosper unless he impleads the other co-owners
who are indispensable parties.
 In other words, if the co-owner expressly states that he is bringing
the case only for himself, the action should not be allowed to
prosper.
 Available even a:ainst a co-owner: Any co-owner may file an action
under Article 487 not only against a third person, but also against
another co-owner who takes exclusive possession and asserts
exclusive ownership of the proper
 In this case, however, the only purpose of the action is to obtain
recognition of the co-ownership.
 The plaintiff cannot seek exclusion of the defendant from the
property because as co-owner he has a right of possession.
 In other words, the plaintiff cannot recover any material or
determinate part of the property.
 This is based on the principle that a co-owner has no right to
demand a concrete, specific or determinate part of the thing
owned in common because until division is effected his right over
the thing is represented only by an ideal portion.
 Such being the case, the court cannot, in the action filed by a co-
owner against another co-owner under Article 487, proceed with
the actual partitioning of the co-owned property.
 Judicial or extrajudicial partition is still necessary to effect such
physical division.
 Effect of judgment:
 While a co-owner may bring an action in ejectment under Article
487 without the necessity of joining all the other co-owners as co-
plaintiffs because the suit is deemed to be instituted for the benefit
of all, any adverse judgment cannot prejudice the rights of the
unimpleaded co-owners.
 However, any judgment of the court in favor of the co-owner will
benefit the others.
 Expenses for Preservation and Taxes
 Right to Demand Contribution:
 A co-owner has the right to compel the other co-owners to
contribute to the expenses of preservation of the property owned
in common and to the taxes.
 If a co-owner does not want to contribute to such expenses or
taxes, he may renounce so much of his undivided interest as may
be equivalent to his share of the expenses and taxes.
 Such waiver is not allowed if the same is prejudicial to the
coownership.
 A co-owner who redeems the property in its entirety does not make
him the owner of all of it.
 The property remained in a condition of coownership as the
redemption does not provide for a mode of terminating a co-
ownership.
 But the one who redeemed had the right to be reimbursed for the
redemption price and until reimbursed, holds a lien upon the
subject property for the amount due.
 The failure of the other co-owners to reimburse the amounts
advanced by the one who redeemed in payment of the loan does
not entitle the latter to claim full ownership of the co-owned property.
 It only gives him the right to claim reimbursement: for the amounts
he advanced in behalf of the co-ownership. Such advance
payments are in the nature of necessary expenses for the
preservation of the co-ownership.
57
  Article 488 of the Civil Code provides that necessary expenses
may be incurred by one co-owner, subject to his right to collect
reimbursement from the remaining co-owners.
 Until reimbursed, he holds a lien upon the subject property for the
amount he advanced.
 Repairs for Preservation
 Any repair for the preservation of the property owned in common
may be made at will by one of the co-owners.
 Hence, consent by the other co-owners is not required. If the
giving of notice is practicable, he is required to notify the other co-
owners, but his failure to notify the others does not prevent him
from demanding reimbursement for the share of the others in the
expenses.
 Expenses for improvement ‘or embellishment must be decided,
however, by the majority.
 Acts of Alteration and Acts of Administration
 Acts of Alteration:
 Definition: An act by virtue of which a co-owner, in opposition to the
express agreement, if there is any, or, in default thereof, to the tacit
agreement of all the co-owners, and violating their will, changes the
thing from that state in which the others believe it should remain or
withdraws it from the use to which they wish it to be intended.
 An act of alteration, therefore, is one that affects the substance of
the thing and changes its essence and nature.
 Alterations include any act of strict dominion or ownership and any
encumbrance or disposition has been held implicitly to be an act of
alteration.
 For example, the construction of a house on the co-owned property
is an act of dominion.
 Therefore, it is an alteration falling under Article 491 of the Civil
Code.
 As such, when only one of the co-owners gave his consent to a
third person to construct a house on the co-owned property, the
other co-owners can successfully maintain an action for ejectment
and the consent of only one co-owner will not warrant the
dismissal of the complaint for forcible entry filed against the
builder.
 The alienation of the thing by sale of the property is an act of strict
dominion and constitutes in alteration as mentioned in Article 491 of
the Civil Code.
 However, the ruling that alienation is alteration does not mean that
a sale of commonly owned real property is covered by ' the second
paragraph of Article 491, such that if a co-owner withholds consent
to the sale, the courts, upon a showing of a clear prejudice to the
common interest, may, as adequate relief, order the grant of the
withheld consent.
 Unanimous consent is required
 The law prohibits the making of alterations in the thing owned in
common without the consent of the other co-owners.
 In other words, the law requires the consent of all co-owners to the
making of the alteration on the thing owned in common, even
though benefits for all would result from such act of alteration.
 In case, however, any of the co-owners should unreasonably
withhold his consent and the same is clearly prejudicial to the
common interest, the other co-owners may go to court for
appropriate relief.
 Sale of ideal share by a co-owner
 May a co-owner be forced to sell his share in the co-ownership by
invoking Article 491 of the Civil Code
 In Arambulo v. Nolasco, when two of the co-owners (the
respondents) refuse to give their consent to the sale of the co-
owned properties, the two other co-owners (the petitioners) filed a
petition for relief under Article 491 of the Civil Code to compel the
respondents to give their consent to the sale of their shares on the
subject properties alleging that the sale of subject properties
constitutes alteration; and that under Article 491 of the Civil Code,
if one or more co-owners shall withhold their consent to the
58
 alterations in the thing owned in common, the courts may afford
adequate relief.
 The trial court granted the petition and ordered the respondents to
give their consent to the sale of their shares on the subject
properties. On appeal, the CA held that the respondents had the
full ownership of their undivided interest in the subject properties,
thus, they cannot be compelled to sell their undivided shares in the
properties.
 It referred to the provisions of Article 493 of the Civil Code.
 However, the CA, implying applicability of Article 491 also
observed that petitioners failed to show how respondents’
withholding of their consent would prejudice the common interest
over the subject properties.
 When the case reached the Supreme Court, it was held that while
alienation of the thing by sale of the property is an act of strict
dominion and, therefore, an act of alteration, it does not mean that
a sale of commonly owned real property is covered by the second
paragraph of Article 491, such that if a co-owner withholds consent
to the sale, the courts, upon a showing of a clear prejudice to the
common interest, may, as adequate relief, order the grant of the
withheld consent. Instead, the applicable law is Article 493 of the
Civil Code, which clearly establishes that each co-owner shall
have full ownership of his part and of its fruits and benefits.
 That part which ideally belongs to them, or their mental portion,
may be disposed of as they please, independent of the decision of
their co-owners. Insofar as the sale of co-owned properties is
concerned, there is no common interest that may be prejudiced
should one or more of the co-owners refuse to sell the co-owned
property.
 Thus, when respondents disagreed to the sale, they merely
asserted their individual ownership rights. Without unanimity, there
is no common interest.
 Effect of unauthorized alteration
 If the alteration is made without the consent of all the co-owners,
the act is illegal and invalid, being an act executed against the
provision of a mandatory or prohibitory law.
 The other co-owners can compel the erring co-owner to undo what
has been done, at the latter’s expense, in addition to the right to
recover damages.
 Acts of Administration:
Concept: Acts of administration are those acts for the preservation,
improvement or embellishment of the thing owned in commo for the
purpose of better enjoyment, which do not affect its essence, form and
substance.
 Administration vs. Alteration:
 In determining whether an act is that of administration or alteration,
the nature of the thing itself must be considered.
 When the enjoyment of the thing does not require its modification,
whatever modification or change that is done will be considered an
alteration within the terms of Article 491 of the NCC.
 However, when the thing in its nature requires changes in its
exploitation, such modifications and variations should be considered
as falling under the acts of simple administration.
 Resolution of majority is required:
 With respect to acts of administration and better enjoyment of the
thing owned in common, the resolution of the majority of the co-
owners shall be sufficient.
 But the term “majority of co-owners” means the vote of the co-
owners representing the controlling interest in the object of co-
ownership.
 Should there be no majority, or should the resolution of the majority
be seriously prejudicial to those interested in the property owned in
common, the court, at the instance of an interested party, shall order
such measures as it may deem proper, including the appointment of
an administrator.”
59
Rights of Each Co-owner Over His Ideal Share Effect of alienation of the entire property:

Nature of his interest over his ideal or aliquot share:  As a mere part owner, a co-owner cannot alienate the shares of the
other co-owners.
 A co-owner has absolute ownership of his undivided and pro-
 The prohibition is premised on the elementary rule that "no one can
indiviso share in the co-owned property.
give what he does not have" — nemo dat quod non habet.
 Under Article 493 of the NCC, a co-owner shall have full ownership
 As a person can sell only what he owns or is authorized to sell, the
of his part and of the fruits and benefits pertaining thereto.
buyer can as a consequence acquire no more than what the seller
 He has the right to alienate, assign or mortgage it, and even to can legally transfer
substitute another person in its enjoyment, except when personal
 Based from this principle, no co-owner has the right to alienate the
rights are involved.
entire property owned in common.
 As a consequence, a co-owner has the right to alienate his pro

indiviso share in the co-owned property even without the consent of
 However, even if a co-owner sells the whole property as his, the
the other co-owners and his co-owners cannot enjoin him if he
sale will affect only his own share but not those of the other co-
intends to alienate his share to a third party.
owners who did not consent to the sale, following the well-
 He cannot also be forced to sell his share in the co-ownership by
established principle that the binding force of a contract must be
invoking Article 491 of the Civil Code
recognized as far as it is legally possible to do so — quando res non
 While alienation of the thing by sale of the property is an act of strict valet ut ago, valeat quantum valere potest (when a thing is of no
dominion and, therefore, an act of alteration, it does not mean that a effect as I do it, it shall have effect as far as [or in whatever way] it
sale of commonly owned real property is covered by the second can).
paragraph of Article 491, such that if a co-owner withholds consent
 Since a co-owner is entitled to sell his undivided share, a sale of the
to the sale, the courts, upon a showing of a clear prejudice to the
entire property by one co-owner without the consent of the other co-
common interest, may, as adequate relief, order the grant of the
owners is not null and void. However, only the rights of the co-
withheld consent.
owner-seller are transferred, thereby making the buyer a co-owner
 Instead, the applicable law is Article 493 of the Civil Code, which of the property.
clearly establishes that each co-owner shall have full ownership of
 In short, the sale or other disposition of a co-owner of the whole
his part and of its fruits and benefits. That part which ideally belongs
property affects only his undivided share and the transferee gets
to them, or their mental portion, may be disposed of as they please,
only what would correspond to his grantor in the partition of the thing
independent of the decision of their co-owners.616 Insofar as the
owned in common, thereby making the buyer a co-owner of the
sale of co-owned properties is concerned, there is no common
property. Stated otherwise, what the vendee obtains by virtue of
interest that may be prejudiced should one or more of the co-owners
such a sale are the same rights as the vendor had as co-owner, and
refuse to sell the co-owned property.
the vendee merely steps into the shoes of the vendor as co-owner.
 A co-owner may also validly lease his undivided interest to a third
party independently of the other co-owners.
 Since the sale is not null and void, the proper action in cases like
this is not for the nullification of the sale.
 And since such sale had the effect of making the buyer a co-owner
of the property, an action for the recovery of possession of the thing

60
 owned in common from the buyer who substituted the co-owner or
co-owners who alienated their shares is likewise not proper since
possession by the buyer, being a new co-owner, will not be
regarded as adverse to the other co-owners but in fact as beneficial
to all of them.
 It is now settled that the appropriate recourse of co-owners in cases
where their consent were not secured in a sale of the entire property
as well as in a sale merely of the undivided shares of some of the
co-owners is an action for partition under Rule 69 of the Revised
Rules of Court.
 However, where a parcel of land, forming part of the undistributed
properties of the dissolved conjugal partnership of gains, is sold by a
widow to a purchaser who merely relied on the face of the certificate
of title thereto (registered in the name of the widow only), the
purchaser acquires a valid title to the land even as against the heirs
of the deceased spouse.
Effect of alienation of concrete or specific portion:
 A co-owner has no right to sell or alienate a concrete, specific or
determinate part of the thing owned in common, because his right
over the thing is represented by a quota or ideal portion without any
physical adjudication.
 The principle that a co-owner cannot rightfully dispose of a particular
portion of a co-owned property prior to partition among all the co-
owners does not, however, signify that the vendee does not acquire
anything at all in case a physically segregated area of the co-owned
lot is in fact sold to him.
 Since the co-owner/vendor's undivided interest could properly be the
object of the contract of sale between the parties, what the vendee
obtains by virtue of such a sale are the same rights as the vendor
had as co-owner, in an ideal share equivalent to the consideration
given under their transaction.
 In other words, the vendee steps into the shoes of the vendor as co-
owner and acquires a proportionate abstract share in the property
held in common.
 As held in Lopez u Vda. de Cuaycong, that the fact that an
agreement purported to sell a concrete portion of a co-owned
property does not render the sale void, for it is well-established that
the binding force of a contract must be recognized as far as it is
legally possible to do so. (Quando res non valet ut ago, valeat
quantum valere potest" (When a thing is of no force as I do it, it shall
have as much force as it can have)
 Consequently, whether the disposition involves an abstract or
concrete portion of the co-owned property, the sale remains validly
executed.
 What will be affected on the sale is only his proportionate share,
subject to the results of the partition.
 The co-owners who did not give their consent to the sale stand to be
unaffected by the alienation.
 [NOTE: The ruling in Cabrera u Ysaac,638 that a contract of sale
which purports to sell a specific or definite portion of unpartitioned
land is null and void ab initio, is an aberration.]
 The proper action in cases like this is not for the nullification of the
sale or for the recovery of possession of the thing owned in common
from the third person who substituted the co-owner or co-owners
who alienated his shares, but the DIVISION of the common
property of the co-owners who possessed and administered it.
 In Del Campo v. CA, however, the buyer of a concrete or specific
portion sold by one of the co-owners was held to be entitled to the
specific portion which she purchased because the said buyer was
allowed by the other co-owner to occupy said definite portion without
disturbance for a period too long to be ignored.
 According to the Court in said case, such undisturbed possession
had the effect of a partial partition of the co-owned property which
61
 entitles the buyer-possessor to the definite portion which she
occupies.
Right of Legal Redemption:
When right exist:
 Legal redemption is in the nature of a privilege created by law partly
for reasons of public policy and partly for the benefit and
convenience of the redemptioner, to afford him a way out of what
might be a disagreeable or inconvenient association into which he
has been thrust.
 It is intended to minimize co-ownership.
 The law grants a co-owner the exercise of the said right of
redemption when the shares of the other owners are sold to "a third
person."
 A third person, within the meaning of Article 1620 of the NCC is
anyone who is not a co-owner or a stranger to the ownership.
 But it is a one way street. It is always in favor of the redemptioner
since he can compel the vendee to sell to him but he cannot be
compelled by the vendee to buy the alienated property.
Requisites:
1. There must be a co-ownership;
2. one of the co-owners sold his right to a stranger;
3. the sale was made before the partition of the co-owned property
4. the right of redemption must be exercised by one or more co-
owners within a period of thirty days to be counted from the time
that he or they were notified in writing by the vendee or by the
co-owner vendor; and
5. the vendee must be reimbursed for the price of the sale.
For this right to be exercised, co-ownership must exist at the time
the conveyance is made by a co-owner and the redemption is
demanded by the other co-owner or co-owner(s).
Who may exercise right of redemption:
 One co-owner cannot exercise the right of redemption alone,
because the right belongs to all the other co-owners in common.
 The right of legal redemption lies in all cotenants of the things held
in common.
 The law concedes to all the use of the right of redemption whenever
they exercised it within the period indicated for the purpose.
 Should two or more co-owners desire to exercise the right of
redemption, they may only do so in proportion to the share they may
respectively have in the thing owned in common.
Period of redemption:
 A co-owner desirous of exercising his right of legal redemption is
given a period of 30 days from the notice in writing by the
prospective vendor, or by the vendor, as the case may be.
 The indispensability of a written notice had long been discussed in
the early case of Conejero u Court of Appeals, where it was held
that such notice is indispensable and mere knowledge of the sale,
acquired in some other manner by the redemptioner, does not
satisfy the statute.
 The written notice, according to said case, was obviously exacted by
the Code to remove all uncertainty as to the sale, its terms and its
validity, and to quiet any doubts that the alienation is not definitive.
 In Verdad u. Court of Appeals, the Court again emphasized that the
written notice of sale is mandatory and that notwithstanding actual
knowledge of a co-owner, the latter is still entitled to a written notice
from the selling co-owner in order to remove all uncertainties about
the sale, its terms and conditions, as well as its efficacy and status.
 In Aguilar v. Aguilar however, the Court relaxed the written notice
requirement by declaring that a co-owner with actual notice of the
sale is not entitled to a written notice for such would be superfluous.
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 However, the trend in more recent cases is to go back to the ruling
in Conejero and Verdad emphasizing on the indispensability of the
written notice requirement.
Form of notice:
 In Conejero u Court of Appeals while the Court ruled that the
notice must be in writing, it was clarified that Article 1623 does not
prescribe a particular form of notice, nor any distinctive method for
notifying the redemptioner.
 As long as the redemptioner was notified in writing of the sale and
the particulars thereof, the redemption period starts to run.
 Thus, in Conejero, when theco-owner was furnished a copy of the
deed of sale, it was ruled that the written notice requirement was
satisfied.
 In another case, the receipt of a summons by a co-owner in a civil
case for collection of a share in the rentals by an alleged buyer of a
co-owned property has been held to constitute actual knowledge of
the sale.
 The co-owner is also deemed to have been given notice of the sale
by the execution and signing of the Deed of Extrajudicial Partition
and Exchange of Shares in the case of Fernandez u. Tarun.
Notice must come from vendor:
 In Butte v. Manuel Uy & Sons, Inc.,662 the Court ruled that the 30
days for making the redemption are to be counted from notice in
writing by the vendor and that the notice given by the vendee
(buyer) should not be taken into account.
 The Court explained that "the seller of an undivided interest is in the
best position to know who are his co-owners that under the law must
be notified of the sale.
 Also, the notice by the seller removes all doubts as to fact of the
sale, its perfection; and its validity, the notice being a reaffirmation
thereof, so that the party notified need not entertain doubt that the
seller may still contest the alienation.
 This assurance would not exist if the notice should be given by the
buyer."
 In Etcuban v. Court of Appeals^ however, it was held that it was "of
no moment" that the notice of sale was given not by the vendor but
by the vendees.
 The Court further ruled that so long as the co-owner is informed in
writing of the sale and the particulars thereof, the 30 days for
redemption start running, and the redemptioner has no cause to
complain.
 However, in the later case of Salatandol v. Retesw4 decided a year
after the Etcuban case, the Court expressly affirmed the ruling in
Butte that the notice required by Article 1623 must be given by the
vendor.
 In Francisco v. Boiser, the Court ruled that the return to the ruling in
Butte is proper because Article 1623 of the Civil Code is clear in
requiring that the written notification should come from the vendor or
prospective vendor, not from any other person.
Co-owner has no pre-emptiye right:
 The law does not grant to any of the owners of a property held in
common a pre-emptive right to purchase the pro indiviso shares of
his co-owners.
 Article 1620 of the NCC contemplates a situation where a co-owner
has alienated his pro indiviso share to a stranger.
 By the very nature of the right of "legal redemption," a co-owner's
right to redeem is invoked only AFTER the shares of the other co-
owners are sold to a third party or stranger to the co-ownership.
 Article 1620 vs. Article 1088:
 When the sale consists of an interest in some particular property or
properties of the inheritance, the right of redemption that arises in
favor of the other co-heirs is that recognized in Article 1620.
 On the other hand, if the sale is the hereditary right itself, fully or in
part, in the abstract sense, without specifying any particular object,
the right recognized in Article 1088 of the NCC exists.
63
Causes of Extinguishment of Co-ownership
Causes or Grounds:
1. Merger in one person of all the interest of the coownership;
2. Prescription of the thing or right in favor of third persons or a co-
owner;
3. Destruction of the thing or loss of the right which is owned in
common; and
4. Partition of the property owned in common.
Redemption of property:
 The rule in this jurisdiction is that the redemption by one co-heir or
co-owner of the property in its totality does not vest in him
ownership over it since redemption is not a mode of terminating a
co-ownership.
 A redemption made by a co-owner within the period prescribed by
law inures to the benefit of all the other co-owners.
 In such a situation, therefore, the redemption made by one co-
owner will simply entitle him to collect reimbursement from the
remaining co-owners pursuant to the provisions of Article 488 of the
NCC considering that redemption entails a necessary expense and
until reimbursed, he holds a lien upon the subject property for the
amount due.
 The Adille case must be distinguished from the case of Tan u. Court
of Appeals
 In Tan, the heirs (i.e., the co-owners) allowed the one year
redemption period to expire without redeeming their parents' former
property and permitted the consolidation of ownership and the
issuance of a new title in favor of the bank.
 By their knowing acts of omission, the heirs in the Tan case allowed
the extinction of their co-ownership.
 Hence, when one of the heirs re-acquired the property after the
redemption period, the other heirs cease to be co-owners of the said
property since the coownership was already terminated upon the
lapse of the redemption period.
Prescription
Prescription does not run against a co-owner:
 The rule in this jurisdiction is that prescription shall run in favor of a
co-owner against his co-owners or co-heirs so long as he expressly
or impliedly recognizes the co-ownership.
 Otherwise stated, a co-owner cannot acquire by prescription the
share of the other co-owners absent a clear repudiation of co-
ownership duly communicated to the other co-owners.
 The reason is that the possession of a co-owner is like that of a
trustee and shall not be regarded as adverse to the other co-owners
but in fact as beneficial to all of them.
 Mere actual possession by one will not give rise to the inference that
the possession was adverse because a co-owner is, after all,
entitled to possession of the property.
 Thus, as a rule, prescription does not run in favor of a co-heir or co-
owner as long as he expressly or impliedly recognizes the co-
ownership; and he cannot acquire by prescription the share of the
other co-owners, absent a clear repudiation of the c0-ownership.
When prescription will lie:
 If the co-owner actually holding the property asserts exclusive
dominion over it against the other co-owners, the corollary of the
rule is that he can acquire sole title to it after the lapse of the
prescribed prescriptive period.
 Thus, prescription, as a mode of terminating a relation of co-
ownership, must have been preceded by repudiation of the co-
ownership and absent a clear repudiation of the co-ownership a co-
owner cannot acquire by prescription the share of the other co-
owners.
 In order that title may prescribe in favor of one of the coowners, it
must be clearly shown that he has repudiated the claims of the
others, and that they were apprised of his claim of adverse and
exclusive ownership, before the prescriptive period begins to run.
64
 The evidence relative to the possession, as a fact, upon which the
alleged prescription is based, must be clear, complete and
conclusive in order to establish said prescription without shadow of
doubt.
 Prescription can only produce all its effects when acts of ownership
do not evince any doubt as to the ouster of the rights of the other co-
owners.
 Hence, prescription among co-owners cannot take place when acts
of ownership exercised are vague or uncertain.
 The rule further requires a clear repudiation of the co-ownership
duly communicated to the other co-owners.
 It is only when such unequivocal notice has been given that the
period of prescription will begin to run against the other co-owners
and ultimately divest them of their own title if they do not seasonably
defend it.
Requisites:
In order that the title may prescribe in favor of a co-owner or in order that
a co-owner's possession may be deemed adverse to the other co-
owners,the following elements must concur:
1. That the co-owner has performed unequivocal acts of repudiation
amounting to an ouster of the cestui que trust or the other co-owners;
2. That such positive acts of repudiation have been made known to the
cestui que trust or the other co-owners;
3. That the evidence thereon must be clear and convincing;687 and
4. That he has been in possession through open, continuous, exclusive,
and notorious possession of the property for the period required by
law.688
Illustrative acts of repudiation:
 Acts which may be considered adverse to strangers may not be
considered adverse insofar as co-owners are concerned.
 Thus, Salvador v. Court of Appeals reiterated what acts constitute
proof of exclusive ownership amounting to repudiation, emphasizing
that the act must be borne out of clear and convincing evidence of
acts of possession which unequivocably amounts to an ouster or
deprivation of the right of the other co-owner.
 The case of Pangan v. Court of Appeals enumerated the following
as constituting acts of repudiation:
Filings of action to quite title:
o Filing by a trustee of an action in court against the trustor to
quiet title to property, or for recovery of ownership thereof,
held in possession by the former, may constitute an act of
repudiation of the trust reposed on him by latter.
o The filing of an action for quieting of title is not enquivocal
act of repudiation.
Issuance of new title excluding other co-owners:
 The issuance of the certificate of title would constitute an open and
clear repudiation of any trust, and the lapse of more than 20 years,
open and adverse possession as owner would certainly suffice to
vest title by prescription.
 It is only when the defendants, alleged co-owners of the property in
question, executed a deed of partition and on the strength thereof
obtained the cancellation of the title in the name of their predecessor
and the issuance of a new one wherein they appear as the new
owners of a definite area each, thereby in effect denying or
repudiating the ownership of one of the plaintiffs over his alleged
share in the entire lot, that the statute of limitations started to run for
the purposes of the action instituted by the latter seeking a
declaration of the existence of the co-ownership and of their rights
thereunder.
 But the act of some co-owners in effecting the registration of the
land only in their names did not effectively repudiate the
coownership when they allowed the other co-owner to build her
house on the subject property without any opposition from them.
65
 Such act constitutes an implied recognition of the coownership
which in turn negates the presence of a clear notice of repudiation to
the ousted coowner.
Payment of real estate taxes:
 The sole fact of a co-owner declaring the land in question in his
name for taxation purposes and paying the land taxes did not
constitute an unequivocal act of repudiation amounting to an ouster
of the other co-owner and could not constitute adverse possession
as basis for title by prescription.
Not clear acts of repudiation:
 Mere silent possession by a co-owner; his receipt of rents, fruits or
profits from the property;
 his erection of buildings and fences and the planting of trees
thereon;
 and the payment of land taxes cannot serve as proofs of exclusive
ownership, if it is not borne out by clear and convincing evidence
that he exercised acts of possession which unequivocably
constituted an ouster or deprivation of the rights of the other co-
owners.
Partition
 Partition is the separation, division or assignment of a thing held in
common among those to whom it may belong.
 Every act which is intended to put an end to indivision among co-
heirs and legatees or devisees is deemed to be a partition, although
it should purport to be a sale, an exchange, a compromise or any
other transaction.
Action for partition, imprescriptible:
(a) No co-owner shall be obliged to remain in the coownership. Each
co-owner may demand at any time the partition of the thing owned
in common, insofar as his share is concerned.
(b) It has been held that Article 494 of the NCC which provides that
each co-owner may demand at any time the partition of the
common property implies that an action to demand partition is
imprescriptible or cannot be barred by laches.
 The positive mandate of Article 494 of the Civil Code conferring
imprescriptibility to actions of a co-owner or co-heir against his co-
owners or coheirs should preempt and prevail over all abstract
arguments based only on equity.
 Certainly, laches cannot be set up to resist the enforcement of an
imprescriptible legal right.
(c) In Quintos u. Nicolas, the co-owners filed an action for partition
which was dismissed by the trial court for failure of the parties and
counsel to appear.
The judgment of dismissal became final. Subsequently, some of the
co-owners filed an action against the other co-owners for quieting
of title alleging exclusion ownership thereof by prescription.
The defendants in the action for quieting of title filed a counter-
claim for partition.
The parties who filed the action for quieting of title alleged that the
counter-claim for partition is already barred by res judicata because
the dismissal of the action for partition was with prejudice.
On the issue of partition, the Court ruled that while the dismissal of
a case for failure to prosecute has the effect of adjudication on the
merits, and is necessarily understood to be with prejudice to the
filing of another action, such dismissal with prejudice under Rule
17, Section 3 of the Rules of Court cannot defeat the riglit of a co-
owner to ask for partition at any time, provided that there is no
actual adjudication of ownership of shares yet.
66
 The Court explained that between dismissal with prejudice under
Rule 17, Section 3 and the right granted to co-owners under Article
494 of the Civil Code, the latter must prevail. To construe otherwise
would diminish the substantive right of a co-owner through the
promulgation of procedural rules.
When action is no longer for partition:
 An action for partition implies that the thing is still owned in common.
 Hence, as long as the co-ownership is recognized, an action to
compel partition will not prescribe and may be filed at any time
against the actual possessor by any of the other co-owners.
 If a co-owner or co-heir, however, holds the property in exclusive
and adverse possession as owner, asserting sole and exclusive
dominion for the required period by law, he can acquire sole title to it
as against the other co-heirs or co-owners.
 The imprescriptibility of the action cannot thus be invoked when one
of the co-owners has possessed the property as exclusive owner
and for a period sufficient to acquire it by prescription.
 From the moment one of the co-owners claims that he is the
absolute and exclusive owner of the properties and denies the
others any share therein, the question involved is no longer one of
partition, but of ownership.
 In such case, the imprescriptibility of the action for partition can no
longer be invoked or applied when one of the co-owners has
adversely possessed the property as exclusive owner for a period
sufficient to vest ownership by prescription.
Period of Prescription:
(a) When a co-owner has effectively repudiated the co-ownership, two
possibilities may arise:
(1) such co-owner may acquire the entire property by virtue
of acquisitive prescription if his possession meets all the
requirements of the law, and after the expiration of the
prescriptive period; or
(2) (2) the other co-owners who were deprived of their
share may lose their right to seek a declaration of the
existence of the co-ownership and of their rights
thereunder because the same may already be barred
under the statute of limitations (or extinctive
prescription).
(b) Where there is a repudiation of the co-ownership over a real
property, it has been held that the action for reconveyance by a co-
owner of his share prescribes in 10 years, the action being based
on an implied or constructive trust.
(c) The Supreme Court has ruled that when a coowner of the property
executed a deed of partition and on the strength thereof obtained the
cancellation of the title in the name of their predecessor and the
issuance of a new one wherein he appears as the new owner of the
property, thereby in effect repudiating the ownership of the other co-
owners over their shares, the statute of limitations started to run for
the purpose of the action instituted by the latter seeking a declaration
of the existence of the co-ownership and of their rights thereunder.
Since an action for reconveyance of land based on implied or
constructive trust prescribes after 10 years, it is from the date of the
issuance of such title that the effective assertion of adverse title for
purposes of the statute of limitations is counted.
(d) Contra: In Maritegui u Court of Appeals^ however, the Supreme
Court held that when a co-owner or co-heir registered the properties
in his name in fraud of other co-owners or coheirs, prescription can
only be deemed to have commenced from the time the latter
discovered the former's act of defraudation. InAdille v. Court of
67
 Appeals,715 the Court held that while it is true that registration under
the Torrens system is constructive notice of title, the Torrens title
does not furnish a shield for fraud.]
When partition not available:
a) When there is an agreement among the owners to keep the thing
undivided.
However, such agreement must not exceed ten years.
Where the parties stipulate a definite period of in
division which exceeds the maximum allowed by law, said stipulation
shall be void only as to the period beyond such maximum.
However, the period of 10 years may be extended by a new
agreement.
(d) When partition would render the thing unserviceable for the use for
which it is intended.
(e) Whenever the thing is essentially indivisible and the co-owners
cannot agree that it be allotted to one of them who shall indemnify the
others, it shall be sold and its proceeds distributed.
This is resorted to when:
(1) the right to partition the property is invoked by any of
the co-owners but because of the nature of the property
it cannot be subdivided or its subdivision would
prejudice the interests of the co-owners, and
(2) (2) the co-owners are not in agreement as to who
among them shall be allotted or assigned the entire
property upon proper reimbursement of the co-owners.

b) When the donor or testator prohibits partition for a period which shall
not exceed 20 years.

Although the Civil Code is silent as to the effect of the indivision of a

property for more than twenty years, it would be contrary to public policy
to sanction co-ownership beyond the period set by the law.

Otherwise, the 20-year limitation expressly mandated by the Civil Code

would be rendered meaningless.

(c) When the law prohibits partition such as when the origin or juridical
nature of co-ownership prevents partition: Examples:

(1) The spouses, who are governed by a regime of absolute

community, cannot agree to partition the community property
without a judicial order.

(2) The heirs cannot partition the family home upon the death of
the person or persons who constituted the same unless the court
finds compelling reasons therefore, for a period of ten years or
until there is a minor beneficiary residing therein.

68
[Title TV— Some Special Properties]
[Chapter 1: Waters]
[Chapter 2: Minerals]
[Chapter 3: Trademarks and Trade Names]
(Arts. 502 - 522, NCC)
Ownership of Waters
Ownership: All waters in their natural beds must be considered of public
dominion.
(a) Including waters found on private lands:
The Water Code of the Philippines, which declared "waters" as
belonging to the State, appears to have nationalized the ownership of
waters found in their natural beds by declaring all of them as State-
owned, whether or not the waters are found on private lands.
(b) Including subterranean waters:
Notwithstanding Article 437 of the NCC, subterranean or ground waters
also belong to the State even if they are found on private lands.730
Appropriation of Waters:
(a) All waters that belong to the State, according to Article 3 of the Water
Code of the Philippines, cannot be the subject of acquisitive prescription.
(b) Ordinarily, appropriation of water is not authorized without a "water
permit" which is a privilege granted by the government to appropriate
and use water and evidenced by a document known as "water permit."
A water permit, however, need not be secured in the following
instances:
(1) For use of waters found on private lands by the owner thereof but
only for domestic purposes.
Use of water for "domestic purpose" is the utilization of water for
drinking, washing, bathing, cooking or other household needs, home
gardens, and watering of lawns or domestic animals.
(2) For appropriation or use of natural bodies of water for any of the
following:
(a) Appropriation of water by means of hand-carried receptacles; and
(b) Bathing or washing, watering or dipping of domestic or farm animals,
and navigation of watercrafts or transportation of logs and other objects
by floatation.
Minerals
Governing Laws
(a) R.A. No. 7942 or The Philippine Mining Act of 1995" is the governing
law that regulates mineral resources development in the country.
Section 2 of the said Act provides that "all mineral resources in public
and private lands within the territory and exclusive economic zone of the
Republic of the Philippines are owned by the State."
(b) Small-scale mining activities, however, are governed by the R.A. No.
7076, otherwise known as "The People's Small-scale Mining Act of
1991."
69
Trademarks and Trade Names

Governing Law: The law on trademarks, service marks and trade names
are governed by Sections 121 up to170 of Republic Act No. 8293,
otherwise known as the "Intellectual Property Code of the Philippines,"
which took effect on January 1, 1998.

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