A RESEARCH PAPER ON

PARTITION
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS IN THE SUBJECT OF
PROVISIONAL REMEDIES & SPECIAL CIVIL ACTIONS

SUBMITTED BY:

MERA LYKA A. TIMAN

JD 3-2

SUBMITTED TO:

ATTY. CHRISTIAN VILLASIS

 INTRODUCTION

Under Rule 1 Section 3 (a) of the Rules of Court, a civil action is one by
which a party sues another for the enforcement or protection of a right, or the
prevention or redress of a wrong. The rules of court pronounce that the purpose of
a civil action is fir the enforcement or protection of a right; or prevention or redress
of a wrong. The rules also classified civil actions into two; the ordinary civil action
and special civil action. Although both types of actions are governed by the rules
for ordinary civil actions, there are certain rules that are applicable only to specific
civil actions. The fact that an action is subject to certain special rules, other than
those applicable to ordinary civil actions, is what makes a civil action special.

The special civil actions under the rules of court are Interpleader (Rule
62), Declaratory Relief (Rule 63), Review of judgments and final orders or
resolutions of the Commissions on Elections and Commission on Audit (Rule 64),
Certiorari, Prohibition and Mandamus (Rule 65), Quo Warranto (Rule 66),
Expropriation (Rule 67, Foreclosure of real estate mortgage (Rule 68), Partition
(Rule 69), Forcible entry and unlawful detainer (Rule 70) and Contempt (Rule 71).
While ordinary civil actions are initiated by the filing of a complaint, some of the
special civil actions are initiated by filing of a petition.

This research paper will concentrate on Rule 69 – Partition, its nature,

purpose, the process of the application until the execution and the other salient
features of the aforementioned Special Civil Action.
 RULE 69

PARTITION

An action for partition is typically brought by a person claiming to be the

owner of a specified property against defendants whom the plaintiff recognizes as
co-owners.1 The Civil Code of the Philippines defines partition as separation,
division and assignment of a thing held in common among those to whom it may
belong.2 Partition is the division between two (2) or more persons of real or
personal property, owned in common, by setting apart their respective interests so
that they may enjoy and possess these in severalty, resulting in the partial or total
extinguishment of co-ownership.3

Partition among heirs is not legally deemed a conveyance of real property

resulting in change of ownership. It is not a transfer of property from one to the
other, but rather, a confirmation or ratification of title or right of property that an
heir is renouncing in favor of another heir who accepts and receives the
inheritance. It is merely a designation and aggregation of that part which belongs
to each heir.4

Partition presupposes the existence of a co-ownership over a property

between two (2) or more persons. Thus, it was ruled that a division of property
cannot be ordered by the court unless the existence of co-ownership is first
established, and that an action for partition will not lie if the claimant has a rightful
interest in the property.5

1
[ CITATION Ign17 \l 13321 ]
2
[ CITATION Art \l 13321 ]
3
[ CITATION Leo11 \l 13321 ]
4
[ CITATION Ure11 \l 13321 ]
5
[ CITATION CoG11 \l 13321 ]
PARTITION MAY BE:

1. Judicial – Procedure is Rule 69

2. Extrajudicial – No court intervention is required

Nothing in Rule 69 contained shall be construed so as to restrict or

prevent persons holding real estate jointly or in common from making an amicable
partition thereof by agreement and suitable instruments of conveyance without
recourse to an action.6 An action for partition and accounting under Rule 69 is in
the nature of an action quasi in rem. Such action is essentially for the purpose of
affecting the defendant’s interest in a specific property and not to render a
judgment against him.7

WHEN PARTITION CAN BE DONE:

General rule:

Prescription does not run in favor of a co-owner or co-heirs as long as there is a

recognition of the co-ownership, expressly or impliedly.8

Exception:

If a co-owner asserts adverse title to the property, in which case, the prescription
period runs from such time of assertion of the adverse title.9

6
[ CITATION Sec \l 13321 ]
7
[ CITATION Val96 \l 13321 ]
8
[ CITATION Wil12 \l 13321 ]
9
[ CITATION DeC11 \l 13321 ]
WHEN PARTITION CANNOT BE DONE:

1. When there is a stipulation against it, but not exceeding 10 years; [Art. 494,
CC]
2. When partition is prohibited by the donor or testator for a period not
exceeding 20 years; [Arts.494, 1083, CC]
3. When partition is prohibited by law (e.g. ACP, party wall); [Art. 494, CC]
4. When the property is not subject to a physicaldivision and to do so would
render it unserviceable for the use for which is it intended; [Art. 495, CC] or
5. When the condition imposed upon voluntary heirs before they can demand
partition has not yet been fulfilled [Art. 1084, CC]

WHO MAY FILE COMPLAINT;

WHO SHOULD BE MADE DEFENDANTS

Who may file?

A person having the right to compel the partition of real estate [Sec. 1, Rule 69]

Who should be made defendants?

All other persons interested in the property [Sec. 1, Rule 69]

JURISDICTION

a. The primary issue to be determined in an action for partition boils down to

whether or not the plaintiff has a right to partition, an issue incapable of
pecuniary estimation. Thus, from this perspective, it may be argued that the
action would be cognizable by the RTC.
 b. However, an action for partition of real property also involves “interest in
real property.” Sec. 19(2) of B.P. 129, as amended by R.A. 7691, requires
that in all civil actions involving the title to, or possession of, real property,
or any interest therein, the jurisdiction should be determined by inquiring
into the assessed value of the real property. Under this provision, an action
for partition of real property may be filed in the MTC depending on the
assessed value of the property.
c. Perhaps guidance may be obtained from Heirs of Concha, Sr. vs. Lumocso10

1. Under the old law, there was no substantial effect on jurisdiction

whether a case is one incapable of pecuniary estimation.

2. The distinction between the two classes became crucial with the
amendment introduced by R.A. 7691 in 1994 which expanded the
exclusive original jurisdiction of the first level courts.11

MATTERS TO ALLEGE IN THE COMPLAINT FOR

PARTITION

Contents

a. The nature and extent of his title and

b. Adequate description of the real estate of which partition is demanded

c. Joining as defendants all other persons interested in the property [Sec. 1, Rule
69] d. Demand for accounting of the rents, profits, and other income from the
property to which he may be entitled to as his share [Sec. 8, Rule 69] Since these

10
[ CITATION GRN07 \l 13321 ]
11
Supra8
cannot be demanded in another action (because they are part of the cause of action
for partition), they are barred if not set up.12

TWO STAGES IN EVERY ACTION FOR PARTITION

FIRST STAGE

 Determination of the propriety of partition This involves a determination of

whether the subject property is owned in common and whether all the co-
owners are made parties in the case. 13 The order may also require an
accounting of rents and profits recovered by the defendant. This order of
partition is appealable.14 If not appealed, then the parties may partition the
common property in the way they want. If they cannot agree, then the case
goes into the second stage. However, the order of accounting may in the
meantime be executed.15

A final order decreeing partition and accounting may be appealed by any

party aggrieved thereby [Sec. 2, Rule 69]

SECOND STAGE

 Actual partitioning of the subject property. There can be no partition again

because there is no more common property.16 The action for partition is
subject to multiple appeals and would require a record on appeal.17

12
Supra8 11
13
[ CITATION Lac11 \l 13321 ]
14
[ CITATION Mir76 \l 13321 ]
15
[ CITATION DeM94 \l 13321 ]
16
[ CITATION Noc99 \l 13321 ]
17
[ CITATION Rom91 \l 13321 ]
 ORDER OF PARTITION AND PARTITION BY
AGREEMENT

A. ORDER OF PARTITION:

If after the trial the court finds that the plaintiff has the right
thereto, it shall order the partition of the real estate among all the parties
in interest.

B. PARTITION BY AGREEMENT:

Thereupon the parties may, if they are able to agree, make the
partition among themselves by proper instruments of conveyance, and
the court shall confirm the partition so agreed upon by all the parties,
and such partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in which
the property is situated.

PARTITION BY COMMISSIONERS; APPOINTMENT OF

COMMISSIONERS, COMMISSIONER’S REPORT; COURT
ACTION UPON COMMISSIONER’S REPORT

When proper

 If the parties are unable to agree upon the partition [Sec. 3, Rule 69]

Procedure

 The court shall appoint not more than 3 competent and disinterested persons
as commissioners to make the partition, commanding them to set off to the
 plaintiff and to each party in interest such part and proportion of the property
as the court shall direct [Sec. 3, Rule 69]

Oath of commissioners

 Before making such partition, the commissioners shall take and subscribe an
oath that they will faithfully perform their duties as commissioners, which
oath shall be filed in court with the other proceedings in the case [Sec. 4,
Rule 69]

Duties of commissioners

1. View and examine the real estate, after due notice to the parties to attend at
such view and examination, and

2. Hear the parties as to their preference in the portion of the property to be

set apart to them and the comparative value thereof, and

3. Set apart the same to the parties in lots or parcels as will be most
advantageous and equitable, having due regard to the improvements,
situation and quality of the different parts thereof [Sec. 4, Rule 69]

The provision authorizes the commissioners merely to make or effect the

partition. It does not grant them the authority to adjudicate on questions of
title or ownership.18

18
Supra8 11 12
ASSIGNMENT OF REAL ESTATE TO ONE PARTY

General rule:

When it is made to appear to the commissioners that the real estate, or

a portion thereof, cannot be divided without prejudice to the interests of the
parties, the court may order it assigned to one of the parties willing to take
the same, provided he pays to the other parties such amounts as the
commissioners deem equitable.

Exception:

If one of the interested parties asks that the property be sold instead of
being so assigned, in which case the court shall order the commissioners to
sell the real estate at public sale under such conditions and within such time
as the court may determine [Sec. 5, Rule 69]

COMMISSIONER’S REPORT

1. The commissioners shall make a full and accurate report to the court of all
their proceedings as to the partition, or the assignment of real estate to
one of the parties, or the sale of the same.

2. Upon the filing of such report, the clerk of court shall serve copies thereof
on all the interested parties with notice that they are allowed 10 days
within which to file objections to the findings of the report, if they so
desire.

3. No proceeding had before or conducted by the commissioners shall pass

the title to the property or bind the parties until the court shall have
 accepted the report of the commissioners and rendered judgment thereon
[Sec. 6, Rule 69]

HEARING ON THE REPORT

a. Upon the expiration of the period of 10 days referred to in Sec. 6,

Rule 69, or

b. Even before the expiration of such period but after the interested
parties have filed their objections to the report or their statement of
agreement therewith, the court may,
1. Upon hearing, accept the report and render judgment in
accordance therewith, or,

2. For cause shown, recommit the same to the commissioners

for further report of facts, or

3. Set aside the report and appoint new commissioners, or

4. Accept the report in part and reject it in part; and the court
may make such order and render such judgment as shall
effectuate a fair and just partition of the real estate, or of its
value, if assigned or sold as above provided, between the
several owners thereof. [Sec. 7, Rule 69]

The court may make such order and render such judgment as shall
effectuate a fair and just partition of the real estate, or of its value, if
assigned or sold as above provided, between the several owners thereof.
[Sec. 7, Rule 69
JUDGMENT AND ITS EFFECTS

CONTENTS OF JUDGMENT EFFECTS OF JUDGMENT

If actual partition is properly made
Judgment shall state definitely, by Judgment shall vest in each party to
metes and bounds and adequate the action in severalty the portion of
description, the particular portion of the the real estate assigned to him.
real estate assigned to each party.
If the whole property is assigned to one of the parties after payment
Judgment shall state the fact of such Judgment shall vest in the party
payment and of the assignment of the making the payment the whole of the
real estate to the party making the real estate free from any interest on
payment. the part of the other parties to the
action.
If the property is sold and the sale confirmed by the court
Judgment shall state the name of the Judgment shall vest the real estate in
purchaser or purchasers and a definite the purchaser or purchasers making
description of the parcels of real estate the payment or payments, free from
sold to each purchaser. the claims of any of the parties to the
action. [Sec. 11, Rule 69]

A certified copy of the judgment shall in either case be recorded in the

registry of deeds of the place in which the real estate is situated, and the
expenses of such recording shall be taxed as part of the costs of the action.
[Sec. 11, Rule 69]

PARTITION OF PERSONAL PROPERTY

 The provisions of Rule 69 shall apply to partitions of estates composed of
personal property, or of both real and personal property, in so far as the same
may be applicable [Sec. 13, Rule 69]

PRESCRIPTION OF ACTION

The right of action to demand partition does not prescribe. 19 except where
one of the interested parties openly and adversely occupies the property
without recognizing the co-ownership.20 in which case, acquisitive
prescription may set in. If a co-owner repudiates the co-ownership and
makes known such repudiation to the other co- owners, then partition is no
longer a proper remedy of the aggrieved co-owner. He must file an accion
reivindicatoria, which is prescriptible.21

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19
[ CITATION DeC111 \l 13321 ]
20
[ CITATION Cor58 \l 13321 ]
21
[ CITATION Roq88 \l 13321 ]
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