PRESCRIPTION

GENERAL PROVISIONS

Art. 1106. By prescription, one acquires ownership and

other real rights through the lapse of time in the manner
and under the conditions laid down by law.

In the same way, rights and actions are lost by

prescription.

From the definition above, it can be said that

prescription applies to ownership as well as to rights and
actions of any kind whatsoever.

The first thing that has to be kept in mind about

prescription is that prescription is a question of fact. It
is evidentiary and has to be established by clear and
convincing evidence.

Property subject to prescription. – Under the Property

Registration Decree (P. D. 1529), only private property
may be acquired through prescription. (Sec. 42, par. [2]
thereof).
Under Art. 420 and 421 of the Civil Code, only those
properties which are not for public use, public service, or
intended for the development of national wealth are
considered private.
A person can also acquire patrimonial property of the
State through prescription but there must be proof that
there has been an official declaration that the property is
no longer earmarked for public use or purpose.

Kinds of prescription.
1. Acquisitive prescription – defined in the first
paragraph of Art. 1106. It is the acquisition of
ownership and other real rights through possession
of a thing in the manner and under the conditions
provided by law.
As a mode of acquisition, the following elements
should exist: 1) capacity of the claimant to acquire
by prescription; 2) a thing capable of acquisition by
prescription; 3) possession of the thing under
certain conditions; and 4) lapse of time provided by
law.

Possession by reason of a juridical title, such as by a

usufructuary, a trustee, a leassee, an agent or a
pledgee, not being in the concept of an owner,
cannot ripen into ownership by acquisitive
prescription, unless the juridical relation is
expressly repudiated and such repudiation has been
made known to the other party.

2. Extinctive prescription – this is defined in the

second paragraph of Art. 1106. It is the loss or
extinguishment of property rights or actions
through the possession by another of a thing for the
period provided by law or through failure to bring
 the necessary action to enforce one’s right within
the period fixed by law. (Art. 1139)

Essence of the Statute of Limitations.

The right of a party with a better title may be barred by
adverse possession.
Even a void donation may be the basis of a claim of
ownership which may ripen into title by prescription
(Pensador v Pensador, 47 Phil. 959) It is the essence of
the statute of limitations that, whether the party had a
right to the possession or not, if he entered under the
claim of such right and remain in possession for the
period named in the stature of limitations, the right of
the plaintiff who had a better title is barred by adverse
possession. The right given by the Statute of Limitations
does not depend upon, and has no necessary connection,
with the validity of the claim under which the possession
is held. (vda. De Lima v Tio)

The title required for acquisitive prescription to set in is

not titulo verdadero y valido or such title which by itself
is sufficient to transfer ownership without the necessity
of letting the prescriptive period elapse but only titulo
colorado or such title where although there was a mode
of transferring ownership, still something is wrong
because the grantor is not the owner.

Rationale for prescription. – it is founded on grounds of

public policy, which requires for the peace of society,
that juridical relations susceptible of doubt and which
may give rise to disputes, be fixed and established after
the lapse of a determinate time so that ownership and
other rights may be certain for those who have claim on
them.

Prescription, a matter of defense - Prescription is a

matter of defense. It cannot be availed of unless it is
especially pleaded as an affirmative allegation. The
burden of proof is upon the party laying claim to it.

Effect of failure to plead prescription- constitutes a

waiver of the defense and cannot be raised for the first
time at the trial or on appeal. It would be error for the
court to permit proof of prescription if said defense is
not alleged in the answer and the other party has timely
objected to the attempted proof thereof. The issue of
prescription is one involving matters requiring a full-
blown trial on the merits and cannot be determined in a
mere motion to dismiss or established by mere
allegations in the pleadings.
Exceptions -
1. When the plaintiff’s complaint on its face or the
evidence he presented shows clearly that indeed the
action has prescribed at the time it was filed. In
such case, the court may dismiss the complaint on
the ground of prescription when effectively pleaded
in a motion to dismiss, or motu proprio on this
ground even though the defendant does not present
a motion for the dismissal of the complaint or
invoke the defense of prescription.
2. Another exception is if a party has no means of
knowing that opponent’s claim has already lapsed.
 Prescription may be pleaded as soon as the true
nature of the claim is discovered.

Even if the defense of prescription is deemed waived if

not especially pleaded, it may be tacitly renounced,
through acts which imply the abandonment of the right
acquired.

Art. 1107. Persons who are capable of acquiring

property or rights by the other legal modes may acquire
the same by means of prescription.

Unlike donation and other contracts, prescription does

not require consent. So to acquire property or rights by
prescription, it is not necessary that they have the
capacity to act as long as they have juridical capacity. In
the second paragraph of Art. 1107, minors and other
incapacitated persons may acquire property or rights by
prescription, either personally or through their parents,
guardians or legal representatives. Under these
instances, possession must be under claim of ownership.
(Art. 1118)

Art. 1108 enumerates the four groups of owners against

whom prescription may run: minors and other
incapacitated persons; absentees; non-residents and
juridical persons.

Art. 1109. There is no prescription: a) between husband

and wife; b) between parents and children; c) between
guardian and ward.

The rule is based on the oneness between the parties.

Normally, for reasons of affection or influence, husband
and wife, parents and children do not sue each other.

But the rule applies only during the marriage even if

there is a separation of property; during the minority or
insanity of the children and during the continuance of
the guardianship.

Art. 1110. Prescription, acquisitive or extinctive, runs in

favour of, or against a married woman.

Art. 1111. Prescription obtained by a co-proprietor or a

co-owner shall benefit the others.

Art. 1112. Persons with capacity to alienate property

may renounce prescription already obtained, but not the
right to prescribe in the future.
Prescription is deemed to have been tacitly
renounced when the renunciation results from acts
which imply the abandonment of the right acquired.
Renunciation of prescription already obtained –
requisites:
1. The person renouncing must have capacity to
alienate property;
2. The renunciation must refer to prescription already
obtained;
3. It must be made by the owner of the right. An
administrator, executor, or other legal
representative cannot renunciate in behalf of the
principal unless given a special power of attorney.
4. It must not prejudice the right of creditos. (Art.
1114)

Form of renunciation:
The law does not require the conformity of the person to
be benefited by the waiver nor does it require any
formality for it. Also, renunciation may be express or
implied.

Knowledge of existence of the right is essential. Where a

person pays a debt unaware that it has already
prescribed, cannot be said to have waived the benefit of
prescription. He can recover what he has paid on the
basis of solution indebiti. (Art. 2154)

Art. 1113. All things within the commerce of man may be

acquired by prescription.
Exceptions are lands registered under the Torrens
system (Sec. 47, P.D. 1529); Art. 1109 and Art. 1133 –
property of the State x x x not patrimonial in character
shall not be the object of prescription.

Art. 1114. This article refers to the right of creditors in

case of renunciation. Even if there has been an express
or tacit renunciation of prescription, his creditors and all
persons interested in making the prescription effective
may still plead prescription for themselves to the extent
of their credit.

PRESCRIPTION OF OWNERSHIP AND OTHER REAL

RIGHTS.

Art. 1117. Acquisitive prescription of dominion and

other real rights may be ordinary or extraordinary.

Requisites of ordinary prescription:

1. Capacity of the possessor to acquire by prescription
(Art. 1107);
2. Susceptibility of object to prescription (Art. 1113);
3. Adverse possession of the character prescribed by
law; (Art. 1118 and 1119)
4. Lapse of time required by law;
5. Good faith of the possessor (Art. 1127) and
6. Proof of just title (Art. 1129)

For extraordinary prescription, only the first four

requisites are required. So without good faith and just
title, acquisitive prescription can only be extraordinary
in character.

Arts. 1118 and 1119. Characteristics of possession to be

the basis of prescription.

It goes without saying that possession is the

fundamental basis of prescription. Without it, no
prescription is possible. To produce effect, for purposes
of prescription, possession has to be:
1. In the concept of owner. Possession and use, no
matter how long, will not start the running of the
period unless coupled with the element of hostility
towards the right of the true owner. Acts of
possessory character performed by one who holds
in virtue of a license or by mere tolerance of the
owner do not ripen into title by prescription. (Art.
1119)
2. Public – acts executed clandestinely and without the
knowledge of the possessor do not affect possession.
(Art. 537) Adverse possession must be public,
open, continuous and it is not public if it is not
known to the owner. But such knowledge is
presumed when the possession is generally known.
3. Peaceful – In no case may possession be acquired
through force or intimidation as long as there is a
possessor who objects thereto. (Art. 536). But
reasonable force to repel an invasion or usurpation
of the property is allowed. (Art. 429)
4. Uninterrupted. In other words, it must be
continuous. Art. 561 provides that one who
recovers, according to law, possession unjustly lost,
 shall be deemed for all purposes which may
redound to his benefit to have enjoyed it without
interruption.

The claimant must prove by clear and convincing

evidence that his possession was of the nature and
duration required by law.

Art. 1120. Possession is interrupted for the purposes of

prescription, naturally or civilly.

Art. 1121. Possession is naturally interrupted when,

through any cause, it should cease for more than one
year.

Art. 1122. If the natural interruption is for only one year

or less, the time elapsed shall be counted in favour of the
prescription.

Art. 1123. Civil interruption is produced by judicial

summons to the possessor.

Art. 1124. Judicial summons shall be deemed not to

have been issued and shall not give rise to interruption:
1. If it should be void for lack of legal solemnities;
2. If the plaintiff should desist from the complaint or
should allow the proceedings to lapse;
3. If the possessor should be absolved from the
complaint.
In all these cases, the period of the interruption shall be
counted for the prescription.
Interruption of possession:
For purposes of prescription, possession (and
consequently, prescription) may be interrupted naturally
or civilly.
1. Natural interruption occurs when through any
cause, possession should cease for more than one
year.
a. If the same adverse claimant resumes possession
after said interruption, the old possession is not
added to the new possession (Art. 1121) for
purposes of prescription. In other words, the
possession or prescription will be an entirely new
one.
b. When prescription is suspended (not
interrupted), such as possession in wartime when
the civil courts are not open, the old possession is
tacked to the new.
c. Possession de facto is lost if the new possession of
another has lasted longer than one year. But the
real right of possession is not lost till after the
lapse of ten years. (Art. 555 [4]) If the
interruption is only for one year or less, the time
elapsed is counted in favour of prescription. (Art.
1122)

2. Civil interruption. This is produced when judicial

summons is served upon the possessor (Art. 1123)
together with a copy of the complaint contesting the
possession. But possession is not interrupted even
if summons be served in any of the cases specified
 in Art. 1124 for “in all these cases, the period of the
interruption shall be counted for the prescription.”

A notice of adverse claim does not constitute an

effective interruption of a person’s possession.

Art. 1125. Any express or tacit recognition which the

possessor may make of the owner’s right also interrupts
possession.

Recognition by possessor of owner’s right –

Any express or implied recognition or acknowledgment
which the possessor may make with regard to the right
of the owner will, as a general rule, also interrupt the
continuity of possession. Thus, the continued
recognition of the existence of the true owner precludes
the defense of prescription.

Not every act of recognition will produce interruption.

The following requisites must be complied with:
1. The recognition must be ratified by the possessor,
especially if made by a third person;
2. It must be valid and efficacious in law. If the act of
recognition was obtained through violence,
intimidation, fraud or any other cause which vitiates
consent, it will not interrupt possession.
3. It must have been made before prescription was
obtained, for otherwise, it will not be a case of
recognition but of renunciation. (Art. 1112)
Art. 1126. Against a title recorded in the Registry of
Property, ordinary prescription of ownership or real
rights shall not take place to the prejudice of third
persons, except in virtue of another title also recorded;
and the time shall begin to run from the recording of the
latter.
As to lands registered under the Land Registration
Act, the provisions of that special law shall govern.

A distinction must be made as to property mentioned in

Art. 1126.
1. As to registered land - with respect to land
registered in the Property Registration Decree (P. D.
1529), the special law shall govern.
a. Under the Decree, title to lands registered under
the Torrens System cannot be acquire by
prescription or adverse possession as against the
registered owner or his heir. But a registered
owner may be barred from recovering possession
of property on the ground of laches.
b. But the rule does not apply where the one
claiming ownership is not the registered owner.

2. As to other lands – with respect to property other

than land registered under the Torrens system, Art.
1126 applies.
a. The third person referred to in the provision is
the transferee of the owner.
b. If the transferee acted in good faith for value,
relying on the recorded title of the previous
owner, the transferee shall not be prejudiced by
the prior possession of another except when the
title of the latter is also recorded.
Even a registered owner may be barred from recovering
possession of property by virtue of laches. Where the
action for reconveyance was instituted only after 30
years from the time the plaintiff was able to secure a
certificate of title covering a particular property, while
the occupant has been in active possession of the same,
the delay constitutes a basis for laches.

But where the claim was filed within the statutory period
of prescription, recovery therefor cannot be barred by
laches. The doctrine should not be applied earlier than
the expiration of time limited for the commencement of
actions at law. (G.F. Equity v Valenzona)

Art. 1127 defines good faith of the possession for

purposes of prescription. He must be able to comply
with the following requirements:
1. He believed that the person from whom he received
the thing was the owner thereof;
2. He believed that said person could transmit his
ownership; and
3. His belief has a reasonable basis.

Art. 1128 makes applicable to prescription provisions in

good faith found in Art. 526, 527, 528 and 529.
Art. 1129 to Art. 1131. For title of the possessor to be the
basis of ordinary prescription, it must be just, true, valid
and proved.
1. Must be just – the title must be titulo colorado or
such title where there is something wrong because
the grantor is not the owner.
2. Must be true – the title is not true if it does not exist
as when the contract of sale was absolutely
simulated;
3. Must be valid – the title is valid if it is sufficient to
transmit the transferor’s right if he were the owner
or authorized by the owner to transmit the same.
4. Must be proved – a possessor in the concept of
owner has in his favour the legal presumption that
he possesses with a just title and he cannot be
obliged to prove it. (Art. 541) Therefore, if a
person believes that he has a right to deprive the
actual possessor of his possession, he must establish
his right by positive evidence.

Art. 1132. The ownership of movables prescribes in four

years in good faith and uninterrupted.

Art. 1133. Movables possessed through a crime can

never be acquired through prescription by the offender.
Art. 1134. Ownership and other real rights over
immovable property are acquired by ordinary
prescription through possession of ten years.

Art. 1135. This article provides that in case the area

possessed by the adverse claimant is greater or less than
that stated in his title, prescription shall be based on
possession, not on the title. In other words, possession
prevails over title.

Art. 1136. Possession in wartime, when the civil courts

are not open, shall not be counted in favour of the
adverse claimant.
Here, the prescription is not interrupted but is
suspended.

Art. 1137. Ownership and other real rights over

immovable also prescribe through uninterrupted
adverse possession thereof for thirty years, without need
of title or of good faith.

Neither good faith nor just title is necessary. Hence,

even when the title of the possessor is void, he may
acquire ownership by extraordinary prescription.
Art. 1138. In the computation of time necessary for
prescription, the following rules shall be observed:
The present possessor may complete the period
necessary for prescription by tacking his possession to
that of his grantor or predecessor in interest;
The rule is based on the theory that the transferee
acquires the same rights and benefits as those
enjoyed by his transferor.

Under the second paragraph of Art. 1138 it is presumed

that the present possessor who was also the possessor at
a previous time, has continued to be in possession
during the intervening time, unless there is proof to the
contrary.

PRSCRIPTION OF ACTIONS

ART. 1139. ACTIONS PRESCRIBE BY MERE LAPSE

OF TIME FIXED BY LAW.

Actions to enforce or preserve a right or claim must be

brought within a certain period of time.

The prescription of actions in the Civil Code

contemplates civil actions and not criminal actions.

Actions prescribe by mere lapse of time fixed by law. It

is also referred to as extinctive prescription.
It can be put up as a defense, that the action has already
prescribed, but the defense cannot be established by
mere allegation in the pleading. It must be resolved at
the trial of the case on the merits and not on a mere
motion to dismiss.

Extinction and accrual of cause of action/right of action.

In law, a cause of action exists when the following
requisites are present:
1. A right in favour of the plaintiff (obligee);
2. An obligation on the part of the defendant (obligor);
3. An act or omission on the part of the defendant
violative of the right of the plaintiff.

It is only upon the happening of the third requisite when

it can be said that a cause of action has arisen.
In short, it is the time an act is performed or omission
occurred which is violative of the plaintiff’s right, that
signals the accrual of a cause of action.

The lapse of time extinguishes the right of action.

A right of action is the right to commence and maintain
an action. It springs from a cause of action but does not
accrue until all the facts which constitute the cause of
action have occurred.
Art. 1140. Action to recover movables.
1. Art. 1140 refers to extraordinary prescription for
movables. The period for bringing the action to
recover is fixed at eight years. However, the action
shall not prosper if it is brought after four years
when the possessor has already acquired title by
ordinary acquisitive prescription (Art. 1132)
2. If the possessor acquired the movable in good faith
at a public sale, the owner cannot obtain its return
without reimbursing the price paid therefore. (Art.
559, par. 2)
3. On certain cases, the owner is precluded from
recovery without right to reimbursement, even if
the action has not yet prescribed. (Art. 1505 and
Art. 559)
4. Movables possessed through a crime cannot be
acquired through prescription by the offender. (Art.
1133)

Art. 1141. Real actions over immovables prescribed in

thirty years.

Art. 1141 refers to extraordinary prescription for

immovables. The period for bringing real actions over
an immovable is thirty years unless the possessor has
acquired ownership of the immovable by ordinary
acquisitive prescription through possession of ten years.
(Art. 1134).
Art. 1142. A mortgage action prescribes after ten years.

If the action is for the foreclosure of mortgage to recover

a mortgage debt, the same must be brought within ten
years from the time the obligation secured by the
mortgage becomes due and demandable, that is, from
the time the mortgagor defaults in the payment of his
obligation to the mortgagee.

The acceptance of payments beyond the 10-year period

of redemption estops the mortgagee’s heirs from
insisting that the period to redeem the property has
already expired where their actions impliedly recognized
that the parties really intended the transaction to be an
equitable mortgage and not a pacto de retro sale.

The fact that the mortgage on land is annotated on the

title of the registered owner does not make the action to
foreclose it imprescriptible as against the registered
owner.

The only important effect of the registration of a

mortgage is to bind third persons.

Art. 1142 is an exception to the rule in Art. 1141.

Art. 1143. Rights not extinguished by prescription:
1. To demand a right of way
2. To bring an action to abate a public or private
nuisance.

There are other actions that do not prescribe:

1. To demand partition of a co-ownership as long as
the co-ownership is expressly or impliedly
recognized (Art. 494), or to enforce an express trust.
2. To demand easement of light and view through the
observance by the servient owner of distances for
direct or oblique view.
3. To declare the inexistence of a contract, or the
nullity of a void judgment; or the nullity of a void
title.

There are many more actions which do not prescribe

cited in the book of de Leon.

Prescription, both acquisitive and extinctive, does not

run against the State (Art. 1108 [4]) in the exercise of its
sovereign functions to protect its interest, except with
respect to patrimonial property which may be the object
of prescription. (Art. 1113)

Art. 1144. The following must be brought within ten

years from the time the right of action accrues:
1. Upon a written contract;
2. Upon an obligation created by law;
3. Upon a judgment.
The provision is a law of general application and may
not be invoked where a special law is applicable such as
the prescriptive period fixed in Art. 291 of the Labor
Code with respect to claims arising from employer-
employee relations.

Art. 1144 (1) does not preclude instances when the

agreement may be found in one single document but in
two or more separate writing related to each other which
when taken together contain all the elements of a
contract.

Art. 1145. The following actions must be commenced

within six years:
1. Upon an oral contract;
2. Upon a quasi-contract.

Art. 1146. The following actions must be instituted

within four years:
1. Upon an injury to the rights of the plaintiff;
2. Upon a quasi-delict.

Art. 1146 speaks of “injury to the rights of the plaintiff”.

The purpose of an action or suit and the law to govern it,
including the period of prescription, is to be determined
not by the claims of the party filing the action, made in
his argument or brief, but rather by the complaint itself,
its allegations and prayer for relief.
When one is arbitrarily deprived of his job or means of
livelihood, the action to contest the legality of one’s
dismissal constitutes in essence, an action predicated
upon an injury to one’s rights.

Art. 1147. The following actions must be filed within one

year:
1. For forcible entry and detainer;
2. For defamation.

Aside from the two above, other actions that prescribe in

one year are:
1. To recover possession de facto (Art. 555(4));
2. To revoke a donation on the ground of ingratitude
(Art. 769)
3. To rescind or recover damages if immovable is sold
with non-apparent burden or servitude (Art. 560
pars. 3, 4) and
4. To enforce warranty of solvency in assignment of
credits (Art. 1629)

There are many more provisions in the Civil Code which

provide for a one year prescriptive period.
Art. 1148. The limitations of action mentioned in
articles 1140, 1142, and 1144 to 1147 are without
prejudice to those specified in other parts of this Code,
in the Code of Commerce and in special laws.

Art. 1148 is similar to Art. 1115.

The provisions of Title on Prescription have suppletory

application to specific cases of prescription found
elsewhere in the Civil Code and in special laws.

Art. 1149. All other actions whose periods ae not fixed in

this Code or in other laws must be brought within five
years from the time the right of action accrues.

The right of action or cause of action accrues from the

moment of commission or omission of an act by a party
in violation of his duty to, or of the right, of another.

The mere fact that the supposed violation of a person’s

right may be a continuous one does not change the
principle that the moment of breach of right or duty
occurs, the right of action accrues, and the action from
that moment can be legally instituted.

Art. 1150. The time for prescription of all kinds of

action, where there is no special provision which ordains
otherwise, shall be counted from the day they may be
brought.

The starting point for the counting of the period is the

day when the corresponding action could have been
brought, unless the law provides otherwise. It is the
legal possibility of bringing the action which determines
the starting point for the computation of the period of
prescription.

Art. 1151. The time for the prescription of actions which

have for their object the enforcement of obligations to
pay principal with interest or annuity runs from the last
payment of the annuity or of the interest.

Art. 1152. The period for prescription of actions to

demand the fulfilment of obligations declared by a
judgment commences from the time the judgment
becomes final.

Art. 1153. The period for prescription of action to

demand accounting runs from the day the persons who
should render the same cease their functions.

The period for the action arising from the result of the
accounting runs from the date when said result was
recognized by agreement of the interested parties.
Art. 1154. The period during which the oblige was
prevented by a fortuitous event from enforcing his right
is not reckoned against him.

Art. 1154 is similar to Art. 1136.

The general rule is that the existence of a fortuitous

event relieves the obligor from liability that might
otherwise arise in the breach of an obligation or excuse
an obligee from his failure to exercise a right that might
otherwise constitute a waiver of said right. Hence, the
time covered by a fortuitous event is not reckoned
against the obligee in the computation of the period of
prescription.

DBP v Pondogar – For martial law to be treated as force

majeure that tolled the period of prescription, a party
must show that during martial law, he was so
circumstanced that it was impossible for him to
commence, continue or even resist an action.

Provident Savngs Bank v CA (222 SCRA 125) The

prescriptive period to institute foreclosure proceeding by
a mortgagee bank was held legally interrupted when the
bank was placed under receivership by the Central Bank
with express prohibition from transacting business, a
circumstance considered as force majeure.
Art. 1155. The prescription of actions is interrupted
when they are filed before the court, where there is a
written extrajudicial demand by the creditors, and when
there is any written acknowledgment of the debt of the
debtor.

Effect of interruption in any of the cases specified. – The

prescription of an action is interrupted in any of the
three cases specified in Art. 1155. This means that the
period of prescription begins to run anew, and whatever
time of limitation might have already elapsed from the
accrual of the cause of action is thereby negated and
rendered inefficacious. It does not mean that the
prescription will not run anymore.