PREPARED BY: ATTY.

WALDEMAR GRAVADOR

WARRIORS’ NOTES 2022

Warriors’ Notes 2022 PROPERTY AND SUCCESSION

CIVIL LAW NOTES

By:

Atty. W.R. Gravador

A. CLASSIFICATION OF PROPERTY

CIVIL LAW; PROPERTY; BUILDING ALWAYS CONSIDERED IMMOVABLE NOTWITHSTANDING

THAT PARTIES TO A CONTRACT TREAT IT APART FROM THE LAND IT STANDS. — The
warehouse claimed to be owned by petitioner it an immovable or real property as provided in
Article 415(1) of the Civil Code. Buildings are always immovable under the Code. A building
treated separately from the land on which it stood it immovable property and 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.

ANNULMENT OF SALE OF REAL PROPERTY, A REAL ACTION, WHEN PRIMARY AND

FUNDAMENTAL OBJECTIVE IS RECOVERY OF OWNERSHIP. — While it true that petitioner does
not directly seek the recovery of title or possession of the property in question, his action for
annulment of sale and his claim for damages are closely intertwined with the issue of
ownership of the building which, under the law, is considered immovable property, the
recovery of which it petitioner's primary objective. (Punsalan, Jr. v. Vda. de Lacsamana, G.R.
No. L-55729, [March 28, 1983], 206 PHIL 263-269)

MACHINERY AS IMMOVABLE BY DESTINATION:

Machinery which is movable in its nature only becomes immobilized when placed in a plant
by the owner of the property or plant, but not when so placed by a tenant, a usufructuary, or
any person having only a temporary right, unless such person acted as the agent of the
owner.||| (Davao Saw Mill Co., Inc. v. Castillo, G.R. No. 40411, [August 7, 1935], 61 PHIL
709-714)

INTEREST IN BUSINESS AS MOVABLE PROPERTY

Interest in business was not specifically enumerated as personal property in the Civil Code in
force at the time the above decision was rendered. Yet, interest in business was declared to
be personal property since it is capable of appropriation and not included in the enumeration
of real properties. Article 414 of the Civil Code provides that all things which are or may be
the object of appropriation are considered either real property or personal property. Business
is likewise not enumerated as personal property under the Civil Code. Just like interest in
business, however, it may be appropriated. Following the ruling in Strochecker v. 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. (Laurel v.
Abrogar, G.R. No. 155076 (Resolution), [January 13, 2009], 596 PHIL 45-76)

B. OWNERSHIP:

WHO IS A BUILDER IN GOOD FAITH?

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 the concept of owner, and that he be unaware
that there exists in his title or mode of acquisition any flaw which invalidates it.| (Spouses
Espinoza v. Spouses Mayandoc, G.R. No. 211170, [July 3, 2017])

As such, Article 448 of the Civil Code must be applied. It 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. 18 In Tuatis v. Spouses Escol, et al., this Court

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

ruled that the seller (the owner of the land) has two options under Article 448: (1) he may
appropriate the improvements for himself after reimbursing the buyer (the builder in good
faith) the necessary and useful expenses under Articles 546 and 548 of the Civil Code; or (2)
he may sell the land to the buyer, unless its value is considerably more than that of the
improvements, in which case, the buyer shall pay reasonable rent|(Spouses Espinoza v.
Spouses Mayandoc, G.R. No. 211170, [July 3, 2017])

EXPANDED DEFINITION OF BUILDER IN GOOD FAITH, I.E. EVEN IF ONE HAS NO CLAIM OF
OWNERSHIP, HE IS STILL DEEMED A BUILDER IN GOOD FAITH

This Court has ruled that this provision covers only cases in which the builders, sowers or
planters believe themselves to be owners of the land or, at least, to have 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.

However, in some special cases, this Court has used Article 448 by recognizing good faith
beyond this limited definition. Thus, in 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. This article was also applied to cases wherein a builder had
constructed improvements with the consent of the owner. The Court ruled that the law
deemed the builder to be in good faith. In 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.

Based on the aforecited special cases, Article 448 applies to the present factual milieu. The
established facts of this case show that respondents fully consented to the improvements
introduced by petitioners. In fact, because the children occupied the lots upon their invitation,
the parents certainly knew and approved of the construction of the improvements introduced
thereon. Thus, petitioners may be deemed to have been in good faith when they built the
structures on those lots.

The instant case is factually similar to Javier v. Javier. In that case, this 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. Thus, Article 448
75 was applied. (Spouses Macasaet v. Spouses Macasaet, G.R. Nos. 154391-92, [September
30, 2004], 482 PHIL 853-876)

We thus hold that Article 448 is also applicable to the instant case. First, good faith is
presumed on the part of the respondent-spouses. Second, petitioner failed to rebut this
presumption. Third, no evidence was presented to show that petitioner opposed or objected
to the improvements introduced by the respondent-spouses. Consequently, we can validly
presume that petitioner consented to the improvements being constructed. This presumption
is bolstered by the fact that as the subdivision developer, petitioner must have given the
respondent-spouses permits to commence and undertake the construction. Under Article 453
of the Civil Code, "[i]t 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."
(Communities Cagayan, Inc. v. Spouses Nanol, G.R. No. 176791, [November 14, 2012], 698
PHIL 648-669)

POSSESOR BY TOLERANCE; BUILDER IN GOOD FAITH

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 the concept of owner, and that he be unaware
that there exists in his title or mode of acquisition any flaw which invalidates it. However,
there are cases where Article 448 of the Civil Code was applied beyond the recognized and
limited definition of good faith, e.g., cases wherein the builder has constructed improvements
on the land of another with the consent of the owner. The Court ruled therein that the
structures were built in good faith in those cases that the owners knew and approved of the
construction of improvements on the property.

Despite being a possessor by mere tolerance, the DepEd is considered a builder in good faith,
since Cepeda permitted the construction of building and improvements to conduct classes on

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

his property. Hence, Article 448 may be applied in the case at bar. (Department of Education
v. Casibang, G.R. No. 192268, [January 27, 2016], 779 PHIL 472-491)

Nonetheless, the Court is not unmindful of the fact that respondents had built their house on
the subject lot and, despite knowledge thereof, Remegia did not lift a finger to prevent it.
Article 453 of the Civil Code is applicable to their case:
ART. 453. If there was bad faith, not only on the part of the person who built, planted or
sowed on the land of another, but also on the part of the owner of such land, the rights of
one and the other shall be the same as though both had acted in good faith.

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.

Under the circumstances, respondents and Remegia are in mutual bad faith and, as such,
would entitle the former to the application of Article 448 of the Civil Code governing builders
in good faith:

ART. 448. The owner of the land on which anything has been built, sown or planted in good
faith, shall have the right to appropriate as his own the works, sowing or planting, after
payment of the indemnity provided for in Articles 546 29 and 548, 30 or to oblige the one
who built or planted to pay the price of the land, and the one who sowed, the proper rent.
However, the builder or planter cannot be obliged to buy the land if its value is considerably
more than that of the building or trees. In such a case, he shall pay reasonable rent, if the
owner of the land does not choose to appropriate the building or trees after the proper
indemnity. The parties shall agree upon the terms of the lease and in case of disagreement,
the court shall fix the terms thereof.

Following the above provision, the owner of the land on which anything has been built, sown
or planted in good faith shall have the right to appropriate as his own the building, planting
or sowing, after payment to the builder, planter or sower of the necessary and useful
expenses, and in the proper case, expenses for pure luxury or mere pleasure. (Feliciano v.
Spouses Zaldivar, G.R. No. 162593, [September 26, 2006], 534 PHIL 280-306)

C. CO-OWNERSHIP:

ALLOWING A THIRD PERSON TO OCCUPY A CO-OWNED PROPERTY AS ACT OF ALTERATION

Under Article 491, none of the co-owners shall, without the consent of the others, make
alterations in the thing owned in common. It necessarily follows that none of the co-owners
can, without the consent of the other co-owners, validly consent to the making of an alteration
by another person, such as respondent, in the thing owned in common. Alterations include
any act of strict dominion or ownership and any encumbrance or disposition has been held
implicitly to be an act of alteration. 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.
There being no consent from all co-owners, respondent had no right to construct her house
on the co-owned property.

Consent of only one co-owner will not warrant the dismissal of the complaint for forcible entry
filed against the builder. The consent given by Norma Maligaya in the absence of the consent
of petitioner and Luz Cruz did not vest upon respondent any right to enter into the co-owned
property. Her entry into the property still falls under the classification "through strategy or
stealth". (Cruz v. Catapang, G.R. No. 164110, [February 12, 2008], 568 PHIL 472-480)

SALE OF CO-OWNED PROPERTY WHEN UNANIMOUS CONSENT CANNOT BE OBTAINED

Indeed, the respected commentaries suggest the conclusion that, 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, which is exactly the factual
situation in this case. When respondents disagreed to the sale, they merely asserted their
individual ownership rights. Without unanimity, there is no common interest.

Petitioners who project themselves as prejudiced co-owners may bring a suit for partition,

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

which is one of the modes of extinguishing co-ownership. Article 494 of the Civil Code provides
that no co-owner shall be obliged to remain in the co- ownership, and that each co-owner
may demand at any time partition of the thing owned in common insofar as his share is
concerned. Corollary to this rule, Article 498 of the Civil Code states that 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 accordingly distributed. This is
resorted to (a) when 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 (b) 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. 22 This is the result obviously aimed at by petitioners at the outset. As
already shown, this cannot be done while the co- ownership exists. (Arambulo v. Nolasco, G.R.
No. 189420, [March 26, 2014], 730 PHIL 464-474)

PRESCRIPTION IN CO-OWNERSHIP

However, 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 (De Castro v. Echarri, 20 Phil. 23; Bargayo v.
Camumot, supra; De los Santos v. Santa Teresa, 44 Phil. 811). 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.||| (Delima v. Court of Appeals, G.R. No. 46296,
[September 24, 1991], 278 PHIL 651-658)

We have held that when a co-owner 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 he appears as the new owner of the
property, thereby in effect denying or repudiating the ownership of the other co-owners over
their shares, 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 (Castillo v. Court of Appeals, No. L-18046, March 31, 1964, 10 SCRA 549). Since
an action for reconveyance of land based on implied or constructive trust prescribes after ten
(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 (Jaramil v. Court of Appeals,
No. L-31858, August 31, 1977, 78 SCRA 420).LL(Delima v. Court of Appeals, G.R. No. 46296,
[September 24, 1991], 278 PHIL 651-658)

SALE BY CO OWNER; VALIDAS TO HIS PROPORTIONATE SHARE

In a catena of decisions, the Supreme Court had repeatedly held that no individual can claim
title to a definite or concrete portion before partition of co-owned property. Each co-owner
only possesses a right to sell or alienate his ideal share after partition. However, in case he
disposes his share before partition, such disposition does not make the sale or alienation null
and void. 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 (Torres, Jr. v. Lapinid, G.R. No. 187987, [November 26, 2014],
748 PHIL 587-600)

Nonetheless, we underscore that this was a case for partition and accounting. According to
Vda. de Daffon v. Court of Appeals, an action for partition is at once an action for declaration
of co-ownership and for segregation and conveyance of a determinate portion of the
properties involved. If the trial court should find after trial the existence of co-ownership
among the parties, it may and should order the partition of the properties in the same action.
(Tabasondra v. Spouses Constantino, G.R. No. 196403, [December 7, 2016], 802 PHIL 532-
545)

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

Acts of Acts of Administration Acts of Alteration,

Preservation o r or Management encumbrance, or alienation
Necessary
Repairs

• Any co- • This is to be decided by the • Unanimous consent of

owner may decide majority of the co-owners ( Article all the co- owners is needed
on an act of 489 and 492)
preservation • Run to the courts for
( Article 489) • By majority is meant the appropriate relief, if
controlling interest (financial withholding of consent of one
• If majority) not numerical majority. or some of the co-owners is
practicable, first clearly
notify his co- • Appointment of an prejudicial to the common
owner of the administrator if there is no interest (Article 491)
necessity of majority.
repairs

PRESCRIPTION IN FAVOR OF CO-OWNER

RULE:

To sustain a plea of prescription, it must always clearly appear that one who was originally a
joint owner has repudiated the claims of his co-owners, and that his co- owners were apprised
or should have been apprised of his claim of adverse and exclusive ownership before the
alleged prescriptive period began to run. (Vda. de Figuracion v. Figuracion-Gerilla, G.R. No.
151334, [February 13, 2013], 703 PHIL 455-477)

Moreover, Ricardo and petitioners are co-heirs or co-owners of the land. Co-heirs or co-
owners cannot acquire by acquisitive prescription the share of the other co- heirs or co-owners
absent a clear repudiation of the co-ownership, as expressed in Article 494 of the Civil Code
which states:

Art. 494 . . . . No prescription shall run in favor of a co-owner or co-heir

against his co-owners or co-heirs as long as he expressly or impliedly
recognizes the co-ownership.

Since possession of co-owners is like that of a trustee, in order that a co-owner's possession
may be deemed adverse to the cestui que trust or other co-owners, the following requisites
must concur: (1) that he has performed unequivocal acts of repudiation amounting to an
ouster of the cestui que trust or other co-owners, (2) that such positive acts of repudiation
have been made known to the cestui que trust or other co-owners, and (3) that the evidence
thereon must be clear and convincing. (Heirs of Padilla v. Magdua, G.R. No. 176858,
[September 15, 2010], 645 PHIL 140-155)

EXCEPTION: WHEN CO-OWNER HAS REPUDIATED CO-OWNERSHIP

For title to prescribe in favor of the co-owner, however, there must be a clear
showing that he has repudiated the claims of the other co-owners and that they
have been categorically advised of the exclusive claim he is making to the property
in question. 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. (Pangan v. Court of
Appeals, G.R. No. L-39299, [October 18, 1988], 248 PHIL 601- 613)

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

D. POSSESSION

POSSESSION OCCUPATION
Holding of the thing or the enjoyment of right. One of the original modes of acquiring
It is real right ownership
Does not in itself constitute ownership It can, in itself, when proper, confer
ownership

CIVIL LAW; PROPERTY; POSSESSION; CIRCUMSTANCE THAT AFTER THE ALLEGED SALE,
RESPONDENTS RESIDED IN MANILA AND PANGASINAN IS OF NO MOMENT; POSSESSION
MAY BE EXERCISED IN ONES'S OWN NAME AND THAT OF ANOTHER AND IT IS NOT
NECESSARY THAT THE OWNER OR HOLDER OF A THING EXERCISE PERSONALLY THE RIGHTS
OF POSSESSION. (Santos v. Manalili, G.R. No. 157812, [November 22, 2005], 512
PHIL 324-333)

RIGHT OF REIMBURSEMENT

All six (6) petitioners claim the right to be reimbursed "necessary expenses" for the cost of
constructing their houses in accordance with Article 546 of the Civil Code. It is well-settled
that while the Article 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. Verily, persons whose occupation
of a realty is by sheer tolerance of its owners are not possessors in good faith. (Resuena v.
Court of Appeals, G.R. No. 128338, [March 28, 2005], 494 PHIL 40-51)

NECESSARY EXPENSES USEFUL EXPENSES

Those made for the preservation of the thing Those that add value to the property

Right of Possessor
Rights of Possessor (in the concept of an
owner) as to the necessary expenses:
If good faith- reimbursement
If good faith- refund Right of retention
Retention

If bad faith- refund

No right of retention

Doctrine of Constructive Possession:

CONSTRUCTIVE POSSESSION. — The possession and cultivation of a portion of a tract of

land, under claim of ownership of all, is a constructive possession of all, if the remainder is
not in the adverse possession of another.||| (Ramos v. Director of Lands, G.R. No. 13298,
[November 19, 1918], 39 PHIL 175-187)

POSSESSION OF MOVABLES:

Possession of movables acquired in good faith does not only create a presumption of
ownership. It is equivalent to title.

It is clear from the above provisions, particularly the last one quoted, that ownership in the
thing sold shall not pass to the buyer until full payment of the purchase price only if there is
a stipulation to that effect. Otherwise, the rule is that such ownership shall pass from the
vendor to the vendee upon the actual or constructive delivery of the thing sold even if the
purchase price has not yet been paid.

Non-payment only creates a right to demand payment or to rescind the contract, or to criminal
prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

of the thing sold will effectively transfer ownership to the buyer who can in turn transfer it to
another. (EDCA Publishing & Distributing Corp. v. Spouses Santos, G.R. No. 80298, [April 26,
1990], 263 PHIL 560-568)

CIVIL LAW; SPECIAL CONTRACTS; SALES; TRANSFER OF OWNERSHIP; CONSUMMATED

UPON ACTUAL OR CONSTRUCTIVE DELIVERY THEREOF. — Devoid of any stipulation that
"ownership in the thing shall not pass to the purchaser until he has fully paid the price,"
ownership in the thing shall pass from the vendor to the vendee upon actual or constructive
delivery of the thing sold even if the purchase price has not yet been fully paid. The failure of
the buyer to make good the price does not, in law, cause the ownership to revest to the seller
unless the bilateral contract of sale is first rescinded or resolved pursuant to Article 1191 of
the New Civil Code. Non-payment only creates a right to demand the fulfillment of the
obligation or to rescind the contract.(Balatbat v. Court of Appeals, G.R. No. 109410, [August
28, 1996], 329 PHIL 858-874)

E. USUFRUCT

In general

Usufruct, in essence, is nothing else but simply allowing one to enjoy another's property. It
is also defined as the right to enjoy the property of another temporarily, including both the
jus utendi and the jus fruendi, with the owner retaining the jus disponendi or the power to
alienate the same.

It is undisputed that petitioner, in a document dated July 21, 1986, supra, made known her
intention to give respondents and her other kins the right to use and to enjoy the fruits of
her property. There can also be no quibbling about the respondents being given the right "to
build their own house" on the property and to stay thereat "as long as they like." Paragraph
#5 of the same document earmarks "proceeds or income derived from the aforementioned
properties" for the petitioner's "nearest kins who have less in life in greater percentage and
lesser percentage to those who are better of (sic) in standing."

The established facts undoubtedly gave respondents not only the right to use the property
but also granted them, among the petitioner's other kins, the right to enjoy the fruits
thereof. We have no quarrel, therefore, with the CA's ruling that usufruct was constituted
between petitioner and respondents. It is thus pointless to discuss why there was no lease
contract between the parties.(Moralidad v. Spouses Pernes, G.R. No. 152809, [August 3,
2006], 529 PHIL 523-538)

The usufructuary is entitled to all the natural, industrial and civil fruits of the property and
may personally enjoy the thing in usufruct, lease it to another, or alienate his right of usufruct,
even by a gratuitous title, but all the contracts he may enter into as such usufructuary shall
terminate upon the expiration of the usufruct.

Clearly, only the jus utendi and jus fruendi over the property is transferred to the
usufructuary. The owner of the property maintains the jus disponendi or the power to alienate,
encumber, transform, and even destroy the same. This right is embodied in the Civil Code,
which provides that the owner of property the usufruct of which is held by another, may
alienate it, although he cannot alter the property's form or substance, or do anything which
may be prejudicial to the usufructuary.

There is no doubt that the owner may validly mortgage the property in favor of a third person
and the law provides that, in such a case, the usufructuary shall not be obliged to pay the
debt of the mortgagor, and should the immovable be attached or sold judicially for the
payment of the debt, the owner shall be liable to the usufructuary for whatever the latter may
lose by reason thereof. (Hemedes v. Court of Appeals, G.R. Nos. 107132 & 108472, [October
8, 1999], 374 PHIL 692-733)

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

QUASI-USUFRUCT

Things which cannot be used without being consumed e.g. money

IMPROVEMENTS BY THE USUFRUCTUARY

He may remove the thing without altering its form and substance
He may remove improvements if it is possible without damage to the property

F. EASEMENTS

Acquisition of Easement through Prescription

 Only continuous and apparent easement may be acquired by prescription

 Easement of Light and View may be acquired by prescription

 CAN ONLY BE ACQUIRED BY TITLE. — In this case, the presence of railroad tracks for the
passage of petitioner's trains denotes the existence of an apparent but discontinuous
easement of right of way. And under Article 622 of the Civil Code, discontinuous
easements, whether apparent or not, may be acquired only by title. Unfortunately,
petitioner Bomedco never acquired any title over the use of the railroad right of way
whether by law, donation, testamentary succession or contract. Its use of the right of
way, however long, never resulted in its acquisition of the easement because, under
Article 622, the discontinuous easement of a railroad right of way can only be acquired
by title and not by prescription. DCTSEA (Bogo-Medellin Milling Co. Inc. v. Court of
Appeals, G.R. No. 124699, [July 31, 2003], 455 PHIL 285-307)

In this case, the water facility is an encumbrance on Lot 11, Block 5 of the Subdivision for the
benefit of the community. It is continuous and apparent, because it is used incessantly without
human intervention, and because it is continually kept in view by the overhead water tank,
which reveals its use to the public.

Contrary to petitioner's contention that the existence of the water tank on Lot 11, Block 5 is
merely tolerated, we find that the easement of water facility has been voluntarily established
either by Marcelo, the Subdivision owner and developer; or by F.G.R. Sales, his predecessor-
in-interest and the original developer of the Subdivision. For more than 30 years, the facility
was continuously used as the residents' sole source of water. The Civil Code provides that
continuous and apparent easements are acquired either by virtue of a title or by prescription
of 10 years. It is therefore clear that an easement of water facility has already been acquired
through prescription. (Liwag v. Happy Glen Loop Homeowners Association, Inc., G.R. No.
189755, [July 4, 2012], 690 PHIL 321-335)

EASEMENT OF RIGHT OF WAY

 Cannot be acquired by prescription, being a discontinuous easement

 Convenience of the owner of the dominant easement is not a criterion for the grant of
easement of right of way (Cristobal vs. CA, Floro vs. Llenado, Ramos vs. Gatchalian
Realty)

 In this case, the establishment of a right-of-way through the petitioners' lot would cause
the destruction of the wire fence and a house on the petitioners' property. Although this
right-of-way has the shortest distance to a public road, it is not the least prejudicial
considering the destruction pointed out, and that an option to traverse two vacant lots
without causing any damage, albeit longer, is available.

 We have held that "mere convenience for the dominant estate is not what is required by
law as the basis of setting up a compulsory easement;" 11 that "a longer way may be
adopted to avoid injury to the servient estate, such as when there are constructions or

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

walls which can be avoided by a round-about way." (Calimoso v. Roullo, G.R. No. 198594,
[January 25, 2016], 779 PHIL 89-95)

Light and View

Considering that the jurisprudence on the concept of easements of light and view is not
in abundance, this is an opportune time for the Court to explain clearly and resolutely
the rules regarding the acquisition of an easement of light and view vis-à-vis several
parcels of land owned by separate owners that were previously owned by a single owner,
and the distances that must be observed in relation thereto. (Spouses Garcia v. Santos,
G.R. No. 228334, [June 17, 2019])

As held by jurisprudence, the easement of light and view is intrinsically

intertwined with the easement of the servient estate not to build higher or
altius non tollendi. These two necessarily go together "because an easement of light
and view requires that the owner of the servient estate shall not build to a height that
will obstruct the window." (Spouses Garcia v. Santos, G.R. No. 228334, [June 17, 2019])

Article 624 — The Existence of an Apparent Sign of Easement between Two Estates
formerly owned by a Single Owner considered a Title to Easement of Light and View
While it is a general rule that a window or opening situated on the wall of the dominant
estate involves a negative easement, and, thus, may only be acquired by prescription,
tacked from the time of the formal prohibition upon the proprietor of the servient estate,
it is not true that all windows or openings situated on the wall of the dominant estate
may only be acquired through prescription. (Spouses Garcia v. Santos, G.R. No. 228334,
[June 17, 2019])

What is title in easement (easement of light and view)?

Aside from prescription, easements may likewise be acquired through title. The
term "title" does not necessarily mean a document. Instead, it refers to a
juridical act or law sufficient to create the encumbrance. One such legal proviso
which grants title to an easement is found in Article 624 of the Civil Code.

Article 624 of the Civil Code reads:

x x x. The existence of an apparent sign of easement between two estates, established
or maintained by the owner of both, shall be considered, should either of them be
alienated, as a title in order that the easement may continue actively and passively,
unless, at the time the ownership of the two estates is divided, the contrary should be
provided in the title of conveyance of either of them, or the sign aforesaid should be
removed before the execution of the deed. This provision shall also apply in case of the
division of a thing owned in common by two or more persons. (Spouses Garcia v. Santos,
G.R. No. 228334, [June 17, 2019])

The mode of acquiring an easement under Article 624 is a "legal presumption or apparent
sign." Article 624 finds application in situations wherein two or more estates were
previously owned by a singular owner, or even a single estate but with two or more
portions being owned by a singular owner. Originally, there is no true easement that
exists as there is only one owner. Hence, at the outset, no other owner is imposed with
a burden. Subsequently, one estate or a portion of the estate is alienated in favor of
another person, wherein, in that estate or portion of the estate, an apparent visible
sign of an easement exists. According to Article 624, there arises a title to an
easement of light and view, even in the absence of any formal act undertaken by
the owner of the dominant estate, if this apparent visible sign, such as the existence of
a door and windows, continues to remain and subsist, unless, at the time the ownership
of the two estates is divided, (1) the contrary should be provided in the title of
conveyance of either of them, or (2) the sign aforesaid should be removed before the
execution of the deed. (Spouses Garcia v. Santos, G.R. No. 228334, [June 17, 2019])

This is precisely the situation that has occurred in the instant case. Prior to the purchase
of the subject property by the Sps. Garcia in 1998, the subject property and its adjoining
lot, i.e., Lot 1, were both owned by singular owners, i.e., the Sps. Santos. On the subject
property, a one-storey house laden with several windows and openings was built and
the windows and openings remained open. Then on October 1998, the subject property,
together with the one-storey structure, was alienated in favor of the Sps. Garcia, while
the Sps. Santos retained the adjoining Lot 1.||| (Spouses Garcia v. Santos, G.R. No.

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

228334, [June 17, 2019])

ANOTHER INSTANCE OF TITLE UNDER ARTICLE 624 OF THE NCC.

Similarly, Article 624 applies in this case. The front properties and the back properties
were all previously owned by petitioners, who created an apparent sign of an easement
on the front properties when: (1) they used a portion of the front properties to give the
back properties access to the national highway; and (2) they had it annotated on the
front properties' titles as an easement of right of way in favor of the back properties.
When the front properties were eventually transferred to the Philippine National Bank,
the bank did not raise any qualms or stipulated against the easement of right
of way or the annotations. Thus, when the front properties were sold, respondents'
titles bore the same annotations as those of petitioners.

To clarify, the easement of right of way was not constituted when petitioners annotated
it on their titles. However, when the front properties were transferred to the
Philippine National Bank, the apparent signs of the easement — the path and
the annotations — served as a title over the easement. The title would not have
been conferred if the contrary were so provided in the deed of transfer, or if the path
and annotations were removed before the deed of transfer was executed. Here, there is
no showing that the Philippine National Bank stipulated against the easement. Thus, it
is bound to respect the easement.(Spouses Fernandez v. Spouses Delfin, G.R. No.
227917, [March 17, 2021])

LATERAL AND SUBJACENT SUPPORT

We sustain the CA in declaring that a permanent injunction on the part of petitioner from
making injurious excavations is necessary in order to protect the interest of respondent.
However, an annotation of the existence of the subjacent and lateral support is no longer
necessary. It exists whether or not it is annotated or registered in the registry of property. A
judicial recognition of the same already binds the property and the owner of the same,
including her successors-in-interest. Otherwise, every adjoining landowner would come to
court or have the easement of subjacent and lateral support registered in order for it to be
recognized and respected.(Castro v. Monsod, G.R. No. 183719, [February 2, 2011], 656 PHIL
502-
512)

G. NUISANCE

Private Nuisance Trespass to land

Interference with his use and enjoyment Invasion of the plaintiff’s interest in the
of property exclusive possession of his land

A nuisance is classified in two ways: (1) according to the object it affects; or (2) according to
its susceptibility to summary abatement.

As for a nuisance classified according to the object or objects that it affects, a nuisance may
either be: (a) a public nuisance, i.e., one which "affects a community or neighborhood or any
considerable number of persons, although the extent of the annoyance, danger or damage
upon individuals may be unequal"; or (b) a private nuisance, or one "that is not included in
the foregoing definition" which, in jurisprudence, is one which "violates only private rights and
produces damages to but one or a few persons." (Cruz v. Pandacan Hiker's Club, Inc., G.R.
No. 188213, [January 11, 2016], 776 PHIL 336-352)

A nuisance may also be classified as to whether it is susceptible to a legal summary

abatement, in which case, it may either be: (a) a nuisance per se, when it affects the
immediate safety of persons and property, which may be summarily abated under the
undefined law of necessity; or, (b) a nuisance per accidens, which "depends upon certain
conditions and circumstances, and its existence being a question of fact, it cannot be abated

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

without due hearing thereon in a tribunal authorized to decide whether such a thing does in
law constitute a nuisance;" it may only be so proven in a hearing conducted for that purpose
and may not be summarily abated without judicial intervention. || (Cruz v. Pandacan Hiker's
Club, Inc., G.R. No. 188213, [January 11, 2016], 776 PHIL 336-352)

DOCTRINE OF ATTRACTIVE NUISANCE

ATTRACTIVE NUISANCE, WHAT CONSTITUTES; MAINTAINER LIABLE FOR INJURIES CAUSED

TO CHILD. — One who maintains on his premises dangerous instrumentalities or appliances of
a character likely to attract children in play, and who fails to exercise ordinary care to prevent
children from playing therewith or resorting thereto, is liable to a child of tender years who is
injured thereby, even if the child is technically a trespasser in the premises.

ID.; DOCTRINE NOT APPLICABLE TO SWIMMING POOL OR WATER TANK. — The attractive
nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural,
in the absence of some unusual condition or artificial feature other than the mere water and
its location.

||| (Hidalgo Enterprises, Inc. v. Balandan, G.R. No. L-3422, [June 13, 1952], 91 PHIL 488-
492)

RULINGS ON NUISANCE:

 Second. Petitioner contends that respondent's concrete posts were in the nature of a
nuisance per se,which may be the subject of summary abatement sans any judicial
proceedings. Again, we disagree.

 A nuisance per se is that which affects the immediate safety of persons and property
and may be summarily abated under the undefined law of necessity. Evidently, the
concrete posts summarily removed by petitioner did not at all pose a hazard to the safety
of persons and properties, which would have necessitated immediate and summary
abatement. What they did, at most, was to pose an inconvenience to the public by
blocking the free passage of people to and from the national road. (Telmo v.
Bustamante, G.R. No. 182567, [July 13, 2009], 610 PHIL 222-237)

 Neither can petitioners seek cover under the general welfare clause authorizing the
abatement of nuisances without judicial proceedings. This principle applies to nuisances
per se, or those which affect the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity. Petitioners claim that the public
market would pose danger to the safety and health of schoolchildren if it were built on
the place being contested. (Tayaban y Caliplip v. People, G.R. No. 150194, [March 6,
2007], 546 PHIL 316-338)

 In the case at bar, none of the tribunals below made a factual finding that the basketball
ring was a nuisance per se that is susceptible to a summary abatement. And based on
what appears in the records, it can be held, at most, as a mere nuisance per accidens,
for it does not pose an immediate effect upon the safety of persons and property, the
definition of a nuisance per se. Culling from examples cited in jurisprudence, it is unlike
a mad dog on the loose, which may be killed on sight because of the immediate danger
it poses to the safety and lives of the people; nor is it like pornographic materials,
contaminated meat and narcotic drugs which are inherently pernicious and which may
be summarily destroyed; nor is it similar to a filthy restaurant which may be summarily
padlocked in the interest of the public health. 39 A basketball ring, by itself, poses no
immediate harm or danger to anyone but is merely an object of recreation. Neither is it,
by its nature, injurious to rights of property, of health or of comfort of the community
and, thus, it may not be abated as a nuisance without the benefit of a judicial hearing.
40||| (Cruz v. Pandacan Hiker's Club, Inc., G.R. No. 188213, [January 11, 2016], 776
PHIL 336-352)

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 Warriors’ Notes 2022 PROPERTY AND SUCCESSION

H. MODES OF ACQUIRING OWNERSHIP

DONATION

 Moreover, it is not amiss to point that the execution of Pardo of donation mortis causa in
favor of petitioner does not immediately transfer title to the property to the latter.
Considering that the alleged donation is one of mortis causa, the same partake of the
nature of testamentary provision. As such, said deed must be executed in accordance
with the requisites on solemnities of wills and testaments under Articles 805 and 806 of
the New Civil Code; otherwise, the donation is void and would produce no effect. Unless
and until the alleged donation is probated, i.e., proved and allowed in the proper court,
no right to the subject property has been transmitted to petitioner. ||| (Bascara v. Javier,
G.R. No. 188069, [June 17, 2015], 760 PHIL 766-778)

CHARACTERISTICS OF DONATION MORTIS CAUSA

1) Convey no title or ownership to the transferee before the death of the transferor; or,
what amounts to the same thing, that the transferor should retain the ownership (full
or naked) and control of the property while alive;

2) That before the [donor's] death, the transfer should be revocable by the transferor at
will, ad nutum; but revocability may be provided for indirectly by means of a reserved
power in the donor to dispose of the properties conveyed;

3) That the transfer should be void if the transferor should survive the transferee. 10

Further —

4) [T]he specification in a deed of the causes whereby the act may be revoked by the
donor indicates that the donation is inter vivos, rather than a disposition mortis
causa[;]

5) That the designation of the donation as mortis causa, or a provision in the deed to the
effect that the donation is "to take effect at the death of the donor" are not controlling
criteria; such statements are to be construed together with the rest of the instrument,
in order to give effect to the real intent of the transferor[;] [and]

6) That in case of doubt, the conveyance should be deemed donation inter vivos rather
than mortis causa, in order to avoid uncertainty as to the ownership of the property
subject of the deed. (Villanueva v. Spouses Branoco, G.R. No. 172804, [January 24,
2011], 655 PHIL 298-312)

INTER-VIVOS DONATIONS

 Well in point is National Treasurer of the Phils. v. Vda. de Meimban. 17 In said case,
the questioned donation contained the provision:

"That for and in consideration of the love and affection which the DONOR
has for the DONEE, the said Donor by these presents does hereby give,
transfer, and convey unto the DONEE, her heirs and assigns a portion
of ONE HUNDRED THOUSAND (100,000) SQUARE METERS, on the
southeastern part Pro-indiviso of the above described property. (The
portion herein donated is within Lot 2- B of the proposed amendment
Plan Subdivision of Lots Nos. 1 and 2, Psu-109393), with all the buildings
and improvements thereon, to become effective upon the death of the
DONOR. (emphasis supplied)"

 Notably, the foregoing provision is similar to that contained in the donation

executed by Cabatingan. We held in Meimban case that the donation is a mortis
causa donation, and that the above quoted provision establishes the donor's
intention to transfer the ownership and possession of the donated property to the
donee only after the former's death. (Maglasang v. Heirs of Cabatingan, G.R. No.

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

131953, [June 5, 2002], 432 PHIL 543-547)

PROHIBITION TO ALIENATE

 Gestopa vs. Court of Appeals “prohibition to alienate does not necessarily defeat the
inter-vivos character of the donation. It even highlights the fact that what remains with
the donor is the right of usufruct and not anymore the naked title”

 SPECIFICATION OF CAUSES WHEREBY DONATION MAY BE REVOKED. — The

specification in the deed of donation of the causes whereby the act may be revoked by
the donor indicates that the donation is inter vivos, rather than a disposition mortis
causa (Zapanta vs. Posadas, 52 Phil. 557).(Puig v. Peñaflorida, G.R. No. L-15939,
[November 29, 1965], 122 PHIL 665-680)

PERFECTION OF DONATION

 Upon knowledge by the donor of the acceptance by the donee, thus, capacity of the
donor must exist not only at the time that the donation was made but also at the time
acceptance is conveyed.

REVOCATION/REDUCTION OF DONATION

Under the old Civil Code, it is settled rule that donations with an onerous cause are governed
not by the law on donations but by the rules on contracts, as held in the cases of Carlos v.
Ramil, L-6736, September 5, 1911, 20 Phil. 183, Manalo vs. de Mesa, L-9449, February 12,
1915, 29 Phil. 495.

On the matter of prescription of actions for the revocation of onerous donation, it

was held that the general rules on prescription applies. (Parks v. Province of Tarlac,
supra.) The same rules apply under the New Civil Code as provided in Article 733 thereof
which provides:

"Article 733. Donations with an onerous cause shall be governed by the rules
on contracts, and remuneratory donations by the provisions of the present Title
as regards that portion which exceeds the value of the burden imposed."

It is true that Article 764 of the New Civil Code, actions for the revocation of a donation must
be brought within for (4) years from the non-compliance of the conditions of the donation.
However, it is Our opinion that the said article does not apply to onerous donations in view of
the specific provision of Article 733 providing that onerous donations are governed by the
rules on contracts.

In the light of the above, the rules on contracts and the general rules on prescription and not
the rules on donations are applicable in the case at bar. (De Luna v. Abrigo, G.R. No. 57455,
[January 18, 1990], 260 PHIL 157-167)

There is no question that Dr. Campos properly filed the action for Revocation of Donation
within the allowable time under the law. The first donation between Dr. Campos and the NHA
was a donation of an onerous nature, as it contained the stipulation to build the 36-m-wide
access road. Jurisprudence, including the C-J Yulo & Sons, Inc. v. Roman Catholic Bishop of
San Pablo, Inc. 54 case cited by the petitioners themselves, is clear that donations of an
onerous type are governed by the law on contracts, and not by the law on donations. Being
as such, under Article 1144 of the New Civil Code, all actions upon a written contract shall be
brought within 10 years from accrual of the right of action, and herein, the respondents- heirs'
right of action only accrued when the NHA donated the subject property to the Municipality
of Dasmariñas, as this transfer effectively removed not only NHA's ability to complete the
access road based on the stipulation, but also precluded any move on the part of the NHA to
compel the transferee to finish the same. (Municipality of Dasmariñas v. Campos, G.R. Nos.
232675 & 233078, [July 17, 2019])

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

QUIETING OF TITLE

Nature of Quieting of Title

This case involves an action for quieting of title, 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. For an action to quiet title to prosper, two
indispensable requisites must concur, namely: (a) the plaintiff or complainant has a legal or
an equitable title to or interest in the real property subject of the action; and (b) the deed,
claim, encumbrance, or proceeding claimed to be casting cloud on his title must be shown to
be in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy.
(Heirs of Prodon v. Heirs of Alvarez, G.R. No. 170604, [September 2, 2013], 717 PHIL 54-
76)

Requisites

Additionally, it is well to emphasize that in order that an action for quieting of title may
prosper, 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.

Here, DDII having divested itself of any claim over the property in favor of SSS by means of
sale via dación en pago, petitioner has lost its title over the property which would give it legal
personality to file said action.

(Desiderio Dalisay Investments, Inc. v. Social Security System, G.R. No. 231053, [April 4,
2018])

Moreover, the unnotarized "Deed of Absolute Sale of a Portion of a Registered Parcel of a

Residential Land" between respondent Robert Carantes and petitioner- spouses Jaime and
Catherine Basa cannot stand without the corroboration or affirmation of Robert Carantes. On
its own, the unnotarized deed is self-serving.
Since Robert Carantes's affidavit — Exhibit "E" — was rendered inadmissible by his failure to
appear and testify thereon, then the supposed unnotarized deed of sale executed by him in
favor of the Basa spouses cannot sufficiently be proved.

To repeat, "for an action to quiet title to prosper, two (2) indispensable requisites must concur,
namely: (1) the plaintiff or complainant has a legal or an equitable title to or interest in the
real property subject of the action; and (2) the deed, claim, encumbrance, or proceeding
claimed to be casting cloud on his title must be shown to be in fact invalid or inoperative
despite its prima facie appearance of validity or legal efficacy." "Legal title denotes registered
ownership, while equitable title means beneficial ownership."
Even if petitioners are in possession of the disputed property, this does not necessarily prove
their supposed title. It may be that their possession of the disputed property is by lease or
any other agreement or arrangement with the owner — or simply by mere tolerance. Without
adequately proving their title or right to the disputed portions of the property, their case for
quieting of title simply cannot prosper. (Spouses Basa v. Loy Vda. De Senly Loy, G.R. No.
204131, [June 4, 2018])

“Cloud on Title”

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

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

right based on acquisitive prescription or adverse possession has been held to constitute a
removable cloud on title. (Tandog v. Macapagal, G.R. No. 144208, [September 11, 2007],
559 PHIL 316-321)

Prescriptive Period

Plaintiff in possession

It is an established doctrine in land ownership disputes that the filing of an action to quiet
title is imprescriptible if the disputed real property is in the possession of the plaintiff. One
who is in actual possession of a piece of land claiming to be owner thereof may wait until his
possession is disturbed or his title is attacked before taking steps to vindicate his right, the
reason for the rule being that his undisturbed possession gives him a 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 own title, which right can be claimed only by one who is in
possession.

In this case, petitioners have duly established during the trial that they and/or their
predecessors-in-interest have been in uninterrupted possession of the subject land since 1926
and that it was only in 1994 when they found out that respondent Bonifacio was able to
register the said property in her name in another title. It was also only in 1995 when
petitioners learned that respondent Bonifacio was able to sell and transfer her title over the
subject land in favor of respondent VSD Realty. (Syjuco v. Bonifacio, G.R. No. 148748,
[January 14, 2015], 750 PHIL 443-482)

Plaintiff not in possession

An action to quiet title is a real action over immovables, which prescribes after thirty years.
Thus, even assuming that the petitioners' action is subject to extinctive prescription, it was
error for the RTC to reckon the date when prescription began to run solely on the date of the
issuance of Lopez's title on October 11, 1972. (James v. Eurem Realty Development
Corp., G.R. No. 190650, [October 14, 2013], 719 PHIL 501-513)

ACTIONS TO RECOVER PROPERTY

Accion interdictal

The third, accion interdictal, comprises two distinct causes of action, namely forcible entry
and unlawful detainer, the issue in both cases being limited to the right to physical possession
or possession de facto, independently of any claim of ownership that either party may set
forth in his or her pleadings, albeit the court has the competence to delve into and resolve
the issue of ownership but only to address the issue of priority of possession. Both actions
must be brought within one year from the date of actual entry on the land, in case of forcible
entry, and from the date of last demand to vacate following the expiration of the right to
possess, in case of unlawful detainer.

When the dispossession or unlawful deprivation has lasted more than one year, one may avail
himself of accion publiciana to determine the better right of possession, or possession de jure,
of realty independently of title. On the other hand, accion reivindicatoria is an action to recover
ownership which necessarily includes recovery of possession. (Vda. de Viray v. Spouses Usi,
G.R. No. 192486, [November 21, 2012], 699 PHIL 205-235)

Accion publiciana

Accion publiciana is an ordinary civil proceeding to determine the better right of possession
of realty independent of title. It refers to an ejectment suit filed after the expiration of one
year from the accrual of the cause of action or from the unlawful withholding of possession of
the realty. (Supapo v. Spouses De Jesus, G.R. No. 198356, [April 20, 2015])

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

This Court has held that 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.

Thus, while we will dissect the Spouses Supapo's claim of ownership over the subject property,
we will only do so to determine if they or the respondents should have the right of possession.
(Supapo v. Spouses De Jesus, G.R. No. 198356, [April 20, 2015])

Accion Reinvindicatoria

In an accion reivindicatoria, the cause of action of the plaintiff is to recover possession by

virtue of his ownership of the land subject of the dispute. This follows that universe of
rights conferred to the owner of property, or more commonly known as the attributes of
ownership. In classical Roman law terms, they are:

1. Jus possidendi or the right to possess;

2. Jus utendi or the right to use and enjoy;
3. Jus fruendi or the right to the fruits;
4. Jus accessionis or right to accessories;
5. Jus abutendi or the right to consume the thing by its use;
6. Jus disponendi or the right to dispose or alienate; and
7. Jus vindicandi or the right to vindicate or recover.
Jus vindicandi is expressly recognized in paragraph 2 of Article 428, Civil
Code, viz.: "The owner has also a right of action against the holder and possessor of the thing
in order to recover it."

If the plaintiff's claim of ownership (and necessarily, possession or jus possidendi) is based
on his Torrens title and the defendant disputes the validity of this Torrens title, then the issue
of whether there is a direct or collateral attack on the plaintiff's title is also irrelevant. This is
because the court where the reivindicatory or reconveyance suit is filed has the requisite
jurisdiction to rule definitively or with finality on the issue of ownership — it can pass upon
the validity of the plaintiff's certificate of title. (Heirs of Cullado v. Gutierrez, G.R. No. 212938,
[July 30, 2019])

SUCCESSION

NATURE OF SUCCESSIONAL RIGHTS

The Transmission of the Rights of Heirs at

the Precise Moment of Death of the
Decedent under the Civil Code

That the private respondents do not really seek in their Complaint the establishment of their
rights as intestate heirs but, rather, the enforcement of their rights already granted by law
as intestate heirs finds basis in Article 777 of the Civil Code, which states that the rights of
succession are transmitted from the moment of the death of the decedent.

The operation of Article 777 occurs at the very moment of the decedent's death — the
transmission by succession occurs at the precise moment of death and, therefore, the heir is
legally deemed to have acquired ownership of his/her share in the inheritance at that very
moment, "and not at the time of declaration of heirs, or partition, or distribution."

Hence, the Court has held that the "[t]itle or rights to a deceased person's property are
immediately passed to his or her heirs upon death. The heirs' rights become vested

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

without need for them to be declared 'heirs.'" (Treyes v. Larlar,

G.R. No. 232579, [September 8, 2020])

WILLS; ITS EXECUTION AND FORMALITIES

 Validity of will as to its form depends upon observance of the law in force at the time
it is made
 Testamentary Capacity-persons of either sex under 18 cannot make a will
 Testator must be of sound mind AT THE TIME OF THE ITS EXECUTION
 Will must be in writing and executed in a language or dialect known to testator.
 Requirements Notarial will
o Subscribed at the end by the testator himself or testator’s name
o written by some other person in his presence
o Attested and subscribed by at least 3 credible witnesses in the presence of the
testator and of one another
o Testator or the person requested by him to write his name must also sign every
page, except the last, on the left margin in the presence of witnesses
o Witnesses must sign every page on the left margin in the presence of the
testator and of one another
o All pages must be correlatively numbered in letters on the upper part of each
page
o It must contained an attestation clause which must state
• The number of pages upon which the will is written
• The fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the
presence of the instrumental witnesses;
• The fact that the witnesses witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
o Acknowledgement before a notary public by the testator and the witnesses.

PRESENCE OF THE TESTATOR AND THE WITNESSES

 SIGNING IN THE PRESENCE OF EACH OTHER. — The question whether the testator
and the subscribing witnesses to an alleged will sign the instrument in the presence of
each other does not depend upon proof of the fact that their eyes were actually cast
upon the paper at the moment of its subscription by each of them, but whether at that
moment existing conditions and the position of the parties, with relation to each other,
were such that by merely casting their eyes in the proper direction they could have
seen each other sign.(Nera v. Rimando, G.R. No. L-5971, [February 27, 1911], 18
PHIL 450-453)

 ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WILL IS SIGNED. — If one
subscribing witness to a will is shown to have been in an outer room at the time when
the testator and the other witnesses attach their signatures to the instrument in an
inner room, the will would be held invalid — the attaching of the said signatures, under
such circumstances, not being done "in the presence" of the witness in the outer room.
(Nera v. Rimando, G.R. No. L-5971, [February 27, 1911], 18 PHIL 450-453)

 EXECUTION OF WILLS. — Where it appears in a will that the testator has stated that
by reason of his inability to sign his name he requested one of the three witnesses
present to do so, and that as a matter of fact, the said witness wrote the name and
surname of the testator who, stating that the instrument executed by him contained
his last will, put the sign of the cross between his said name and surname, all of which
details are set forth in a note which the witnesses forthwith subscribed in the presence
of the testator and of each other, said will may be probated.

||| (Abaya v. Zalamero, G.R. No. L-3907, [March 12, 1908], 10 PHIL 357-360)

 However, Caponong-Noble is correct in saying that the attestation clause does not
indicate the number of witnesses. On this point, the Court agrees with the appellate
court in applying the rule on substantial compliance in determining the number of
witnesses. While the attestation clause does not state the number of witnesses, a close

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inspection of the will shows that three witnesses signed it.||| (Testate Estate of Abada
v. Abaja, G.R. No. 147145, [January 31, 2005], 490 PHIL 671-686)

TWO READING RULE

 If testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public, before whom the will is acknowledged

PLACE OF NUMBERING OF WAGES

 If paging is placed in the lower part, the testament is not void for this reason.

NUMBERING IN LETTERS

 Not necessary that the pages of the will shall be numbered correlatively in letters such
as “one” , “two”, etc.
 Requirement of law complied complied by “A”, “B”, etc.

EFFECT IF ATTESTATION CLAUSE FAILED TO STATE THE FOREGOING FACTS

 NUMBER OF PAGES
 TESTATOR SIGNED ETC. IN THE PRESENC OF THE ATTESTING
WITNESSES
 ATTESTING WITNESSES WITNESSED THE SIGNING BY THE TESTATOR
OF THE WILL AND ALL ITS PAGES, AND THAT SAID WITNESSES ALSO
SIGNED THE WILL AND EVERY PAGE THEREOF IN THE PRESENCE OF
THE TESTATOR AND OF ONE ANOTHER

 RULE: If the attestation clause is the only evidence of the fact required
to be stated therein, OMISSION TO STATE IS FATAL

o RULE ON SUBSTANTIAL COMPLIANCE COULD NOT BE

INVOKED
o Thus:
 Failure to state that the testator signed the will in
the presence of the witnesses (Gil vs. Murciano)
 Failure to state that the witnesses signed the will in
the presence of the testator (Quinto vs. Morata)
 Failure to state that the witnesses signed the will in
the presence of each other (Rodriguez vs. Alcala)
 Failure to state that the testator did not personally
sign the will, but requested another person to write
his name thereon upon his express direction
(Garcia vs. Lacuesta)
PROBATE OF HOLOGRAPHIC WILL

 If not contested, only the testimony of ONE WITNESS WHO KNOWS THE
HANDWRITING AND SIGNATURE OF THE TESTATOR
 If contested, at least 3 of such witnesses are required
 In the absence, expert testimony
 Lost holographic will could not be probated, unless there exist a photastatic copy

WITNESSES TO WILLS

 Person of sound mind and of age 18 or more, not blind, deaf or dumb, and able to read
and write
 Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or
parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so
far only as concerns such person, or spouse, or parent, or child of such person, or any

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

one claiming under such person or spouse, or parent, or child, be void, unless there
are three other competent witnesses to such will. However, such person so attesting
shall be admitted as a witness as if such devise or legacy had not been made or given.
(n)

MODES OF REVOCATION OF WILL

 Implication of law
 Overt act by the testator e.g. tearing, burning, cancelling, or obliterating the will with
the intention of revoking it, or,
 By some will

PRETERITION

 Preterition consists in the omission of a compulsory heir from the will, either because
he is not named or, although he is named as a father, son, etc., he is neither instituted
as an heir nor assigned any part of the estate without expressly being disinherited —
tacitly depriving the heir of his legitime. Preterition requires that the omission is total,
meaning the heir did not also receive any legacies, devises, or advances on his
legitime. (Morales v. Olondriz, G.R. No. 198994, [February 3, 2016], 780 PHIL 317-
326)

 In the present case, the decedent's will evidently omitted Francisco Olondriz as an
heir, legatee, or devisee. As the decedent's illegitimate son, Francisco is a compulsory
heir in the direct line. Unless Morales could show otherwise, Francisco's omission from
the will leads to the conclusion of his preterition.||| (Morales v. Olondriz, G.R. No.
198994, [February 3, 2016], 780 PHIL 317-326)

 Under the Civil Code,the preterition of a compulsory heir in the direct line shall annul
the institution of heirs, but the devises and legacies shall remain valid insofar as the
legitimes are not impaired. Consequently, if a will does not institute any devisees or
legatees, the preterition of a compulsory heir in the direct line will result in total
intestacy. ||| (Morales v. Olondriz, G.R. No. 198994, [February 3, 2016], 780 PHIL
317-326)

PRETERITION VS. INEFFECTIVE DISINHERITANCE

 EFFECTS FLOWING FROM PRETERITION AND DISINHERITANCE. — The effects flowing

from preterition are totally different from those of disinheritance. Preterition under
Article 854 of the Civil Code "shall annul the institution of heir. "This annulment is in
toto, unless in the will there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs," but only "insofar as it
may prejudice the person disinherited," which last phrase was omitted in the case of
preterition. (III Tolentino, Civil Code of the Philippines, 1961. Edition, p. 172.) Better
stated yet, in disinheritance the nullity is limited to that portion of the estate of which
the disinherited heirs have been illegally deprived.||| (Nuguid v. Nuguid, G.R. No. L-
23445, [June 23, 1966], 123 PHIL 1305-1317)

SUBSTITUTION OF HEIRS

FIDEICOMMISSARY SUBSTITUTION

o In a fideicommissary substitution, the first heir is strictly mandated to preserve

the property and to transmit the same later to the second heir. In the case under
consideration, the instituted heir is in fact allowed under the Codicil to alienate
the property provided the negotiation is with the near descendants or the sister
of the testatrix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first heir the
preservation of the property and its transmission to the second heir. "Without

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

this obligation to preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution." ||| (Rabadilla v. Court of Appeals, G.R. No.
113725, [June 29, 2000], 390 PHIL 11-36)

MODAL INSTITUTION

 ID.; ID.; MODAL INSTITUTION DISTINGUISHED FROM CONDITIONAL TESTAMENTARY

DISPOSITION. — The institution of an heir in the manner prescribed in Article 882 is
what is known in the law of succession as an institucion sub modo or a modal
institution. In a modal institution, the testator states (1) the object of the institution, (2)
the purpose or application of the property left by the testator, or (3) the charge
imposed by the testator upon the heir. A "mode" imposes an obligation upon the heir
or legatee but it does not affect the efficacy of his rights to the succession. On the
other hand, in a conditional testamentary disposition, the condition must happen or
be fulfilled in order for the heir to be entitled to succeed the testator. The condition
suspends but does not obligate; and the mode obligates but does not suspend. To
some extend, it is similar to a resolutory condition.

 ID.; ID.; OBLIGATION IMPOSED ON HEIRS SHOULD NOT BE CONSIDERED A

CONDITION UNLESS IT CLEARLY APPEARS FROM THE WILL ITSELF THAT SUCH WAS
THE INTENTION OF THE TESTATOR. — Since testamentary dispositions are generally
acts of liberality, an obligation imposed upon the heir should not be considered a
condition unless it clearly appears from the Will itself.

||| (Rabadilla v. Court of Appeals, G.R. No. 113725, [June 29, 2000], 390 PHIL 11-36)

CONDITIONAL TESTAMENTARY DISPOSITION

 Subject to a suspensive condition- successional rights are transmitted only upon the
happening of the condition, although the effects retroact to the moment of the
testator’s death.

 Subjection to resolutory condition-successional rights are acquired immediately upon

the death of the testator but subject to extinction upon the happening of the condition.

 Subject to potestative, casual, or mixed condition-potestative, must be fulfilled after

the testator’s death

 Casual condition (dependent partly upon chance and/or upon the will of a third person-
deemed fulfilled if the condition already occurs, whether before or after the testator’s
death.

 Impossible conditions-considered as not imposed and shall not affect validity of the will
 Prohibition to marry-Rule: absolute condition not to marry is not a valid condition and
considered not written. Validity of disposition is not affected
o Exception: if imposed on the widow or widower or by the latter’s ascendants
or descendants, the condition is valid.
o Prohibition is not applicable to a condition to marry someone.

LEGITIME

PRIMARY COMPULSORY HEIRS SECONDARY COMPULSORY HEIRS

Legitimate Children and their descendants Legitimate parents and ascendants

(legitimate) they inherit in DEFAULT
OF Legitimate Children
Surviving Spouse
Illegitimate Children and their descendants

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Adopted Child?

 Both Family Code and Domestic Adoption Act declare that an adopted child is
considered a legitimate child of the adopter,…since adopted child enjoys successional
rights as legitimate child, he would exclude the legitimate parents and ascendants
in compulsory succession.

 Legitime of Legitimate Children is ½ of the estate of the father and of the mother
 Legitimate Children CONCURS with spouse and illegitimate children
 Share of spouse and illegitimate children shall be taken from the free portion

RESERVA TRONCAL

 Three Lines of Transmission

o FIRST TRANSMISSION- Ascendant to Descendant (Propositus) by gratuitous title e.g.

testate succession, donation

o SECOND TRANSMISSION- Propositus to Ascendant (reservista) by operation of

law…includes only legitime

o THIRD TRANSMISSION-Reservista to the reservees (reservatarios)- relatives within

the third degree reckoned from propositus, e.g. mother, father, grandfather/mother,
uncles and aunties.

 Reservees must come from the same line from which property came
 Contemplates only legitimate relationship

 Nature of right of reservista-

o acquires inheritance by virtue of a title by subject to a resolutory condition, i.e. death

of the ascendant and survival of reservatarios

o reservable property cannot be transmitted by a reservista to her own successors mortis

causa, so long as there are reservatarios

 Nature of Right of Reservatario

o Only has an inchoate right, expectant, or contingent right

o It would become absolute only should the reservista predecease the reservatario.

 Determination of Reservatarios

o Within the 3rd degree from the propositus

o They inherit not from the reservista but from the propositus
o He belongs to the line from which the property comes
o Within the third degree, the nearest relatives exclude the more remote subject to the
rule of representation.

LEGITIME OF SURVIVING SPOUSE

 ½ if surviving alone
 If with two or more legitimate children, same share as legitimate child
 With only 1 legitimate child, ¼
 To be taken from the free portion

LEGITIME OF ILLEGITIMATE CHILDREN

 ½ of the legitime of a legitimate child

 total legitime of the illegitimate children shall not exceed the free portion
 legitime of the surviving spouse must be first fully satisfied

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

DISINHERITANCE

 Requisites
o Must be effected through a will
o Legal cause shall be specified
o Cause must be authorized by law
o Truth of the cause must be proven
o Heir disinherited must be designated that there can be no doubt about his identity
o Must be unconditional

Effect if requisites are not present? It is ineffective disinheritance. The ineffectively

disinherited heir is entitled to the legitime.
More commonly asked ground to disinherit?

 Maltreatment of the testator by word or deed, by the child or descendant

 When a child or descendant leads a dishonorable or disgraceful life

LEGAL OR INTESTATE SUCCESSION

 Those in the Direct Descending Line exclude those in the direct Ascending
 Those in the Direct Ascending exclude those in the collateral
 Direct Descending Line include adopted Children
 Surviving Spouse and illegitimate children are not excluded by the direct descending
line
 Legitimate parents and ascendants exclude collateral relatives
 Illegitimate Children EXCLUDES collateral relatives, including brothers and sisters of
the deceased
 Presence of DESCENDANTS, ASCENDANTS, or ILLEGITIMATE CHILDREN excludes
COLLATERAL RELATIVES from succeeding to the estate of the decedent.
 Surviving Spouse excludes collaterals, EXCEPT brothers, sisters, nephews and nieces
of the deceased

RIGHT OF REPRESENTATION

 Takes place only with respect to inheritance conferred by law

o Legal or intestate succession

o Testamentary succession, with respect to the legitime

 Representative is called to the succession by the law and not by the person represented

 Right of Representation takes place only in the direct descending line, never in the
ascending

o Except: Representation in the collateral line takes place in favor of the children of
brothers or sisters, whether they be of the full or half blood

 Illegitimate descendants are allowed to represent the illegitimate child who

predeceases his own parents but only with respect to the legitime of the illegitimate
child.

 Right of representation of illegitimate Children

o Successional rights of illegitimate children are transmitted to their descendants

upon their death

o Right of representation is available to illegitimate descendants of illegitimate

children in the inheritance of an illegitimate grandparent, BUT NOT AVAILABLE TO
ILLEGITIMATE DESCENDANTS of legitimate children in the inheritance of a
legitimate grandparent.

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Warriors’ Notes 2022 PROPERTY AND SUCCESSION

(NOTE: Modified by the case of Aquino vs. Aquino G.R. No. G.R. No.
208912/G.R. No. 209018. December 7, 2021)

Adopted children

 Relationship is limited to the adopting parents and does not extend to their other
relatives

 Person disinherited may be represented , but an heir who repudiates may not be
represented

ORDER OF INTESTATE SUCCESSION

 Direct Descending Line

o Legitimate Children/Descendants exclude legitimate parents and ascendants,

the collateral relatives, and the State
o Adopted child likewise exclude the legitimate parent and ascendants
o Illegitimate children and surviving spouse CONCUR with legitimate children and
descendants

 Direct Ascending Line

o Legitimate parent and ascendants can inherit only in default of legitimate

children and descendants, including adopted children
o Excludes collateral line but concurs with illegitimate children and surviving
spouse

ACCRETION

 Right by virtue of which, when two or more persons are called to the same inheritance,
devise, or legacy, the part assigned to the one who renounces or cannot receive his
share, or who died before the testator, is added or incorporated to that of his co-heirs,
co-devisees, or co-legatees
 Applies only with respect to free portion
 No accretion when there is earmarking
 In intestate succession, repudiation give rise to accretion, because there can be no
representation in case of repudiation

INCAPACITY TO INHERIT

 Incapacitated heir may be represented

 Incapacity to inherit of an heir, devisee, or legatee is determined at the time of death

COLLATION

 Mere mathematical operation by the addition of the value of donations made by the
testator to the value of the hereditary estate
 Return to the hereditary estate of property disposed of by lucrative title by the testator
during his lifetime.
 Purpose is to secure equality and to determine free portion, after finding the legitime,
so that inofficious donations may be reduced.
 Donations given to compulsory heirs should be charged to their legitime. They are
considered as an advance on the legitime.

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