propp 2021

Civil Law

insertions of mistakes which are only clerical quieting of title, accion reivindicatoria, and
but certainly not controversial issues. Although replevin.
Hilaria Bagayas was able to prove that she is a
legally adoptive child, the action is not proper. 4. To Compel other co-owners to contribute to
As her petition was of an annulment of sale and expenses for preservation of the thing (NCC,
partition. She must first prove that she is a co- Art. 488) and to the taxes;
owner of the estate and conveyance of her lawful
shares. However, she failed to do so. As regards 5. To Oppose to any act of alteration (NCC, Art.
to her citing of Section 108 of PD No. 1529, it 491) even if beneficial to the co-owners;
was improper as her intent for using it is as a
mode of directly attacking the certificates of title 6. To Protect against acts of majority which are
issued to the Bagayas brothers. It was ruled that prejudicial to the minority (NCC, Art. 492,
it was not a direct attack, therefore cannot be par. 3);
used. The complaint is not covered by the
intention of the decree. (Bagayas v. Bagas, G.R. 7. To Exercise legal redemption;
Nos. 187308 & 187517, September 18, 2013) 8. To ask for Partition (NCC, Art. 494);
9. Right to exempt himself from obligation of
Art. 486. Each co-owner may use the thing
owned in common, provided he does so in paying necessary expenses and taxes by
accordance with the purpose for which it is renouncing his share in the pro-indiviso
intended and in such a way as not to injure interest; but cannot be made if prejudicial to
the interest of the co-ownership or prevent co-ownership (NCC, Art.488);
the other co-owners from using it according 10. Right to make repairs for preservation of
to their rights. The purpose of the co- things can be made at will of one co-owner;
ownership may be changed by agreement, receive reimbursement therefrom; notice of
express or implied. necessity of such repairs must be given to
co- owners, if practicable (NCC, Art.489);
RIGHT OF CO-OWNERS 11. Right to full ownership of his part and fruits.
(NCC, Art. 493);
General rights of each co-owner as to the 12. Right to alienate, assign or mortgage own
thing owned in common (USA-COPE-P) part; except personal rights like right to use
and habitation (NCC, Art.493);
1. To Use the thing according to the purpose 13. Right of pre-emption;
intended provided that: 14. Right to be adjudicated thing (subject to
a. It is without prejudice to the interest of right of others to be indemnified); and
the co-ownership; and 15. Right to share in proceeds of sale of thing if
b. Without preventing the use of other co- thing is indivisible and they cannot agree
owners. (NCC, Art. 486) that it be allotted to one of them. (NCC,
Art.498)
NOTE: The purpose of the co-ownership may
be changed by an agreement, express or Duties/liabilities of co-owners
implied.
1. Share in charges proportional to respective
2. To Share in the benefits in proportion to his interest; stipulation to contrary is void;
interest, provided the charges are borne in
the same proportion (NCC, Art. 485); 2. Pay necessary expenses and taxes – May be
exercised by only one co-owner;
NOTE: A contrary stipulation is void. Hence,
benefits cannot be stipulated upon by the co- 3. Pay useful and luxurious expenses – If
owners. determined by majority;

3. Each co-owner may bring an Action for 4. Duty to obtain consent of all if thing is to be
ejectment (NCC, Art. 487); altered even if beneficial; resort to court if
non-consent is manifestly prejudicial;
NOTE: Action for ejectment covers; forcible
entry, unlawful detainer, accion publiciana, 5. Duty to obtain consent of majority with
regards to administration and better
enjoyment of the thing; controlling interest;
court intervention if prejudicial –
Appointment of administrator;

6. No prescription to run in favor of a co-owner
as long as he recognizes co-ownership;

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Requisites for acquisition through A suit for ejectment CANNOT be brought by one
prescription: co-owner against another co-owner, since the
latter also has a right of possession; the only
a. He has repudiated through effect of the action will be to obtain recognition
unequivocal acts; of the co-ownership.

b. Such act of repudiation is made RIGHT TO PROPERTY OWNED IN COMMON
known to other co-owners; vs. FULL OWNERSHIP OVER
HIS/HER IDEAL SHARE
c. Evidence must be clear and
convincing 1. Right to property owned in common

7. Co-owners cannot ask for physical division if NOTE: Each co-owner is granted the right to
it would render thing unserviceable; but can use the property owned in common for the
terminate co-ownership; purpose for which it is intended.

8. After partition, duty to render mutual Two restrictions in the enjoyment of this
accounting of benefits and reimbursements right:
for expenses.
a. The co- ownership shall not be
Rights of a co-owner to third parties injured; and

1. Assignees or creditors of the co-owners may b. The exercise of such right shall not
take part in the division of the thing owned prevent the other co- owners from
in common and object to it being effected using the property according to their
without their concurrence, but they cannot own rights.
impugn any partition already executed;and
2. Full ownership over his/her ideal share
XPN: If there has been fraud or it was made
notwithstanding their formal opposition NOTE: A co-owner has full ownership of his
presented to prevent it, without prejudice share (undivided interest) and the fruits and
to the right of the debtor or assignor to benefits arising therefrom. Being the full owner
maintain its validity. (NCC, Art. 497) thereof, he may alienate, assign or mortgage it.
He can also substitute another person in the
2. Non-intervenors – Retain rights of mortgage enjoyment of his share, except only when
and servitude and other real rights and personal rights are involved.
personal rights belonging to them before
partition was made. Q: Melecio Heirs inherited a residential lot,
ancestral house and two other structures
Any of the co-owners may bring an action in erected thereon, the administration and
ejectment management of which were left to the care of
Erna who was then residing in their ancestral
One of the co-owner’s action for ejectment home. The Melecio Heirs purportedly
against a defendant is deemed to be instituted executed a notarized Special Power of
for the benefit of all co-owners of the property. Attorney (SPA) authorizing Erna to apply for
(Resuena v. CA, G.R. No. 128338, March 28, 2005) a loan with RBCI and mortgage the subject
properties. Erna defaulted in the loan
Consent of the co-owners is not required to payment causing RBCI to extrajudicially
bring an action for ejectment foreclose the mortgaged properties.
demanded RBCI to release the subject
The law does not require that consent of all the properties from the coverage of Erna's loan
co- owners must be first secured before one of obligation to the extent of their shares and
them can bring an action for ejectment. If the refused to vacate the premises. RBCI applied
case does not prosper: for and was issued a writ of possession. The
Melecio Heirs filed a complaint in court
GR: The other co-owners are NOT bound by the alleging that the SPA submitted by Erna was
judgment. spurious and their signatures appearing

XPN: If they were also served with summons,
even as unwilling plaintiffs.

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thereon were falsified. Is the mortgage of the et. al. sought to annul the Real Estate
entire propertyvalid? Mortgage. They averred that Roque Magsano
passed away prior to the execution of the
A: NO. Erna did not validly mortgage the entire Real Estate Mortgage; hence, the mortgage
property. While Erna, as herself a co-owner, by was void, and could not have conferred any
virtue of Article 493 of the Civil Code, had the right to PSLB which it could pass to Sps.
right to mortgage or even sell her undivided Manuel. PSLB and the heirs of Sps. Manuel
interest in the said properties, she, could not, denied knowledge of the death of Roque, and
however, dispose of or mortgage the subject averred that petitioners have no cause of
properties in their entirety without the consent action to seek the annulment of the Real
of the other co-owners. The settled rule is that Estate Mortgage since they were not parties
persons constituting a mortgage must be legally thereto.
authorized for the purpose. In the present case, 1. Is the Real Estate Mortgage void?
while Erna appears to be a co-owner of the 2. Are Sps. Manuel purchasers in good faith?
mortgaged properties, she made it appear that
she was duly authorized to sell the entire A:
properties by virtue of the notarized SPA. (Rural 1. NO. The validity of the Mortgage in favor of
Bank of Cabadbaran, Inc. v. Jorgita A. Melecio-Yap
et. al, G.R. No. 178451, July 30, 2014) PSLD should be limited only to the Susana’s
portion. At the time the Mortgage was
Q: Vda. Rosario is the registered owner of 4 constituted, Roque was already deceased.
parcels of land, which she mortgaged to and Upon Roque’s death, the conjugal
foreclosed. Upon the expiration of the partnership between him and Susana was
redemption period, she asked the assistance dissolved. Thus, an implied co-ownership
of Bobby Tan. Thereafter, she sold the lands arose among Susana and the other heirs of
to him. The children of Vda. Rosario said they Roque with respect to his share in the
are co-owners as they are inheritors of their assets of the conjugal partnership pending
deceased father, whose approval was needed liquidation.
to dispose the subject properties. Are the
subject properties of conjugal in nature, thus While she herself as co-owner had the right
making the children of Vda. Rosario co- to mortgage or even sell her undivided
owners? interest in the subject property, she could
not mortgage or otherwise dispose of the
A: NO. SC ruled that Vda. Rosario is the sole same in its entirety without the consent of
owner of the parcel of lands. Conjugal the other co-owners.
partnership terminates upon the death of one
spouse. Vda. Rosario was already a widow when 2. NO. While the rule is that every person
she sold the subjected lands to Bobby Tan. dealing with registered land may safely rely
Therefore, at the time of the sale, Vda. Rosario, a on the correctness of the certificate of title
widow, can now dispose the properties on her issued therefor and the law will in no way
own volition. (Bobby Tan v. Grace Andrade, G.R. oblige him to go beyond the certificate to
No. 171904, August 07, 2013) determine the condition of the property,
where the land sold is in the possession of a
Q: Spouses Roque Magsano and Susana person other than the vendor, as in this
Capelo (Sps. Magsano), the parents of Norma, case, the purchaser must go beyond the
et. al., executed in favor of PSLB a Real Estate certificate of title and make inquiries
Mortgage over their parcel of land as security concerning the actual possessor. (Norma C.
for their loan. Sps. Magsano defaulted in their Magsano, et. al. v. Pangasinan Savings &
obligation, causing the extra-judicial Loan Bank, G.R. No. 215038, October 17,
foreclose of the mortgaged property in which 2016)
PSLB emerged as the highest bidder. It
subsequently sold the subject land to Sps. Co-owner’s right to use the property owned
Manuel. Thereafter, Sps. Magsano refused to in common
vacate the premises despite PSLB’s demands;
hence, the latter applied for and was granted Each co-owner may use the thing owned in
a writ of possession and demolition. Norma common, provided he does so in accordance
with the purpose for which it is intended and in

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such a way as not to injure the interest of the co- Transitory in Permanent
ownership or prevent the other co-owners from character.
using it according to their rights.
Does not affect the Affects or relates to
NOTE: If one co-owner alone occupies the entire substance or form.
house without opposition from the other co- the substance or
owners, and there is no lease agreement, the essence of the
other co-owners cannot demand the payment of
rent. thing.

Rules on determination of the purpose of the In relation to the Require the
property right of a co-owner, consent of all co-

1. Purpose stipulated in the agreement, express they require the owners.
or implied;
consent of the
2. In default thereof, its purpose ordinarily majority who
adapted based on its nature; or
represents the
3. In default thereof, the use for which it was
formerly intended. controlling interest.

ACTS OF ALTERATION Can be exercised by Must be exercised
the co- by the co-owners
Alteration (2008 BAR) themselves.
owners through
It is a change which is more or less permanent,
which changes the use of the thing and which other persons.
prejudices the condition of the thing or its
enjoyment by the others. (Paras, 2008) Effect of alteration without the express or
implied consent of co-owners
Alteration includes the act by virtue of which a
co- owner changes the thing from the state in The co-owner who makes the alteration shall:
which the others believe it should remain. It is
not limited to material charges. 1. Lose what he has spent;
2. Be obliged to demolish the improvements
Acts of administration v. Acts of alteration
done; and
3. Pay for the loss and damages the

community property or other co-owners
may have suffered.

NOTE: Estoppel will operate against the co-
owners who were aware of the execution of the

acts of alteration, but did not object thereto.
They are deemed to have given their implied
consent.

ACTS OF ACTS OF Conversion
ADMINISTRATION ALTERATION
It is the act of using or disposing of another’s
Refers to the Acts, by virtue of property without lawful authority to do so in a
enjoyment, manner different from that with which a
exploitation, which, a co-owner, property is held by the trustees to whom the
alteration of the in opposition to the owner had entrusted the same. It is not
thing which do not necessary that the use for which the property is
affect its substance, expressed or tacit given be directly to the advantage of the person
form, or purpose. misappropriating or converting the property of
agreement of all another.
the co- owners, and

in violation of their
will, changes the

thing from the state

in which the others RIGHT TO PARTITION
believe it would

remain, or Rights of co-owners as to the ideal share of
each (FARTS)
withdraws it from
the use to which

they believe it is 1. Each has Full ownership of his part and of
intended. his share of the fruits and benefits;

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2. Right to Alienate, dispose or encumber; Q: X, Y, Z are siblings who inherited a 1O-
3. Right to Renounce part of his interest to storey building from their parents. They
agreed in writing to maintain it as a co-
reimburse necessary expenses incurred by owned property for leasing out and to divide
another co-owner; the net profits among themselves equally for
4. Right to enter into Transaction affecting his a period of 20 years. On the 9th year, X
ideal share; and wanted to get out of the co-ownership so he
could get his 1/3 share in the property. Y
NOTE: The transaction affects only his and Z refused, saying X is bound by their
ideal share and not that of the other co- agreement to keep the co- ownership for 20
owners. years. Are Y and Z correct? Explain. (2015
Bar)
5. Right to Substitute another person in its
enjoyment, except when personal rights are A: Y and Z ARE PARTLY CORRECT. If the co-
involved. owners agree to keep the thing undivided, such
agreement shall govern provided the period
NOTE: Personal rights or jus in personam shall not exceed ten (10) years. In this case, the
is the power belonging to one person to agreement to keep the thing undivided shall be
demand from another, as a definite passive valid at the most for 10 years. (NCC, Art. 494)
subject- debtor, the fulfillment of a
prestation to give, to do, or not to do. When partition is not allowed
(Paras, 2008)
1. When indivision within 10 years is
Right to demand partition stipulated by the co-owners;

GR: Every co-owner has the right to demand 2. When co-ownership is imposed as a
partition. (NCC, Art. 494) (2000, 2002, 2008 condition in a donation or in a last will and
BAR) testament;

XPNs: (EASI-PAUL) 3. When from the nature of the property in
1. When partition would render the thing common, it cannot just be divided (without
following the requisites of the law) such as
Unserviceable; conjugal property and party walls;
2. When the thing is essentially Indivisible;
3. When partition is prohibited by Law by 4. When partition will render the property
unserviceable for the use and purpose for
reason of their origin or juridical nature - which it is intended; and
e.g. party walls and fences;
4. When the co-owners Agree to keep the 5. When the issue of ownership had not been
property undivided for a period of time but definitely resolved, it is premature to effect
not more than 10 years; a partition of the properties. (Pineda, 2009)
5. When partition is Prohibited by the
transferor (donor/testator) but not more Prescription
than 20 years (NCC, Art. 1083); Q: May prescription run against a co-owner?
6. When a co-owner possessed the property (2000, 2002, 2008 BAR)
as an Exclusive owner for a period
sufficient to acquire it through prescription GR: As long as the co-owner expressly or
(acquisitive prescription); impliedly recognizes the co-ownership,
NOTE: 10 years ordinary prescription, 30 prescription cannot run in favor of or against
years extra-ordinary partition. him.
7. When co-owners may agree that it be
Allotted to one of them reimbursing the Reason: Possession of a co-owner is like that of
others; and a trustee and shall not be regarded as adverse
8. If they cannot agree, they may Sell the thing to the other co-owners but in fact is beneficial
and distribute the proceeds. to all of them. Acts considered adverse to
strangers may not be considered adverse
NOTE: The right to ask for partition CANNOT be insofar as co-owners are concerned. (Salvador
waived or renounced permanently. Such waiver v. CA, G.R. No. 109910, April 5, 1995)
or renunciation is void.
XPN: Co-owner's possession may be deemed

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Property

adverse to the cestui que trust or the other co- acquisitive prescription of ownership, laches
owners provided the following elements must and prescription of the action for partition will
concur: not lie in favor of Pastor. (Salvador v. CA, G.R.
No. 109910, April 5, 1995)
1. That he has performed unequivocal acts of
repudiation amounting to an ouster of the Notice of the proposed partition to creditors
cestui que trust or the other co- owners; and/or assignees

2. That such positive acts of repudiation have The law does not require that a notification be
been made known to the cestui que trust or given but:
the other co-owners; and 1. If notice is given – it is their duty to appear

3. That the evidence thereon must be clear to concur /oppose, otherwise creditor’s
and convincing. (Salvador v. CA, G.R. No. claims are deemed waived; and
109910, April 5, 1995) 2. If no notice is given – creditors and/or
assignees may still question the partition
NOTE: Prescription begins to run from the time made on ground of fraud or for being
of repudiation. prejudicial to existing rights.

Example of acts of repudiation: filing of an NOTE: Third persons who have rights attached
action to: to the community property before its partition,
shall retain such rights even after the partition
1. Quiet title; or of the property. The protection granted by law
2. Recovery of ownership. applies to both real and personal rights.
(Pineda, 2009)
XPN to XPN: Constructive trusts can prescribe.
Express trust cannot prescribe as long as the Impugning partition already implemented
relationship between trustor and trustee is
recognized. (Paras, 2008) GR: A partition already executed or
implemented CANNOT be impugned.
Q: The two lots owned by Alipio were
inherited by his nine children, including XPNs:
Maria, upon his death. Pastor, Maria’s 1. In case of fraud, regardless of notification
husband, filed a complaint for quieting of
title and annulment of documents against and opposition; or
the spouses Yabo, alleging that he owned a 2. In case partition was made over their
total of 8 shares of the subject lots, having
purchased the shares of seven of Alipio's objection even in absence of fraud. (NCC,
children and inherited the share of his wife, Article 497)
Maria, and that he occupied, cultivated, and
possessed continuously, openly, peacefully, Remedies available to co-owners where the
and exclusively the parcels of land. He co- owned property cannot be physically
prayed that he be declared the absolute divided without rendering it useless or
owner of 8/9 of the lots. His co-heirs then unserviceable (NCC, Art. 498)
instituted an action to partition the lots. Did
Pastor acquire by prescription the shares of 1. Agree on the allotment of the entire
his other co-heirs or co-owners? property to one of them who in turn will
indemnify the others for their respective
A: NO. The only act which may be deemed as interests; or
repudiation by Pastor of the co-ownership over
the lots is his filing of an action to quiet title. 2. Sell the property and distribute the
The period of prescription started to run only proceeds to the co-owners. (Pineda,2009)
from this repudiation. However, this was tolled
when his co-heirs, instituted an action for Rights of third persons that are not affected
partition of the lots. Hence, the adverse by partition (MRS-P)
possession by Pastor being for only about six
months would not vest in him exclusive 1. Rights of
ownership of his wife's estate, and absent a. Mortgage;
b. Servitude; and
c. Any other Real rights existing before

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partition. Acts of preservation (NCC, Art.489)
2. Personal rights pertaining to third persons Acts of preservation may be made in the
property of the co-owners at the will of one of
against the co-ownership. (NCC, Art. 499) the co- owners, but he must, if practicable, first
notify the others of the necessity of such
Illustration: A, B and C where co-owners of repairs.
parcel of land mortgaged to M. If A, B, and C
should physically partition the property, the Acts requiring the majority consent of the
mortgage in M’s favor still covers all the three co- owners
lots, which, together, formerly constituted one
single parcel. If A alone had contracted an 1. Management;
unsecured obligation, he would of course be the 2. Enjoyment; and
only one responsible. (Paras, 2008) 3. Improvement or embellishment.

Rights of third persons in case of partition Remedy of the minority who opposes the
(NCC, Art. 499) decision of the majority in co-ownership
Minority may appeal to the court against the
1. The partition of a thing owned in common majority’s decision if the same is seriously
shall not prejudice third persons, who shall prejudicial.
retain the rights of mortgage, servitude or
any other real rights belonging to them There is no majority unless the resolution is
before the division was made; and approved by the co-owners who represent the
controlling interest in the object of the co-
2. Personal rights pertaining to them against ownership. [NCC, Art. 492(2)]
the co-ownership shall also remain in force,
notwithstanding the partition. WAIVER

RIGHT TO CONTRIBUTION FOR EXPENSES A co-owner may opt not to contribute to the
expenses for the preservation of the
Expenses which the co-owners can be property
compelled to contribute
GR: YES, by renouncing his undivided interest
Only necessary expenses. Useful expenses and equal to the amount of contribution.
those for pure luxury are not included.
XPN: If the waiver or renunciation is prejudicial
Necessary expenses, useful expenses, and to the co-ownership, otherwise he cannot
expenses of pure luxury defined exempt himself from the contribution. (NCC,
Art. 488)
Necessary Are those made for the
Expenses preservation of the thing, or NOTE: The value of the property at the time of
those without which the thing the renunciation will be the basis of the portion
Useful would deteriorate or be lost, or to be renounced.
Expenses those that augment the income
Ornamental of the things upon which are Failure or refusal of a co-owner to
Expenses expended, or those incurred for contribute pro rata to his share in expenses
cultivation, production, upkeep, NOT tantamount to renunciation
etc. (Mendoza v. De Guzman, G.R.
No. L-28721 October 5, 1928) There must be an express renunciation,
otherwise he is required to reimburse the
Incurred for the preservation of others for the expenses they incurred.
the realty in order that it may
produce the natural, industrial, Effect of renunciation
and civil fruits it ordinarily
produces. Since renunciation is intended as payment for
expenses already made, it is in nature of dacion
Adds value to the thing only for en pago - there is a change in the object of the
certain persons in view of their
particular whims, neither
essential for preservation nor
useful to everybody in general.

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obligation (i.e. from sum of money to interest in her rights to the other half was vested to her
the co-ownership). Consequently, the consent heirs including Villaner and their 8 legitimate
of the other co-owner who made the advances children. (Acabal v. Acabal, G.R. No. 148376,
is necessary. (Tolentino, 2013) March 31, 2005)

Renunciation CANNOT be made without the Status of the sale by a co-owner
consent of any unpaid creditor. This is because
it is in effect a novation by substitution. It will A sale of the entire property by one co-owner
prejudice the rights of the unpaid creditor. without the consent of the other co-owners is
valid. However, it will only affect the interest or
RIGHT OF REDEMPTION OF share in the undivided property of the co-
CO-OWNERS SHARE owner who sold the same. The remedy is an
action for partition under Rule 69 of the
The shares of all or any other co-owner if sold Revised Rules of Court, the division of the
to a third person may be redeemed by a co- common property. (Acabal v. Acabal, G.R. No.
owner. 148376, March 31, 2005)
If two or more co-owners want to redeem, they
may do so in proportion to the shares they TERMINATION/EXTINGUISHMENT
respectively have.
Extinguishment of Co-ownership (CALSTEP)
Effect of redemption by a co-owner
1. Confusion or merger of the rights in one co-
Redemption of the whole property by a co- owner;
owner does not vest in him sole ownership over
said property. Redemption within the period 2. Acquisitive prescription in favor of a third
prescribed by law will inure to the benefit of all person or a co-owner who repudiates;
co-owners. Hence, it will not put an end to
existing co-ownership. (Mariano v. CA, GR. No. 3. Loss or destruction of thing co-owned;
101522, May 28, 1993) 4. Sale of thing co-owned;
5. Termination of period agreed upon;
Right of legal redemption cannot be 6. Expropriation; or
exercised when there is no co-ownership 7. Judicial or extra-judicial Partition.

Once the property is subdivided and distributed EFFECT OF PARTITION
among the co-owners, the community ceases to
exist and there is no more reason to sustain any 1. It confers upon the co-owner exclusive title
right of legal redemption. The exercise of this over the property adjudicated to him (NCC,
right presupposes the existence of a co- Art. 1091); and
ownership at the time the conveyance is made
by a co-owner and when it is demanded by the 2. Possession of the co-owner over the
other co-owners. (Vda. de Ape v. CA, G.R. No. property adjudicated to him shall be
133638, April 15, 2005) deemed exclusive for the period during
which the co-possession lasted. (NCC, Art.
A co-owner cannot alienate the shares of his 543) In other words, it is deemed
other co-owners continuous.

While a co-owner has the right to freely sell and 3. By judicial proceedings. (NCC, Art. 496)
dispose of his undivided interest, nevertheless,
as a co-owner, he cannot alienate the shares of Rule in case the co-owners cannot agree in
his other co-owners. The disposition made by the partition
Villaner affects only his share pro indiviso, and
the transferee gets only what corresponds to 1. If realty is involved, an action for partition
his grantor's share in the partition of the (Rule 69, Rules of Court) against the co-
property owned in common. The property owners may be filed; and
being conjugal, Villaner's interest in it is the
undivided one-half portion. When his wife died, 2. In case of personality and actual partition
could not be made, it may be sold under the
discretion of the court and the proceeds be
divided among the owners after deducting
the necessary expenses.

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Rule in case the co-owners cannot agree as the necessary expenses.
to the partition of a thing which is
essentially indivisible Rule in case the co-owners cannot agree as
to the partition of a thing which is
1. Firstly, the property may be allotted to one essentially indivisible
of the co-owners, who shall indemnify the
other; or 1. Firstly, the property may be allotted to one

2. Otherwise, it shall be sold, and the proceeds of the co-owners, who shall indemnify the
distributed. (NCC, Art. 498) other; or
2. Otherwise, it shall be sold, and the proceeds
Acts of co-ownership distributed. (NCC, Art. 498)

1. Ejectment – any of the co-owners may file Acts of co-ownership
such action.
1. Ejectment – any of the co-owners may file
2. Administration – majority of the co- owners such action.
shall decide.
2. Administration – majority of the co- owners
3. Improvements – majority of the co-owners shall decide.
shall take part.
3. Improvements – majority of the co-owners
4. Alteration – all of the co-owners must agree. shall take part.
5. Preservation – any of the co-owners can do
4. Alteration – all of the co-owners must agree.
so. 5. Preservation – any of the co-owners can do

RIGHTS AGAINST INDIVIDUAL CO-OWNERS so.
IN CASE OF PARTITION
POSSESSION
Obligations of co-owners upon partition
(WARD) It refers to the holding of a thing or the
enjoyment of a right. (NCC, Art. 523) (2007
1. Mutual Accounting for benefits received, BAR)
fruits and other benefits (in relation to Art.
1087 of NCC); Requisites of possession (EPAV)

2. Mutual Reimbursements for expenses; 1. Existence of the thing or right;
3. Indemnity for Damages caused by reason of 2. Possession in fact or holding or control of a

negligence/fraud; and Reciprocal Warranty thing or right;
for defects of title and quality of the portion 3. Animus possidendi or the deliberate
assigned to the co-owner. (NCC, Articles.
500-501) intention to possess; and
4. Possession is by Virtue of one’s own right,
PARTITION IN CASE CO-OWNERS
CANNOT AGREE either as an owner or as a holder.

Partition is effected either by (1998 BAR): Right TO Possession v. Right OF Possession

1. By agreement between the parties; or Right TO Possession Right OF Possession
2. By judicial proceedings. (NCC, Art. 496)
Jus possidendi Jus possessionis
Rule in case the co-owners cannot agree in
the partition An incident or An independent right,

1. If realty is involved, an action for partition attribute of separate from
(Rule 69, Rules of Court) against the co- ownership over a ownership.
owners may be filed; and
thing.
2. In case of personality and actual partition
could not be made, it may be sold under the e.g. The owner of a e.g. The lessee of a
discretion of the court and the proceeds be property, who is not
divided among the owners after deducting house is entitled to the owner thereof, is
possess it. entitled to possess it
for the period of the
lease.

Object of possession

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Property

GR: All things and rights susceptible of being 2. According to the concept of possession
appropriated. (NCC, Art. 530) a. In the concept of an owner (en concepto
de dueno) – possessor, by his actions, is
XPNs: believed by others as the owner,
1. Res communes; whether he is in good or bad faith. (NCC,
2. Property of public dominion; Art. 525) Such possessor is presumed to
3. Easement; and possess just title (NCC, Art. 540);
4. Prohibited by law. b. In the concept of a holder – possessor
holds it merely to keep or enjoy it, the
Degrees of possession ownership pertaining to another; e.g.
usufructuary with respect to the thing
1. Possession with no right or title itself. (NCC, Art. 525)
(Grammatical Degree) – Possessor knows
that his possession is wrongful. NOTE: None of these holders may assert a
claim of ownership for himself over the
e.g. possession by a thief. thing but they may be considered as
2. With Juridical title (Juridicial Possession) – possessors in the concept of an owner, or
under a claim of ownership, with respect to
Title is not one of ownership. Possession the right they respectively exercise over the
peaceably acquired and will not ripen into thing.
full ownership as long as there is no There can be possession in concept of both
repudiation of the concept under which owner and holder or in either.
property is held.
3. According to the condition of the mind
e.g. possession of a tenant, depositary. (2008 BAR)
a. Possession in good faith – possessor is
3. With Just title sufficient to transfer not aware that there is in his title or
ownership, but not from the true owner (Real mode of acquisition a defect that
Possessory Right) – ripens to full ownership invalidates it (NCC, Art. 526); and
by the lapse of time. b. Possession In bad faith – possessor is
aware of the invalidating defect in his
e.g. Possession of a buyer of a car own title. (NCC, Art. 526)
purchased from one who pretends to be the
owner. NOTE: Only personal knowledge of the flaw
in one’s title or mode of acquisition can
4. With a title in fee Simple (Dominium make him possessor in bad faith. It is not
Possession) – Arises from ownership; transmissible even to an heir. Possession in
highest degree of possession; perfect good faith ceases from the moment defects
possession. in his title are made known to the
possessor.
CLASSES OF POSSESSION
4. According to extent of possession
1. According to the name used as to its a. Actual possession – occupancy in fact of
existence the whole or at least substantially the
a. In one’s own name – possessor claims whole property; and
the thing for himself. (NCC, Art. 524) b. Constructive possession – occupancy of
b. In the name of another – held by the part, in the name of the whole, under
possessor for another; agent, subject such circumstances that the law extends
to authority and ratification; if not the occupancy to the possession of the
authorized, negotiorum gestio. (NCC, whole.
Art. 524)
i. Voluntary – by virtue of an Q: What is the doctrine of constructive
agreement; e.g. possession of an possession?
agent.
ii. Legal – by virtue of law; e.g. A: The possession of a part is a possession of
possession in behalf of the whole. To be considered in possession, one
incapacitated.

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need not have actual or physical occupation of desire to obtain title to the property and
every square inch of the property at all times. announces his adverse claim against the State
(Habagat Grill v. DMC-Urban Property and all other interested parties, but also the
Developer, Inc., G.R. No. 155110, March 31, 2005) intention to contribute needed revenues to the
Government. Such an act strengthens one’s
Requisites of constructive possession bona fide claim of acquisition of ownership.
(Ganila v. CA, G.R. No. 150755, June 28, 2005)
1. Possessor was in actual possession of a
portion or part of the property; ACQUISITION OF POSSESSION

2. Claim of ownership of the whole area; Modes of acquiring possession
3. Remainder of the area must not be in the
1. By Material occupation (detention) of a
adverse possession of another person;and thing or the exercise of a right (quasi-
4. Area claimed must be reasonable. possession);
This includes:
Possession vs. Occupation (2007 BAR) a. Constitutum possessorium – when the
possessor who is the owner of the
POSSESSION OCCUPATION property continues his possession no
longer under a title of ownership but
Apply to properties Applies only to under a title less than ownership, i.e.
lessee, depositary, etc.
whether with or property without an b. Traditio brevi manu – when the
possessor who is possessing the thing
without an owner. owner by a title other than ownership,
continues to possess it under a new title,
Possession does not Occupation confers now of ownership.
confer ownership. ownership.
2. By Subjection of the thing/right to our will
There can be There can be no which does not require actual physical
detention or seizure; and
possession without occupation without
This includes:
ownership ownership. a. Traditio longa manu – delivery by

Person declared as the owner of a certain consent or mere pointing.
property may still not be entitled to its b. Traditio symbolica – delivery of a mere
possession
symbol (e.g. key) placing the thing
Possession and ownership are distinct legal under the control of the transferee.
concepts. Ownership confers certain rights to
the owner among which are the right to enjoy 3. By constructive possession or proper Acts
and legal Formalities established by law
the thing owned and the right to exclude other such as succession, donation, execution of
persons from possession thereof. On the other public instruments. (NCC, Art. 531)
hand, possession is defined as the holding of a
thing or the enjoyment of a right. Literally, to Q: Respondents inherited the subject
possess means to actually and physically property from Emiliana Bacalso, by virtue of
occupy a thing with or without a right. Thus, a Decree No. 98992. Sometime later, they
person may be declared an owner but not found the heirs of Alejandra Delfin to be
entitled to possession. (Heirs of Roman Soriano occupying the said property, to which they
v. CA, G.R. No. 128177, August 15, 2001) even constructed houses there. The heirs
argued they have better right for it was
Tax declarations are not conclusive inherited to them after it was bought by the
evidence of ownership predecessor from Emiliana Bacalso; also,
they are the ones paying the subject
Although tax declarations or realty tax payment property’s realty taxes. Do the respondents
of property are not conclusive evidence of have the better right to the ownership and
ownership, nevertheless, they are good indicia
of possession in the concept of owner for no
one in his right mind would be paying taxes for
a property that is not in his actual or at least
constructive possession. They constitute at
least proof that the holder has a claim of title
over the property. The voluntary declaration of
a piece of property for taxation purposes
manifests not only one’s sincere and honest

231

Property

possession of the subject property? foreclosure sale becomes merely a ministerial
function, unless it appears that the property is
A: YES, respondents have the better right to the in possession of a third party claiming a right
ownership and possession of the subject adverse to that of the mortgagor.
property. The basis is the LRA certification,
daybook entry, and Decree No. 98992 that was Gerry Centeno acquired the subject lots from
issued to Emiliana Bacalso. The Decree bars all his parents, Sps. Centeno, on March 14, 1988
claims and rights which arose as may have after they were purchased by Rural Bank of Sta.
existed prior to the decree of registration. Barbara, Inc. and its Certificate of Sale at Public
(Heirs of Alejandra Delfin v. Alevina Rabadon, Auction was registered with the Register of
G.R. No. 165014, July 31, 2013) Deeds of Iloilo City in 1971. It cannot therefore
be disputed that Gerry is a mere successor-in-
Q: Spouses Gregorio and Rosario Centeno interest of Sps. Centeno. Consequently, he
previously owned the subject lots, which cannot be deemed as a third party who is
they mortgaged in favor of Rural Bank of Sta. holding the property adversely to the judgment
Barbara, Inc. as security for a P1,753.65 obligor under legal contemplation. (Rural Bank
loan. Sps. Centeno, however, defaulted on of Sta. Barbara, Inc. v. Gerry Centeno, G.R. No.
the loan, prompting the bank to cause the 200667, March 11, 2013)
extrajudicial foreclosure of the mortgage.
Consequently, the subject lots were sold to Essential elements of acquiring possession
the bank, being the highest bidder at the
auction sale. Sps. Centeno failed to redeem 1. Corpus – Refers to the existence of the thing
the subject lots within the one-year and its holding; and
redemption period pursuant to Section 6 of
Act No. 3135. Yet, they still continued with 2. Animus – Refers to the intent to possess the
the possession and cultivation of the thing.
aforesaid properties.
Actual possession distinguished from
Gerry Centeno, son of Sps. Centeno, later on constructive possession
purchased the said lots from his parents.
Accordingly, Rosario paid the capital gains Actual possession consists in the manifestation
taxes on the sale transaction and tax of acts of dominion over property of such a
declarations were eventually issued in the nature as a party would naturally exercise over
name of Gerry. his own; Constructive possession may be had
through succession, donation, execution of
On March 19, 1998, Rural Bank of Sta. public instruments, or the possession by a
Barbara, Inc. filed a petition for the issuance sheriff by virtue of a court order. (Remington
of a writ of possession before the trial court, Industrial Sales Corp v. CYMCAPI, G.R. No.
claiming entitlement to the said writ by 171858, January 22, 2007)
virtue of the Final Deed of Sale covering the
subject lots. Gerry opposed the petition, Acquisition of possession according to
arguing that he purchased and has, in fact, person of possessor (NCC, Art. 532)
been in actual, open and exclusive
possession of the same properties for at 1. Personal – The possession acquired by the
least 15 years. Is the Rural Bank of Sta. same person who is to enjoy it, either the
Barbara, Inc. is entitled to a writ of owner or a mere holder.
possession over the subject lots?
Requisites:
A: YES. It is well-established that after a. Capacity to possess;
consolidation of title in the purchasers’ name b. Intent to possess; and
for failure of the mortgagor to redeem the c. Object must be capable of being
property, the purchasers right to possession
ripens into the absolute right of a confirmed possessed.
owner. At that point, the issuance of a writ of
possession, upon proper application and proof 2. Through an authorized person – Acquisition
of title, to a purchaser in an extrajudicial of possession through a legal
representative as provided by law or by
appointing anagent.

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Requisites: the father in GOOD FAITH is added to the
a. Capacity to possess of the possession of the son in GOOD FAITH, and we
representative or agent; cannot say that the effects of possession in good
b. Authority to possess (for another) of faith shall commence only from the decedent’s
the representative or agent; death. (Paras, 2008)
c. Intent to possess for principal; and
d. Principal has intent and capacity to Acquisition of minors or incapacitated
possess persons

3. Through a person without authority (but Minors or incapacitated persons may acquire
only if subsequently ratified) – acquisition of the possession of things; but they need the
possession through a person who is not assistance of their legal representatives for
clothed with authority by the supposed them to be able to exercise the rights arising
“principal.” from the possession. (NCC, Art. 535)

Requisites: NOTE: Minors and incapacitated persons may
a. Intent to possess for another the acquire property or rights by prescription,
“principal”; either personally or thru their parents,
b. Capacity of the “principal” to possess; guardians, or legal representatives. (NCC, Art.
and 1107)
c. Ratification by “principal.”
Nature of minors or incapacitated persons’
NOTE: The ratification does not suppress the possession
consequences of negotiorum gestio. (Art. 2144)
The principal is deemed to have acquired Possession is allowed only in those matters
possession from the time the gestor had where they have capacity to act (as in the case
voluntarily took the management of the affairs of physical seizure of res nullius or donation of
of the former. (Pineda, 2009) If the stranger personal property simultaneously delivered to
(gestor) had possessed it in his own name, it is them) and NOT possession where juridical acts
he who had possession, and not the so-called are imperative like the possession of land the
“principal.” (Paras, 2008) ownership of which he desires to test in court,
for in such a case, and in similar ones, the
Acquisition of possession thru succession intervention of the legal representatives or
guardians is needed. (Paras, 2008)
One who succeeds by hereditary title shall not
suffer the consequences of the wrongful Acts which do not give rise to possession
possession of the decedent, if it is not shown (FATV)
that he was aware of the flaws affecting it; but
the effects of possession in good faith shall not 1. Through Force or intimidation as long as
benefit him except from the date of death of the there is a possessor who objects thereto
decedent. (NCC Art. 534) (NCC, Art. 536); (2006 BAR)

Effects 2. Through Acts executed clandestinely and
without the knowledge of the possessor
If the father or decedent was in bad faith, it which means that:
does not necessarily mean that the son was also a. Acts are not public; and
in bad faith. The son is presumed to be in GOOD b. Unknown to the owner or
FAITH. (Arriola v. De la Serna, G.R. No. L-5397, possessor
December 17, 1909) However, since the father
was in BAD FAITH, the consequences of the 3. Acts merely Tolerated by the owner or the
GOOD FAITH of the son should be counted only lawful possessor; and
from the date of the decedent’s death.
4. Acts executed by Violence. (NCC, Art 537)
NOTE: If the father had been in GOOD FAITH,
the article is not applicable, for the son would Through Force or intimidation as long as
not ‘‘suffer.” In such a case, the possession of there is a possessor who objects thereto.
(NCC, Art. 536)

NOTE: Impliedly, if at first there was objection

233

Property

but later on such objection ceases, the Rule when two or more persons claim
possession begun by force or intimidation may possession over the same property
be acquired. (Paras, 2008)
GR: Possession as a fact cannot be recognized at
Through acts executed clandestinely and the same time in two different personalities.
without the knowledge of the possessor
XPN:
NOTE: Clandestine possession by itself is hidden 1. Co-possessors (since here, there is no
or disguised possession
conflict of interest, both of them acting as
Acts merely tolerated by the owner or the co-owners, as in the case of property owned
lawful possessor. or possessed in common).
2. Possession in different concepts or
“Tolerance” is permission, as distinguished different degrees (e.g. both owner and
from abandonment. If an owner abandons, as tenant are possessors as a fact at the same
when within the proper period for prescription, time; the first, in the concept of owner; the
he brings no action, the possession of another second, in the concept of holder; other
will ripen into ownership. As a matter of fact, examples: principal and agent; depositor
silence or inaction is NEGLIGENCE, not and depositary; owner and administrator).
tolerance. But where a person occupies (Paras, 2008)
another’s land with the latter’s permission (or
tolerance), the occupier, no matter how long he Rules to follow in case there is a dispute of
may remain, can never acquire ownership, possession of two or more persons
because he never had possession. Whether
there was permission, or there has been an 1. Present/actual possessor shall be
abandonment, is a question of fact. Of course, it preferred;
is possible that although there was permission
at first, the permission was subsequently 2. If there are two possessors, the one longer
withdrawn, and abandonment has resulted. But in possession; or
this must be proved by clear and convincing
evidence. (Paras, 2008) 3. If the dates of possession are the same, the
one with a title.
How to recover possession
4. If both claimants have titles, the competent
First, he should request the usurper to give up court will determine the rightful possessor,
the thing and if the latter refuses, the former and in the meantime, the thing shall be
should invoke the aid of the proper and placed in judicial deposit. (NCC, Art. 538)
competent court (that which has jurisdiction
over the subject matter and the parties). Only the possession acquired and enjoyed in the
(Repide v. Astuar, G.R. No. 505, April 8, 1902) concept of owner can serve as a title for
Otherwise, the owner can be made the acquiring dominion. (NCC, Art. 540)
defendant in a forcible entry case with all its
repercussions. (Santiago v. Cruz, G.R. No. 6276. NOTE: Art. 538 applies to preference of
March 21, 1911) (Paras, 2008) POSSESSION (whether real or personal
property is involved). It also applies whether
Possession by Force or Violence the possession was longer or shorter than one
year. Art. 1544 applies to preference of
The force may be: OWNERSHIP in case of DOUBLE SALE (Art.
1. Actual or merely threatened; 1544) or a DOUBLE DONATION. (NCC, Art. 744)
2. Done by possessor himself or by his agent; (Paras, 2008)
3. Done against the owner or against any
EFFECTS OF POSSESSION
other possessor or against the owner’s
representative, such as a capataz; or POSSESSOR IN GOOD FAITH
4. Done to oust possessor; or if occupied
during the latter’s absence, done to prevent One is a possessor is in good faith when he is
his getting back the premises. (Paras, 2008) not aware that there exists in his title or mode
of acquisition any flaw which invalidates it.
(NCC, Art. 526) (2008 BAR)
Requisites in order to be considered a

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possessor in good faith the right of retention of useful improvements
nor the right to demand refund for useful
1. Ostensible title or mode of acquisition; expenses. (Art. 546 & 547; Carbonell v. CA G.R.
2. Vice or defect in the title; and No. L-29972, January 26, 1976)
3. Possessor is ignorant of the vice or defect
Mistake upon a doubtful or difficult question
and must have an honest belief that the of law
thing belongs to him. Mistake upon a doubtful or difficult question of
law may be the basis of good faith provided that
Cessation of possession in good faith such ignorance is not gross and therefore
inexcusable. (NCC, Art. 526) Ignorance of the
Possession in good faith ceases from the law may be based on an error of fact. (2008
moment defects in his title are made known to BAR)
the possessor by extraneous evidence or by suit
for recovery by the true owner. RIGHTS OF A POSSESSOR
This interruption of good faith may take place
1. At the date of summons; or Right to be respected in possession
2. That of the answer if the date of summons
Every possessor has a right to be respected in
does not appear. his possession; and should he be disturbed
therein he shall be protected in or restored to
Effect of cessation of possession in good said possession by the means established by the
faith laws and the Rules of Court.

Possessor is now considered as a possessor in A possessor deprived of his possession through
bad faith and he may be required to pay rent or forcible entry may within ten days from the
vacate the property. In both cases he is required filing of the complaint present a motion to
to pay damages to the lawful owner or secure from the competent court, in the action
possessor of the property. for forcible entry, a writ of preliminary
mandatory injunction to restore him in his
Q: A Deed of Sale was executed between Jose possession. The court shall decide the motion
(seller) and Rosario (buyer). However, later within thirty (30) days from the fi ling thereof.
on, Jose could not continue the sale because (NCC, Art. 539)
he sold the lot to Emma with whom he
executed a formal deed of sale. Informed Rights of a possessor
that the sale in favor of Emma was not
registered, Rosario registered her adverse 1. To be respected in his possession;
claim. Later, Emma registered her deed of 2. To be protected in said possession by legal
sale and a TCT was issued to her but with
Rosario’s adverse claim. Emma then took means;
possession of the lot. 3. To secure in an action for forcible entry the

a. Who has a better right to the land? proper writ to restore him in his
b. Is Emma entitled to the improvements she possession; and
introduced in the lot? 4. To secure from a competent court in an
action for forcible entry the Writ of
A: preliminary mandatory injunction to
a.. ROSARIO has a better right. Rosario’s prior restore him in his possession. (NCC, Art.
purchase of the land was made in good faith; 539)
she was the only buyer at that time. Her good
faith did not cease after Jose told him of the Possession contemplated by law is legal
second sale to Emma. In order to protect her possession– thief cannot exercise possession.
right, Rosario registered her adverse claim. Said Such possession is exercised by every
recording is deemed to be in good faith and possessor–in good faith or bad faith.
emphasized Emma’s bad faith. (Carbonell v. CA
G.R. No. L-29972, January 26,1976) “Every possessor’’ is protected under Art. 539,
whether in the concept of owner or in the
b. NO. The possessor in bad faith has neither concept of holder.

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Property

NOTE: An adverse possession of property by litigation of such possession. (Paras, 2008)
another is not an encumbrance in law and does
not contradict the condition that the property Requisites for the issuance of the writ of
be free from encumbrance. Likewise, the preliminary injunction:
adverse possession is not a lien for a lien
signifies a security for a claim. (Ozaeta v. 1. In forcible entry cases (in the original
Palanca, L-17455, August. 31, 1964) court) — file within 10 days from the time
the complaint for forcible entry is filed (not
Legal Means for Restoration of Possession from the time the dispossession took place)
(NCC. Art. 538);
A. Reasons for requiring legal means:
1. To prevent spoliation or a disregard of 2. In ejectment (unlawful detainer cases) in
public order; the CFI (RTC) or appellate court (Court of
2. To prevent deprivation of property Appeals) — file within 10 days from the
without due process of law; and time the appeal is perfected (that is, from
3. To prevent a person from taking the the time the attorneys are notified by the
law into his own hand. Court of the perfection of the appeal), only
if:
B. Thus: a. The lessee’s appeal is frivolous or
1. The owner should go to court, and not dilatory; or
eject the unlawful possessor by force. b. The lessor’s appeal is prima facie
2. A tenant illegally forced out by the meritorious. (NCC, Art. 1674)
owner- landlord may institute an action
for forcible entry even if he had not Q: During his lifetime, Velasco acquired Lot
been paying rent regularly. A from spouses Sacluti and Obial evidenced
3. The proper actions are forcible entry or by a deed of sale. In 1987, spouses Padilla
unlawful detainer (summary action or entered the said property as trustees by
accion interdictal), accion publiciana, virtue of a deed of sale executed by the
accion reivindicatoria; replevin; Rural Bank. The Padillas averred that the
injunction (to prevent further acts of Solomon spouses owned the property which
dispossession). However, injunction is was identified as Lot B. However, it was
GENERALLY not the proper remedy to proved during trial that the land occupied
recover possession, particularly when by spouses Padilla was Lot A in the name of
there are conflicting claims of Velasco, whereas the land sold by the bank
ownership. An accion reivin-dicatoria to the spouses Padilla was Lot B. The heirs of
would be better. A final judgment in an Velasco demanded that spouses Padilla
unlawful detainer case may be executed vacate the property, but they refused. Thus,
even if there is still pending an accion the heirs filed a complaint for accion
reivindicatoria, for the two actions can publiciana.
co- exist. A mere trespasser, even if a. Who has the better right ofpossession?
ejected, has no right to institute an b. Has the action already prescribed?
action of forcible entry. (Paras, 2008)
4. Writ of preliminary mandatory A:
injunction. a. The HEIRS OF VELASCO have the better

Writ of preliminary mandatory injunction right. Accion publiciana, recovery of the
right to possess, is an action filed in the RTC
As a rule, injunction cannot substitute for the to determine the better right to possession
other actions to recover possession. This is of realty independently of the title. The
because in the meantime, the possessor has in objective of the plaintiffs in accion
his favor, the presumption of rightful publiciana is to recover possession only, not
possession, at least, until the case is finally ownership. Lot A was the subject of a
decided. The exception, of course, is a very clear cadastral case. The OCT was issued to
case of usurpation. Similarly, a receiver should Sacluti and Obial who sold the same to
not ordinarily be appointed to deprive a party Artemio. From the date of sale, until
who is in possession of the property in Artemio’s death, he was in continuous
possession of the land.

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b. NO. The remedy of accion publiciana Presumption that possessor has a just title
prescribes after the lapse of ten years. The
action was filed with the RTC in 1991. A possessor in the concept of owner has in his
Spouses Padilla dispossessed the heirs of favor the legal presumption that he possesses
Velasco of the property in 1987. At the time with a just title and he cannot be obliged to
of the filing of the complaint, only four show or prove it. (Art. 541)
years had elapsed from the time of
dispossession. (Spouses Padilla v. Velasco, Requirements under NCC, Art. 541 to raise
G.R. No. 169956, January 19, 2009) the disputable presumption of ownership (of
a thing or a right)
Acquisitive prescription
1. One must be in possession (actual or
Only the possession acquired and enjoyed in constructive)
the concept of owner can serve as a title for
acquiring dominion. (NCC, Art. 540) 2. The possession must be in the concept of
owner (not mere holder)
Possession in the concept of an owner
NOTE: A tenant cannot avail himself of the
1. If a person possesses en concepto de dueño presumption of just title because he is not a
— he may eventually become the owner by possessor in the concept of owner). (Paras,
prescription; and 2008)

2. Thus, a possessor merely in the concept of The Article can apply to both real and personal
holder cannot acquire property by property. Thus, if a person possesses the key to
acquisitive prescription. (This is because a car over which he claims ownership, he can be
here the possession, far from being adverse, presumed to be the owner. But such
recognizes right of ownership in others. presumption may be overcome by documentary
One cannot recognize the right of another evidence concerning the car’s ownership.
and at the same time claim adverse (Paras, 2008)
possession which can ripen to ownership
through acquisitive prescription. For Presumptions in favor of a possessor
prescription to set in, the possession must (GCENCE)
be adverse, public and to the exclusion of
all. (Paras,2008) 1. Good faith;
2. Continuity of initial good faith;
Possession in the concept of a holder 3. Enjoyment in the same character in which

1. Lessees or those merely permitted to possession was acquired until the contrary
occupy; is proved;
4. Non-interruption in favor of the present
2. Trustees (including parents over the possessor;
properties of their unemancipated minor 5. Continuous possession by the one who
children or insane children (NCC, Art. recovers possession of which he was
1109); and husband and wife over each wrongfully deprived; and
other’s properties, as long as the marriage 6. Extension of possession of real property to
lasts, and even if there be a separation of all movables contained therein.
property which had been agreed upon in a
marriage settlement or by judicial decree KINDS OF TITLE
(NCC, Art. 1109);
1. True and Valid Title
3. Antichretic creditors;
4. Agents; Here, there was a mode of transferring
5. Attorneys (regarding their client’s ownership and the grantor was the
owner. It is defined as a title which by
properties) itself is sufficient to transfer ownership
6. Depositaries; and without the necessity of letting the
7. Co-owners (unless the co-ownership is prescriptive period elapse.

clearly repudiated by unequivocal acts
communicated to the other co-owners).

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Property

e.g. B bought a Ford Expedition Limited shown or proved that they should be excluded.
from S, the owner thereof. Then S (NCC, Art. 542) (2008 BAR)
delivered the car to B. B now has a true
and valid title. Applicability of the Article:
1. Whether the possessor be in good faith or
2. Colorable Title
bad faith;
That title where, although there was a 2. Whether the possession be in one’s own
mode of transferring ownership, still
something is wrong, because the grantor name or in another’s; and
is NOT the owner. 3. Whether the possession be in concepto de

e.g. B bought a BMW car from S. S then dueno or in the concept of holder. Thus, the
delivered the car to B. But it turns out that lessee of a building is presumed to be the
S never owned the car, and that possessor of the movables found therein,
somebody else was its owner. Whether B for he who needs them is supposed to have
was in good faith or in bad faith is been the one who introduced the movables
immaterial in deciding if he (B) is the into the building.
owner; what is important is that he is not
the owner because he did not acquire or NOTE: By “real property’’ and “movables’’, the
purchase the property from the owner, law means only real or personal THINGS, not
his title being merely “colorado’’ or rights. (Paras, 2008)
colorable.
Exclusive possession by a previous co-owner
NOTE: It must be remembered that:
Each one of the participants of a thing
a. Ordinary prescription needs good faith possessed in common shall be deemed to have
and just title, hence in the example exclusively possessed the part which may be
given, if B is in good faith, he may allotted to him upon the division thereof, for the
become owner of the car by entire period during which the co-possession
prescription after four years (the car lasted. Interruption in the possession of the
being personal property) whole or a part of a thing possessed in common
shall be to the prejudice of all the possessors.
b. Extraordinary prescription does not However, in case of civil interruption, the Rules
need either good faith or just title, of Court shall apply. (NCC, Art. 543)
hence in the example given, if B is in
bad faith, although there may be just Example of interruption in possession of the
title (titulo colorado), B may get WHOLE thing (NCC, Art. 543)
ownership by prescription only after
eight years. A, B, and C have been co-possessors of a piece of
In case of real properties, the land since 2002. If in 2006, A, B, and C lose
prescriptive periods are 10 years and possession over the whole land, it can be said
30 years respectively for ordinary and that the three of them were in possession for
extraordinary prescription. (Paras, only four years.
2008)
Example of Interruption in possession of
3. Putative Title PART of the thing (NCC, Art. 543)
That title where although a person
believes himself to be the owner, he A and B have been co-possessors of a piece of
nonetheless is not, because there was no land since 2002 thru a mutual agent X. In 2006,
mode of acquiring ownership. X lost possession of one-fifth of the land. A’s and
B’s possession over the remaining four-fifth
Presumption of Possession of Movables continues, the interruption being limited only to
Found in an Immovable one-fifth.

The possession of real property presumes that NOTE: If A and B had co-possessed the land in
of the movables therein, as long as it is not equal shares, the co-possession of the
remaining four-fifths will also be in equal
shares. If A and B had co-possessed in the

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proportion of 3 to 1, their shares in the having contributed to the INDUSTRIAL
remaining four-fifths would also be in the WEALTH, unlike the owner, who by his
proportion of 3 to 1. In other words, there is a presumed negligence, had virtually
PROPORTIONATE losing in the area possessed. discarded his property.
(Paras, 2008)
b. Fruits refer to natural, industrial, and civil
Rules to apply for civil interruption fruits, not to other things. (If no actual fruits
are produced, reasonable rents— civil
The “Rules of Court” applies (NCC, Art. 543): fruits—must be given)

1. Civil interruption is produced by judicial c. Legal interruption happens when a
summons to the possessor (NCC, Art. 1123); complaint is filed against him and he
and receives the proper judicial summons. (Art.
1123) All fruits accrued and received since
2. Judicial summons shall be deemed not to said date must be turned over to the
have been issued, and shall not give rise to winner, that is, either the owner or the
interruption: lawful possessor adjudged as such by the
court. Before legal interruption, the fruits
a. If it should be void for lack of legal received are his own. After the receipt of
solemnities; the judicial summons, the right to get the
fruits not yet gathered ceases.
b. If the plaintiff should desist from the
complaint or should allow the d. The reason why fruits should be returned
proceedings to lapse; or from the TIME of legal interruption is that it
is ordinarily only from said date that the
c. If the possessor should be absolved possessor should be considered in BAD
from the complaint. In all these cases, FAITH. Therefore, should there be proof
the period of the interruption shall be that BAD FAITH had not set in even BEFORE
counted FOR the prescription. (NCC, legal interruption, fruits should be returned
Art. 1124) from that date of CONVERSION are not
entitled to the fruits. As a matter of fact, the
RIGHTS OF POSSESSOR TO FRUITS law provides that “the possessor in bad
faith shall reimburse the fruits received and
Possessor in good faith is entitled to the fruits those which the legitimate possessor (or
received before the possession is legally owner) could have received” (NCC, Art. 549)
interrupted. This is true whether the possession in BAD
faith was legally interrupted or not. It is
Natural and industrial fruits are considered understood of course that he is entitled to
received from the time they are gathered or the fruits received BEFORE the conversion
severed. into BAD FAITH, for then, he would still be
in good faith. (Paras, 2008)
Civil fruits are deemed to accrue daily and
belong to the possessor in good faith in that When natural and industrial fruits are
proportion. (NCC, Art. 544) considered received

Right of a possessor in good faith to fruits Second Paragraph: “Natural and industrial
already received fruits are considered received from the time
they are gathered or severed.”
First Paragraph: “A possessor in good faith is
entitled to the fruits received before the a. If at the time of legal interruption, the crops
possession is legally interrupted.’’ are still growing, the rule on pending crops,
not that on gathered crops, should apply.
a. Reason for the law: Justice demands that the (NCC, Art. 545)
fruits be retained by the possessor who
thought that he was really the owner of the b. If at the time of legal interruption, the crops
property, and who, because of such thought have already been gathered, but are sold
had regulated his daily life, income, and only after such interruption, the sale is
expenses by virtue of such fruits. Moreover,
the possessor should be rewarded for

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Property

immaterial, for the law requires only a (For his crop needed a total of 6 months
gathering or severance, so Art. 544 applies. from planting to harvesting). How should
said crops be divided between A and B?
When civil fruits are deemed to accrue
A: In the proportion of 2 to 4 (or 1 to 2), 2 for A
Third Paragraph: “Civil fruits are deemed to and 4 for B. This is what the law means when it
accrue daily and belong to the possessor in good says that the net harvest shall be divided in
faith in that proportion.’’ proportion to the time of possession. (Paras,
2008)
a. If civil fruits (like rents) are accrued daily,
Art. 545 does not apply; and Sharing of expenses and charges

b. Actual receipt of the rents is immaterial; 1. The expenses for cultivation shall also be
hence, even if received only, for example, divided pro rata (2 to 4) The law says “the
on the 30th of a month, all rents accrued possessor shall have a RIGHT to a part of
before the 21st of the month (date for the expenses for cultivation in proportion to
example of legal interruption) should the time of possession (This may in certain
belong to the possessor in good faith. cases be UNFAIR because although he may
have spent MORE than the owner, still he
RIGHT TO PENDING FRUITS will be entitled to a reimbursement of LESS
since his possession is shorter. The better
If at the time the good faith ceases, there should rule would be for the expenses to be borne
be any natural or industrial fruits, the possessor in proportion to what each receives from
shall have a right to a part of the expenses of the harvest) (NCC, Art. 443) Otherwise,
cultivation, and to a part of the net harvest, both unjust enrichment would result.
in proportion to the time of the possession.
2. The charges (those incurred because of the
The charges shall be divided on the same basis land and the fruits, like TAXES, or
by the two possessors. INTEREST on MORTGAGES are what are
referred to as CHARGES, and not those
The owner of the thing may, should he so incurred on or in them, such as
desires, give the possessor in good faith the improvements) are also to be divided in
right to finish the cultivation and gathering of proportion to the time of possession. (NCC,
the growing fruits, as an indemnity for his part Art. 545, 2nd par.) (Paras, 2008)
of the expenses of cultivation and the net
proceeds; the possessor in good faith who for Options of the owner in case there are
any reason whatever should refuse to accept pending fruits at the time good faith ceases
this concession, shall lose the right to be
indemnified in any other manner. (NCC, Art. 1. To pay the possessor in good faith
545) indemnity for his cultivation expenses and
charges and his share in the net harvest; or
NOTE: This article applies to PENDING fruits,
natural or industrial. 2. To allow the possessor in good faith to
FINISH the cultivation and gathering of the
Q: What if there are natural or industrial growing crops, as an INDEMNITY for his
fruits at the time good faith ceases? part of the expenses of cultivation and the
net proceeds. (Paras, 2008)
A: The possessor shall have the right to a part of
the expenses of cultivation, and to a part in the NOTE: If the possessor refuses, for any reason,
net harvest both in proportion to the time of to finish the cultivation and gathering, he
possession. (NCC, Art 545) (2000, 2008 Bar) forfeits the right to be indemnified in any other
manner. [NCC, Art. 545(3)]
Q: A possessed in good faith a parcel of land.
At the time he received judicial summons to Art. 545 applies only to a possessor in GOOD
answer a complaint filed by B, the crops still faith for a possessor in bad faith has no right
growing had been there for two months. whatsoever to fruits already gathered nor to
Harvest was made only after 4 more months fruits still pending, except that in the former
case (gathered fruits), he gets back the

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necessary expenses for production, gathering, Urgent repairs — reparacion urgentisima —
and preservation of fruits. (Art. 443) In the case are also necessary expenses.
of pending fruits, the principle of accession
applies, and the law clearly states that he who The following are NOT Necessary Expenses
plants or sows in BAD FAITH on the land of
another, loses whatever is planted or sown 1. Those incurred for the filling up with soil of
without right to indemnity. (Paras, 2008) a vacant or deep lot (This is not also a
repair since the term “repair” implies the
Crops not yet manifest putting back into the condition in which it
was originally, and not an improvement in
Art. 545 applies to pending crops. Suppose the the condition thereof by adding something
crops have already been planted but are not yet new thereto. The expenses are indeed in
manifest at the time there is a transfer of the nature of USEFUL improvements;
possession, should the article also apply? It is
submitted that the answer is YES, by the 2. A house constructed on land possessed by a
application of the general rules stated in Art. stranger (not the owner), because the
443. (Paras, 2008) house cannot be said to preserve the land
(the house is USEFUL);
RIGHT TO BE REIMBURSED
3. Land taxes are, for the purposes of the
NECESSARY AND USEFUL EXPENSES Article, not necessary expenses, for they are
needed, not for preservation of the land
Necessary expenses shall be refunded to every itself; but for its continued possession.
possessor; but only the possessor in good faith Failure to pay said taxes results not in
may retain the thing until he has been destruction, but forfeiture, therefore they
reimbursed therefor. Useful expenses shall be should be merely considered CHARGES.
refunded only to the possessor in good faith Consequently, Art. 545 regarding PRO
with the same right of retention, the person RATING of charges should apply; and
who has defeated him in the possession having
the option of refunding the amount of the 4. Unnecessary improvements on a parcel of
expenses or of paying the increase in value land purchased at a sheriff’s auction sale,
which the thing may have acquired by reason made just to prevent redemption from
thereof. (NCC, Art. 546) taking place. (Paras, 2008)

Necessary expenses (1992, 1996, 2000 BAR) Rights of a possessor (in the concept of
owner) as to the necessary expenses
Necessary expenses are expenses incurred to
preserve the property, without which, said 1. If in good faith — entitled to:
property will physically deteriorate or be lost. a. Refund; or
These expenses are not improvements but are b. Retain premises until paid.
incurred merely to protect the thing from
becoming useless. 2. If in bad faith — entitled ONLY to a refund
(no right of RETENTION, as penalty)
Sample of necessary expenses
NOTE: If the owner sues the possessor for the
1. Those incurred for cultivation, production, recovery of the property, the possessor in good
and upkeep; or faith (who is thus entitled to a refund) must file
a counterclaim for the refund of necessary and
2. Those made for necessary repairs of a useful expenses, otherwise the judgment in the
house. case for possession will be a BAR to a
subsequent suit brought solely for the recovery
Ordinary repairs are understood such as are of such expenses. The purpose is clearly to
required by the wear and tear due to the avoid the multiplicity of suits. (Paras, 2008)
natural use of the thing and are indispensable
for its preservation. (NCC, Art. 592) They do not Right of removal of necessary expenses
increase the thing’s value; rather, they merely
prevent the things from becoming useless.

241

Property

There is NO right of removal of necessary NOTE: The possessor in good faith is
expenses whether in good faith or bad faith. entitled to both the fruits and expenses
Necessary expenses affect the existence or (necessary or useful), hence they do not
substance of the property itself. compensate each other.

NOTE: Improvements are so incorporated to B. If in BAD faith.
the principal thing that their separation must
necessarily reduce the value of the thing not The possessor in BAD faith is NOT
curable by ordinary repairs. ENTITLED to any right regarding the useful
expenses [BUT IN Angeles v. Guevara, L-
Useful expenses 15697, October. 31, 1960, where the
Supreme Court thru Justice Gutierrez David
Those which increase the value or productivity made the statement that although a
of the property. possessor in bad faith is NOT entitled to
reimbursements for expenses incurred, he
Examples of useful expenses may nevertheless REMOVE the objects
(repairs on buildings) provided the things
1. Those incurred for an irrigation system; suffer NO INJURY thereby, and that the
2. Those incurred for the erection of a chapel, lawful possessor does not prefer to retain
them by paying the value they may have at
because aside from its possibility of the time he enters into possession.
conversion into such materialistic things as Evidently, here, the Court was thinking NOT
a warehouse or a residence, the chapel of useful improvement, but of expenses for
satisfied spiritual and religious aspirations PURE LUXURY or MERE PLEASURE. (NCC,
and the attainment of man’s higher Art. 549)
destinies. “To uphold the opposite view
would be to reduce life to a mere Effect of voluntary surrender of property
conglomeration of desires and lust, when,
as a matter of fact, life is also a beautiful The voluntary surrender of property is a waiver
aggregate of noble impulses and lofty of the possessor’s right of retention but his
ideals”; right to be refunded may still be enforced.
3. Those incurred for the making of artificial
fishponds; XPN: He also waived the same.
4. Those incurred for the construction of
additional rooms in a house, for use as Removal of useful improvements introduced
kitchen, bathroom, stable, etc; by the possessor
5. Those incurred for clearing up land
formerly thickly covered with trees and Only a possessor in good faith is allowed to
shrubbery. (Paras, 2008) remove the useful improvements he introduced
provided that the useful improvements can be
Rights of a possessor (in the concept of removed without damage to the principal thing.
owner) as to the USEFUL expenses (NCC, Art. 547)

A. If in GOOD faith. “Damage’’ here means a substantial one that
reduces the value of the property, thus a slight
1. Right to REIMBURSEMENT (of either injury curable by an ordinary repair does not
the amount spent or the increase in defeat the right of removal, but the repairs
value — “plus value” — at OWNER’S should be chargeable to the possessor, for it is
OPTION) (NCC, Art. 546) he who benefits by the removal and the object
removed. (Paras, 2008)
2. Right of RETENTION (until paid) (NCC,
Art. 546) NOTE: This right of removal is subordinate to
the owner’s right to keep the improvements
3. Right of REMOVAL (provided no himself by paying the expenses incurred or the
substantial damage or injury is caused concomitant increase in the value of the
to the principal, reducing its VALUE) property caused by the improvements.
— UNLESS the winner (owner or
lawful possessor) exercises the option
in (1) (NCC, Art.547)

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EXPENSES FOR PURE LUXURY to the possessor in bad faith; but he may
remove the objects for which such expenses
Expenses for pure luxury or mere pleasure shall have been incurred, provided that the thing
not be refunded to the possessor in good faith; suffers no injury thereby, and that the lawful
but he may remove the ornaments with which possessor does not prefer to retain them by
he has embellished the principal thing if it paying the value they may have at the time he
suffers no injury thereby, and if his successor in enters into possession. (NCC, Art.549)
the possession does not prefer to refund the
amount expended. (NCC, Art. 548) Q: Who is a possessor in bad faith?

Luxurious expenses or expenses for pure luxury A: A possessor in bad faith is one who is aware
or mere pleasure (ornamental expenses) are that there exists in his title or mode of
expenses incurred for improvements acquisition any flaw which invalidates it. Only
introduced for pure luxury or mere pleasure. personal knowledge of the flaw in one’s title or
mode of acquisition can make him a possessor
Examples of ornamental expenses in badfaith.
a. Hand paintings on the wall of a house;
b. A garage made of platinum; and NOTE: No tacking of bad faith, unless the
c. Water fountains in gardens. successors in interest had learned of the defect
in the title and still purchased it.
Rights of a Possessor (in the Concept of
Owner) as to Luxurious or Ornamental Bad faith is not transmissible from a person to
Expenses another, even an heir is not affected by bad faith
of the deceased predecessor.
1. If in GOOD faith:
Right of the Possessor (in the Concept of
In general, no right of refund or retention Owner) as to FRUITS
but can remove if no substantial injury is
caused. However, owner has OPTION to 1. If in GOOD faith:
allow:
a. Possessor to remove; or a. Gathered or severed or harvested fruits
b. Retain for himself (the owner) the are his own (NCC, Art. 544);

ornament by REFUNDING the AMOUNT b. Pending or ungathered fruits — (pro-
SPENT. (NCC, Art. 548) rating between possessor and owner of
expenses, net harvest, and charges) (NCC,
2. In BAD faith: Art. 545)

In general, no right of refund or retention 2. If in BAD faith:
but can remove if no substantial injury is
caused. However, owner has OPTION to a. Gathered fruits — must return value of
allow: fruits already received as well as value of
a. Possessor to remove; or fruits which the owner or legitimate
b. Retain for himself (the owner) the possessor (not the possessor in bad faith)
could HAVE received with due care or
ornament by REFUNDING the VALUE it diligence, MINUS necessary expenses
has at the TIME owner ENTERS INTO for cultivation, gathering, and
POSSESSION. (NCC, Art. 549) harvesting, to prevent the owner from
being unjustly enriched. (NCC, Arts. 549
POSSESSOR IN BAD FAITH and 443)

The possessor in bad faith shall reimburse the b. Pending or ungathered fruits — no rights
fruits received and those which the legitimate at all, not even to expenses for
possessor could have received, and shall have a cultivation because by accession, all
right only to the expenses mentioned in should belong to the owner, without
paragraph 1 of Art. 546 and in Art. 443. The indemnity. (NCC, Art. 449)
expenses incurred in improvements for pure
luxury or mere pleasure shall not be refunded NOTE: The costs of litigation over the property

243

Property

shall be borne by every possessor. (NCC, Art. GOOD FAITH BAD FAITH
550) “Every possessor’’ refers to one in good
faith or bad faith, in the concept of owner or in As to fruits received
the concept of holder, in one’s own name or in
that of another, and not to the owner or the Entitled to the fruits Shall reimburse the
person adjudged by the court to be lawfully
entitled to possess. (Paras, 2008) received before the fruits received and
possession is legally those which the
Improvements caused by nature or time
interrupted. (NCC, Art. legitimate possessor
Neither the possessor in good faith nor in bad
faith is entitled to: 544) could have received
and shall have the a
1. Improvements caused by NATURE (like
alluvium, etc.) right only to necessary
expenses (Art. 546,
2. Improvements caused by TIME (like the
improved flavor of wine) par. 1) and expenses in

Liability for loss or deterioration the production,
gathering and
A possessor in good faith shall not be liable for
the deterioration or loss of the thing possessed, preservation of such
except in cases in which it is proved that he has
acted with fraudulent intent or negligence, after Fruits. (NCC, Art. 443)
the judicial summons.
A possessor in bad faith shall be liable for As to pending fruits
deterioration or loss in every case, even if
caused by a fortuitous event. (NCC, Art. 552) Liable with legitimate None
possessor for expenses
Rules applicable:
of cultivation and shall
A. Possessor in GOOD FAITH —
share in the net
1. BEFORE receipt of judicial summons — harvest in proportion
NOT LIABLE.
to the time of their
2. AFTER judicial summons Possession. (NCC, Art.
i. Loss or deterioration thru
fortuitous event — not liable. 545)
ii. Thru fraudulent intent
ornegligence — liable As to expenses

B. Possessor in BAD FAITH — (Necessary expenses)
Whether before or after judicial summons,
and whether due to fortuitous event or not, Right of Right of
such possessor is LIABLE.
reimbursement and reimbursement only.
Requisites to constitute possession whether
in good faith or bad faith retention.

1. Possessor has a title/mode of acquisition; (Useful expenses)
2. There is a flaw or defect in said title/mode;
Right of None
and
3. The possessor is aware or unaware of the reimbursement,
retention and limited
flaw or defect.
right of removal.
Summary of rights of a possessor
(Ornamental Expenses)

Shall not be refunded Shall not be refunded

but he has a limited but he has a limited
right of removal, i.e. he right of removal, i.e. he

may remove if the may remove if the
principal thing suffers principal thing suffers

no injury thereby, and no injury thereby, and

if the lawful possessor if the lawful possessor
does not prefer to does not prefer to

refund the amount retain them by paying

expended. its value at the time he
enters into possession.

As to liability in case of deterioration or loss

No liability Always liable.

XPN: If due to his

fraudulent act or
negligence, or after

service of summons.

Possessor in good faith has the right of
retention until he has been fully reimbursed

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A possessor in good faith has the right of right of possession. (NCC, Art. 555) An accion
retention of the property until he has been fully publiciana or reivindicatoria is still possible
reimbursed for all the necessary and useful unless prescription, either ordinary or
expenses made by him on the property. Its extraordinary, has set in. (Paras, 2008)
object is to guarantee the reimbursement for
the expenses, such as those for the preservation NOTE: Acts merely tolerated, and those
of the property, or for the enhancement of its executed clandestinely and without the
utility or productivity. It permits the actual knowledge of the possessor of a thing, or by
possessor to remain in possession while he has violence, do not affect possession. (NCC, Art.
not been reimbursed by the person who 537) (2001, 2009 Bar)
defeated him in the possession for those
necessary expenses and useful improvements Abandonment
made by him on the thing possessed. (Ortiz v.
Kayanan, G.R. No. L-32974, July 30, 1979) Abandonment involves a voluntary
renunciation of all rights over a thing. There
Presumption of Possession during the must be an intention to lose the thing.
intervening period
Requisites:
A present possessor who shows his possession
at some previous time is presumed to have held 1. The abandoner must have been a possessor
possession also during the intermediate period, in the concept of owner (either an owner or
in the absence of proof to the contrary. (NCC, mere possessor may respectively abandon
Art 554) either ownership or possession);

LOSS/TERMINATION OFPOSSESSION 2. The abandoner must have the capacity to
renounce or to alienate (for abandonment
Possession is lost through (PRADA) is the repudiation of property right);

1. Possession of another; 3. There must be physical relinquishment of
2. Recovery of the thing by the legitimate the thing or object; and

owner; 4. There must be no spes recuperandi
3. Abandonment; (expectation to recover) and no more
4. Destruction or total loss of the thing – a animus revertendi (intention to return or
get back). (Paras, 2008)
thing is lost when it perishes or goes out of
commerce, or disappears in such a way that Additional Doctrines
its existence is unknown, or it cannot be
recovered (NCC, Art. 1189; Art. 555); or 1. A property owner cannot be held to have
5. Assignment – complete transmission of the abandoned the same until at least he has
thing/right to another by any lawful some knowledge of the loss of its
manner. (NCC, Art. 555) possession or the thing.

Possession of another 2. There is no real intention to abandon
property when as in the case of a
Possession of another subject to the provisions shipwreck or a fire, things are thrown into
of Art. 537, if a person is not in possession for the sea or upon thehighway.
more than one year but less than 10 years he
losses possession de facto. He can no longer 3. An owner may abandon possession merely,
bring an action of forcible entry or unlawful leaving ownership in force, but a mere
detainer, since the prescriptive period is one possessor cannot abandon ownership
year for such actions. But he may still institute since he never had thesame.
an accion publiciana to recover possession de
jure, possession as a legal right or the real right 4. If an owner has not lost possession
of possession. (NCC, Art. 555; Paras, 2008) because there has been no abandonment, it
surely cannot be acquired by another thru
If a person loses possession for more than 10 acquisitive prescription. Thus, the mere
years, he loses possession de jure, or the real fact that land is covered by the sea
completely during high tide for failure in
the meantime of the owner to dam the
water off, does not indicate an
abandonment of the land in favor of public

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Property

dominion. Moreover, abandonment can without any possessor.
hardly refer to land much less to registered
land. When possession of movables is lost or not
5. There is no abandonment if an owner lost
merely tolerated (permitted) another’s
possession, nor if the latter was done by If the possessor has no idea at all about the
stealth or effected thru force and whereabouts of the movable, possession is lost,
intimidation. (NCC, Articles 537 and 558) but not when he more or less knows its general
6. There is no abandonment of movables location, though he may not know its precise or
even if there is temporary ignorance of definite location. In the former, he has lost
their whereabouts, so long as they remain juridical control; in the latter, the object
under the control of the possessor (that is, remains within his patrimony (not in the
so long as another has not obtained control patrimony of another). (Paras, 2008)
of them). (NCC, Art. 556)
7. In true abandonment, both possession de NOTE: An abandoned property is not
facto and de jure are lost. considered as a lost thing. (Pineda, 1999)
8. Abandonment which converts the thing
into res nullius (ownership of which may Loss of immovables with respect to third
ordinarily be obtained by occupation), does person
not apply to land (NCC, Art. 714, Civil Code)
much less does abandonment apply to The possession of immovables and of real rights
registered land. (Act, 496, Sec. 46) (Paras, is not deemed lost, or transferred for purposes
2008) of prescription to the prejudice of third
persons, except in accordance with the
Assignment provisions of the Mortgage Law and the Land
Registration Laws. (NCC, Art. 557)
Refers to a total transfer of ownership of
property by the owner to another person either NOTE: Art. 557 refers to possession of real
gratuitously or onerously. property, and other real rights over real
property (like easement or usufruct)
While in assignment, at no time did the thing not
have a possessor (for possession merely Acts of mere holder
changed hands or control); in abandonment,
there was a time, no matter how short, when GR: Acts relating to possession, executed or
the object did not have any possessor at all. agreed to by one who possesses a thing
Moreover, while assignment may in some cases belonging to another as a mere holder to enjoy
be by onerous title, abandonment is always or keep it, in any character, do not bind or
gratuitous, otherwise it becomes a virtual prejudice theowner.
assignment. Moreover, in assignment, both
possession de facto and de jure are lost, and no XPNS:
action will allow recovery. (Paras, 2008) 1. Unless he gave said holder express

Q: Does Art. 555 refer to both real and authority to do such acts; or
personal property? 2. Ratifies them subsequently. (NCC, Art. 558)

A: YES (for the law does not distinguish) except FINDER OF LOST MOVABLE
in the case of paragraph 4, for it is evident that
the reference to possession of more than one Rule regarding the right of a possessor who
year concerns only real property, the rule as to acquires a movable claimed by another
movable property being explicitly stated in Art.
556. If the possessor is in:
1. Bad faith – He has no right.
LOSS OR UNLAWFUL DEPRAVATION OF A 2. Good faith – He has presumed ownership. It
MOVABLE
is equivalent to title.
A lost thing is one previously under the lawful
possession and control of a person but is now Requisites:
a. Owner has voluntarily parted with the

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possession of the thing; and incurred for the publication. (NCC, Art. 719)
b. Subsequent possessor is in the concept of
Duty of the owner who appeared
an owner.
c. Possession in good faith; 1. Give a reward to the finder equivalent to
one-tenth (1/10) of the sum or of the price
Possession of movable property acquired in of the thing found (NCC, Art. 720);
good faith
2. Reimburse to the finder for the latter’s
GR: Doctrine of irrevindicability – The expenses incurred for the preservation of
possession of movable property acquired in the thing (NCC, Art. 546) and expenses
good faith is equivalent to title and the true spent for the location of the owner;and
owner cannot recover such movable.
3. Reimburse the expenses for publication if
NOTE: This is merely presumptive as it can be there was a public auction sale. (Pineda,
defeated by the true owner. (NCC, Art. 559) 1999)

XPNs: Summary of recovery or non-recovery
1. When the owner has lost a movable; or principle
2. Has been unlawfully deprived of a movable.
A. Owner MAY RECOVER WITHOUT
In which case the possessor cannot retain the REIMBURSEMENT:
thing as against the owner, who may recover it
without paying any indemnity 1. From possessor in bad faith; or
2. From possessor in good faith (if owner
XPN to the XPNs: Where the movable is
acquired in good faith at a public sale, the had LOST the property or been
owner must reimburse to recover. [NCC, Art. unlawfully deprived of it) (the
559(2)] acquisition being from a private
person). (NCC, Art. 559)
Duty of a finder of a lost movable (NCC, Art.
719) B. Owner MAY RECOVER but should
REIMBURSE:
Whoever finds a lost movable, which is not a
treasure, must return it to its previous If possessor acquired the object in good faith
possessor. If the latter is unknown, the finder at a PUBLIC SALE or AUCTION. (NCC, Art.
shall immediately deposit it with the mayor of 559) Because the publicity attendant to a
the city or municipality where the finding has public sale should have been sufficient
taken place. The mayor in turn must publicly warning for the owner to come forward and
announce the finding of the property for two claim the property.
consecutive weeks.
C. Owner CANNOT RECOVER, even if he
Authorized public auction of lost movable offers to REIMBURSE (whether or not the
owner had lost or been unlawfully deprived):
If the movable cannot be kept without
deterioration, or without expenses which 1. If possessor had acquired it in good faith
considerably diminish its value, it shall be sold by purchase from a merchant’s store, or
at public auction eight days after the in fairs, or markets in accordance with
publication. the Code of Commerce and special laws
(NCC, Art. 1505 and Code of Commerce,
Awarding of the lost movable to the finder Art. 85 and Art. 86);

If the owner or previous possessor did not 2. If owner “is by his conduct precluded
appear after 6 months from the publication, the from denying the seller’s authority to
thing found or its value or proceeds if there was sell.” (ESTOPPEL) (NCC, Art. 1505); and
a sale, shall be awarded to the finder. The
finder, however, shall pay for the expenses 3. If possessor had obtained the goods
because he was an innocent purchaser
for value and holder of a NEGOTIABLE
document of title to the goods. (NCC, Art.
1518) (Paras, 2008)

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Property

Q: Suppose a recently stolen property is United Car Sales, Inc. against Jerico for
found in possession of A, is A presumed to be recovery of the car, plaintiff alleges it had
the thief? been unlawfully deprived of its property
through fraud and should, consequently, be
A: YES, it is a disputable presumption “that a allowed to recover it without having to
person found in possession of a thing taken in reimburse the defendant for the price the
the doing of a recent wrongful act is the taker latter had paid. Should the suit prosper?
and doer of the whole act.’’ (Rules of Court, Rule (1998 BAR)
131, Sec. 3[j]) It is true that one who possesses a
movable, acquired in good faith, has what is A: The suit should prosper because the criminal
called an equivalent of title, but this is act of estafa should be deemed to come within
destroyed when it is proved that said movable the meaning of unlawful deprivation under Art.
belongs to somebody else who has lost it, or has 559 as without it, United Car Sales would not
been unlawfully deprived of its possession. have parted with the possession of its car. Thus,
(NCC, Art. 559) (Paras, 2008) it was allowed to recover the property without
Q: In order to contest the title of the having to reimburse the defendant.
possessor in good faith, what should the
true owner do? Possession of wild animals

A: The true owner should present sufficient Wild animals are possessed only while they are
proof of the identity of the object AND that he under one’s control; domesticated or tamed
had either lost it or has been illegally deprived animals are considered domestic or tame, if
of it. This proof is an indispensable requisite a they retain the habit of returning to the
conditio sine qua non in order that the owner of premises of the possessor. (NCC, Art. 560)
the chattel may contest the apparent title of its
possessor. Without adequate proof of such loss Lawful recovery of possession that had been
or illegal deprivation, the present holder cannot unjustly lost
be put on his defense, even if as possessor he
has no actual proprietary title to the movable One who recovers, according to law, possession
property in question. (Paras, 2008) unjustly lost, shall be deemed for all purposes
which may redound to his benefit, to have
Rule when possessor has already become enjoyed it without interruption. (NCC, Art. 561)
the owner
Requisites:
Art. 559 in fact assumes that the possessor is as 1. Possession was lost unlawfully or unjustly;
yet not the owner, for it is obvious that where 2. Possessor lawfully recovers possession; and
the possessor has come to acquire indefeasible 3. Uninterrupted possession is beneficial to
title, let us say adverse possession for the
necessary period, no proof of loss, or illegal him.
deprivation could avail the former owner of the
chattel. He would no longer be entitled to USUFRUCT
recover it under any condition. (Paras, 2008)
Usufruct is the right of a person called
Estafa is considered as unlawful deprivation usufructuary, to enjoy the property of another
called the owner, with the obligation of
Q: Using a falsified manager's check, Justine, returning it at the designated time and
as the buyer, was able to take delivery of a preserving its form and substance, unless the
secondhand car which she had just bought title constituting it or the law provides
from United Car Sales Inc. The sale was otherwise. (Pineda, 2009)
registered with the Land Transportation
Office. A week later, the seller learned that NOTE: A usufruct can be constituted in favor of
the check had been dishonored, but by that a town, corporation or association, but it cannot
time, Justine was nowhere to be seen. It be for more than 50 years. (NCC, Art. 605)
turned out that Justine had sold the car to
Jerico, the present possessor who knew Characteristics of usufruct (ENA)
nothing about the falsified check. In a suit by
1. Essential – Those without which it cannot

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be termed as usufruct: require Michael to investigate Chayong’s title
because the latter’s ownership over the
a. Real right (whether registered in the property remains unimpaired despite such
registry of property or not); encumbrance. Only the jus utendi and jus
fruendi over the property are transferred to the
b. Constituted on property usufructuary. The owner of the property
i. Real; maintains the jus disponendi or the power to
ii. Personal; alienate, encumber, transform, and even
destroy the same. (Hemedes v. CA, G.R. Nos.
iii. Consumable; 107132 & 108472, October 8,1999)
iv. Non-consumable;
v. Tangible; KINDS OF USUFRUCT
vi. Intangible.
c. Temporary duration; 1. As to origin:
d. Purpose: to enjoy the benefits and a. Legal – Created by law such as
derive all advantages from the object usufruct of the parents over the
as a consequence of normal use or property of their unemancipated
exploitation. children;
NOTE: The right of the parents over
2. Natural – That which ordinarily is present, the fruits and income of the child’s
but a contrary stipulation can eliminate it property shall be limited primarily to
because it is not essential; the child’s support and secondarily to
the collective daily needs of the family.
a. The obligation of conserving or (FC, Art. 226)
preserving the form and substance b. Voluntary – Created by will of the
(value) of the thing.; and parties either by act inter vivos (e.g.
donation) or by act mortis causa (e.g.
b. It is transmissible. in a last will and testament);
c. Mixed– Created by both law and act of
3. Accidental – Those which may be present or the person (e.g. acquired by
absent depending upon the stipulation of prescription: I possessed in good faith
parties. a parcel of land which really belonged
to another. Still in good faith, I gave in
a. Whether it be pure or a conditional my will to X, the naked ownership of
usufruct; land and to Y, the usufruct. In due
time, Y may acquire the ownership of
b. The number of years it will exist; the usufruct by acquisitive
c. Whether it is in favor of one person or prescription) (Paras, 2008);
d. Prescriptive – acquired by third
several, etc. persons through continuous use of the
usufruct for the period required by
Obligation to preserve the form and law.
substance of the thing in usufruct
2. As to the number of beneficiaries
GR: The usufructuary is bound to preserve the a. Simple – If only one usufructuary
form and substance of the thing in usufruct. enjoys the usufruct;
This is to prevent extraordinary exploitation, b. Multiple – If several usufructuaries
prevent abuse of property and prevent enjoy the usufruct;
impairment. i. Simultaneous – at the same time
ii. Successive – one after theother
XPN: In case of an abnormal usufruct, whereby
the law or the will of the parties may allow the NOTE: In case usufructuary is created by
modification of the substance of thething. donation, apply Art. 756. If the usufruct is
testamentary, apply Rules on Fidei
Q: Chayong owned a parcel of land which she Commisary substitution under Art. 863 and
mortgaged to Michael. Upon the OCT was an 869.
annotation of usufructuary rights in favor of
Cheddy. Is Michael obliged to investigate
Chayong’s title?

A: NO. The annotation is not sufficient cause to

249

Property

3. As to the extent of object: giving the usufruct.
a. Total – constituted on the whole 2. In case of deficiency, the provisions on Civil
thing
b. Partial – constituted only on a part. Code. (NCC, Art. 565)

4. As to the subject matter: Usufruct vs. Lease
a. Over things
i. Normal (or perfect or regular) – BASIS USUFRUCT LEASE
involves non-consumable things
where the form and substance Real right only
are preserved; or
ii. Abnormal (or imperfect or if, as in the
irregular) – Involves consumable case of a lease
things – that which involves
things which would be useless to over real
the usufructuary unless they are property, the
consumed or expanded.
b. Over rights – involves intangible Nature of Always a real lease is
property; rights must not be the right right.
personal or intransmissible in registered, or
character so present or future Creator of Owner or his is for more
support cannot be an object of Right agent.
usufruct. than one year,
Origin
5. As to the effectivity or extinguishment: otherwise it is
a. Pure – no term or condition Extent of a personal
b. With a term – there is a period which Enjoyment
may be either suspensive or resolutory right.
i. Ex die – from a certain day Cause
ii. In diem – up to a certain day May not be the
iii. Ex die in diem – from a certain day owner, as in
up to a certain day.
c. Conditional – subject to a condition the case of a
which may be either suspensive or
resolutory. sub- lessor or
a
GR: No form is required in constituting a
usufruct. Even an oral usufruct may be usufructuary.
constituted.
By contract, by
XPNs:
1. Usufruct over real property must be way of
exception by
registered to bind third person
2. Statute of Frauds apply in case Real law (as in the

Property is involved. If Personal case of an
property, Statute of Frauds will apply implied new
where the value is P 500 or higher and
in case the agreement is not to be By law, lease under
performed in one year; contract, will Art. 1670), or
3. A usufruct by donation or by will must of testator or
comply with formalities of a donation by when a builder
or will prescription.
has built in
Rules governing usufruct good faith on

1. The agreement of the parties or the title the land of
another a

building, when

the land is
considerably

worth more in

value than the
building.

All fruits, uses Only those
and benefits.
particular or

specific use.

A passive
owner who
An active
allows the owner who
makes the
usufructuary lessee enjoy
to enjoy the

object of
usufruct

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Repairs Usufructuary Lessee cannot usufructuary may lease the thing to
and Taxes pays for constitute a another, even without the consent of the
ordinary usufruct on owner.
repairs and the property
pays for leased. 8. To Set-off the improvements he may have
annual made on the property against any damage
charges and to the same. (NCC, Art. 580)
taxes on the
fruits. Rule as to certain rights (rent, pension,
benefits, etc.)
Limitation Usufructuary The lessee
on the use may lease the cannot Whenever a usufruct is constituted on the right
property to constitute a to receive a rent or periodical pension, whether
of another but usufruct on in money or in fruits, or in the interest on bonds
property cannot the property or securities payable to bearer, each payment
alienate the leased. due shall be considered as the proceeds of fruits
thin itself. of such right. Whenever it consists in the
enjoyment of benefits accruing from a
RIGHTS OF USUFRUCTUARY participation in any industrial or commercial
enterprise, the date of the distribution of which
Rights of the usufructuary as to the thing and is not fixed, such benefits shall have the same
its fruits (RIRICRES) character. In either case they shall be
distributed as civil fruits, and shall be applied in
1. To Receive the fruits of the property in the manner prescribed in the preceding article.
usufruct and half of the hidden treasure he (Paras, 2008)
accidentally finds on the property (NCC,
Articles 566 and 438); The things referred to in Art. 570 are
considered civil fruits and shall be deemed to
NOTE: The usufructuary is entitled to the accrue proportionately to the naked owner and
natural, industrial, and civil fruits that will usufructuary, for the time the usufruct lasts.
accrue during the existence of the usufruct.
Rules if the finder of a hidden treasure is a
2. To enjoy any Increase which the thing in usufructuary
usufruct may acquire through accession
(NCC, Art. 571); If the finder is a usufructuary and he discovers
it by chance, the usufructuary shall be entitled
3. To Retain the thing until he is reimbursed to one half of the value thereof. The other half
for advances for extraordinary expenses belongs to the naked owner.
and taxes on the capital (NCC, Art. 612);
If the finder is a third person and he found
4. To make such Improvements or expenses hidden treasure by chance in the property
on the property he may deem proper and to under usufruct, the usufructuary shall be
remove the improvements provided no considered a stranger. The finder gets half and
damage is caused to the property (NCC, Art. the other half shall belong to the naked owner.
579); (Paras, 2008)

5. To Collect reimbursements from the owner Rights of a usufructuary on pending natural
for indispensable extra ordinary repairs, and industrial fruits (NCC, Art. 567)
taxes on the capital he advanced, and
damages caused to him; FRUITS RIGHTS OF THE
GROWING USUFRUCTUARY
6. To Remove improvements made by him if
the same will not injure the property; At the a. Belong to the usufructuary;
beginning of
7. To personally Enjoy the thing or lease it to the usufruct
another (NCC, Articles. 572-577) generally
for the same or shorter period as the
usufruct; and

NOTE: As to the thing itself, the

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Property

b. Not bound to refund to the Limitations to Usufructuary Rights
owner the expenses of
cultivation and production The usufructuary cannot:
but without prejudice to 1. Sell, pledge or mortgage the property itself
the right of third persons;
because he is not the owner;
BUT without prejudice to the 2. Sell future crops (growing crops at the
right of third persons. Thus, if
the fruits had been planted by a termination of the usufruct belong to the
possessor in good faith, the owner); and
pending crop expenses and 3. Lease the thing for a period longer than the
charges shall be pro-rated term of the usufruct without the consent of
between said possessor and the owner
usufructuary
XPN: In lease of rural lands, it may exceed the
At the Belong to the owner but he is lifetime of the usufruct and shall subsist during
termination bound to reimburse the the agricultural year.
of the usufructuary of the ordinary Q: Can a usufruct be constituted on an
usufruct cultivation expenses (NCC, Art. encumbered or mortgaged land?
545) out of the fruits received.
(NCC, Art. 443) The right of A: YES. The mortgage remains inactive until the
innocent third parties should debt is not paid, and the mortgage is not for the
not be prejudiced. purpose of limiting the use of the fruits.

NOTE: Civil fruits accrue daily; stock dividends Right of usufructuary to make useful or
and cash dividends are considered civil fruits. luxurious improvements
However, dividends declared from “capital
stocks” are not covered by usufruct because 1. The usufructuary may construct and make
such are not declared from profits of the improvements on the property as he may
corporation. deem proper;
XPN: If there is an express prohibition to
Aside from the right to the fruits, the that effect.

usufructuary has the right to the enjoyment (use, 2. Limitation: the usufructuary cannot alter its
not ownership) of: form and substance;
a. Accessions (whether artificial or natural);
b. Servitudes and easements; and 3. Removal: usufructuary may generally
c. All benefits inherent in the property (like remove provided no injury is made on the
principal even against the will of the naked
the right to hunt and fish therein, the right owner. If he has chosen not to remove he
to construct rainwater receptacles, etc.) cannot be compelled to remove them; and

Reason: 4. Indemnity: no right to be indemnified if the
improvements cannot be removed. He may
The usufructuary, as a rule, is entitled to the: however set-off the value of the
a. ENTIRE jus fruendi (including fruits of improvements against the amount of
damage he had caused to the property.
accessions); and (Pineda,2009)
b. ENTIRE jus utendi (so he can make use for
NOTE: If the right of the usufructuary to remove
example of an easement) improvements is not registered in the
registration proceedings of the land in usufruct,
When the expenses of cultivation and an innocent purchaser for value of the property
production exceeds the proceeds of the is not bound to respect the right.
growing fruits
Offsetting of damages and improvements
If the expenses exceed the proceeds of the introduced by the usufructuary
growing fruits, the owner has no obligation to
reimburse the difference. (NCC, Art. 567) Requisites before set-off can be made:
1. Damage must have been caused by the

usufructuary;

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2. Improvements must have augmented the property, the usufructuary shall answer to
value of the property; and the owner. (Art. 590) The relation between
the owner and the usufructuary, does not end
3. Notice of intention to set-off. just because a lease has been made. The
usufructuary, however, can demand
If the damages exceed the value of the reimbursement from the lessee, because of
improvements, the usufructuary is liable for the the latter’s breach of the contract of lease. If
difference as indemnity. the usufructuary cannot pay the damage to
the naked owner, his bond shall be liable.
If the improvements exceed the amount of This is precisely one reason for the
damages, the usufructuary may remove the requirement of a bond. (NCC, Art. 583)
portion of the improvements representing the
excess in value if it can be done without injury; 2. Rights with Reference to the USUFRUCTUARY
otherwise, the excess in value accrues to the RIGHT ITSELF
owner.
The usufructuary may alienate (sell, donate,
Q: Why do improvements accrue to the bequeath, or devise) the usufructuary right
owner? (except a legal usufruct, i.e., the usufruct
A: Because there is no indemnity for which parents have over the properties of
improvements. their unemancipated children, because said
usufruct is to be used for certain obligations
Rights of the usufructuary as to the usufruct towards children); or a usufruct granted a
itself usufructuary in consideration of his person;
or a usufruct acquired thru a caucion
1. To Alienate, pledge or mortgage the right of juratoria, for here, the need of the
usufruct, even by gratuitous title (NCC, Art. usufructuary himself is the reason for the
572); enjoyment. (NCC, Art. 587)

2. In a usufruct to Recover property/real The usufructuary may pledge or mortgage
right, to bring the action and to oblige the the usufructuary right (because he OWNS
owner thereof to give him the proper said right) BUT he cannot pledge or mortgage
authority and the necessary proof to bring the thing itself because he does not own the
the action (NCC, Art. 578); and thing [NCC, Art. 2085(2)]. Neither can he sell
or in any way alienate the thing itself, or
3. In a usufruct of part of a Common property, future crops, for crops pending at the
to exercise all the rights pertaining to the termination of the usufruct belong to the
co-owner with respect to the naked owner. (NCC, ArtIcles 567 and 572 and
administration and collection of fruits or Mortgage Law, Art. 106)
interests.
Q: 120 hectares of land from the NHA
Lease, alienation and encumbrance of the property were reserved for the site of the
property subject to usufruct National Government Center. 7 hectares from
which were withdrawn from the operation.
1. Rights with Reference to the THING ITSELF (in These revoked lands were reserved (MSBF)
Addition to the Usufruct) However, MSBF occupied approximately 16
hectares and leased a portion thereof to
The usufructuary, not being the owner of the Bulacan Garden Corporation (BGC) BGC
thing subject to usufruct, cannot alienate, occupies 4,590 sqm. Implementing such
pledge or mortgage the thing itself. revocation, NHA ordered BGC to vacate its
However, the usufructuary may lease the occupied area. BGC then filed a complaint for
thing to another (This can be done even injunction. Has BGC any right over the leased
without the owner’s consent; moreover, premises?
ordinarily the lease must not extend to a
period longer than that of the usufruct, A: A usufructuary may lease the object held
unless the owner consents. Thus, the lease in usufruct. The owner of the property must
ends at the time the usufruct ends, except in respect the lease entered into by the
the case of rural leases).

NOTE: If the lessee should damage the

253

Property

usufructuary so long as the usufruct exists. MSBF 1. Pay the APPRAISED value (if appraised
was given a usufruct over only a 7-hectare area. when first delivered); or
NHA cannot evict BGC if the 4,590 square meter
portion MSBF leased to BGC is within the 7- 2. If there was no appraisal, return same
hectare area held in usufruct by MSBF. However, kind, quality, and quantity OR pay the
the NHA has the right to evict BGC if BGC price current at the termination of the
occupied a portion outside of the 7- hectare area usufruct (therefore not at the original
covered by MSBF's usufructuary rights. (NHA v. price or value)
CA, G.R. No. 148830, April 13, 2005)
Usufruct on fruit-bearing trees and shrubs
Transfer of the usufruct
The usufructuary of fruit-bearing trees and
The transferee can enjoy the rights transferred shrubs may make use of the dead trunks, and
to him by the usufructuary until the expiration even of those cut off or uprooted by accident,
of the usufruct. Transfer of usufructuary rights, under the obligation to replace them with new
gratuitous or onerous, is co-terminus with the plants. (NCC, Art. 575)
term of usufruct.
Exercise of acts of ownership by a NOTE: This is a SPECIAL usufruct.
usufructuary
Rights
GR: A usufructuary cannot exercise acts of
ownership such as alienation or conveyance. The usufructuary can use (even for firewood,
though he is NOT the naked owner) the
XPNs: When what is to be alienated or following:
conveyed is a:
a. Dead trunks; and
1. Consumable; b. Those cut off or uprooted by accident.
2. Property intended for sale; or
3. Property which has been appraised when BUT he must REPLACE them with new plants
(for indeed, he was not the naked owner)
delivered. (NCC, Art. 574)
Other SPECIAL usufructs
NOTE: If it has not yet been appraised or if it is
not a consumable, return the same quality 1. Of periodical pension, income, dividends
(mutuum) (NCC, Art. 570);

Abnormal usufruct on consumable things 2. Of woodland (NCC, Art. 577);
3. Of right of action to recover real property,
This is another instance of abnormal usufruct,
and is sometimes referred to as a “quasi- real right, or movable property (NCC, Art.
usufruct” because the form and substance is not 578);
really preserved. Thus, this is really a SIMPLE 4. Of part of property owned in common
loan. It has been included however in the title (Art. 582);
on usufructs because in what are called 5. Of the entire patrimony of a person (NCC,
UNIVERSAL USUFRUCTS, both non-consumable Art. 598);
and consumable properties are included. While 6. On a mortgaged immovable (NCC, Art. 600);
we seldom find usufructs on consumable and
properties alone, it is a fact that they indeed 7. On a flock or herd of livestock. (NCC, Art.
exist. Thus, the Supreme Court has held that 591)
even money may be the object of a usufruct.
(Paras, 2008) Special usufruct over a WOODLAND
RULES for this ‘QUASI-USUFRUCT’
This is not a common or frequent usufruct
1. The usufructuary (debtor-borrower) can because:
use them (as if he is the owner, with 1. Natural resources (including forest or
complete right of pledge or alienation)
timber lands) belong to the State (Regalian
2. BUT at the end of the usufruct, hemust: Doctrine under Art. XII, Sec. 3 of the 1987
Philippine Constitution);
2. A license is generally essential if one desires
to gather forest products (Revised

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Administrative Code, Sec. 47) The action may be instituted in the
usufructuary’s name, for being the owner of the
Obligations of the usufructuary over a usufruct, he is properly deemed a real party in
woodland interest. (Rules of Court, Sec. 2, Rule 3)

In the enjoyment of the usufruct, the a. If the purpose is the recovery of the
usufructuary: property or right, he is still required under
Art. 578 to obtain the naked owner’s
1. Must bear in mind that he is not the owner, authority.
and therefore, in the exercise of the diligence
in caring for the property (required under b. If the purpose is to object to or prevent
Art. 589 he must see to it that the woodland disturbance over the property (once the
is preserved, either by development or by property is given him), no special authority
replanting, thus he cannot consume all, from the naked owner is needed.
otherwise nothing would be left for the
owner. Usufructuary of a part of common property

2. In the cutting or felling of trees, he must— The usufructuary of a part of a thing held in
common shall exercise all the rights pertaining
a. Follow the owner’s habit or practices; to the owner thereof with respect to the
b. In default thereof, follow the customs of administration and the collection of fruits or
interest. Should the co-ownership cease by
the place (as to MANNER, AMOUNT and reason of the division of the thing held in
SEASON) (NCC, Art. 577) common, the usufruct of the part allotted to the
— All without prejudice to the owner, co-owner shall belong to the usufructuary.
for while he can USE, he cannot (NCC, Art. 582)
ABUSE.
A co-owner may give the usufruct of his share
NOTE: The rule above is applicable if the to another, even without the consent of the
woodland: others, unless personal considerations are
i. Is a COPSE (thicket of small trees); present. (NCC, Art. 493)

or The usufructuary in such a case takes the
ii. Consists of timber for BUILDING. owner’s place as to:

c. If there be no customs, the only time a. Administration (management); and
the usufructuary can CUT DOWN trees b. Collection of fruits or interest (NCC, Art.
will be for REPAIR or IMPROVEMENT, 582) (BUT not as to alienation, disposition,
but here the owner must first be or creation of any real right over the
informed (the owner, thus, does not property, since these are strict acts of
need to consent) ownership, unless of course he is
authorized by the naked owner) (Paras,
3. Cannot alienate the trees (for the trees are 2008)
not considered fruits) unless he is
permitted, expressly or impliedly by the Rights of usufructuary at the expiration of
owner (as when the purpose of the usufruct the usufruct
was really to sell the timber) or unless he
needs the money to do some repairs (but in 1. To collect reimbursement from the owner:
the last case, the owner must be informed) a. For indispensable extraordinary
repairs made by the usufructuary
Rights of usufructuary to recover the (NCC, Art.593);
property held in usufruct b. For taxes on the capital advanced by
the usufructuary (NCC, Art. 597);
To bring the action, the usufructuary can c. For damages caused by the naked
DEMAND from the owner: owner;
d. For payment of increase in value of the
1. Authority to bring the action (usually a immovable by reason of repairs
special power of attorney); and provided the owner is notified of the

2. Proofs needed for a recovery.

255

Property

urgency of such repairs but the latter point out discrepancies and omissions in
failed to make said repairs despite the the inventory.
notification, and the repair is
necessary for the preservation of the 2. Conditions of immovables must be
property. (NCC, Art. 594) described; and

2. To retain the thing until reimbursement is 3. Movables must be appraised.
made. (NCC, Art. 612)
NOTE: As a rule, no form is required, except
OBLIGATIONS OF USUFRUCTUARY when there are real properties. Expenses
are to be borne by the usufructuary. (Paras,
The usufructuary has obligations 2008)

1. Before the usufruct (like the making of When inventory is not required
inventory);
1. Waived;
2. During the usufruct (like taking due care of 2. No one will be injured by the lack of
property); and
inventory (NCC, Art. 585);
3. After the usufruct (like the duty to return 3. When the donor has reserved to himself the
and indemnify in the proper cases)
usufruct of the property donated;or
1. Before the usufruct (NCC, Art. 583) 4. Agreement of both parties.
a. Make an inventory; and
b. Give security Effects of failure to post a bond or security

This article speaks of two obligations (inventory 1. The owner shall have the following options
and security) They are not necessary however (NCC, Art. 586):
before the right to the usufruct begins; they are a. Receivership of realty;
merely necessary before physical possession and b. Sale of movables;
enjoyment of the property can be had, thus if the c. Deposit of securities;
usufructuary fails to give security (unless d. Investment of money; or
exempt) the usufruct still begins but the naked e. Retention of the property as
owner will have the rights granted him under administrator.
Art. 586. (Paras, 2008)
2. The net product shall be delivered to the
NOTE: The purpose of giving security is to usufructuary;
insure fulfillment by the usufruct of the
obligation imposed upon him. 3. The usufructuary cannot collect credit due
or make investments of the capital without
After the security has been given by the the consent of the owner or of the court
usufructuary, he shall have a right to all the until the bond is given.
proceeds and benefits from the day on which, in
accordance with the title constituting the Effects of failure to give security
usufruct, he should have commenced to receive
them (retroactive effect of security). (NCC, Art. 1. On the rights of the naked owner:
588) a. May deliver the property to the
usufructuary;
Requirements for the inventory b. May choose retention of the property
as administrator; and
1. The naked owner or representative must be c. May demand receivership or
previously notified; administration of the real property,
sale of movable, conversion or deposit
NOTE: The purpose is to enable him to of credit instruments or investment of
correct errors in the inventory if he desires. cash or profits.
His absence is a waiver for corrections. If
there is non-notification, the inventory can 2. On the rights of the usufructuary:
go on but the naked owner may later on a. Cannot possess the property until he
gives security;
b. Cannot administer property;

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c. Cannot collect credits that have 2. During the usufruct
matured nor invest them; and
XPN: if the court or naked owner a. Take care of property;
consents; b. Replace the young of animals that die or

d. May alienate his right to usufruct. are lost or become prey when the
usufruct is constituted on a flock or herd
Exemption of usufructuary from the of livestock;
obligation to give security c. Make ordinary repairs;
d. Notify the owner of urgent
Usufructuary may be exempt from the obligation extraordinary repairs;
to give security when: e. Permit works & improvements by the
naked owner not prejudicial to the
1. No one will be injured by the lack of the usufruct;
bond (NCC, Art. 585); f. Pay annual taxes and charges on the
fruits;
2. The donor (or parent) reserved the g. Pay interest on taxes on capital paid by
usufruct of the property donated (NCC, Art. the naked owner;
584); h. Pay debts when usufruct is constituted
on the whole patrimony;
3. When there is waiver by the nakedowner; i. Secure the naked owner’s/court's
4. When there is parental usufruct (FC, Art. approval to collect credits in certain
cases;
225); j. Notify the owner of any prejudicial act
5. The usufruct is subject to caucion juratoria committed by third persons; and
k. Pay for court expenses and costs.
where:
Usufructuary’s liability for ordinary repairs
a. The usufructuary takes an oath to take
care of the things and restore them to The usufructuary is obliged to make the
its previous state before the usufruct ordinary repairs needed by the thing given in
is constituted; and usufruct. It includes such as are required by the
wear and tear due to the natural use of the
b. The property subject to such cannot be thing and are indispensable for its preservation.
alienated or encumbered or leased. (NCC, Art. 592)

Caucion juratoria – “by virtue of a promise NOTE: If the naked owner demanded the repair
under oath” and the usufructuary still fails to do so, the
owner may make them personally or thru
The usufructuary, being unable to file the another, at the expense of the usufructuary.
required bond or security, may file a verified (NCC, Art. 592)
petition in the proper court asking for the
delivery of the house and furniture necessary for Extraordinary repairs (NCC, Art. 593)
himself and his family so that he and his family
be allowed to live in a house included in the It includes:
usufruct and retain it until the termination of the 1. Those required by the wear and tear due to
usufruct without any bond or security.
the natural use of the thing but not
The same rule shall be observed with respect to indispensable for its preservation.
implements, tools and other movable property
necessary for an industry or vocation in which Liabilities:
he is engaged. (NCC, Art. 587) a. The naked owner should be held liable,

Requisites before the caucion juratoria is whether or not he is notified by the
allowed usufructuary; and
b. The law does not require the naked
1. Proper court petition; owner to make them; what is important
2. Necessity for delivery of furniture, is that he will bear the expenses made
by the usufructuary. (Paras, 2008)
implements or house included in the
usufruct;
3. Approval of the court; and
4. Sworn promise.

257

Property

2. Those caused by exceptional circumstances 3. After the usufruct/ at the termination
and are indispensable for its preservation. a. Return the thing in usufruct to the
naked owner unless there is a right of
Liabilities: retention;
a. The naked owner shall be held liable; b. Pay legal interest for the time that the
usufruct lasts; and
and c. Indemnify the naked owner for any
b. The usufructuary is allowed to make losses due to his negligence or of his
transferees.
them with the right to get the increase
in value and the right of retention at the NOTE: The usufructuary may be liable for the
termination of usufruct, provided there damages suffered by the naked owner on
was notification by the usufructuary and account of fraud committed by him or through
failure to repair by the naked owner. his negligence.
(Paras, 2008)
XPN: the usufructuary is not liable for
3. Those caused by exceptional circumstances deterioration due to:
but are not needed for its preservation.
Liabilities: 1. Wear and tear; or
a. The naked owner is liable; and 2. Fortuitous event.
b. The usufructuary cannot compel the
naked owner to make such repairs and RIGHTS OF THE OWNER
he is not allowed to make them even if
the naked owner has failed to make Rights of a naked owner and the limitations
them. (Paras, 2008) imposed upon him

NOTE: Extraordinary repairs shall be at the RIGHTS LIMITATIONS
expense of the owner. The usufructuary is
obliged to notify the owner when the need for Alienation Can alienate the thing in
such repairs is urgent. Alteration usufruct.
Enjoyment
Right of retention of the usufructuary Cannot alter the form and
Construction and substance.
The usufructuary has a right of retention even Improvement
after the termination of the usufruct until he is Cannot do anything
reimbursed for the increase in value of the prejudicial to the
property caused by extraordinary repairs for usufructuary
preservation.
Can construct any works
Charges or taxes which the usufructuary and make any
must pay improvement provided it
does not diminish the
1. The annual charges (in the fruits); value or the usufruct or
2. The annual taxes on the fruits;and prejudice the rights of the
usufructuary.
Taxes imposed directly on the capital
Alienation by naked owner
These shall be at the expense of the owner
provided they are not annual. (Paras, 2008) Since the jus disponendi and the title (dominium
directum) reside with the naked owner, he
Rules: retains the right to ALIENATE the property
1. If paid by the naked owner, he can demand BUT:

legal interest on the sum paid; or 1. He cannot alter its form or substance;or
2. If advanced by the usufructuary, he shall 2. Do anything prejudicial to the usufructuary

recover the amount thereof at the (as when he should illegally lease the
termination of the usufruct. [NCC, Art. property to another, since this right
597(2)]

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ordinarily pertains to the usufructuary) OBLIGATIONS OF THE OWNER

Improper use of the thing by the 1. To make reimbursement for advances of
usufructuary the usufructuary (NCC, Art. 597);

The owner may demand the delivery of and 2. To cancel the security, upon discharge ofthe
administration of the thing with responsibility usufructuary’s obligations (NCC, Art. 612);
to deliver net fruits to usufructuary.
3. To respect leases of rural lands by the
Q: On 1 January 1980, Minerva, the owner of usufructuary for the balance of the
a building granted Petronila a usufruct over agricultural year. (NCC, Art. 572)
the property until 01 June 1998 when
Manuel, a son of Petronila, would have EXTINCTION/TERMINATION
reached his 30th birthday. Manuel, however,
died on 1 June 1990 when he was only 26 Usufruct is extinguished by: (PLDT-ERM)
years old.
1. Acquisitive Prescription;
Minerva notified Petronila that the usufruct
had been extinguished by the death of NOTE: The use by a third person and not
Manuel and demanded that the latter vacate the non-use by the usufructuary. Mere non-
the premises and deliver the same to the use of the usufructuary does not terminate
former. Petronila refused to vacate the place the usufruct.
on the ground that the usufruct in her favor
would expire only on 1 June 1998 when XPN: unless it is also a renunciation.
Manuel would have reached his 30th
birthday and that the death of Manuel 2. Total Loss of the thing;
before his 30th birthday did not extinguish
the usufruct. Whose contention should be NOTE: If the loss is only partial, the
accepted? (1997 BAR) usufruct continues with the remaining part.

A: Petronila’s contention should be 3. Death of the usufructuary;
accepted. A usufruct granted for the time that
may elapse before a third person reaches a GR: Death of the usufructuary generally
certain age shall subsist for the number of years ends the usufruct since a usufruct is
specified even if the third person should die constituted essentially as a lifetime benefit
unless there is an express stipulation in the for the usufructuary or in consideration of
contract that states otherwise. (NCC, Art. 606) his person.
There is no express stipulation that the
consideration for the usufruct is the existence XPNs:
of Petronila’s son. Thus, the general rule and a. In the case of multiple usufructs, it
not the exception should apply in this case.
ends on the death of the last survivor
When buyer must respect the usufruct (NCC, Art. 611);
b. In case there is a period fixed based on
A purchaser of the property must respect the the number of years that would elapse
usufruct in case it is registered or known to him before a person would reach a certain
(NCC, Art. 709), otherwise, he can oust the age, unless the period was expressly
usufructuary, who can then look to the naked granted only in consideration of the
owner for damages. (NCC, Art. 581) existence of such person, in which
case it ends at the death of said person
Effect of the death of the naked owner on the (NCC, Art. 606); or
usufruct c. In case the contrary intention clearly
appears.
The usufruct does not terminate the usufruct.
The naked owner’s rights are transmitted to his 4. Termination of right of the person
heirs. constituting the usufruct;

5. Expiration of the period or fulfilment of the
resolutory condition;

259

Property

NOTE: If the usufructuary is a juridical the land but the building is destroyed in
person, the term should not exceed 50 any manner whatsoever before the
years. expiration of the period of usufruct:

6. Renunciation by the usufructuary; and a. The usufruct on the building ends, but
the usufruct on the land continues
NOTE: It partakes the nature of a (usufructuary is still entitled to the use
condonation or donation. It can be made of the land and remaining materials of
expressly or impliedly as long as done the building);
clearly. If done expressly, it must conform
with forms of donation. Renunciation of b. If the naked owner wants to rebuild
usufructuary’s rights is NOT an assignment but the usufructuary refuses, the latter
of right. It is really abandonment by the prevails but the use of the land is still
usufructuary of his right and does not his for the remainder of the period.
require the consent of the naked owner but (Paras, 2008)
it is subject to the rights of creditors. There
can be a partial waiver except if it is a 2. The usufruct is on the building alone (but
universal usufruct. the building is destroyed before the
7. Merger of the usufruct and ownership in termination of the period):
the same person who becomes the absolute a. The usufruct on the building ends, but
owner thereof. (NCC, Art. 1275) the usufructuary can still make use of
whatever materials of the building
Other Causes of termination of usufruct remain;
a. Annulment of the act or title b. The usufructuary is entitled to the use
of the land but the naked owner enjoys
constituting the usufruct; preferential right to its use. (Paras,
b. Rescission; 2008)
c. Expropriation;
d. Mutual withdrawal; NOTE: While the usufruct on a building does not
e. Legal causes for terminating legal expressly include the land on which it is
constructed, the land should be deemed
usufruct; or included, because there can be no building
f. Abandonment or dissolution of without land. (De Leon, 2006)

juridical entity (e.g. corporation) Payment of insurance on a building held in
granted with usufruct before the lapse usufruct (NCC, Art. 608)
of theperiod.
1. If the naked owner and usufructuary share in
Usufruct cannot be constituted in favor of a the premiums and the property is destroyed:
town, corporation or association for more
than 50 years a. If the owner constructs a new building,
the usufruct continues on the new
Any usufruct constituted in favor of a building.
corporation or association cannot be i. If the cost of the new building is
constituted for more than fifty years. (NCC, Art. less than the insurance
605) A usufruct is meant only as a lifetime indemnity, the usufructuary
grant. Unlike a natural person, a corporation or should get legal interests on the
association's lifetime may be extended difference.
indefinitely. The usufruct would then be ii. If the cost is more than the
perpetual. This is especially invidious in cases insurance indemnity, the
where the usufruct given to a corporation or usufructuary enjoys the new
association covers public land. (NHA v. CA, G.R. building completely with no
No. 148830, April 13, 2005) obligation to give interest on the
additional cost of the naked
Usufruct on a building and/or land owner.
concerned
b. If the naked owner does not construct a
Rules:
1. If the usufruct is both on the building and

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new building or rebuild, the naked owner alternative, he shall give security for
gets the insurance indemnity but he the payment of interest. (NCC, Art.
should pay the interest thereon to the 609)
usufructuary. (Paras, 2008)
2. If both the naked owner and the
2. If the naked owner alone pays the insurance usufructuary were separately given
indemnity and the usufructuary refused toshare: indemnity, each owns the indemnity given
to him, the usufruct being totally
a. The naked owner gets the whole extinguished.
indemnity (with no obligation to give the
interest thereon to the usufructuary) 3. If the usufructuary alone was given the
indemnity, he must give it to the naked
b. If the usufruct was on the building and the owner and compel the latter to return
land, the usufruct continues on the land either the interest or to replace the
and the material. property. He may deduct the interest
himself if the naked owner fails to object.
c. If the usufruct was on the building alone, (Paras, 2008)
the naked owner may rebuild, with or
without the approval of the usufructuary, Effect of bad use of the property held in
but he must pay interest on the value of usufruct
the land and the old materials that may
have been used. (NCC, Art. 607) GR: Usufruct is not extinguished by bad use of
the thing in usufruct.
3. If the naked owner alone paid for the
insurance but there is failure or omission on the XPN: If the abuse should cause considerable
part of the usufructuary to share: injury to the owner, the latter may demand
delivery to and administration by him, but he
The effect is the same as if there was a will be obliged to pay net proceeds to the
sharing, but the usufructuary must usufructuary. (NCC, Art. 610)
reimburse the owner of the usufructuary’s
share in the insurance premium. Rules in case of multiple usufructs

4. If the usufructuary alone pays the insurance 1. If constituted simultaneously, all the
premium: usufructuaries must be alive at the time of
the constitution. The death of the last
a. The insurance indemnity goes to the survivor extinguishes the usufruct (NCC,
usufructuary alone, with no obligation Art. 611);
to share it with, nor to give legal interest
thereon to, the naked owner. 2. If constituted successively by virtue of a
donation, all the donee-usufructuaries must
b. The usufruct continues on the land for be living at the time of the constitution-
the remaining period (unless usufruct donation of the usufruct (NCC, Art. 756);and
has been constituted on the building
alone) 3. If constituted successively by virtue of a last
will, there should only be two successive
Rule in case of expropriation of the property usufructuaries, and both must have been
(NCC, Art. 609) alive at the time of testator’s death.

In case the property held in usufruct is EASEMENT OR SERVITUDE
expropriated for public use:
It is an encumbrance imposed upon an
1. If the naked owner alone was given the immovable for the benefit of:
indemnity, he has the option to:
a. Replace it with another thing of the 1. Another immovable belonging to a different
same value and of similar condition; or owner; or
b. Pay legal interest to usufructuary on
the amount of indemnity for the whole 2. For the benefit of a community or one or
period of the usufruct, not just the more persons to whom the encumbered
unexpired period. estate does not belong by virtue of which
NOTE: If the owner chooses the latter

261

Property

the owner is obliged to abstain from doing Essential qualities of easements:
or to permit a certain thing to be done on
his estate. (NCC, Articles 613 and 614) 1. Incorporeal;
2. Imposed upon corporeal property;
Where the easement may be established on any 3. Confers no right to a participation in the
of several tenements surrounding the dominant
estate, the one where the way is shortest and profits arising from it;
will cause the least damage should be chosen. 4. Imposed for the benefit of corporeal
However, if these two circumstances do not
concur in a single tenement, the way which will property;
cause the least damage should be used, even if it 5. Has two distinct tenements: dominant and
will not be the shortest.
servient estate; and
There can be no easement over another 6. Cause must be perpetual.
easement for the reason that an easement may
be constituted only on a corporeal immovable Easement vs. Usufruct
property. An easement, although it is real right
over an immovable, is not a corporeal right. BASIS EASEMENT USUFRUCT
(1995 BAR)
Constituted on On real Real or
Easement vs. Servitude Use granted property personal

EASEMENT SERVITUDE Limited to a Includes all
particular or uses and
An English law specific use fruits.
term of the
Real servient Involves a
The right estate. right of
enjoyed possession in
Used in civil law countries As to right of No an
possession possessory immovable
Real or personal right over an or movable.
Burden imposed upon immovable
another Extinguished
by death of
Characteristics of easement (NICE LIAR) Not usufructuary.
extinguished
1. A right limited by the Needs of the As to effect of by death of Real right
dominant owner or estate, without death dominant whether or
possession; owner. not
Nature of right Real right registered.
2. Inseparable from the estate to which it is whether or
attached – cannot be alienated As to not Transmissibl
independently of the estate (NCC, Art. 617) transmissibilit registered. e
(2001, 2010 BAR);
y Transmissibl Cannot be
3. Cannot consist in the doing of an act unless e constituted
the act is accessory in relation to a real on an
easement; How it may be May be easement but
constituted constituted it may be
4. Involves two (2) neighboring Estates: the in favor, or, constituted
dominant estate to which the right belongs burdening, a on the land
and the servient estate upon which an piece of land burdened by
obligation rests; an easement.
held in
5. A Limitation on the servient owner’s rights usufruct.
of ownership;
Q: Can there be an easement over a
6. Indivisible – not affected by the division of usufruct?
the estate between two or more persons
(NCC, Art. 618);

7. It is enjoyed over Another immovable never
on one’s own property; and

8. A Real right but will affect third persons
only when registered.

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A: There can be no easement over a usufruct. For this purpose, he shall notify the owner of
Since an easement may be constituted only on a the servient estate, and shall choose the most
corporeal immovable property, no easement convenient time and manner so as to cause the
may be constituted on a usufruct which is not a least inconvenience to the owner of the servient
corporeal right. estate. (NCC, Art. 627)

Q: Can there be a usufruct over an NOTE: The necessity of the works for the use
easement? and preservation of the easement is the basis
and the determining factor for the extent of
A: There can be no usufruct over an easement. such works.
While a usufruct may be created over a right,
such right must have an existence of its own The works must be executed in the manner
independent of the property. A servitude least inconvenient to the servient owner, who
cannot be the object of a usufruct because it has cannot recover indemnity for the inevitable
no existence independent of the property to damages or inconveniences which may be
which it attaches. caused thereby.

Q: Is there such thing as judicial easement? But if the work is done badly, the dominant
owner will be liable for damages that may be
A: NO. When the court says that an easement suffered by the servient owner.
exists, it is not creating one. For, even an
injunction cannot be used to create one as there Rights of the dominant owner (MARE)
is no such thing as a judicial easement. The
court merely declares the existence of an 1. Make on the servient estate all works
easement created by the parties. (La Vista necessary for the use and preservation of
Association v. CA, G.R. No. 95252, September 5, the servitude (NCC, Art. 627);
1997)
2. Ask for mandatory injunction to prevent
PARTIES TO AN EASEMENT impairment of his right (Resolme v. Lazo,
G.R. No. L-8654, March 30, 1914);
1. Dominant estate – refers to the immovable
for which the easement was established; 3. Renounce the easement if he desires to be
and exempt from contributing necessary
expenses (NCC, Art. 628); and
2. Servient estate – the estate which provides
the service or benefit. 4. Exercise all rights necessary for the use of
the easement. (NCC, Art. 625)
Dominant Estate v. Servient Estate
Obligations of the dominant owner (CANECO)
DOMINANT ESTATE SERVIENT ESTATE
1. He cannot Exercise the easement in any
Immovable in favor of That property or estate other manner than that previously
which, the easement is which is subject to the established (NCC, Art. 626);
established. dominant estate.
2. He cannot Alter the easement or render it
Which the right Upon which an more burdensome [NCC, Art. 627(1)];
belongs. obligation rests.
3. He shall Notify the servient owner of works
RIGHTS AND OBLIGATION OF THE OWNERS necessary for the use and preservation of
OF THE DOMINANT AND SERVIENT the servitude [NCC, Art. 627(2)];
ESTATES
4. He must Choose the most convenient time
The owner of the dominant estate may make, at and manner of making the necessary works
his own expense, on the servient state any as to cause the least inconvenience to the
works necessary for the use and preservation of servient owner;
the servitude, but without altering it or
rendering it more burdensome. 5. If there are several dominant estates he
must Contribute to the necessary expenses
in proportion to the benefits derived from
the works [NCC, Art. 628(1)]; and

6. He can may make, at his Own expense, on
the servient estate, any works necessary for
the use of servitude, provided it will not

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alter or make it more burdensome. [NCC, constituted need not to be the owner
Art.627(1)] of any estate and does not require a
dominant estate because the person in
Servient owner whose favor the easement is
constituted need not to be the
The owner of the immovable whose property is property owner.
subject to easement for the benefit of the
dominant owner. 2. As to the manner of exercise
a. Continuous – Their use may or may not
Rights of the servient owner (RMC) be incessant, without the intervention
of any act of man. E.g. Easement of
1. Retain the ownership of the portion of the drainage (NCC, Art. 615); and
estate on which easement is imposed;
NOTE: For acquisitive prescription,
2. Make use of the easement unless there is an the easement of aqueduct and
agreement to the contrary [NCC, Art. easement of light and view are
628(2)]; and considered continuous.

3. Change the place or manner of the use of b. Discontinuous – Used at intervals and
the easement, provided it be equally depend upon the acts of man. E.g.
convenient. [NCC, Art. 629(2)] Easement of right of way

Obligations or limitations imposed on the 3. As to whether their existence is
servient owner (IC) indicated
a. Apparent – Made known and
1. He cannot Impair the use of the easement. continually kept in view by external
signs that reveal the use and
XPN: (1) When the easement has become enjoyment of the same (NCC, Art. 615);
very inconvenient to the said servient and
owner; and (2) If it prevents him from
making any important works, repairs, or NOTE: By way of exception the
improvements thereon. easement of aqueduct is always
apparent, whether or not it can be
2. He must Contribute to the necessary seen. (NCC, Art. 646)
expenses in case he uses the easement,
unless otherwise agreed upon. [NCC, Art. b. Non-apparent – They show no external
628(2)] indication of their existence. (NCC, Art.
615)
CLASSIFICATIONS OF EASEMENT
4. As to the right given
1. As to recipient of the benefit a. Right to partially use the servient
a. Real (or predial) – The easement is in estate;
favor of another immovable (NCC, Art. b. Right to get specific materials or
613); and objects from the servient estate;
c. Right to participate in ownership; and
NOTE: It requires two distinct d. Right to impede or prevent the
immovables belonging to different neighboring estate from performing a
owners to which it relates. specific act of ownership. (Paras, 2008)

b. Personal – The easement is in favor of 5. As to source
a community, or of one or more a. Legal – Those created by law for public
persons to whom the encumbered use or private interests;
estate does not belong e.g. easement of b. Voluntary - constituted by will or
right of way for passage of livestock. agreement of the parties or by
(NCC, Art. 614) testator; and

NOTE: In personal servitude the NOTE: Like any other contract, a
person in whose favor the easement is

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voluntary easement (of right-of-way) considered as such under Art.
could be extinguished only by mutual 620 which expressly makes it
agreement or by renunciation of the DISTINCT from title.
owner of the dominant estate. (La
Vista Association v. CA, G.R. No. 95252, 2. By Prescription of 10 years (2009 BAR)
September 5, 1997)
NOTE: Prescription runs irrespective of
c. Mixed – Created partly by agreement good faith or bad faith of the possessor and
and partly by law. whether or not he has just title. The only
requirement is adverse possession. Only
6. As to the duty of the servient owner: continuous and apparent easements can be
a. Positive – Imposes upon the owner of acquired by prescription. (NCC, Art. 620)
the servient estate the obligation of
allowing something to be done or 3. By deed of Recognition
doing it himself; and
4. By Final judgment
e.g. Right of way – imposes the duty to
allow the use of said way. NO JUDICIAL EASEMENTS. Resultantly,
when the court says that an easement
b. Negative – Prohibits the owner of the exists, it is not creating one. For, even an
servient estate from doing something injunction cannot be used to create one as
which he could lawfully do if the there is no such thing as a judicial
easement did not exist. easement. The court merely declares the
e.g. Easement of light and view – where existence of an easement created by the
the owner is prohibited from parties. (La Vista Association, Inc. v. CA, G.R.
obstructing the passage of light. No. 95252, September 5, 1997)

MODES OF ACQUIRING EASEMENT NOTE: If the owner of the servient estate
refuses to execute the deed of recognition,
1. By Title – the following easements may be the court may, in its judgment, declare the
acquired only by title: existence of the easement.

a. Continuous non-apparent easements; 5. By Apparent sign established by the owner
of the two adjoining estates
b. Discontinuous apparent easements;
and XPN: unless at the time the ownership of
the two estates is divided:
c. Discontinuous non-apparent
a. There are contrary stipulations; or
easements. (NCC, Art. 622) (2005 b. The sign is removed before the
BAR)
execution of the deed. (NCC, Art. 624)
NOTE: Title means:
 It does not necessarily mean Computation of prescriptive period
document.
 It means a juridical act or law 1. Positive easement – The 10-year period is
sufficient to create theencumbrance. counted from the day when the owner of
the dominant estate begins to exercise it;
 E.g. law, donation, testamentary and
succession, contract.
a. Intestate succession does not 2. Negative easement – from the day a notarial
create an easement, for no act is prohibition is made on the servientestate.
involved. Hence, instead of
creating an easement, it transmits Negative easement cannot be acquired by
merely an easement already prescription since they are non-apparent.
existing. However, for purposes of prescription, there are
b. Prescription is a mode of negative easement that can be considered
acquisition, and is generally and “apparent” not because there are visible signs or
ordinarily a title, but is not

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their existence but because of the making of the discontinuous easements, this period shall
NOTARIAL PROHIBITION which makes it be computed from the day on which they
apparent. ceased to be used; and, with respect to
continuous easements from the day on
NOTE: In negative easement there is a need of a which an act contrary to the same took
formal act. place;
3. When either or both of the estates fall into
Doctrine of Apparent Sign such condition that the easement Cannot be
used; but it shall revive if the subsequent
Easements are inseparable from the estate to condition of the estates or either of them
which they actively or passively pertain. The should again permit its use, unless when
existence of apparent sign under Art. 624 is the use becomes possible, sufficient time
equivalent to a title. It is as if there is an implied for prescription has elapsed, in accordance
contract between the two new owners that the with the provisions of the preceding
easement should be constituted, since no one number;
objected to the continued existence of the 4. By the Expiration of the term or the
windows. fulfillment of the condition, if the easement
is temporary or conditional;
NOTE: It is understood that there is an exterior 5. By the Renunciation of the owner of the
sign contrary to the easement of party wall dominant estate; and
whenever: 6. By the Redemption agreed upon between
the owners of the dominant and servient
1. There is a window or opening in the estates. (NCC, Art. 631)
dividing wall of buildings;
NOTE: The grounds under Article 631 are not
2. Entire wall is built within the boundaries of exclusive.
one of the estates;
In addition to the foregoing causes enumerated
3. The dividing wall bears the burden of the in Article 631 of the New Civil Code the
binding beams, floors and roof frame of one following may be added: (1) annulment or
of the buildings, but not those of the others; rescission of title constituting easement; (2)
or termination of the right of the grantor; and (3)
abandonment of the servient estate; and (4)
4. The lands enclosed by fences or live hedges eminent domain. (4 Manresa, 5th ed., 590)
adjoin others which are not enclosed.
Merger
In all these cases, ownership is deemed to
belong exclusively to the owner of the property It is enough that the merger be with respect to
which has in its favor the presumption based on the portion of the tenement that is affected by
any of these signs. the servitude, or the part for the benefit of which
it was established.
Acknowledgement of an easement in one
who owns property Where the merger is temporary or under
resolutory condition, there is at most a
An acknowledgement of the easement is an suspension, but not an extinguishment of the
admission that the property belongs to another. servitude.
(BOMEDCO v. Heirs of Valdez, G.R. No. 124669,
July 31, 2003) Non-user

MODES OF EXTINGUISHMENT Non-use must be due to voluntary abstention by
OF EASEMENTS the dominant owner, and not to fortuitous event,

Easements are extinguished (MEN-CRR) because the basis of this cause of extinguishment
(2001, 2010 BAR) is a presumptive renunciation.

1. By Merger in the same person of the NOTE: Reckoning point:
ownership of the dominant and servient
estates;

2. By Non-user for 10 years; with respect to

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1. Discontinuous – counted from the day they Private legal easement is for the interest of
ceased to be used. private persons or for private use. It shall be
governed by:
2. Continuous – counted from the day an act 1. Agreement of the parties provided they are
adverse to the exercise takesplace.
neither prohibited by law nor prejudicial to
Non-user presupposes that the easement has third persons;
been used before but it was abandoned for 10 2. In default, general or local laws and
years. Thus, it cannot apply to easements which ordinances for the general welfare; or
have not been used. 3. In default, title VII of Articles 613-687 of
the NCC.
Impossibility of use Kinds of legal easements (WIND – PLWS)
1. Easement relating to Waters;
The impossibility of use only suspends the 2. Easement relating to right of Way;
servitude until such time when it can be used
again. 3. Easement of Party wall;

Expiration

e.g. An easement was agreed upon to last till the
owner of the dominant easement becomes a
lawyer. When the condition is fulfilled, the
easement ceases.

Renunciation

Renunciation must be express, definite, clear,
specific (otherwise it might be confused with
non- user) This is particularly true for
discontinuous easements. Renunciation of a real
right must be reflected in a public instrument.

Redemption 4. Easement of Light and view;
5. Drainage of Building;
This is voluntary redemption, existing because of
an express stipulation. The stipulation may
provide conditions under which the easement
would be extinguished. (Paras, 2008)

LEGAL EASEMENT

Legal easements are those imposed by law
having for their object either public use of the
interest of private persons. They shall be
governed by the special laws and regulations
relating thereto, and in the absence thereof, by
the Civil Code.

Public legal easement

Public legal easement is for public or communal
use.

Private legal easement

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Property

Subjacent Support

6. Intermediate distances and works for certain EASEMENTS RELATING TO WATERS
construction and plantings;
Different easements relating to waters:
7. Easement against Nuisance; and (NBREWAC)

8. Easement relating to lateral and Subjacent A. Natural drainage (NCC, Art. 637);
support.
Lateral Support Scope of easement of natural drainage

Lower estates are obliged to receive the waters
which naturally and without the intervention of
man descend from higher estates, as well as the
stones or earth which they carry with them.
(NCC, Art. 637) (2002 BAR)

NOTE: Art. 637 has already been superseded by
Art. 50 of P.D. 1067. (Water Code of the
Philippines)

Duties of Servient Estate

The owner cannot construct works that would
impede the easement BUT he may regulate or
control the descent of water.

Duties of Dominant Estate

1. He cannot construct works which will
increase the burden, but he may construct
works preventing erosion;

2. They must compensate the owners of the
servient estates if the waters are result of an
overflow from irrigation dams, or the result
of artificial descent done by man and
damages caused by reason thereof,

Prescription of easement of natural drainage

The easement of natural drainage prescribes by
non-use for 10 years. (Paras, 2008)

Indemnity in easement of natural drainage

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Art. 637 of the New Civil Code, which provides 1. It must be imposed for reasons of public
for the easement of natural drainage, does not use;
speak of any indemnity. It follows that no
indemnity is required as long as the conditions 2. It must be in favor of a town or village; and
laid down in the article are complied with. 3. Indemnity must be paid. (NCC, Art. 640)
(Paras, 2008)
NOTE: The right to make the water flow thru or
B. Drainage of Buildings (NCC, Art. 674); under intervening or lower estates.

C. Easement on Riparian banks for navigation, Requisites for drawing water or for watering
floatage, fishing, salvage, and tow path (NCC, of animals
Art. 638);
1. Owner of the dominant estate has the
Easement on Riparian Property capacity to dispose of the water;

The banks of rivers and streams and the shores 2. The water is sufficient for the use intended;
of the seas and lakes throughout their entire 3. Proposed right of way is the most
length and within a zone of three meters in
urban areas, 20 meters in agricultural areas, and convenient and the least onerous to third
40 meters in forest areas along their margins are persons; and
subject to the easement of public use in the 4. Pay indemnity to the owner of the servient
interest of recreation, navigation, floatage, estate. (NCC, Art. 643)
fishing and salvage.
NOTE: The absence of any one of these
No person shall be allowed to stay in this zone requirements will prevent the imposition of the
bigger than what is necessary for recreation, easement of aqueduct on the intervening estates.
navigation, floatage, fishing or salvage or to
build structures of any kind. (Art. 51, PD 1067) Easement Of Right Of Way Does Not
Necessarily Include Easement Of Aqueduct
D. Easement of a Dam (NCC, Articles 639 and
647); If “A” was granted a right of way by “B” which he
(“A”) uses in entering and exiting from his
A person may establish the easement of tenement, “A” has no presumed right to dig
abutment or of a dam provided that: trenches and lay pipelines for conducting water
to his tenement. (San Rafael Ranch Co. vs. Rogers,
1. The purpose is to divert or take water from Co., 154 C 76, P1092)
a river or brook, or to use any other
continuous or discontinuous stream; F. Easement of Aqueduct (NCC, Articles 642-
646); and
2. It is necessary to build a dam;
3. The person to construct it is not the owner The easement of aqueduct, for legal purposes, is
considered continuous and apparent even
of the banks or lots which must support it; though the flow of water may not be continuous
and or its use depends upon the needs of the
4. Payment of proper indemnity is made. dominant estate or upon a schedule of alternate
days or hours. (NCC, Art. 646)
He must seek the permission of the owner and in
case of latter’s refusal, he must secure authority NOTE: Easement of aqueduct is not acquirable
from the proper administrative agency. by prescription after 10 years because although
it is continuous and apparent in character, under
E. Easement for drawing Water or for watering the Water Code of the Philippines (P.D. 1067), all
animals (NCC, Arts. 640-641); waters belong to the State; therefore, they
cannot be the subject of acquisitive prescription.
This is a combined easement for drawing of (Jurado, 2011)
water and right of way.
It is an easement which gives right to make
Requisites for easement for watering cattle water flow thru intervening estates in order that
one may make use of said water. However,
unlike the easement for drawing water or for

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Property

watering animals, the existence of the latter does Q: The original developer of Happy Glen Loop
not necessarily include the easement of (HGL) loaned from T. P. Marcelo Realty
aqueduct. Corporation. HGL failed to settle its debts so
he assigned all his rights to Marcelo over
Requisites for easement of aqueduct several parcels of land in the subdivision.
Marcelo represented to lot buyers that a
1. Indemnity must be paid to the owners of water facility is available in the subdivision.
intervening estates and to the owners of Marcelo sold the lot to Liwag who
lower estates upon which waters may filter subsequently died. The wife of Liwag
or descend. demanded the removal of the overhead
water tank over the parcel of land
NOTE: The amount usually depends on contending that its existence is merely
duration and inconvenience caused. tolerated. HGL Homeowners Association
refused the demand contending that they
2. If for private interests, the easement cannot have used continuously the facility for more
be imposed on existing buildings, than 30 years. Is there an established
courtyards, annexes, out- houses, orchards easement for water facility in the lot?
or gardens but can be on other things, like
road, provided no injury is caused to said A: YES. The water facility is an encumbrance on
properties. the lot of the Subdivision for the benefit of the
community. It is continuous and apparent,
3. There must be a proof: because it is used incessantly without human
intervention, and because it is continually kept
a. That the owner of the dominant estate in view by the overhead water tank, which
can dispose of the water; reveals its use to the public. The easement of
water facility has been voluntarily established
b. That the water is sufficient for the use either by Marcelo, the Subdivision owner and
which it is intended; the original developer of the Subdivision. For
more than 30 years, the facility was
c. That the proposed course is the most continuously used as the residents’ sole source
convenient and least onerous to third of water. (Liwag vs Happy Glen Loop
persons and the servient estate; and Homeowners Association, Inc., G.R. No. 189755,
July 4, 2012)
d. That a proper administrative
permission has been obtained. (Paras, EASEMENT OF RIGHT OF WAY
2008) (1996, 2005, 2010 BAR)

Right of the owner of the servient estate to Easement of right of way is the right granted to
fence a person or class of persons to pass over the
land of another by using a particular pathway
The easement of aqueduct does not prevent the therein, to reach the former’s estates, which
owner of the servient estate from closing or have no adequate outlet to a public highway
fencing it, or from building over the aqueduct in subject, however to payment of indemnity to
such manner as not to cause the owner of the the owner of the land burdened by the right.
dominant estate any damage, or render (Pineda, 2009)
necessary repairs and cleanings impossible.
(NCC, Art. 645) Right of way

G. Easement for the Construction of a Stop Lock It may refer either to the easement itself, or
or Sluice Gate (NCC, Art. 647) simply, to the strip of land over which passage
can be done. (Paras, 2008)
To make these structures in the bed of a stream
from which they needed water for irrigation or Q: May the easement of right of way be
improvement of the dominant estate will be acquired by prescription?
drawn, it is required that the dominant owner
pays the riparian owners where the structures A: Easement of right of way cannot be acquired
will be constructed for the damages caused to
the latter and to other irrigators who may
sustain damages also.

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