CIVIL LAW

PROPERTY

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Property – All things which are, or may be, the

object of appropriation. [NCC 414] II. Classification

A. HIDDEN TREASURE
I. Characteristics Any hidden and unknown deposit of money,
(1) Utility – capacity to satisfy human wants jewelry or other precious objects, the lawful
(2) Substantivity and Individuality – the thing ownership of which does not appear. [NCC 439]
must have a separate and autonomous General Rule: Hidden treasure belongs to the
existence owner of the land, building, or other property on
(3) Susceptibility of being appropriated – which it is found [NCC 438]
capable of being obtained even if not yet Exception: if discovery is made on the property
actually appropriated; what cannot be of another, or of the State or any of its
appropriated (subject to human control) subdivisions, AND by chance
because of physical impossibility (distance,
depth, or immensity) cannot be considered (a) Right of a finder by chance who is NOT a
‘things’ (e.g. stars, moon, ocean) trespasser/ intruder: ½ of treasure
(b) Right of a usufructuary who finds treasure:
½ of treasure
(c) Right of State to acquire things of interest
to science or the arts –State may acquire at
just price which shall be divided in
conformity with the rule stated
Note: For purposes of hidden treasure, a
usufructuary is considered a stranger to
property; naked owner gets owner’s share
(NCC 566).

B. BASED ON MOBILITY [IMMOVABLE OR

MOVABLE]
B. 1. REAL OR IMMOVABLE PROPERTY

NCC 415.
(1) Land, buildings, roads and constructions of
all kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while they
are attached to the land or form an integral
part of an immovable;
(3) Everything attached to an immovable in a
fixed manner, in such a way that it cannot be
separated therefrom without breaking the
material or deterioration of the object;
(4) Statues, reliefs, paintings or other objects for
use or ornamentation, placed in buildings or
on lands by the owner of the immovable in
such a manner that it reveals the intention to
attach them permanently to the tenements;

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(5) Machinery, receptacles, instruments or (ii) Separate Ownership i.e. a building

implements intended by the owner of the on rented land is still considered an
tenement for an industry or works which may immovable. [Tolentino]
be carried on in a building or on a piece of (iii) No matter who built it
land, and which tend directly to meet the
needs of the said industry or works; Where Building Is Treated As Personal Property:
Doctrine of Estoppel
(6) Animal houses, pigeon-houses, beehives, fish
ponds or breeding places of similar nature, in “although there is no specific statement
case their owner has placed them or referring to the subject house as personal
preserves them with the intention to have property, yet by ceding, selling or transferring a
them permanently attached to the land, and property by way of chattel mortgage could only
forming a permanent part of it; the animals have meant to convey the house as chattel, or at
in these places are included; least, intended to treat the same as such, so
that they should not now be allowed to make an
(7) Fertilizer actually used on a piece of land;
inconsistent stand by claiming otherwise.”
(8) Mines, quarries, and slag dumps, while the [Tumalad v. Vicencio, (1971)]
matter thereof forms part of the bed, and
waters either running or stagnant; (2) Par. 8
(9) Docks and structures which, though floating, (c) Mineral Deposits
are intended by their nature and object to (i) Minerals still deposited in the soil;
remain at a fixed place on a river, lake, or
coast; (ii) When minerals have been extracted,
they become chattel.
(10) Contracts for public works, and
servitudes and other real rights over (d) Slag Dump: dirt and soil taken from a
immovable property. mine and piled upon the surface of the
ground. Minerals can be found inside
the dump.
CATEGORIES OF IMMOVABLES
(e) Waters: those still attached to or
(a) By nature (nos. 1 & 8) running thru the soil or the ground.
(b) By incorporation (nos. 2, 3 & 7)
(c) By destination (nos. 4, 5, 6 & 9) Immovables by Incorporation: essentially
(d) By analogy (no. 10) movables but are attached to an immovable in
such a way as to be an integral part [Par. 2, 3, &
7]
Immovables by Nature: cannot be moved from
place to place; their intrinsic qualities have no (3) Par. 2
utility except in a fixed place. (pars. 1 & 8) (f) Trees and plants: only immovables
when they are attached to the land or
(1) Par. 5
form an integral part of an immovable
(a) Building - their adherence to the land
must be permanent and substantial, not (i) When they have been cut or
merely superimposed uprooted, they become movables.

(b) Buildings have been considered as (g) By special treatment of Act 1508
immovables by nature, despite: (Chattel Mortgage Law), growing crops
may be subject of a Chattel Mortgage.
(i) Agreement by the parties e.g. they
constitute a separate mortgage on (h) For the purpose of attachment: growing
the building and the land [Punzalan crops are to be attached in the same
v. Lacsamana (1983)] manner as realty. (Rule 59, Sec. 7)

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GENERAL RULE: Growing crops are considered (a) Must be machinery, receptacles,
real property instruments, or implements
EXCEPTION: the moment they are detached or (b) Placed by the owner or the tenant (as
uprooted from the land, they become personal agent);
property
Machinery which is movable in its nature only
(4) Par. 3 becomes immobilized when placed in a plant by
(i) Res vinta in Roman Law the owner of the property or plant, but not when
so placed by a tenant, a usufructuary, or any
(j) “Attachment in a fixed manner”: person having only a temporary right, unless
breakage or injury in case of separation such person acted as the agent of the owner.
will be substantial e.g. wells, sewers, [Davao Sawmill v. Castillo, (1935)]
aqueducts and railways
(c) The machine, receptacle,
(i) Whether attached by the owner instrument, implement must also be essential to
himself or some other person the business (tend directly to meet the needs of
(5) Par. 7 industry or work) in order to be considered
realty. [Mindanao Bus Co. v City Assessor (1962)]
Actually used (it has been spread over the land)
Except: Estoppel
Parties may, by agreement, treat as
Immovables by Destination: essentially personal property that which by nature
movables but by the purpose for which they would be real, as long as no third parties
have been placed in an immovable, partake of would be prejudiced. That
the nature of an immovable [Par. 4, 5, 6 & 9] characterization is effective between the
(6) Par. 4 parties. [Makati Leasing v. Wearever
(k) Placed by the owner or by the tenant (as (1983)]
agent); (2) Par. 6
(i) With intention of attaching them Requisites:
permanently even if adherence will
not involve breakage or injury. (i) Placed by the owner or the tenant
(as agent);
(l) Where the improvement or ornaments
placed by the lessee are not to pass to (ii) With the intention of permanent
the owner at the expiration of the lease, attachment;
they remain movables for chattel (iii) Forming a permanent part of the
mortgage purposes. [Davao Sawmill v. immovable.
Castillo (1935)]
(3) Par. 9
(7) Par. 5
Need not be placed by owner of land
Immovability depends upon ownership of
both movable and tenement, being A floating house tied to a shore and used as a
destined for use in the industry or works residence is considered real property,
which can be carried on in the tenement, considering that the waters on which it floats
e.g. sewing machines owned by the owner are considered immovables.
of a garment factory; But if the floating house makes it a point to
The moment they are separated, (from journey from place to place, it assumes the
the immovable or from the industry or category of a vessel, and is considered a
work in which they are utilized) they movable.
recover their condition as movables.
Requisites for Immovability in Par. 5:

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Immovables by Analogy: Contracts for public (a) Ability to change location – whether it
works, servitudes, other real rights over can be carried from place to place;
immovable property e.g. usufruct and lease of
(b) Without substantial injury to the
real property for a period of 1 year and
immovable to which it is attached.
registered [Par. 10]
(c) Unless expressly included in Art. 415
Note: Parties may by agreement treat buildings
(Test by Exclusion is Superior)
as movables, effective only as to them, but void
if rights of third persons are involved. It is based, (6) By special provision of law
partly, upon the principle of estoppel.
(a) Growing crops under the Chattel
[Evangelista vs. Alto Surety(1958)]
Mortgage Law
For purposes of taxation, improvements on land
(b) Intellectual property – considered
are commonly taxed as realty, even though for
personal property; it consists in the
some purposes, they might be considered as
pecuniary benefit which the owner can
personalty. [Manila Electric v. Central Bank
get by the reproduction or manufacture
(1962)]
of his work.
(7) By forces of nature
B.2. PERSONAL OR MOVABLE
e.g. electricity, gas, heat, oxygen
NCC 416 Corporeal or tangible movables • Gas is a valuable article of merchandise,
(1) Those movables susceptible of appropriation bought and sold like other personal
which are not included in the preceding property, susceptible of being severed from
article (Art. 415); a mass of larger quantity and of being
transported from place to place [US v
(2) Real property which by any special provision Tambunting (1921)]
of law is considered as personalty;
(3) Forces of nature which are brought under
control by science; and B. 3. IMPORTANCE AND SIGNIFICANCE OF
(4) In general, all things which can be CLASSIFICATION UNDER THE NCC
transported from place to place without (1) In criminal law
impairment of the real property to which they
are fixed. (a) Usurpation of property can take place
only with respect to real property. [RPC
(5) NCC 417 Incorporeal or intangible movables 312]
(6) Obligations and actions which have for their
(b) Robbery and theft can be committed
object movables or demandable sums; and
only against personal property. [RPC
(7) Shares of stock of agricultural, commercial 293, 308]
and industrial entities, although they may
have real estate. (2) In the forms of contracts
(a) Subject matter of specific contracts:
TESTS TO DETERMINE MOVABLE (i) Only real property can be the
CHARACTER subject of real estate mortgage
[NCC 2124] and antichresis. [NCC
(4) By exclusion 2132]
Everything NOT included in Article 415 (ii) Only personal property can be the
Parties cannot by agreementtreat as immovable subject of voluntary deposit [NCC
that which is legally movable 1966], pledge [NCC 2094] and
chattel mortgage. [Act 1508]
(5) By description
(b) Donations of real property to be valid
are required to be in a public instrument

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[NCC 749] but a donation of a movable except for chattel mortgages. [Chattel
may be made orally or in writing. [NCC Mortgage Register, NCC 2140]
748]
(8) Preference of credits
(3) For acquisitive prescription
(a) Movables governed by NCC 2241
(a) Real property can be acquired by
(b) Immovables governed by NCC 2242
prescription in 30 years (bad faith) and
10 years (good faith). (NCC 1137, 1134) (9) Double sales (NCC 1544)
(b) Movables can be acquired by (a) For movables – ownership shall be
prescription in 8 years (bad faith) and 4 transferred to the person who first took
years (good faith). (NCC 1132) possession thereof in good faith
(4) Actions forrecovery of possession (b) For immovables – ownership shall
belong to the person acquiring it who in
(a) Possession of real property - recovered
good faith first recorded it in the
through accion reivindicatoria, accion
Registry of Property; or if there be no
publiciana, forcible entry and unlawful
inscription, to the person who in good
detainer (accion interdictal).
faith first took possession, or in the
(b) Possession of movable property - absence of possession, to the person
recovered through replevin. who presents the oldest title, provided
there is good faith.
(5) Venue of actions
(a) Real actions - Actions concerning real
property are commenced in the court C. BASED ON OWNERSHIP/ RIGHTS-
that has jurisdiction over the area where HOLDER
the real property is situated. [Rules of
Court Rule 4 Sec. 1] NCC 419. Property is either of public dominion
(b) Personal actions - Commenced where or of private ownership.
the plaintiff or any of the principal Churches and other consecrated objects are
plaintiffs, or where the defendant or any considered outside the commerce of man; they
of the principal defendants resides, or if are considered neither public nor private
a non-resident defendant, where he may property.
be found, at the election of the plaintiff.
[Rule 4 Sec. 2]
(6) The governing law (Private International C.1. PUBLIC DOMINION
Law): Property of public dominion is outside the
(a) Immovables - governed by the law of the commerce of man. They cannot be the subject
country where they are located (rei matter of private contracts, cannot be acquired
situs). by prescription and they are not subject to
attachment and execution nor burdened with a
(b) Movables - governed by the personal voluntary easement.
laws of the owner. (which in some cases
is the law of his nationality and in other Public
As enumerated by NCC 420
cases, the law of his domicile) Dominion
Public Used in Art XII, Section 2,
(7) Affecting third persons Domain 1987 Constitution
(a) In transactions involving real property – Public Lands Public Land Act
must be recorded in the Registry of
Property to affect third persons.
(b) In transactions involving personal
property – registration is not required,

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CHARACTERISTICS for public service, shall form part of

the patrimonial property of the State
Not owned by the State but pertains to it as
[NCC 422]
territorial sovereign; to hold in trust for the
interest of the community. (ii) An express declaration by the State
(either by the Congress or by the
Purpose: For public use, and not for use by the
President, if the power was provided
State as a juridical person.
by law) that the property of public
Cannot be the subject of appropriation either by dominion has been converted into
the State or by private persons. patrimonial property, even though it
was classified as alienable or
disposable. [Heirs of Malabanan v.
CLASSIFICATIONS Republic (2009)]
Administered by the State [NCC 420]
(1) Those intended for public use. (roads, canals, Administered by Municipal Corporations [NCC
rivers, torrents, ports and bridges 424 (1)]
constructed by the State, banks, shores,
(1) Property for public use, in the provinces,
roadsteads, and others of similar character)
cities, and municipalities, consist of the
(2) Those (w/o being for public use) and are provincial roads, city streets, municipal
intended for some public service: streets, the squares, fountains, public waters,
may be used only by authorized persons but promenades, and public works for public
exists for the benefit of all, e.g. fortresses, service paid for by said provinces, cities, or
unleased mines and civil buildings. municipalities.
(3) Those for the development of the national (2) Patrimonial property of Municipal
wealth. Includes natural resources such as Corporations:
minerals, coal, oil and forest. All other property possessed by any of them
(4) Patrimonial property: (provinces, cities, and municipalities) [NCC 424
(2)
(a) Owned by the State over which it has the
same rights as private individuals in The province or municipality, as a juridical
relation to their own property. entity, also possesses private property to answer
for its economic necessities.
(b) Subject to the administrative laws and
regulations on the procedure of Presumption: that land comes from the State
exercising such rights, e.g. friar lands, upon the creation of the municipality. All lands
escheated properties and commercial in the possession of the municipality are
buildings. roperties of public dominion held in trust for the
State’s inhabitants are subject to the control
(c) Purpose: and supervision of the State.
(i) Enables the State to attain its Exception: Properties acquired with their own
economic ends funds in their private or corporate capacity over
(ii) Serves as a means for the State’s which the political subdivision has ownership
subsistence and preservation and control. A municipal corporation must prove
that they acquired the land with their own
(iii) Enables the State to fulfill its
corporate funds. [Salas v. Jarencio, (1972)]
primary mission
Note: The Local Government Code classifies
(d) Conversion of property of public
property pf LGUs into:
dominion for public use to patrimonial
property: (1) property of LGU in its governmental
character, which is broader than NCC 424,
(i) Property of public dominion, when
no longer intended for public use or (2) property of LGU in its proprietary character.

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C.2. PRIVATE OWNERSHIP D. BASED ON CONSUMABILITY

Can be exercised by the state in its private [NCC 418]
capacity or by private persons.
Only applies to movable property, determined by
KINDS nature.
(1) Patrimonial property - Property owned by the
State and its political subdivisions in their
private capacity; all property of the State not D.1. CONSUMABLE
included in NCC 420 (on public dominion) (1) Movables which cannot be used in a manner
[NCC 421-424] appropriate to their nature without their
(2) Property belonging to private persons, either being consumed. (e.g. food)
individually or collectively [NCC 425] (2) Consumable goods cannot be the subject
Property of private ownership, besides the matter of a commodatum unless the purpose
patrimonial property of the State, provinces, of the contract is not the consumption of the
cities, and municipalities, consists of all property object, as when it is merely for exhibition.
belonging to private persons, either individually
or collectively.
D.2. NON-CONSUMABLE
Refers to all property belonging to private
All others not falling under ‘consumable’ e.g.
persons, natural or juridical, either individually
money in coin.
or collectively

CONVERSION E. BASED ON SUSCEPTIBILITY TO

SUBSTITUTION
Alienable Public Land converted to Private
Property through Prescription Only applies to movables, determined by the
intention of the parties.
Alienable public land held by a possessor –
personally/through predecessors-in-interest,
openly, continuously and exclusively – for 30 E.1. FUNGIBLES
years is converted to private property by the
mere lapse or completion of the period. The Things that, because of their nature or the will
application for confirmation is a mere formality, of the parties, are capable of being substituted
because land had already been converted, by others of the same kind, not having a distinct
giving rise to a registrable title. [Director of individuality.
Lands v. IAC (1986)]
Private Land converted to Property of Public E.2. NON-FUNGIBLES
Dominion through abandonment and
reclamation (1) Things that cannot be substituted for
another;
Through the gradual encroachment or erosion
(2) If the parties agreed that the same thing be
by the ebb and flow of the tide, private property
returned, it is not fungible.
may become public if the owner appears to have
abandoned the land, and permitted it to be
totally easten up by the sea so as to become F. BASED ON THE CONSTITUTION
part of the shore. The land having disappeared
[ARTICLE XII, SEC 3]
on account of the gradual erosion in case of
natural expropriation, and having remained (1) Public Agricultural Land;
submerged until they were reclaimed by the (2) Mineral Land;
government, they are public land. [Government
v. Cabangis (1929)] (3) Timber Land;
(4) National Parks.

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III. Ownership (6) Jus Possidendi: right to possess the property

(Implied from all the other rights)
(7) Jus Accessionis: right to whatever is attached
to the thing in such a way that they cannot be
A. DEFINITION AND CONCEPT separated without injury
Independent right of exclusive enjoyment and (8) Jus Tresauris: right to hidden treasure
control of a thing.
Has the purpose of deriving all advantages
required by the reasonable needs of the Other Specific Rights found in the NCC:
owner/holder of right and promotion of general (1) Right to Exclude; Doctrine of Self-Help (Art.
welfare. 429, NCC)
A complete subjection to an owner’s will. (2) Right to enclose or fence (Art. 430)
May be exercised in everything not prohibited by (3) Right to receive just compensation in case of
public law or the rights of another. (Art. 427) expropriation (Art. 435)
(4) Right to hidden treasure (Art. 438- 439)

B. TYPES OF OWNERSHIP
C.3. PROTECTING PROPERTY
Full Ownership - With complete rights over the
property. C.3.1 BASIC DISTINCTIONS
Naked Ownership - Absence of jus fruendi and REAL RIGHTS V. PERSONAL RIGHTS
jus utendi.
Real Rights
Sole Ownership - Ownership vested only in one
person. Rights that confer upon its holder an
autonomous power to derive directly from a
Co-Ownership - Ownership vested in 2 or more thing certain economic advantages
persons in ideal shares or undivided interest. independently of whoever the possessor of the
thing.
C. RIGHT IN GENERAL The number of real rights is an open
classification:
C.1. RIGHTS INCLUDED IN OWNERSHIP [NCC
428] 1. Ownership 8. Pledge
2. Real right of 9. Antichresis
(1) Right to enjoy and dispose of a thing, without
possession
other limitations than those established by
3. Usufruct 10. Retention
law.
4. Real right of 11. Preemption
(2) Right of action against the holder and praedial servitudes
possessor of the thing in order to recover it. (easement)
5. Recorded lease 12. Redemption
6. Real estate 13. Stewardship
C.2. BUNDLE OF RIGHTS
mortgage
(1) Jus Utendi: right to use and enjoy 7. Chattel mortgage 14. Certificate of
(2) Jus Fruendi: right to receive the fruits Ancestral Domain
Title; Certificate of
(3) Jus Abutendi: right to consume a thing by use Ancestral Domain
(4) Jus Disponendi: right to alienate, encumber, Claims in the IPRA
transform or even destroy the thing owned Law
(5) Jus Vindicandi: right to recover possession of
property based on a claim of ownership

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An action to redeem, or to recover title to or

possession of, real property is not an action in
Personal Rights
rem or an action against the whole world, like a
Rights of a person to demand from another as a land registration proceeding or the probate of a
definite passive subject, the fulfillment of a will; it is an action in personam, so much so that
prestation to give, to do or not to do. a judgment therein is binding only upon the
parties properly impleaded and duly heard or
given an opportunity to be heard. [Ching v. CA
Real Rights Personal Rights (1990)]
Definite active subject Definite active subject
who has a right against (creditor) and a
ALL persons generally definite passive C.3.2. REMEDIES
as an indefinite passive subject (debtor). DOCTRINE OF SELF-HELP [NCC 429-430]
subject.
Object is generally a Subject matter is The owner may use such force as may be
corporeal thing. always an incorporeal reasonably necessary to repel or prevent an
thing. actual or threatened unlawful physical invasion
Generally extinguished Personal right or usurpation of his property.
by the loss or survives the subject Every owner may enclose or fence his land or
destruction of the thing matter. tenements by any other means without
over which it is detriment to servitudes constituted thereon.
exercised.
It is directed against It is binding or
the whole world, giving enforceable only ACTIONS TO RECOVER OWNERSHIP AND
rise to real actions against a particular POSSESSION OF PROPERTY
against 3rd persons. person giving rise to
personal actions IMMOVABLE PROPERTY
against such debtor Accion Reivindicatoria
and his privies.
Recovery of ownership of real property.
Including but not limited to possession.

REAL ACTION V. PERSONAL ACTION (ROC, Prescription of Action: 30 years.

RULE 4 SEC 1-2)
Real action - Actions affecting title to or Accion Publiciana
possession of real property or any interest
therein. Recovery of real right of possession (posession
de jure).
Personal action - All other actions.
Judgment as to who has the better right of
possession.
ACTION IN REM V. ACTION IN PERSONAM V. Also, actions for ejectment not filed within 1 year
ACTION QUASI IN REM must be filed as accion publiciana.
Action in rem - Action against a property, Prescription: 10 years.
judgment binding against the whole world.
Action in personam - Action against a specific
person, judgment binding against that Accion Interdictal - Action for Ejectment
particular person. A summary action for recovery of actual,
Action quasi in rem - Action against a specific material or de facto physical possession through
property with respect to a person. either an action for Forcible Entry or Unlawful
Detainer.

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Distinction between forcible entry and unlawful D. LIMITATIONS ON OWNERSHIP

detainer
D.1. GENERAL LIMITATIONS:
(1) Forcible Entry: Lawful possessor deprived
through FISTS: Taxation, eminent domain, police power
FISTS (Force, Intimidation, Strategy, Threats, POLICE POWER
Stealth) PROPERTY TAKEN WITH NO
Prior physical possession must be alleged. COMPENSATION FOR GENERAL WELFARE

Prescription: 1 year from dispossession (force, When any property is condemned or seized by
intimidation, threats) or from knowledge of competent authority in the interest of health,
dispossession (strategy, stealth). safety or security, the owner thereof shall not be
entitled to compensation, unless he can show
that such condemnation or seizure is unjustified.
(2) Unlawful Detainer: Possessor refused to [Art. 436, Civil Code]
vacate upon demand by owner. Requisites
Legal possession (by permission/ tolerance) To justify the exercise of police power, the
becomes unlawful upon failure to vacate. following must appear [US v Toribio (1910)]:
Prior physical possession must be alleged. (1) The interests of the public generally, require
Prescription of action: 1 year from last notice to such interference (as distinguished from
vacate. those of a particular class); and
(2) The means are reasonably necessary for the
accomplishment of a purpose, and not
MOVABLE PROPERTY unduly oppressive.
Replevin
For manual delivery of movable property, for TAXATION
either ownership or possession
Forced contribution to the operation of
Acquisitive Prescription of Right: 4 years (good government.
faith) or 8 years (bad faith)

EMINENT DOMAIN
Requisites for recovery of property [NCC 434]
Property taken for public use/purpose, but
(1) Property must be identified; subject to due process and payment of just
If titled land, through a relocation survey and a compensation.
title properly identifying boundaries and Requisites
location and technical description.
To justify the exercise of the right of eminent
(2) Plaintiff must rely on the strength of his title domain, the following requisites must all be
and not on weakness of defendant’s claim. present:
Right must be founded on positive title and not
(1) Private property or its use as the object of the
on lack or insufficiency of defendant’s.
expropriation;
Ei incumbit probatio qui dicit, non qui negat: He (2) The property or its use is taken by the State
who asserts, not he who denied must prove. or by competent authority;
(3) The purpose of the taking is for public use;
(4) The taking must be attended with due
process of law; and
(5) There is payment of just compensation.

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Note: Nuisance
Expropriation may be exercised on both real and A nuisance is any act, omission, establishment,
personal property. [Rule 67, Rules of Court] business, condition of property, or anything else
which:
Expropriation may be exercised not only on
property but also its use such as the use of (1) Injures or endangers the health or safety of
telephone lines [Republic v PLDT (1969)] others;
Eminent domain may be availed of to impose (2) Annoys or offends the senses;
only a burden upon the owner of the (3) Shocks, defies or disregards decency or
condemned property, without loss of title and morality;
possession.
(4) Obstructs or interferes with the free passage
of any public highway or street, or any body
of water; or
D.2. SPECIFIC LIMITATIONS:
(5) Hinders or impairs the use of property. [NCC
Legal Servitudes 694]
Once requisites are satisfied, the servient owner
may ask the Court to declare the existence of an
easement. CLASSES OF NUISANCE [Iloilo Cold Storage
v. Municipal Council (1913) ]
(1) Art. 644 & 678: Aqueduct
Nuisances per se
(2) Art. 679: Planting of trees
(3) Art. 670: Light and View Those which are unquestionably and under all
circumstances nuisances (i.e. gambling houses,
(4) Art. 649 & 652: Right of Way houses of ill fame, etc.) May be summarily
(5) Art. 637: Passage of water from upper to abated.
lower tenements Nuisance per accidens
(6) Art. 676: Drainage of buildings
Nuisances because of particular facts and
(7) Art. 684-687: Lateral and subjacent support circumstances surrounding the otherwise
harmless cause of nuisance
Must not injure the rights of a third person Requires a hearing before a tribunal to be
abated
Sic Utere Tuo Ut Alienum Non Laedas
The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third
person. [NCC 431]
Actions in a State of Necessity
The owner of a thing has no right to prohibit the
interference of another with the same, if the
interference is necessary to avert an imminent
danger and the threatened damage, compared
to the damage arising to the owner from the
interference, is much greater. The owner may
demand from the person benefited, indemnity
for the damage to him. [NCC 432]

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SUMMARY OF ACTIONS
Action Venue Summon Prayer Basis Prescription
Prior physical
possession for
Forcible Entry /
Real In forcible entry;
Unlawful Possession 1 year
Action personam Notice to vacate
Detainer
for unlawful
detainer
Accion Real In Real right of 10 years
Possession
Publiciana Action personam Possession [NCC 555(4)]
GF: 10 years
BF: 30 years
[NCC 1137]

Accion Real In Exception (i.e. no

Possession Ownership
Reividicatoria Action personam acquisitive prescription):
Torrens Title and property
of public dominion;
Exception to exception:
laches
Real In Constructive 10 years
Reconveyance Title
Action personam trust (NCC 1456)
Real Quasi-in Quieting of
Quieting of Title Ownership Imprescriptible
Action rem Title
Personal In Possession or GF: 4 years
Replevin Possession
Action personam Ownership BF: 8 years

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IV. Accession General Rule: To the owner of the principal

belongs the natural, industrial and civil fruits.
Exceptions:
Accession – the right by virtue of which the (1) Possession in good faith (fruits belong to
owner of a thing becomes the owner of possessor by good faith for as long as he
everything that is produced thereby, or which remains in good faith)
is incorporated or attached thereto, either
(2) Usufruct (to usufructuary)
naturally or artificially. [NCC 440]
(3) Lease (to lessee in civil law lease of
Accession is one of the bundle of rights of agricultural land; lessor gets rentals as
ownership and is not a mode of acquiring civil fruits)
property; it does not depend upon a new title.
(4) Antichresis
Accessories – things joined to or included
with the principal thing for the latter’s
embellishment, better use, or completion, KINDS OF FRUITS
but which cannot be separated without
(1) Natural – spontaneous products of soil
damage or injury.
and the young and other products of
animals [NCC 442 (1)]
A. CLASSIFICATION OF ACCESSION Under the rule partus sequitur ventrem, to the
owner of female animals would also belong
(1) Accession Discreta – the right pertaining the young of such animals although this
to the owner of a thing over everything cannot apply when the owner mixes his cattle
produced thereby (by internal forces). with those of another and they interbreed,
(2) Accession Continua – the right pertaining thus co-ownership is applied [Siari Valley
to the owner of a thing over everything Estates v. Lucasan (1960)].
that is incorporated or attached thereto
either naturally or artificially (by external
forces). (2) Industrial – produced by lands of any kind
through cultivation or labor [NCC 442 (2)].
(a) Over Immovables
Standing trees are not fruits since they are
(i) Industrial or artificial (building, considered immovables although they
planting, sowing) produce fruits themselves. However, they
(ii) Natural may be considered as industrial fruits when
(1) Alluvion they are cultivated or exploited to carry on an
industry, as in tree plantation.
(2) Avulsion
(3) Change of Course of River
(4) Formation of Islands (3) Civil – easily prorated for under NCC 544
they are deemed to accrue daily and
(b) Over Movables belong to the possessor in good faith in
(i) Conjunction and Adjunction that proportion (e.g. rents of buildings,
(ii) Commixtion and Confusion price of leases or lands and the amount of
perpetual or life annuities or other similar
(iii) Specification income).
Notes:
A.1. WITH RESPECT TO IMMOVABLES Natural and industrial fruits are real property
ACCESSION DISCRETA while still ungathered.
Right of ownership to the fruits. [NCC 441] Only those that are manifest or born are
considered as natural or industrial fruits.

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PRINCIPLES APPLICABLE TO ACCESSION (i) Possessor in Good Faith

DISCRETA
(ii) Usufructuary
(1) Time of Accrual depending on kind:
(iii) Lessee
Annuals: from the time seedlings appear on
the ground. (iv) Antichretic creditor

Perennials: from the time fruits actually

appear on the plants. MEANING OF BAD FAITH
Young of animals: from the time they are in On the part of the landowner
the womb, although unborn – beginning of
maximum ordinary period of gestation. Whenever the building, planting or sowing
was done with his knowledge and without
Fowls: from the time of incubation. opposition on his part (NCC 453, par. 2).
On the part of the owner of materials
(2) He who receives the fruits has the Allows the use of his materials without
obligation to pay the expenses incurred by protest.
a third person in the production, gathering
and preservation of the fruits. [NCC 443] On the part of the builder, planter and
sower, he is a possessor in bad faith at the
Exception: Owner does not have to pay if time of BPS if he:
land is recovered before gathering from a
possessor in bad faith. Knows that he does own the land, nor the
right to build thereon or no permission of the
But if owner recovers land from possessor in owner of the materials to pay their value.
bad faith, he may choose to acquire the land
and he can make the possessor, builder, Note: Bad faith leads to liability for damages
planter, sower account for the fruits that have and the loss of the works or the improvement
been gathered, with the obligation to deduct without reimbursement.
the expenses for producing, harvesting and Bad faith of one party neutralizes the bad
preservation of the fruits. faith of the other.

PRINCIPLES APPLICABLE TO ACCESSION (2) Accession Continua Natural

CONTINUA
Land deposits, etc.
(1) Accession Continua Artificial or Industrial
Building, planting or sowing on land owned
by another (over immovables). ALLUVIUM
General Rule: Whatever is built, planted or Soil is gradually deposited on banks
sown on the land of another + improvements adjoining the river. There can be no
or repairs made thereon, belong to the owner acquisition of soil deposited on the shores of
of the land subject to the rules on BPS (NCC the sea [De Buyser v. Director of Lands (1983)]
445). Requisites
Presumptions (1) Deposit of soil or sediment is gradual and
(a) All works, sowing and planting are imperceptible;
presumed made by the owner and at his (2) As a result of the action of the currents of
expense, unless the contrary is proved. the waters of the river and should have no
(b) The owner of the principal thing owns human intervention;
the natural, industrial and civil fruits, (3) Land where the accretion takes place is
except when the following persons exist: adjacent to the banks of the rivers; and

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(4) Deemed to Exist: When the deposit of the and does not include trees which remain
sediment has reached a level higher than planted on a known portion of land carried by
the highest level of the water during the the force of the waters. In this latter case, the
year, i.e. higher than the river bank. trees are regarded as accessions of the land
through gradual changes in the course of
adjoining stream. [Payatas v. Tuazon (1929)]
Effect: The riparian owner automatically
owns the Alluvion but it does not
automatically become registered property in CHANGE OF COURSE OF RIVER
his name. [Grande v CA (1962)]
Requisites:
(1) Change in the natural course of the waters
Rationale of the river; and
To offset the owner’s loss from possible (2) Such change causes the abandonment of
erosion due to the current of the river; the river beds. “Natural Bed”: ground
covered by its waters during the highest
To compensate for the subjection of the land
floods. [Binalay v. Manalo (1991)]
to encumbrances and legal easements.
(3) Such change is sudden or abrupt
When is Alluvion formed? When the deposit of
sediment has reached a level higher than the
highest level of water during the year Results
Where the deposit is by sea water, it belongs Owners whose lands are occupied by the new
to the state. A gradual change of bed is also course automatically become owners of the
governed by the rules of alluvium [Canas vs. old bed, in proportion to the area they lost
Tuason (1906)]
Owners of the lands adjoining the old bed are
given the right to acquire the same by paying
AVULSION the value of the land.

A known portion of land is segregated from *Not exceeding the value of the land invaded
one estate by the forceful current of a river, by the new bed (the old property of the
creek or torrent and transferred to another. owner)

Requisites The new bed opened by the river on a private

estate shall become of public dominion.
(1) Segregation and transfer of land is sudden
and abrupt; It does not apply to cases where the river
simply dries up because there are no persons
(2) Caused by the current of the water; and whose lands are occupied by the waters of
(3) The portion of land transported must be the river.
known and identifiable; or
(4) Can also apply to sudden transfer by other
forces of nature such as land transferred FORMATION OF ISLANDS
from a mountain slope because of an They belong to the State if [NCC 464]:
earthquake.
(1) Formed on the seas within the jurisdiction
of the Philippines.
Effect: The ownership of the detached (2) Formed on lakes, or
property is retained by the owner subject to
(3) Formed on navigable or floatable rivers:
removal within 2 years from the detachment.
(a) Capable of affording a channel or
In case of uprooted trees, the owner retains passage for ships and vessels;
ownership if he makes a claim within 6
months. This refers only to uprooted trees

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(b) Must be sufficient not only to float (1) Formed through successive accumulation
bancas and light boats, but also of alluvial deposits
bigger watercraft; (2) On non-navigable and non-floatable rivers
(c) Deep enough to allow unobstructed (3) If island is in the middle: divided
movements of ships and vessels. longitudinally in half.
TEST: can be used as a highway of (4) if nearer to one margin or bank, to the
commerce, trade and travel. nearer reparian owner
Note: There is no accession when islands are Note: If a landowner allows the sea or a lake
formed bythe branching of a river; the owner to eat up his land completely, it is a case of
retains ownership of the isolated piece of natural
land. expropriation and if the land later reappears,
he does not regail ownership thereof.
[Republic v. Cabangis (1929)]
They belong to the owners of the nearest
margins or banks if [NCC 465]:

Landowner [LO]in Bad

Landowner [LO] in Good Faith
Faith
Rights of Landowner [NCC 448] Absolute Duties of
Options: Landowner [NCC 447]:
Buy from BPS but only after payment of indemnity for Pay damages; and
necessary, useful and ornamental expenses [NCC 546 and Allow removal even if it
Builder, 548]; BPS in good faith has right of retention; causes damage or
Planter, Sell to BP (unless the value of the land is considerably more destruction; or
Sower [BPS] than that of the building or trees); or Buy or pay for value of
in Good Faith Remedy: Rent to BP if LO does not want to buy improvement.
Note: If BP refuses or cannot purchase the land, he loses his
right of retention and must turnover possession to
landowner.
Rent to S.
Rights of Landowner [NCC 449-452] Same as though both
Options: landowner and BPS are in
Appropriate the improvements without paying indemnity; good faith
Builder,
Demolish/Remove the work of BPS at the expense of BPS;
Planter,
Sell to BP without any right to refuse even if value of land is
Sower [BPS]
considerably whole; or
in Bad Faith
Rent to the S

Absolute right to Damages from BPS.

Note: Good faith does not necessarily exclude negligence, which gives rise to damages under Article 2176
(NCC 456).

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Landowner [LO] in Good Faith Landowner [LO]in Bad Faith

Right of Landowner [NCC 447] Absolute Duties of Landowner [NCC 447]:
Owner of
To buy the improvements unless OM can Pay damages; and
Material [OM]
remove without damage. Allow removal in any event; or
in Good Faith
Pay for value of material.
Absolute Rights of Landowner [NCC 447] Same as though both landowner and
Owner of
To appropriate the materials without material manare in good faith
Material [OM]
payment.
in Bad Faith
Right to damages from OM.

Landowner BPS Owner of Material [OM]

Good faith Good faith Good faith
Options: (1) Right of retention until (1) Collect value of material
(1) Right to acquire improvements necessary and useful primarily from BPS and
and pay indemnity to BPS; expenses are paid; subsidiarily to landowner if
subsidiarily liable to OM; (2) To pay value of BPS is insolvent; and
(2) Sell the land to BP except if the materials to OM. (2) Limited right of removal (if
value of the land is considerably the removal will not cause
more; or any injury)
(3) Rent to S.
Good faith Good faith Bad faith
Options: (1) Right of retention until (1) Lose the material without
(1) Right to acquire improvements necessary and useful right to indemnity.
and pay indemnity to BPS; expenses are paid. (2) Must pay for damages to
(2) Sell land to BP except if the value (2) Keep BPS without BPS.
of the land is considerably more; or indemnity to OM and
(3) Rent to S. collect damages from
him.
Good faith Bad faith Bad faith
(1) Landowner has right to collect Recover necessary expenses (1) Recover value from BPS (as
damages from BPS in any case and for preservation of land from if both are in good faith)
the option to either landowner unless landowner (2) If BPS acquires
(a) Acquire improvements w/o sells land. improvement, remove
paying for indemnity; materials if feasible w/o
(b) Demolition or restoration; or injury
(c) Sell to BP, or to rent to sower (3) No action against
(2) Pay necessary expenses to BPS. landowner but may be liable
to landowner for
consequential damages
Bad faith Bad faith Bad faith
Same as when all acted in good faith Same as when all acted in Same as when all acted in good
under Article 453 good faith under Article 453 faith under Article 453

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Bad faith Good faith Good faith

(1) Acquire improvement after paying (1) May remove (1) Remove materials at any
indemnity and damages to BPS improvements. event
unless the latter decides to (2) Be indemnified for (2) Collect value of materials
remove. damages in any event from BPS; subsidiarily from
(2) Subsidiarily liable to OM for value (3) Pay OM the value of the landowner, if landowner is
of materials if he acquires BPS and materials made to pay for BPS and
damages; no subsidiary liability if damages
BPS chooses removal in any event.
Good faith Bad faith Good faith
Options: (1) No right of retention. (1) Collect value of materials
(1) Right to acquire improvements (2) Pay value of materials to primarily from BPS and
and pay indemnity to BPS; OM and pay him subsidiarily from landowner,
subsidiarily liable to OM; damages. if landowner acquires the
(2) Sell the land to BP except if the BPS.
value of the land is considerably (2) Collect damages from BPS.
more; or (3) Absolute right to remove
(3) Rent to S. materials in any event.
Good faith Bad faith Good faith
(1) Landowner has right to collect (1) Right to necessary (1) Collect value of materials
damages from BPS in any case and expenses. primarily from BPS and
the option to either (2) Pay value of materials to subsidiarily from landowner
(a) Acquire improvements w/o OM. (2) Collect damages from BPS
paying for indemnity; (3) Pay damages to OM/LO. (3) If BPS acquires
(b) Demolition or restoration; or improvements, absolute
(c) Sell to BP, or to rent to sower right of removal in any
(2) Pay necessary expenses to BPS. event.
Bad faith Good faith Bad faith
Acquire improvements and pay (1) Receive indemnity for (1) No right to indemnity.
indemnity and damages to BPS unless damages. (2) Loses right to the materials.
the latter decides to remove materials. (2) Absolute right of
removal of
improvements in any
event.

Note: If there are 3 parties in BPS, solve the problem by considering the options open to the landowner
vis-à-vis BPS depending on their good faith or bad faith; apply NCC 455 re: one who acted in good faith.

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A.2. WITH RESPECT TO MOVABLE If owner of principal is in bad faith, owner of

PROPERTY the accessory has a right to choose between
the owner of the principal paying him its
TYPES
value or that the thing belonging to him be
Conjunction or Adjunction separated, even though for this purpose it be
necessary to destroy the principal thing; and
Process where 2 movables belonging to
in both cases, there shall be indemnity for
different owners are attached to each other to
damages.
form a single object.
Mixture
Test to determine the principal thing
The union of materials belonging to different
owners where the components lose their In the order of application, the principal is
identity. that:
Specification (1) To which the other has been united as an
ornament or for its use or perfection
Transforming or giving of a new form to
(“Rule of importance and purpose”).
another’s material through labor.
(2) Of greater value.
(3) Of greater volume.
CONJUNCTION / ADJUNCTION
(4) That of greater merits, taking into
Requisites consideration all the pertinent legal
(1) There are 2 movables belonging to 2 provisions, as well as the comparative
different owners; merits, utility and volume of their
respective things. [Manresa]
(2) They are united in such a way that they
form a single object; and
(3) They are so inseparable that their When separation allowed
separation would impair their nature or (1) When separation will not cause any injury;
result in substantial injury to either or
component.
(2) When the accessory is much more
precious:
Ownership of new object formed by (a) Owner of accessory may demand
adjunction separation even though the principal
(1) If union was made in good faith thing may suffer (NCC 469).

GENERAL RULE: The owner of the principal (b) Owner who caused the union shall
thing acquires the accessory, with the bear the expenses for separation even
obligation to indemnify the owner of the if he acted in good faith.
accessory for its value in its original state. (3) When the owner of the principal is in bad
EXCEPTION: if the accessory is much more faith.
precious than the principal, the owner of the Note: In painting and sculptures, writings,
accessory may demand separation even if the printed matter, engravings and lithography,
principal suffers some injury the board, metal, stone, canvas, paper or
parchment are deemed as the accessory
things (NCC 468, par. 2).
(2) If union was in bad faith, NCC 470 applies:
Owner of accessory in bad faith loses the
thing incorporated and has the obligation to
indemnify the owner of the principal thing for
damages.

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MIXTURE material, in consequence of the work itself,

undergoes a transformation.
Kinds
It is the transformation of another’s material
(1) Commixtion: mixture of solid things
by the application of labor.
(2) Confusion: mixture of liquid things, and
includes mixture of gases Examples: Turning grapes into wine, flour
into bread, marbles into a piece of sculpture
Rules
Rules
(1) Person in good faith
(1) Mixture by will of the owners:
General rule: Worker becomes the owner but
Primarily governed by their stipulations. In must indemnify the owner (who was also in
the absence of stipulation, each owner good faith) for the value of the material.
acquires a right or interest in the mixture in
proportion to the value of his material, i.e. co- Exception
ownership is created. If the material is more valuable than the new
thing, the owner of the material may choose:
(2) Mixture caused by an owner in good faith or • To take the new thing but must pay for
by chance the value of the work or labor; or
Share of each owner shall be proportional to • To demand indemnity for the value of the
the value of the part that belonged to him. If material.
things mixed are exactly the same kind, If the owner was in bad faith, maker may
quality and quantity, divide the mixture appropriate the new thing without paying the
equally. If things mixed are of different kind owner, or require the owner to pay him the
or quality, a co-ownership arises. If they can value of the thing or his work, with right to
be separated without injury, the owners may indemnity.
demand separation. Expenses are borne by
the owners pro rata.
NOTE: Good faith in accession does not (2) Person in bad faith
necessarily exclude negligence, which gives General rule: Owner may either appropriate
rise to damages. the new thing to himself without paying the
maker, or owner may demand value of
material plus damages
(3) Mixture caused by an owner in bad faith
Exception: The first option is not available in
Actor forfeits the thing belonging to him.
case the value of the work, for artistic or
Actor also becomes liable for damages.
scientific reasons, is considerably more than
that of the material, in which case the owner
of the material can ask for payment of
(4) Mixture made with knowledge and
material and damages.
without objection of the other owner
Rights to be determined as though both
acted in good faith. (3) Person made use of material with consent
and without objection of owner
Rights shall be determined as though both
SPECIFICATION
acted in good faith
Takes place when the work of a person is
done on the material of another, such

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V. Quieting of Title E. THE ACTION TO QUIET TITLE DOES

NOT APPLY:
(1) To questions involving interpretation of
A. IN GENERAL documents;
A remedy or form of proceeding originating (2) To mere written or oral assertions of
in equity jurisprudence. Equity comes to the claim, EXCEPT
aid of the plaintiff who would suffer if the (a) made in a legal proceeding or
instrument (which appear to be valid but is (b) asserting that an instrument or entry
in reality void, ineffective, voidable or in plaintiff’s favor is not what it
unenforceable) was to be enforced. purports to be;
(3) To boundary disputes;
B. PURPOSE (4) To deeds by strangers to the title
UNLESS purporting to convey the
To declare: property of the plaintiff;
(a) The invalidity of a claim on a title; or (5) To instruments invalid on their face; or
(b) The invalidity of an interest in (6) Where the validity of the instrument
property. involves a pure question of law.
To free the plaintiff and all those claiming
under him from any hostile claim on the
property. F. REQUIREMENTS
F.1. REQUISITES OF AN ACTION TO QUIET
TITLE
C. NATURE: QUASI IN REM
(1) There is a cloud on title to real property
A suit against a particular person or persons or any interest to real property;
in respect to the res and the judgment will
(2) The plaintiff must have legal or
apply only to the property in dispute.
equitable title to, or interest in the real
The action to quiet title is characterized as a property; and
proceeding quasi in rem. Technically, it is (3) Plaintiff must return the benefits
neither in rem nor in personam. In an received from the defendant.
action quasi in rem, an individual is named
as a defendant. However, unlike suits in
rem, a quasi in rem judgment is conclusive “Cloud on title” means a semblance of title,
only between the parties. [Spouses Portic v. either legal or equitable, or a claim or a
Cristobal] right in real property, appearing in some
legal form but which is, in fact, invalid or
which would be inequitable to enforce.
D. JUSTIFICATIONS TO BRING AN
ACTION TO QUIET TITLE
A cloud exists if:
(1) To prevent future or further litigation on
the ownership of the property. (1) There is a claim emerging by reason of:
(2) To protect the true title and possession. (a) Any instrument e.g. a contract, or any
(3) To protect the real interest of both deed of conveyance, mortgage,
parties. assignment, waiver, etc. covering the
property concerned;
(4) To determine and make known the
precise state of the title for the guidance (b) Any record, claim, encumbrance e.g.
of all. an attachment, lien, inscription,

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adverse claim, lis pendens, on a title; Equitable title: the person has the
or beneficial ownership of the property.
(c) Any proceeding e.g. an extrajudicial
partition of property.
The plaintiff must return the benefits
received from the defendant [NCC 479]
(2) The claim should appear valid or
effective and extraneous evidence is
needed to prove their validity or G. QUIETING OF TITLE V. REMOVAL
invalidity; OF CLOUD
Test: Would the owner of the property in an
action for ejectment brought by the adverse Quieting of Title Removal of Cloud
party be required to offer evidence to defeat There isn’t There is always an
a recovery? always an adverse claim by virtue
adverse claim of an instrument,
As a general rule, a cloud is not created by (e.g. land record, claim,
mere verbal or parole assertion of registration encumbrance or
ownership or an interest in property. cases) proceeding.
Remedial action
Preventive action to
involving a
(3) Such instrument, etc. is, in truth and in prevent a future cloud
present adverse
fact, invalid, ineffective, voidable, or on the title
claim
unenforceable, or has been extinguished
or terminated, or has been barred by
extinctive prescription; and H. PRESCRIPTION
PRESCRIPTION OF ACTION
(4) Such instrument, etc. may be prejudicial When the plaintiff is in possession of the
to the true owner or possessor. property, the action to quiet title does not
prescribe.
F.2. REQUISITES OF AN ACTION TO When the plaintiff is not in possession of the
PREVENT A CLOUD: real property, the action to quiet title may
prescribe depending upon the right of
(1) Plaintiff has a title to a real property or
action filed by the plaintiff:
interest therein;
(2) Defendant is bent on creating a cloud on (a) 10 yrs. – if plaintiff is a possessor with
the title or interest therein. The danger a real right, i.e. accion publiciana, or if
must not be merely speculative or action is for reconveyance on the
imaginary but imminent; and basis of a constructive trust under
NCC 1456
(3) Unless the defendant is restrained or
stopped, the title or interest of the (b) 30 yrs. – if plaintiff is the owner of
plaintiff will be prejudiced or adversely real property
affected. Note: An action to quiet title may be
defeated by a claim of ordinary or
extraordinary acquisitive prescription by the
The plaintiff must have legal or equitable defendant.
title to, or interest in the real property [NCC
477]
Legal title: the party is the registered owner
of the property.

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VI. Co-ownership Any stipulation in a contract to the contrary

shall be void.
The form of ownership when the ownership The portions belonging to the co-owners in
of an undivided thing or right belongs to the co-ownership shall be presumed equal,
different persons. [NCC 484] unless the contrary is proved.

A. REQUISITES Each co-owner has absolute control over

(1) Plurality of owners; his ideal share
(2) Object must be an undivided thing or Every co-owner has absolute ownership of
right; and his undivided interest in the co-owned
property and is free to alienate, assign or
(3) Each co-owner’s right must be limited
mortgage his interest, except as to purely
only to his ideal or abstract share of the
personal rights. While a co-owner has the
physical whole.
right to freely sell and dispose of his
undivided interest, nevertheless, as a co-
owner, he cannot alienate the shares of his
B. WHAT GOVERNS CO-OWNERSHIP
other co-owners – nemo dat quod non
(1) Contracts; habet. [Acabal v. Acabal (2005)]
(2) Special laws; and
(3) The Civil Code Mutual respect among co-owners with
regard to use, enjoyment, and preservation
of the things as a whole
C. CHARACTERISTICS OF CO-
OWNERSHIP (1) The property or thing held pro indiviso is
impressed with a fiduciary character:
(1) There are 2 or more co-owners. each co-owner becomes a trustee for the
(2) There is a single object which is not benefit of his co-owners and he may not
materially or physically divided and his do any act prejudicial to the interest of
ideal share of the whole. his co-owners.
(3) There is no mutual representation by the (2) Until a judicial division is made, the
co-owners. respective part of each holder cannot be
(4) It exists for the common enjoyment of determined. The effects of this would be:
the co-owners. (a) Each co-owner exercises, together
(5) It has no distinct legal personality. with the others, joint ownership over
the pro indiviso property, in addition
(6) It is governed first of all by the contract to his use and enjoyment of the same
of the parties; otherwise, by special legal
provisions, and in default of such (b) Each co-owner may enjoy the whole
provisions, by the provisions of Title III on property and use it.
Co-Ownership. (3) Redemption exercised by a co-owner
inures to the benefit of his other co-
owners [Mariano v. CA (1993)]
There are ideal shares defined but not
physically identified [NCC 485]
The share of the co-owners, in the benefits Only limitation
as well as in the charges, shall be Each co-owner of realty held pro indiviso
proportional to their respective interests. exercises his rights over the whole property
and may use and enjoy the same with no
other limitation than that he shall not injure

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the interests of his co-owners. [Pardell v. Article 494, Civil Code. No co-owner shall be
Bartolome (1912)] obliged to remain in the co-ownership. Each co-
owner may demand at any time the partition of
the thing owned in common, insofar as his
D. SOURCES OF CO-OWNERSHIP share is concerned.
D.1. LAW Nevertheless, an agreement to keep the thing
Cohabitation: co-ownership between undivided for a certain period of time, not
common law spouses exceeding ten years, shall be valid. This term
may be extended by a new agreement.
The Family Code, in the following
provisions, apply rules on co-ownership: A donor or testator may prohibit partition for a
period which shall not exceed twenty years.
Art. 147: between a man and a woman living
together as husband and wife without the Neither shall there be any partition when it is
benefit of marriage but are capacitated to prohibited by law.
marry each other, or under a void marriage No prescription shall run in favor of a co-owner
Art. 148: between a man and a woman not or co-heir against his co-owners or co-heirs so
capacitated to marry each other long as he expressly or impliedly recognizes the
co-ownership.
Art. 90: if matter is not provided in the FC
Chapter on ACP, then rules on co-
ownership will apply By the creation of a Universal Partnership
of all present property
Purchase creating implied trust NCC 1778. A partnership of all present
property is that in which the partners
If two or more persons agree to purchase contribute all the property which actually
property and by common consent, the legal belongs to them to a common fund, with
title is taken in the name of one of them for the intention of dividing the same among
the benefit of all, a trust is created by force themselves, as well as all the profits which
of law in favor of the others in proportion to they may acquire therewith.
the interest of each. [NCC 1452]
NCC 1779. In a universal partnership of all
Easement of party wall: co-ownership of present property, the property which
part-owners of a party wall [NCC 658] belonged to each of the partners at the time
Condominium Law: co-ownership of the of the constitution of the partnership,
common areas by holders of units becomes the common property of all the
partners, as well as all the profits which
Sec. 6, RA 4726. The Condominium Act. they may acquire therewith.
Unless otherwise expressly provided in the
A stipulation for the common enjoyment of
enabling or master deed or the declaration
any other profits may also be made; but the
of restrictions, the incidents of a
property which the partners may acquire
condominium grant are as follows:
subsequently by inheritance, legacy, or
(c) Unless otherwise, provided, the donation cannot be included in such
common areas are held in common by stipulation, except the fruits thereof
the holders of units, in equal shares,
one for each unit.
By Association and Societies with Secret
Articles
D.2. CONTRACT
NCC 1775. Associations and societies, whose
By Agreement of Two or More Persons articles are kept secret among the
members, and wherein any one of the

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members may contract in his own name Hidden Treasure [NCC 438]
with third persons, shall have no juridical
When the discovery is made on the property
personality, and shall be governed by the
of another, or of the State or any of its
provisions relating to co-ownership.
subdivisions, and by chance, one-half shall
be allowed to the finder.
D.3. INTESTATE SUCCESSION
Co-ownership between the heirs before D.6. BY OCCUPANCY
partition of the estate
Harvesting and Fishing: Co-ownership by
NCC 1078. Where there are two or more two or more persons who have seized a res
heirs, the whole estate of the decedent is, nullius thing
before its partition, owned in common by
such heirs, subject to the payment of debts
of the deceased. E. RIGHTS OF CO-OWNERS
For as long as the estate is left undivided E.1. RIGHT TO SHARE IN THE BENEFITS
the heirs will be considered co-owners of AS WELL AS THE CHARGES [NCC 485]
the inheritance.
Proportional to their interests;
If one of the heirs dies, his heirs will in turn
Stipulation to the contrary is void;
be co-owners of the surviving original heirs.
Portion belonging to the co-owners is
presumed equal.
D.4. TESTAMENTARY DISPOSITION OR
DONATION INTER VIVOS
E.2. RIGHT TO USE THE THING OWNED
When a donation is made to several persons
IN COMMON [NCC 486]
jointly, it is understood to be in equal
shares, and there shall be no right of Limitations: That he use the thing in
accretion among them, unless the donor accordance with the purpose for which it is
has otherwise provided. [NCC 753] intended.
Exception: Donations to spouses jointly, That he uses it in such a way as to not injure
right of accretion is presumed unless donor the interest of the co-ownership or prevent
provides otherwise the other co-owners from using it.
A donor or testator may prohibit partition If co-owner exclusively uses property owned
for a period which shall not exceed 20 in common, he is liable to pay rentals for
years. other co-owners’ share [Pardell v. Bartolome
(1912)].

D.5. BY FORTUITOUS EVENT OR BY

CHANCE E.3. RIGHT TO BRING AN ORDER IN
EJECTMENT [NCC 487]
Co-ownership between owners of 2 things
that are mixed by chance or by will of the
owners:
E.4. RIGHT TO COMPEL OTHER CO-
[NCC 472] Each owner shall acquire a right OWNERS TO CONTRIBUTE TO THE
proportional to the part belonging to him, EXPENSES OF PRESERVATION AND TO
bearing in mind the value of the things mixed or THE TAXES [NCC 488]
confused. Any one of the other co-owners may exempt
himself by renouncing so much of his

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undivided interest as may be equivalent to An agreement to keep the thing undivided

his share of the expenses and taxes. for a certain period not exceeding 10 years is
valid.
No waiver if it is prejudicial to the co-
ownership Term may be extended by a new
agreement.
Note: Renunciation needs the consent of
other co-owners as this is akin to a dacion Donor or testator may prohibit partition,
en pago [J.B.L. Reyes] period not to exceed 20 years.
No partition may be made if prohibited by
law.
E.5. RIGHT TO REPAIR [NCC 489]
Right does not prescribe for as long as co-
Repairs for preservation may be made at
ownership lasts or is recognized.
the will of one of the co-owners but he must
first notify his co-owners if practicable.
Expenses to improve or embellish, decided E.9. RIGHT TO REDEMPTION [NCC 1619]
upon by a majority.
May exercise this in case the shares of other
co-owners are sold to a third person
E.6. RIGHT TO OPPOSE ALTERATIONS If 2 or more co-owners wish to exercise this
[NCC 491] Consent of all the others is right, redemption will be made in
needed to make alterations, even if the proportion to their share in the thing
alteration benefits all.
If the withholding of the consent is clearly E. 10. RIGHT TO PROTEST AGAINST ACTS
prejudicial to the common interest, the OF MAJORITY WHICH ARE PREJUDICIAL
courts may afford relief TO MINORITY [NCC 492(3)]
Reason for the rule: alteration is an act of Should the resolution of the majority be
ownership, not of mere administration. seriously prejudicial to those interested in
the property owned in common:
E.7. RIGHT TO FULL OWNERSHIP OF HIS The court, at the instance of an interested
PART AND OF THE FRUITS AND party, shall order such measures as it may
BENEFITS PERTAINING THERETO deem proper, including the appointment of
an administrator.
[NCC 493]
Therefore he may alienate, assign or
mortgage it, and even substitute another Note: Rules on Co-Ownership do not apply
person in its enjoyment except when to CPG or ACP. These are governed by
personal rights are involved. the Family Code. Even void marriages
and cohabitation of incapacitated
The effect of the alienation or the mortgage,
persons are governed by FC 50, 147,
with respect to the co-owners, shall be
and 148.
limited to the portion which may be allotted
to him in the division upon the termination
of the co-ownership.
F. IMPLICATIONS OF CO-OWNER’S
RIGHT OVER HIS IDEAL SHARE
E.8. RIGHT TO PARTITION [NCC 494] Co-Owner has the right:
Each may demand at any time the partition (1) To share in fruits and benefits
of the thing, insofar as his share is
concerned.

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(2) To alienate, mortgage or encumber and G.3. EMBELLISHMENTS OR

dispose of his ideal share—but other IMPROVEMENTS
owners can exercise right of redemption
(1) Notify co-owners of improvements and
(3) To substitute another person in the embellishments to be made.
enjoyment of the thing
If no notification is made, the co-owner who
(4) To renounce part of his interest to advanced the expenses will only have the
reimburse necessary expenses incurred right to be reimbursed if he proves the
by another co-owner (NCC 488) necessity of such repairs and the
EFFECT OF TRANSACTION BY EACH CO- reasonableness of the expenses.
OWNER Exception: If proven that had there been a
(1) Limited to his share in the partition notification, they could have hired another
who would charge lessor that they know of
(2) Transferee does not acquire any specific
a store that sells the needed material at a
portion of whole property until partition
cheaper price. The reimbursement will be
(3) Creditors of co-owners may intervene in limited to the amount that should have
partition or attack the same if prejudicial been spent had he notified the others, and
[NCC 499], except that creditors cannot the difference shall be borne by him alone.
ask for rescission even if not notified in
the absence of fraud. [NCC 497]
(2) Decisions by the majority must be
followed.
G. RULES
Act of Co-Owner Consent Needed
G.1. ON RENUNCIATION OF SHARE Preservation May be made at
(DIFFERENT FROM RENUNCIATION OF will by any co-
CO-OWNERSHIP) owner but must
Other co-owners may choose not to first notify other
contribute to the expenses by renouncing so co-owners if
much of his undivided interest as may be practicable
equivalent to his share of the necessary Alterations Consensus of
expenses and taxes. Majority
Lease for more Consensus of
Renunciation must be express; thus, failure than 1 year Majority
to pay is nota renunciation of the right. Acts of Majority of co-
Requires the consent of other co-owners administration owners
because it is a case of dacion en pago Improvement/ Majority of co-
(cessation of rights) involving expenses and Embellishing the owners
taxes already paid. [J.B.L. Reyes] Thing/ Useful
expenses
Cannot renounce his share if it will be
prejudicial to another co-owner.
H. TERMINATION OR

G.2. REPAIRS FOR PRESERVATION EXTINGUISHMENT

First, notify other co-owners, as far as H.1. TOTAL DESTRUCTION OF THING OR
practicable. LOSS OF THE PROPERTY CO-OWNED

Co-owner may advance expenses for Is there still co-ownership if a building is

preservation even without prior consent; he destroyed? Yes, over the land and the
is entitled to reimbursement. debris.

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H.2. MERGER OF ALL INTERESTS IN ONE Action for partition will determine:
PERSON
(1) Whether or not the plaintiff is indeed a
co-owner of the property
H.3. ACQUISITIVE PRESCRIPTION (2) How the property will be divided
between the plaintiff and defendant.
By whom
(1) A third person. [NCC 1106]
Effects of Partition
(2) A co-owner against the other co-owners.
(1) Confers exclusive ownership of the
Requisites for acquisitive prescription
property adjudicated to a co-heir.
against co-owners [Adille v CA (1988)]:
(2) Co-heirs shall be reciprocally bound to
(1) A co-owner repudiates the co-ownership warrant the title to and the quality of
by executing unequivocal acts of each property adjudicated.
repudiation leading to ouster of other co-
owners; (3) Reciprocal obligation of warranty shall
be proportionate to the respective
(2) The act of repudiation is clearly made hereditary shares of co-heirs.
known to other co-owners;
(4) An action to enforce warranty must be
(3) The evidence thereon is clear and brought within 10 years from the date
conclusive; and the right accrues.
(4) The co-owner has been in possession (5) The co-heirs shall not be liable for the
thru open, continuous, exclusive and subsequent insolvency of the debtor of
notorious possession of the property for the estate.
the period required by law.
N.B.: there is a presumption that
possession of a co-owner is not adverse Rights against individual co-owners in
case of partition [NCC 497]
Registration under the Torrens system is
constructive notice of title but is not The creditors are allowed to take part in the
sufficient notice of the act of repudiation. partition.
[Adille v CA (1988)] Reason for the rule: They own part of the
interest of the co-owners who made the
assignment or alienation.
H.4. PARTITION OR DIVISION
Procedure for Partition
Intervention of creditors and assignees
Governing rule: Rule 69 of the Rules of
Court. General Rule: Creditors may take part in
the division. They need to establish the
How: By agreement of parties or by judicial existence of the credit during co-ownership.
decree.
Form: Oral or Written (Statute of Frauds
does not operate here because it is not a Exception: If the partition was already
conveyance of property but a mere executed, they cannot impugn partitiion
segregation or designation of which parts Exception to the exception: If there was
belong to whom) fraud, or a previous formal opposition to
The Rules of Court do not preclude prevent the partition, without prejudice to
agreements or settlements. right of debtor/assignor to maintain its
validity.

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Rules on
assignees:
notice to creditors and
VII. Possession
(1) The law does not expressly require The holding of a thing or the enjoyment of a
previous notice to the creditors and right. [NCC 523]
assignees before a partition, but the
latter have the right of creditors and
assignees to take part in the division. A. CONCEPT OF POSSESSION
(2) If notice is not given, the partition may To possess, in a grammatical sense, means
be impugned by creditor/assignee if to have, to physically and actually occupy a
made in fraud of creditors. thing, with or without right. [Sanchez
(3) Once notice has been given, it is the duty Roman]
of creditors and assignees to intervene It is the holding of a thing or a right,
and make known their stand. whether by material occupation or by the
(a) If they fail, they cannot question the fact that the thing or the right is subjected
division made, except in cases of to the action of our will. [Manresa]
fraud. Possession includes the idea of occupation.
(b) If they formulate a formal question, It cannot exist without it. (Exceptions: NCC
they can contest such partition 537)
Right of possession Right to possess
Partition of an indivisible thing (NCC 498) (jus possessionis) (jus possidendi)
Independent right Incident to
1st option: The co-owners can agree that one ownership
of them shall be the sole owner by paying
the value of other co-owners’ shares
B. ESSENTIAL REQUISITES OF
2nd option: If they cannot agree who among
POSSESSION
them shall be sole owner, the property will
be sold to a 3rd person and the proceeds Corpus possessionis: Holding (actual or
distributed among them. constructive) of a thing or exercise of a right,
if right is involved.
Possession and cultivation of a portion of a
tract under claim of ownership of all is a
constructive possession of all, if the
remainder is not in adverse possession of
another [Ramos v. Director of Lands (1918)];
or the land area is so big that it is
impossible that there are no adverse
possessors.
Doctrine of constructive possession applies
when the possession is under title calling
for the whole. It does not apply where
possession is without title.
N.B. To apply the doctrine, intention to
possess must be proved.

Animus possidendi: Intention to possess

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There is no possession if the holder does not This is possession that springs from
want to exercise the rights of a possessor. ownership.
Implied from the acts of the possessor. Actually, jus possidendi not just jus
possessionis.
May be contradicted and rebutted by
evidence – to prove that the person who is
in possession does not in fact exercise
power or control and does not intend to do D. CASES OF POSSESSION
so.
D.1. POSSESSION FOR ONESELF, OR
POSSESSION EXERCISED IN ONE’S OWN
C. DEGREES OF POSSESSION NAME AND POSSESSION IN THE NAME
Mere holding or possession without title OF ANOTHER [NCC 524]
and in violation of the right of the owner
In one’s own name – the fact of possession
Possession of a thief or usurper of land and the right to such possession is found in
the same person.
Here, both the possessor and the public
know that the possession is wrongful. In the name of another – the one in actual
possession is without any right of his own,
but is merely an instrument of another in
Possession with juridical title but not that the exercise of the latter’s possession.
of ownership
e.g. possession of a tenant, depository
D.2. POSSESSION IN THE CONCEPT OF
agent, bailee trustee, lessee, antichretic
AN OWNER, AND POSSESSION IN THE
creditor.
CONCEPT OF A HOLDER WITH THE
This possession is peaceably acquired. OWNERSHIP BELONGING TO ANOTHER
[NCC 525]
This degree of possession will never ripen
into full ownership as long as there is no Possession in Concept of Holder
repudiation of concept under which
One who possesses as a mere holder, not in
property is held.
the concept of owner, acknowledges in
another a superior right which he believes
to be ownership, whether his belief be right
Possession with just title or title sufficient
or wrong. He is also a possessor under the
to transfer ownership, but not from the
second degree of possession.
true owner
e.g. tenant, usufructuary, borrower in
e.g. possession of a vendee from a vendor
commodatum.
who pretends to be the owner.
This degree of possession ripens into full
ownership by lapse of time. Possession in Concept of Owner
Period of acquisitive prescription will May be exercised by the owner himself or
depend upon good/bad faith of possessor. one who claims to be so.
Possessor is a possession in the concept of When a person claims to be the owner of a
owner. thing, whether he believes so or not, acting
as an owner, and performing acts of
ownership, and he is or may be considered
Possession with a just title from the true as the owner by those who witness his
owner exercise of proprietary rights, then he is a
possessor in the concept of owner. This is

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the kind of possession that ripens into Error in the application of the law, in the
ownership under Article 540, when such legal solutions that arise from such
possession is public, peaceful and application, in the appreciation of legal
uninterrupted. [see Art. 1118]. consequence of certain acts, and in the
interpretation of doubtful or difficult
provisions or doctrines, may properly serve
Effects of Possession in Concept of an as basis for good faith.
Owner
(1) Converted into ownership by the lapse of
Possessor in bad faith – one who knows
time necessary for prescription.
his title is defective.
(2) Possessor can bring all actions necessary
to protect his possession, availing Only personal knowledge of the flaw in the
himself of any action which an owner can title or mode of acquisition can make him a
bring, except accion reivindicatoria which possessor in bad faith for bad faith is not
is substituted by accion publiciana. transmissible from one person to another.
(3) He can ask for the inscription of Mistake or ignorance of the law, by itself,
possession in the registry of property. cannot become the basis of good faith.
What makes the error or ignorance a basis
(4) Upon recovering possession from one
of good faith is the presence of an apparent
who has unlawfully deprived him of it, he
“doubt” or “difficulty” in the law. In other
can demand fruits and damages.
words, the law is complex, ambiguous, or
(5) He can do on the thing possessed vague such that it is open to two or more
everything that the law authorizes an interpretations.
owner to do; he can exercise the right of
pre-emption and is entitled to the When the ignorance of the law is gross and
indemnity in case of expropriation. inexcusable, as when a person of average
intelligence would know the law, such
ignorance cannot be the basis of good faith.
D.3. POSSESSION IN GOOD FAITH AND Otherwise, the intendment of Article 3
POSSESSION IN BAD FAITH [NCC 526] which states that, “Ignorance of the law
excuses no one from compliance
POSSESSOR IN GOOD FAITH therewith,” will be defeated.
one who is not aware that there exists in his
title or mode of acquisition any flaw or
defectwhich invalidates his title or mode of What Things May be Possessed [NCC 530]
acquisition. Only things and rights which are
Good faith – consists in the possessor’s susceptible of being appropriated may be
belief that the person from whom he the object of possession.
received a thing was the owner of the same
and could convey his title.
What May Not Be Possessed by Private
It implies freedom from knowledge and Persons
circumstances which ought to put a person
on inquiry. (1) Res Communes
The belief of a possessor that he is the (2) Property of Public Dominion
owner of the thing must be based upon the (3) Right under discontinuous and/or
title or mode of acquisition, such as a sale, a non-apparent easement
donation, inheritance or other means of
transmitting ownership; for without this,
there can be no real, well-grounded belief
of one’s ownership.

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E. ACQUISITION OF POSSESSION Examples: Donations; Succession;

Contracts (like a sale with right to
E.1. WAYS OF ACQUIRING POSSESSION repurchase); Judicial possession; Execution
[NCC 531] of judgments; Execution and registration of
By material occupation public instruments; Inscription of
possessory information titles.
“Material occupation” – used in its ordinary
meaning and not in its technical meaning The execution of the required formalities is
under NCC 712, which defines occupation as equivalent to delivery of the property.
a mode of acquiring ownership. E.2. BY WHOM MAY POSSESSION BE
Possession acquired by material occupation ACQUIRED [NCC 532]
is only possession as a fact, not the legal (1) By the same person
right of possession.
(2) By his legal representative
Constructive delivery is considered as an
equivalent of material occupation in two (3) By his agent
situations where such occupation is (4) By any person without any power
essential to the acquisition of possession: whatsoever but subject to ratification,
without prejudice to proper case of
(1) Tradicion brevi manu – takes place when negotiorum gestio [Arts. 2144, 2149, 2150]
one who possesses a thing by title other
than ownership, continues to possess (5) By his legal representative
the same under a new title, that of (6) Qualifiedly, minors and incapacitated
ownership. persons [NCC 535]
(2) Tradicion constitutum possessorium – (a) Incapacitated – all those who do not
takes place when the owner alienates have the capacity to act (insane,
the thing, but continues to possess the lunatic, deaf-mutes who cannot read
same under a different title. and write, spendthrifts and those
under civil interdiction).
By subjection to the action of one’s will (b) Object of possession– things only,
not rights.
This mode refers more to the right of (c) Method of acquisition – material
possession than to possession as a fact. The occupation; acquisition by means for
“action of our will” must be juridical, in the which the incapacitated person has
sense that it must be according to law. the capacity, such as acquisition by
It includes: succession, testate or intestate, or by
donations propter nuptias, pure and
(1) Tradicion symbolica – by delivering some
simple donations.
object or symbol placing the thing under
the control of the transferee, e.g. keys to
a warehouse includes contents thereof. F. WHAT DO NOT AFFECT
(2) Tradicion longa manu – by the transferor POSSESSION [NCC 537]
pointing out to the transferee the things
that are being transferred.
F.1. ACTS MERELY TOLERATED
By execution of proper acts under legal Those which because of neighborliness or
formalities familiarity, the owner of property allows
another person to do on the property;
This mode refers to juridical acts or the
acquisition of possession by sufficient title Those services or benefits which one’s
evidenced by the performance of required property can give to another without
formalities. material injury or prejudice to the owner,

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who permits them out of friendship or intimidation for more than one year, he
courtesy; becomes a de jure possession.
Permissive use merely tolerated by the
possessor cannot affect possession and
cannot be the basis of acquisitive RULES TO SOLVE CONFLICTS OF
prescription. Possession to constitute the POSSESSION [NCC 538]
foundation of prescriptive right must be General Rule: Possession cannot be
possession under claim of title; it must be recognized in two different personalities,
adverse. [Cuaycong v. Benedicto (1918)] except in cases of co-possession by co-
F.2. ACTS EXECUTED possessors without conflict of claims or
interest.
CLANDESTINELY AND WITHOUT THE
KNOWLEDGE OF THE POSSESSOR In case of conflicting possession –
[NCC 1108] preference is given to:
Possession nby oissessor is not affected as (1) Present possessor or actual possessor;
long as it remains clandestine and (2) If there are two or more possessors, the
unknown. Possession has to be in the one longer in possession;
concept of an owner, public, peaceful and (3) If the dates of possession are the same,
uninterrupted.
the one who presents a title; or
(4) If all conditions are equal, the thing shall
F.3. ACTS OF VIOLENCE AS LONG be placed in judicial deposit pending
AS THE POSSESSOR OBJECTS determination of possession or
ownership through proper proceedings.
THERETO [NCC 536]
Possession cannot be acquired through
force or intimidation as long as there is a G. EFFECTS OF POSSESSION
possessor who objects thereto. This
includes forcibly taking away the property
from another, and also when one occupied G.1. RIGHTS OF A POSSESSOR IN GOOD
the property in the absence of another, and FAITH
repels the latter upon his return. (1) Right to be protected and respected in
Possessor must file a case of forcible entry if possession; (NCC 539)
property is an immovable, and replevin if (2) Right to bring action to restore
property is a movable. possession;
He who believes that he has an action or a (3) Right to the fruits already received;
right to deprive another of the holding of a (4) (NCC. 544)
thing must invoke the aid of a competent
court, if holder refuses to deliver the thing (5) At the time good faith possession
(NCC 536). ceases, he has the right to a part of
cultivation expenses and to a part of net
fruits in proportion to time of possession
Effect on Possession (NCC. 545)

Acts mentioned do not constitute true (6) Right to necessary expenses; (NCC. 546)
possession. They do not interrupt the period (7) Right to retain the thing until
of prescription nor affect the rights to the reimbursed; (NCC. 546)
fruits. (8) Right to remove useful improvements
N.B.: If a deforciant succeeds in remaining removable without damage to the
in possession through force and principal thing or to refund its value;
(upon election by the owner) (NCC. 547)

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(9) Right to recover removable ornaments Reimburse the value of fruits received and
unless owner opts to buy them (NCC. which the legitimate possessor could
548) receive; (NCC 549)
Pay in proportion to the charges, expenses
G.2. OBLIGATIONS OF A POSSESSOR IN of cultivation and the net proceeds upon
GOOD FAITH cessation of good faith; (NCC 545)

(1) Pay in proportion to the charges, Costs of litigation; (NCC 550)

expenses of cultivation and the net Liability to the deterioration/loss of a thing
proceeds upon cessation of good faith; possessed in every case, including
(NCC 545) fortuitous events. (NCC 552)
The owner of the thing may give the
possessor in good faith the right to finish
the cultivation and gathering of the G.5. RIGHT TO BE PROTECTED IN HIS
growing fruits, as an indemnity for his POSSESSION [NCC 539]
part of the expenses of cultivation and
the net proceeds. The possessor in good Every possessor has a right to be respected
faith who refuses to accept this in his possession; if disturbed, possessor
concession shall lose the right to be has a right to be protected in or restored to
indemnified in any other manner. said possession.
(2) Costs of litigation; (NCC 550) “Every possessor” includes all kinds of
possession, from that of an owner to that of
(3) Liability to the deterioration/loss of a
a mere holder, except that which
thing possessed if acted through
constitutes a crime
fraudulent intent/negligence after the
judicial summons. (NCC 552) Reason for the rule: To prevent anyone
from taking the administration of justice
into his own hands. Even the owner cannot
G.3. RIGHTS OF A POSSESSOR IN BAD forcibly eject the possessor, but must resort
FAITH to the courts.
(1) Right to be respected in possession;
(NCC 539)
RULES
(2) Right to necessary expenses and the
expenses for production, gathering, and (1) Lawful possessor can employ self-help
preservation of fruits; (NCC. 545 and (NCC 429)
546) (2) To consolidate title by prescription, the
Does not have right to reimbursement of possession must be under claim of
expenses for luxury but may remove ownership, and it must be peaceful,
them as long as the principal thing public and uninterrupted.
suffers no injury, or may sell them to the (3) Acts of possessory character done by
owner who opts to buy the removable virtue of a license or mere tolerance by
ornaments. the real owner are not sufficient and will
No right to reimbursement for useful not confer title by prescription or adverse
improvements and no limited right of possession.
removal. (a) Possession of real property presumes
possession of the movables therein
(NCC 542);
G.4. OBLIGATIONS OF A POSSESSOR IN (b) Each co-owner is deemed to have
BAD FAITH exclusive possession of the part which
may be allotted to him upon the

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division, for the entire period during increase in value which the thing may have
which the co-possession lasted. acquired by reason thereof.
(4) Interruption in the possession of the Bad faith possessor has no limited right of
whole or a part of a thing possessed in removal.
common shall be to the prejudice of all
the possessors. (NCC 543)
H.3. EXPENSES FOR LUXURY
H. REIMBURSEMENT FOR EXPENSES They do not affect the existence or the
– POSSESSOR IN GOOD/BAD FAITH substance of the thing itself, but only the
[NCC 546-552] comfort, convenience or enjoyment of the
possessor.
They are not the subject of reimbursement,
H.1. NECESSARY EXPENSES because the law does not compensate
(1) Imposed by the thing itself for its personal whims or caprices, e.g. Opening of
preservation and has no relation to the a garden, placing fountains and statues in
desire or purpose of the possessor. it, adorning the ceilings with paintings, and
the walls with reliefs.
(2) They are the “cost of living” for the thing
and must be reimbursed to the one who Bad faith possessor has no right of
paid them, irrespective of GF or BF. reimbursement but has limited right of
removal, where owner has the option to buy
Only the possessor in GF may retain the removable ornament.
thing until he has been reimbursed
therefor.
(3) The expenses are not considered Notes
improvements; they do not increase the (1) Costs of litigation over the property shall
value of the thing, but merely prevent be borne by every possessor. [NCC 550]
them from becoming useless.
(2) Improvements caused by nature or time
(4) A possessor in bad faith is entitled to shall always inure to the benefit of the
reimbursement for necessary expenses person who has succeeded in recovering
but without right of retention. possession [NCC 551]
Includes all the natural accessions referred
H.2. USEFUL EXPENSES to by articles 457-465, and all those that do
not depend upon the will of the possessor.
Incurred to give greater utility or (e.g. widening of the streets, rising of
productivity to the thing, e.g. Wall fountains of fresh or mineral water, increase
surrounding an estate, an irrigation system, of foliage of trees)
planting in an uncultivated land, a
fishpond, an elevator in the building,
electric lighting system
Possessor in GF Possessor in BF
They are reimbursed only to the possessor
in GF as a compensation or reward for him. Fruits Received
A possessor in BF cannot recover such Must reimburse the
expenses. legitimate possessor
Entitled to the fruits
If the useful improvements can be removed for fruits received or
while possession is in
without damage to the principal thing, the could have been
GF and before legal
possessor in good faith may remove them, received, less
interruption (544)
unless the person who recovers the expenses under Art.
possession refunds the expenses or pays the 443 (549)

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Possessor in GF Possessor in BF Possessor in GF Possessor in BF

Pending Fruits Ornamental Expenses
Entitled to part of the Limited right of Limited right of
expenses of removal (548) removal (549)
cultivation, and to a Deterioration or Loss
part of the net
harvest, in proportion No liability unless
to the time of the due to fraud or
Goes to the negligence after Liable in every case
possession.
legitimate possessor becoming in BF after (552)
who recovers service of summons
Indemnity may be, at
possession (549) (552)
the owner’s option,
1. In money, OR Costs of Litigation
2. By allowing full
cultivation and Bears cost (550) Bears cost (550)
gathering of the fruits
(545) I. LOSS OR UNLAWFUL DEPRIVATION
Charges OF A MOVABLE PROPERTY
Must share with the
legitimate possessor,
Same as with GF I.1. POSSESSION OF MOVABLE
in proportion to the
(545) ACQUIRED IN GOOD FAITH (IN CONCEPT
time of the
possession (545) OF OWNER) IS EQUIVALENT TO TITLE
[NCC 559]
Necessary Expenses
Possessor has actual title which is
Right to defeasible only by true owner.
reimbursement and Reimbursement only
retention in the (546) REQUISITES OF TITLE
meantime (546) (1) Possession in GF;
Useful Expenses (2) The owner has voluntarily parted with
Right of retention the possession of the thing; and
until reimbursed; (3) The possession is in the concept of an
Owner’s option to owner.
reimburse him either Nevertheless, one who has lost any movable
for expenses or for
or has been unlawfully deprived thereof
increase in value may recover it from the person in
which the thing may
No right to possession.
have acquired (546)
reimbursement and When the owner can recover
no right of removal
Limited right of (1) Has lost the thing; or
(547)
removal – should not
damage principal and (2) Has been unlawfully deprived thereof.
owner does not (3) Includes swindling, not only theft or
exercise option of robbery
paying the expenses If the current possessor has acquired it in
or increase in value good faith at a public sale, owner must
(547) reimburse the price paid in order to recover
the property.

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I.2. PERIOD TO RECOVER [NCC 1140, 1132, J. EFFECTS OF POSSESSION IN THE

1133] CONCEPT OF AN OWNER
Actions to recover movable properties General Rule: Possession may lapse and
prescribe after 8 years from the time the ripen into full ownership. Possession in the
possession thereof is lost, unless the concept of owner has in his favor the
possessor has acquired the ownership by presumption that he has just title and he
prescription for a lesser period. cannot be obliged to show or prove it; but
Ownership of movable properties prescribes not for purposes of acquisitive prescription.
through uninterrupted possession for 4 [NCC 541] For purposes of prescription, just
years in good faith. title must be proved; it cannot be
presumed. (NCC 1131)
Ownership of personal property also
prescribes through uninterrupted Basis: Possession presumes ownership,
possession for 8 years, without need of any unless the contrary is proved.
other condition. Just title: that which is legally sufficient to
Movable properties possessed through a transfer the ownership or the real right to
crime can never be acquired through which it relates.
prescription by offender (NCC 1133). For the purposes of prescription, there is
I.3. FINDER OF LOST MOVABLE [NCC 719- just title when the adverse claimant came
720] into possession of the property through one
of the modes recognized by law for the
(1) Whoever finds a movable, which is not a acquisition of ownership or other real rights,
treasure, must return it to its previous but the grantor was not the owner or could
possessor. not transmit any right. [NCC 1129]
(2) If the previous possessor is unknown, the Exception: For the purposes of
finder shall immediately deposit it with prescription, just title must be proved; it is
the mayor of the city or municipality never presumed. [NCC 1131]
where the finding has taken place.
(1) Possessor may bring all actions
(3) The finding shall be publicly announced
necessary to protect his possession
by the mayor for two consecutive weeks
except accion reivindicatoria.
in the way he deems best.
(2) May employ self-help under Art. 429.
(4) If the movable cannot be kept without
deterioration, or without expenses which (3) Possessor may ask for inscription of such
considerably diminish its value, it shall real right of possession in the registry of
be sold at public auction 8 days after the property.
publication. (4) Has right to the fruits and
(5) 6 months from the publication having reimbursement of expenses (assuming
elapsed without the owner having he is possessor in good faith)
appeared, the thing found, or its value, (5) Upon recovery of possession which he
shall be awarded to the finder. The was unlawfully deprived of, may demand
finder and the owner shall be obliged, as fruits and damages.
the case may be, to reimburse the
(6) Generally, he can do on the things
expenses.
possessed everything that the law
(6) If the owner should appear in time, he authorizes the owner to do until he is
shall be obliged to pay, as a reward to ousted by one who has a better right.
the finder, 1/10 of the sum or of the price
(7) This is whether possession is in good
of the thing found.
faith or in bad faith [NCC. 528]

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PRESUMPTION IN FAVOR OF THE If the natural interruption is for only one

POSSESSOR—FOR ACQUISITIVE year or less, the time elapsed shall be
PRESCRIPTION counted in favor of the prescription [NCC
1122]
Of good faith until contrary is proved
Civil interruption is produced by judicial
Presumption is only juris tantum because summons to the possessor. [NCC 1123]
possession is the outward sign of
ownership. Unless such proof of bad faith is Judicial summons shall be deemed not to
presented, the possessor will be held to be have been issued and shall not give rise to
in good faith. [NCC 527] interruption [NCC 1124]:

So long as the possessor is not actually (1) If it should be void for lack of legal
aware of any defect invalidating his title, he solemnities;
is deemed a possessor in good faith. (2) If the plaintiff should desist from the
complaint or should allow the
Of continuity of initial good faith in which
proceedings to lapse;
possession was commenced; possession in
good faith does not lose this character (3) If the possessor should be absolved from
except in case and from the moment the complaint
possessor became aware or is not unaware In all these cases, the period of the
of improper or wrongful possession [NCC interruption shall be counted for the
528] prescription
Non-interruption of possession of property
Good faith ceases from the date of the unjustly lost but legally recovered [NCC.
summons to appear at the trial if 561]
defendant/possessor loses the case.
[Cordero v Cabral (1983)]
Other presumptions with respect to specific
Good faith ceases when there is: properties of property rights
(1) Extraneous evidence; or (1) Of extension of possession of real
(2) A suit for recovery of the property by the property to all movables contained
true owner. therein so long as in is not shown that
they should be excluded (NCC 542)
Of enjoyment of possession in the same
character in which possession was (2) Non-interruption of possession of
acquired until the contrary is proved [NCC hereditary property (NCC 553)
529] (a) Possession of hereditary property is
Of non-interruption of possession in favor deemed transmitted to the heir
of present possessor who proves without interruption and from the
possession at a previous time until the moment of the death of the decedent
contrary is proved [NCC 554] (3) Of just title in favor of possessor in
concept of owner (NCC 541)
Possession is interrupted for the purposes
of prescription, naturally or civilly. [NCC (4) Exclusive Possession of Common
1120] Property (NCC. 543)
Possession is naturally interrupted when (5) Present possessor may tack his
through any cause it should cease for more possession to that of his grantor or
than one year [NCC 1121] predecessor in interest (NCC 1138 (1))

Old possession is not revived if a new

possession should be exercised by the same
adverse claimant [NCC 1121]

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K. LOSS/TERMINATION OF After 1 year, the actions for forcible entry

POSSESSION [NCC 555] and unlawful detainer can no longer be
brought. But accion publiciana may still be
(1) By the abandonment of the thing; instituted to recover possession de jure.
(2) By an assignment made to another
either by onerous or gratuitous title;
(3) By the destruction or total loss of the L. RULES FOR LOSS OF MOVABLES
thing, or because it goes out of The possession of movables is not deemed
commerce; lost so long as they remain under the
(4) By the possession of another, subject to control of the possessor, even though for
the provisions of Art. 537, if the new the time being he may not know their
possession has lasted longer than 1 year. whereabouts. (NCC 556)
But the real right of possession is not Control – judicial control or right, or that
lost till after the lapse of 10 years. the thing remains in one’s patrimony.
Wild animals are possessed only while they
K.1. ABANDONMENT are under one's control. (NCC 560)
Includes the giving up of possession, and Domesticated or tamed animals – if they
not necessarily of ownership by every retain the habit of returning to the premises
possessor. of the possessor.
It is the opposite of occupation. It consists of
the voluntary renunciation of all the rights
which the person may have in a thing, with M. KINDS OF ANIMALS
intent to lose such a thing. To be effective, it WILD OR FERAL
is necessary that it be made by a possessor
in the concept of an owner. those which live naturally independent of
man.
It must clearly appear that the spes
recuperandi is gone and the animus TAMED
revertendi is finally given up. those which, being wild by nature, have
K.2. ASSIGNMENT, EITHER GRATUITOUS become accustomed to recognize the
OR ONEROUS authority of man. When they observe this
habit of returning to the place which the
Complete transmission of ownership rights possessor keeps them, they are placed in
to another person, gratuitously or the same category as domestic and when
onerously. they lose it, they are considered as wild.
DOMESTIC
K.3. POSSESSION BY ANOTHER those which are born and reared ordinarily
Acts merely tolerated, and those executed under the control and care of man; they are
clandestinely and without the knowledge of under the ownership of man, and do not
the possessor of a thing, or by violence, do become res nullius unless they are
not affect possession. abandoned.

Possession that is lost here refers only to

possession as a fact (de facto), not the legal Note: Some abandoned domestic animals
right of possession (de jure). It is the like cats, horses, goats may become wild or
possession that the new possessor acquires. feral.
Real right of possession is lost only after 10
years.

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VIII. Usufruct (3) Preservation is a natural requisite, not

essential because the title constituting
Usufruct is a temporary real right which it or the law may provide otherwise.
gives a right to enjoy the property as well as
its fruits of another with the obligation of (4) Reasons for preserving form and
preserving its form and substance, unless substance
the title constituting it or the law otherwise (a) To prevent extraordinary
provides. [NCC 562] exploitation;
(b) To prevent abuse, which is frequent;
A. OBJECTS OF USUFRUCT (c) To prevent impairment.
INDEPENDENT RIGHTS Exception: In an abnormal
A servitude which is dependent on the usufruct, alteration is allowed.
tenement to which it attaches cannot be the
object of usufruct. (5) Usufruct is extinguished by the death of
the usufructuary.
(6) Natural because a contrary intention
THINGS may prevail.
Non-consum able things.
Consumable things, but only as to their
value if appraised, or on an equal quantity C. CLASSIFICATION
and quality if they were not appraised. C.1. BY ORIGIN
i. Voluntary: created by the will of private
Unproductive things persons

e.g. sterile or absolutely unproductive land, (1) By act inter vivos– such as contracts and
or things for mere pleasure, such as donations:
promenades, statues or paintings, even if (2) By donation of the usufruct;
they do not produce any utility.
(3) By retention of the usufruct by donor;
(4) Where a usufruct is constituted inter
B. CHARACTERISTICS vivos and for valuable consideration, the
contract is unenforceable unless in
(1) It is a real right;
writing;
(2) Of temporary duration;
(5) By act mortis causa – such as
(3) The purpose is to derive all advantages testament.
from the thing due to normal
exploitation.
ii. Legal: as provided by law.
Usufruct of parents over the property of
B.1. NATURAL CHARACTERISTICS unemancipated children. (now limited to
(1) Includes only the right to use them (jus the collective daily needs of the family) [FC
utendi), the right to own the fruits (jus 26]
fruendi) and the right to possess (jus
possidendi). iii. Mixed: created both by law and the
(2) Usufructuary must preserve the form or acts of persons, i.e. by acquisitive
substance of the thing. prescription.

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The rights and duties of the usufructuary Usufruct over a real right is by itself a real
provided by law may be modified or right.
eliminated by the parties.
Right to receive present or future support
The title constituting the usufruct may cannot be the object of the usufruct.
validly authorize the usufructuary to
alienate the thing itself held in usufruct.
ii. Things
If the usufructuary is authorized to alienate
the thing in case of necessity, it is the Normal: involves non-consummable
usufructuary who determines the question things where the form and substance are
of necessity. preserved.
Abnormal or irregular: when the
usufruct includes things which cannot be
C.2. BY PERSON ENJOYING THE RIGHT
used in a manner appropriate to its nature
OF USUFRUCT
without being consumed.
i. Simple: only one usufructuary enjoys the
The usufructuary has right to make use of
property.
them under the obligation of paying their
ii. Multiple: several usufructuaries enjoy appraised value at the termination of the
the property as co-usufructuaries. usufruct, if they were appraised when
delivered.
iii. Sim ultaneous: at the same time.
If they were not appraised, he has the right
iv. Successive: one after the other.
to return the same quantity and quality, or
pay their current price at the time the
usufruct ceases. [NCC 574]
Lim itations On Successive Usufruct
In reality, the usufruct is not upon the
(1) If usufruct is by donation, ALL donees
consumable things themselves, but upon
must be alive. [NCC 756]
the sum representing their value or upon a
(2) Fiduciary or first heir and the second quantity of things of the same kind and
heir must be alive at the time of the quality.
death of the testator. [NCC 863]
The usufructuary, in effect, becomes the
(3) If by testamentary succession, there owner of the things in usufruct, while the
must be only 2 successive grantor becomes a mere creditor entitled to
usufructuaries, and both must be alive the return of the value or of the things of the
or at least already conceived at the time same quantity and quality (as if converted
of the testator’s death and later born into a simple loan).
alive. [NCC 869]
Example: Usufruct over sterile animals (NCC
591, par. 4).
C.3. BY OBJECT OF USUFRUCT
Usufruct may be constituted on the whole iv. Quasi-usufruct [NCC 574; Bar
or a part of the fruits of the thing or on a 1998]
right, provided it is not strictly personal or
Includes things which cannot be used
intransmissible. [NCC 564]
without being consumed.
Money may be the object of usufruct
i. Rights [Alunan v. Veloso, 52 Phil 545]
Must not be strictly personal or
intransmissible.

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C.4. BY THE EXTENT OF THE USUFRUCT D. RIGHTS AND OBLIGATIONS OF

i. At to the Fruits USUFRUCTUARY
Total: all consumed by the usufruct.
Partial: only on certain aspects of the D.1. RIGHTS AS TO THE THING AND ITS
usufruct’s fruits. FRUITS
(1) Right to enjoy the property

ii. As to the Object (2) Right to enjoy the property to the same
extent as the owner, but only with
Singular: only on particular property of respect to its use and the receipt of its
the owner. fruits.
Universal: pertains to the usufruct over (3) Usufructuary cannot extract products
universal property, i.e. over an entire which do not constitute fruits because
patrimony, a while inheritance of a he is bound to preserve the form and
compulsory heir, a dowry; substance of the thing.
A universal usufructuary must pay the debts (4) Usufructuary rights may be transferred,
of the naked owner, if stipulated. Article assigned or otherwise disposed of by
758 and 759 on donations apply. the usufructuary.
(5) Not exempt from execution and can be
sold at public auction.
NCC 758: When the donation imposes upon
the donee the obligation to pay the debts of
the donor, if the clause does not contain any HIDDEN TREASURE
declaration to the contrary, the former is
understood to be liable to pay only the As to hidden treasure, usufructuary is
debts which appear to have been previously considered a stranger without a right to a
contracted. In no case shall the donee be share, unless he is also the finder of the
responsible for the debts exceeding the treasure
value of the property donated, unless a With respect to hidden treasure which may
contrary intention clearly appears. be found on the land or tenement, he shall
be considered a stranger.
Hidden treasure belongs to the owner of the
NCC 759: There being no stipulation
land, building, or other property on which it
regarding the payment of debts, the donee
is found.
shall be responsible therefor only when the
donation has been made in fraud of Nevertheless, when the discovery is made
creditors. on the property of another, or of the State or
any of its subdivisions, and by chance, one-
half thereof shall be allowed to the finder.
The donation is always presumed to be in
fraud of creditors, when at the time thereof
the donor did not reserve sufficient property
to pay his debts prior to the donation.

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i. Right to fruits pending at the interest on bonds or securities payable to

beginning of usufruct bearer, each payment due shall be
considered as the proceeds or fruits of such
Fruits pending at Fruits pending at right.
the beginning of the termination of
the usufruct the usufruct Whenever it consists in the enjoyment of
benefits accruing from a participation in any
Belong to the Belong to the naked industrial or commercial enterprise, the
usufructuary owner date of the distribution of which is not fixed,
such benefits shall have the same
Without need to The owner shall character.
reimburse the reimburse to the
expenses to the usufructuary ordinary If the usufruct is constituted only on the
land and not the building built thereon then
owners cultivation expenses
from the proceeds of the right to the fruits by the usufructuary
would not extend to the building. The
the fruits (not to
exceed the value of building is considered as a separate and
distinct prinicipal which produces its own
the fruits)
fruits. [Gabuya v Cui (1971)]
Without prejudice to Rights of innocent 3rd Right to enjoy any increase through
the right of 3rd parties should not be accessions and servitudes, including
persons e.g. if the prejudiced. products of hunting and fishing.
fruits arose by
building, planting,
sowing by a iii. Right to lease the thing
possessor in good
faith, the pending General rule: The usufructuary may lease
crop expenses of the thing to another but this shall terminate
cultivation and of the upon the expiration of the usufruct, saving
net harvest and leases of rural lands, which shall be
charges shall be considered as subsisting during the
prorated between agricultural year, i.e. the period from
said possessor and planting to harvesting of one crop.
the usufructuary in Exceptions
proportion to the
time of possession (1) Legal usufructs cannot be leased.
(NCC 545) (2) Caucion juratoria (lease would show
N.B. In the case of that the usufructuary does not need the
civil fruits, no need to property badly).
prorate, as civil fruits (3) Usufruct is purely personal, e.g. title
accrue daily [NCC creating usufruct provides that
544] usufructuary shall personally use and
enjoy the property given in usufruct.

ii. Right to civil fruits

Effect of the transfer of right:
Civil fruits – deemed to accrue daily, and
belong to the usufructuary in proportion to The transfer or lease of the usufruct does
the time the usufruct may last. not terminate the relation of the
usufructuary with the owner.
Whenever a usufruct is constituted on the
right to receive a rent or periodical pension, Death of the transferee does not terminate
whether in money or in fruits, or in the the usufruct but it terminates upon the

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death of the usufructuary who made the (b) Cannot renounce a servitude;
transfer.
(c) Cannot mortgage or pledge a thing.
(2) Except:
Rules as to Lease:
(a) When the right of usufruct is
(1) The property in usufruct may be leased converted into the right of
even without the consent of the owner. ownership;
(2) The lease should be for the same period (b) When the things are consumable
as the usufruct. (NCC 574);
EXCEPT: leases of rural lands (c) When the things by their nature are
continues for the remainder of the intended for sale, such as the
agricultural year. merchandise in a commercial
establishment; and
(3) A lease executed by the usufructuary
before the termination of the usufruct (d) When the things, whatever their
and subsisting after the termination of nature, are delivered under
the usufruct must be respected, but the appraisal as equivalent to their sale.
rents for the remaining period will
(3) Future crops may be sold but such sale
belong to the owner.
would be void if usufruct terminates
(4) If the usufructuary has leased the lands prior to harvest of future fruits.
or tenements given in usufruct, and the
The buyer’s remedy is to recover
usufruct should expire before the
termination of the lease, he or his heirs from the usufructuary.
and successors shall receive only the (4) The usufructuary-lessor is liable for the
proportionate share of the rent that act of the substitute.
must be paid by the lessee. [NCC, 568]
(5) A usufructuary who alienates or leases
his right of usufruct shall answer for any
(5) It is the usufructuary and not the naked damage which the things in usufruct
owner who has the right to choose the may suffer through the fault or
tenant. negligence of the person who
(6) As corollary to the right of the substitutes him. [NCC, 590]
usufructuary to all the rent, to choose (6) A usufructuary can sell or alienate his
the tenant, and to fix the amount of the right of usufruct, apart from the thing
rent, she necessarily has the right to held in usufruct, but the right of
choose herself as the tenant thereof; usufruct remains a temporary real right.
and, as long as the obligations she had
assumed towards the owner are
fulfilled. [Fabie v. Gutierrez David (1945)] iv. Improvements by the
(7) A lease executed by the owner before Usufructuary of the Land [NCC 579]
the creation of the usufruct is not He may improve the thing without altering
extinguished by such usufruct. its form and substance;
He may remove improvements made by him
Lim itations on the Right to Lease if it is possible to do so without damage to
the Property property
(1) Usufructuary cannot do the following:
(a) Cannot alienate or dispose of the v. Usufructuary M ay Set Off
objects included in the usufruct; Improvements [NCC 580]

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(1) The usufructuary may set off the (4) If the improvements cannot be removed
improvements he may have made on without injury, the excess in value
the property against any damage to the accrues to the owner.
same.
(5) Registration of improvements – to
Right to improve the thing, but protect usufructuary against 3rd persons
improvement inures to the benefit of the
naked owner [NCC 579]
D.2. RIGHTS AS TO THE LEGAL RIGHT OF
Usufructuary is not entitled to USUFRUCT ITSELF
reimbursement.
(2) Whenever the usufructuary can remove i. Right to m ortgage right of
the improvements without injury to the usufruct
property in usufruct, he has the right to
do so, and the owner cannot prevent The usufructuary may alienate his right of
him from doing so even upon payment usufruct, even by a gratuitous title; but all
of their value. the contracts he may enter into as such
usufructuary shall terminate upon the
This right does not involve an obligation expiration of the usufruct. [NCC. 572]
– if the usufructuary does not wish to
exercise it, he cannot be compelled by
the owner to remove the improvements. ii. Does not include parental
usufruct because of personal and
This right to remove improvements can fam ily considerations.
be enforced only against the owner, not
Is there still a personal usufruct? Answer:
against a purchaser in good faith to
No. NCC 321 was amended by FC 226,
whom a clean title has been issued. where there is no more mention of a
(3) Usufructuary may set off the parental usufruct. [Prof. Labitag]
improvements against any damage to Right to alienate the usufruct except in
the property. purely personal usufructs or when title
The improvements should have constituting it prohibits the same.
increased the value of the property, and Parental usufruct is inalienable.
that the damages are imputable to the
usufructuary.
D.3. OBLIGATIONS AT THE BEGINNING
Increase in value and the amount of OF THE USUFRUCT OR BEFORE
damages are set off against each other. EXERCISING THE USUFRUCT

If the damages exceed the increase in (1) To make, after notice to the owner or his
value, the difference should be paid by legitimate representative, an inventory
of all the property, which shall contain
the usufructuary as indemnity. an appraisal of the movables and a
If the increase in value exceeds the description of the condition of the
damages, and the improvements are of immovables; and
such nature that they can be removed (2) To give security, binding himself to
without injury to the thing in usufruct, fulfill the obligations imposed upon him
the settlement of the difference must be in accordance with this Chapter.
agreed upon by the parties. Note: These requirements are not
conditions precedent to the commencement
of the right of the usufruct but merely to the

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entry upon the possession and enjoyment of (3) Gratitude on the donee’s part demands
the property. that the donor be excused from filing
the bond.
(4) Title constituting usufruct excused
i. To Make An Inventory
usufructuary.
Requisites
(5) A usufructuary may take possession
(1) Immovables must be described; and under a caucion juratoria (bond by oath)
[Art. 587]
(2) Movables must be appraised because
they are easily lost or deteriorated. It is only by way of exception that a
caucion juratoria is allowed, and only
under the special circumstances:
Concurrence of the owner in the making of
the inventory. (a) Proper court petition;
Expenses for the making of the inventory (b) Usufruct is over a house, furniture or
are borne by the usufructuary. tools of a trade and the necessity for
delivery of furniture, implements or
The inventory may be in a private document,
house included in the usufruct;
except when immovables are involved. (a
public instrument is prescribed to affect 3rd (c) Approval of the court; and
persons).
(d) Sworn promise.
Failure to make an inventory does not affect
A usufructuary under this can neither
the rights of the usufructuary to enjoy the
alienate his right nor lease the property,
property and its fruits.
for that would mean that he does not
A prima facie presumption arises that the need the dwelling or the implements
property was received by the usufructuary in and furniture.
good condition.
Even if he is already in possession, he may
Effect of filing a bond
still be required to make an inventory.
Retroactivity: upon giving the security,
the usufructuary will be entitled to all the
Exception to the requirem ent of benefits accruing since the time when he
inventory should have begun to receive them.
When no one will be injured, the
usufructuary may be excused from this
Effect of failure to give bond: [NCC
obligation.
586]
(1) The owner may demand that the
ii. To give a bond for the faithful immovable properties be placed under
perform ance of duties as administration;
usufructuary
(2) That the movable properties be sold
Any kind of sufficient security is allowed, and the proceeds of the sale be the
e.g. cash, personal bond, mortgage. property held in usufruct – legal interest
of 6% shall be the fruits;
No bond is required in the following:
(3) That the public bonds, instruments of
(1) No prejudice would result; [Art. 585]
credit payable to order or to bearer be
(2) Usufruct is reserved by a donor; [Art. converted into registered certificates or
584] deposited in a bank or public institution;
and

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(4) That the capital or sums in cash and the ii. To undertake ordinary repairs
proceeds of the sale of the movable
The usufructuary is obliged to make the
property be invested in safe securities.
ordinary repairs needed by the thing given
The owner may, until the usufructuary gives in usufruct. [NCC 592]
security, retain in his possession the
Ordinary repairs:
property in usufruct as administrator,
subject to the obligation to deliver to the (8) Such as are required by the wear and
usufructuary the net proceeds, after tear due to the natural use of the thing
deducting the sums, which may be agreed and are indispensable for its
upon or judicially allowed him for such preservation;
administration.
(9) Deteriorations or defects arise from the
natural use of the thing;
D.4. DURING THE USUFRUCT (10) Repairs are necessary for the
preservation of the thing.
(1) To take care of the thing like a good
father of a family; The usufructuary is bound to pay only for
the repairs made during the existence of the
(2) To undertake ordinary repairs;
usufruct.
(3) To notify owner of need to undertake
If the defects existed already at the time the
extraordinary repairs;
usufruct began, the obligation to defray the
(4) To pay for annual charges and taxes on ordinary repairs falls upon the owner.
the fruits;
If the defects are caused by the ordinary use
(5) To notify owner of any act detrimental of the thing, the usufructuary may exempt
to ownership; himself from making the repairs by
returning to the owner the fruits received
(6) To shoulder the costs of litigation
during the time that the defects took place.
regarding the usufruct; and
Except: When the ordinary repairs are due
(7) To answer for fault or negligence of
to defects caused by the fault of the
alienee, lessee or agent of usufructuary.
usufructuary
If the usufructuary fails to make the repairs
i. To take care of the thing like a even after demand, the owner may make
good father of a fam ily them at the expense of the usufructuary
When damages are caused to the property
by the fault or negligence of the
iii. To notify owner of need to
usufructuary, the naked owner need not
undertake extraordinary repairs
wait for the termination of the usufruct
before bringing the action to recover proper Extraordinary repairs
indemnity.
(1) Those caused by exceptional
The bad use of a thing, which causes circumstances, whether or not they are
considerable injury, entitles the naked necessary for the preservation of the
owner to demand the delivery and thing; or
administration of the thing.
(2) Those caused by the natural use of the
The exercise of this remedy does not thing, but are not necessary for its
extinguish the usufruct. preservation.
He may set off the value of useful General Rule: Naked owner must make
improvements against his liability for the extraordinary repairs.
damages (NCC 580).

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The usufructuary is obliged to pay legal vii. To answer for fault or negligence
interest on the amount while usufruct lasts. of the alienee, lessee or agent of the
usufructuary [NCC 590]
If the extraordinary repairs are
indispensable, and the naked owner fails to The usufructuary is made liable for the acts
undertake them, the usufructuary may of the substitute. While the substitute
make such repairs. answers to the usufructuary, the
usufructuary answers to the naked owner.
Requisites:
(1) There must be due notification to the
naked owner of the urgency – if it is not D.5. AT THE TIME OF THE TERMINATION
urgent, there is no obligation to give OF THE USUFRUCT
notice;
To deliver the thing in usufruct to the owner
(2) The naked owner failed to make them; in the condition in which he has received it,
and after undertaking ordinary repairs.
(3) The repair is needed for preservation. Except:
The usufructuary who has made the Abnormal usufruct – A thing of the same
extraordinary repairs necessary for kind, quantity and quality is returned; if with
preservation is entitled to recover from the appraised value, must return value
owner the increase in value, which the appraised.
tenement acquired by reason of such works.
Usufructuary may retain, i.e. has a right of
retention, until he is paid. E. SPECIAL CASES OF USUFRUCT

iv. To pay for annual charges and E.1. USUFRUCT OVER A PENSION OR A
taxes on the fruits PERIODICAL INCOME [NCC 570]

It is well settled that a real tax, being a Each payment due shall be considered as
burden upon the capital, should be paid by the proceeds or fruits of such right.
the owner of the land and not by a The usufruct shall be distributed as civil
usufructuary. There is no merit in the fruits.
contention of distinguishing public lands
into alienable and indisposable. All
properties owned by the government, E.2. USUFRUCT OF PROPERTY OWNED
without any distinction, are exempt from IN COMMON [NCC 582]
taxation. [Board of Assessment Appeals of
Zamboanga del Sur v. Samar Mining The usufructuary takes the place of the co-
Company, Inc.(1971)] owner as to:
(1) Management;

v. To notify owner of any act (2) Fruits; and

detrimental to ownership [NCC 601] (3) Interest.

vi. To shoulder the costs of litigation Effect of partition:

regarding the usufruct [NCC 602]
(1) The right of the usufructuary is not
affected by the division of the property
in usufruct among the co-owners.

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(2) After partition, the usufruct is (7) Cut the trees that are not useful.
transferred to the part allotted to the
(8) If a result of a calamity, most trees have
co-owner.
disappeared, usufructuary may leave
dead or uprooted trunks to owner and
demand removal thereof and clear the
E.3. USUFRUCT CONSTITUTED ON A
land.
FLOCK OR HERD OF LIVESTOCK [NCC
591] (9) In tree nurseries, to make necessary
thinnings, so the rest may grow
On sterile stock: same rules on fungible
properly.
property govern. (i.e. it is an abnormal
usufruct – may dispose of or consume the
animal [NCC 574]
E.5. USUFRUCT ON A RIGHT OF ACTION
TO RECOVER PROPERTY [NCC 578]
On fruitful stock: The action may be instituted in the
usufructuary’s name. As the owner of the
(3) Must replace ordinary losses of the
usufruct, he is properly deemed a proper
stock with the young if:
party-in-interest.
(a) Some animals die from natural
If the purpose is the recovery of the real or
causes; or
personal property or a real right, he is still
(b) Some animals are lost due to required under Art. 578 to obtain the naked
rapacity of beasts of prey. owner’s authority.
(4) No obligation to replace if: If action brought by usufructuary succeeds
and he recovers property, usufruct is limited
(a) There is a total loss of animals
to the fruits, ownership to the naked owner.
because of some unexpected or
unnatural loss (like contagious If the purpose is to object to or prevent
disease or any other uncommon disturbances over the property, no special
event, provided the usufructuary authority from the naked owner is needed. If
has no fault); or it relates to ownership of property, he must
notify the naked owner.
(b) If all perish, the usufructuary should
deliver the remains to the owner.
There is a partial loss if a part of the stock E.6. USUFRUCT ON MORTGAGED
perishes, the usufruct subsists on the PROPERTY [NCC 600]
remainder.
Usufructuary not obligated to pay the
principal obligation foreclosed, owner is
liable for value of right of usufruct.
E.4. USUFRUCT OVER FRUIT BEARING
TREES AND SHRUBS AND WOODLANDS When the usufruct is universal and some
[NCC 575-577] objects are mortgaged, apply Art. 598.
The usufructuary can: If the usufructuary mortgaged the
usufructuary right, he is liable to pay his
(5) Use dead trunks and those cut off or
own debt. He cannot mortgage property
uprooted by accident with obligation to
held in usufruct.
replace them with new plamts;
(6) Make usual cuttings that owner used to
do, and in default thereof, according to E.7. USUFRUCT OVER AN ENTIRE
the custom of the place with regard to PATRIMONY [NCC 598]
the manner, amount and season; and
Applies when:

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(10) The usufruct is a universal usufruct; and E.9. USUFRUCT OVER CONSUMABLE
PROPERTY [NCC 574]
(11) If at its constitution the owner had
debts or is obliged to make periodical The usufructuary shall have the right to
payments (whether or not there be make use of them under the obligation of
known capital) paying their appraised value at the
termination of the usufruct, if they were
General rule: The usufructuary is not
appraised when delivered.
liable for the owner’s debts. NCC 758 and
759 applies. If not appraised, he shall have the right to
return at the same quantity and quality, or
Exceptions:
pay their current price at the time the
(1) When it is so stipulated; the usufruct ceases.
usufructuary shall be liable for the
An abnormal usufruct, but the usufruct
debts previously contracted if no
shall be a normal usufruct if consumable is
contrary declaration, but only up to the
merely for exhibition.
value of the usufruct, unless the
contrary is indicated in the title;
(2) If there is no specification, he is liable
F. RIGHTS OF THE OWNER
only for debts incurred by the owner
before the usufruct was constituted; or F.1. AT THE BEGINNING OF THE
USUFRUCT
(3) When the usufruct is constituted in
fraud of creditors. See obligations of usufructuary at the
beginning of the usufruct)
In no case shall the usufructuary be
responsible for debts exceeding the benefits
under the usufruct. (except when the
F.2. DURING THE USUFRUCT
contrary intention appears)
(1) Retains title to the thing or property.
(2) He may alienate the property: he may
E.8. USUFRUCT OVER DETERIORABLE
not alter the form or substance of the
PROPERTY
thing; nor do anything prejudicial to the
The usufructuary shall have the right to usufructuary.
make use thereof in accordance with the
(3) He may construct buildings, make
purpose for which they are intended.
improvements and plantings, provided:
It is sufficient if the usufructuary returns the
(4) The value of the usufruct is not
things in the condition in which they may
impaired; and
have been found at the time of the
expiration of the usufruct after having made (5) The rights of the usufructuary are not
ordinary repairs. prejudiced.
Except: when such defects were caused (6) He can constitute a voluntary easement
through the usufructuary’s fraud and over land/building held in usufruct, but
negligence. if it affects the usufructuary right, the
usufruct mas give his consent. If
If the usufructuary does not return the
easement is perpetual, consent of both
things upon the expiration of the usufruct,
must be obtained (NCC 689-690)
he should pay an indemnity equivalent to
the value of the things at the time of such
expiration.

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G. EXTINGUISHMENT/ TERMINATION When a contrary intention clearly appears:

[NCC 603] If the usufructuary dies before the
happening of a resolutory condition, the
usufruct is extinguished.
(1) By the death of the usufructuary, unless
a contrary intention clearly appears; Usufruct is personal and it cannot be
extended beyond the lifetime of the
(2) By the expiration of the period for which usufructuary. [Sanchez Roman and SC]
it was constituted, or by the fulfillment
of any resolutory condition provided in If period is fixed with reference to the age of
the title creating the usufruct; a third person usufruct continues until such
person attains that age, even if he dies
(3) By merger of the usufruct and before reaching such age, unless expressly
ownership in the same person; granted in consideration of his existence in
(4) By renunciation of the usufructuary; life [NCC 606]
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the G.2. EXPIRATION OF PERIOD OR
person constituting the usufruct; or FULFILLMENT OF RESOLUTORY
CONDITION IMPOSED ON USUFRUCT BY
(7) By prescription.
PERSON CONSTITUTING USUFRUCT
In favor of juridical persons [NCC.
G.1. DEATH OF USUFRUCTUARY 605]
Exceptions: Usufruct cannot be constituted in favor of a
town, corporation, or association for more
(1) In multiple usufructs: it ends at the
than fifty years.
death of the last survivor [NCC 611]
If before the expiration of such period the
(2) If a simultaneous usufruct: all the
town is abandoned, or the corporation or
usufructuaries must be alive (or at least
association is dissolved, the usufruct shall
conceived and born alive later) at the
be extinguished.
time of constitution.
Usufruct granted for the tim e that
(3) If successive usufruct:
may elapse before a third person
(a) If by virtue of donation – all the attains a certain age [NCC 606]
donees-usufructuaries must be
It shall subsist for the number of years
living at the time of the donation;
specified even if the third person should die
(b) If by will – there should only be 2 before the period expires unless such
successive usufructuaries and both usufruct has been expressly granted only in
must have been alive at the time of consideration of the existence of such
testator’s death. person.
Note: Same rule as in fideicommissary
substitution [NCC 863-867, par. 1] G.3. MERGER OF RIGHTS OF USUFRUCT
If the period is fixed by reference to the life AND NAKED OWNERSHIP IN ONE
of another or there is a resolutory condition, PERSON
death does not affect the usufruct and the Illustration: H was the usufructuary of land
right is transmitted to the heirs of the owned by X. X dies, leaving in his will, the
usufructuary until the expiration of the term naked ownership of the land to H. the
or the fulfillment of the condition. usufruct is extinguished because now H is
both the naked owner and the usufructuary.

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G.4. RENUNCIATION OF USUFRUCT Situation Effect

W aiver: A voluntary surrender of the rights
of the usufructuary, made by him with the premium paid by usufruct subsists on
intent to surrender them. owner and new building.
usufructuary (par. 1)
Lim itations: If owner does not
rebuild, interest
(1) Must be express: tacit renunciation is upon insurance
not sufficient; proceeds paid to
(2) Does not need the consent of naked usufructuary.
owner; and
When the insurance Owner entitled to
(3) If made in fraud of creditors, they may taken by the naked insurance money
rescind the waiver through an action owner only because (no interest paid to
under Article 1381 (accion pauliana). usufructuary usufructuary).
refuses to
If he does not
contribute to the
G.5. EXTINCTION OR LOSS OF PROPERTY rebuild, usufruct
premium (par. 2)
[NCC 608] continues over
remaining land
Situation Effect and/or owner may
pay interest on
Art. 607 value of both
If destroyed property is not insured materials and land
[Art. 607].
If the building forms Usufruct continues
If owner rebuilds,
part of an immovable over the land and
usufruct does not
under usufruct materials (plus
continue on new
interests), if owner
does not rebuild. building, but owner
must pay interest
If usufruct is on the Usufruct continues on value of land
building only over the land and and old materials.
materials (plus
interests), if owner When insurance Insurance proceeds
does not rebuild. taken by go to the
usufructuary only usufructuary.
If owner rebuilds, depends on value of
usufructuary must No obligation to
usufructuary’s
allow owner to rebuild.
insurable interest
occupy the land and Usufruct continues
to make use of on the land.
materials; but the
owner must pay Owner has no
interest on the value share in insurance
of both the land and proceeds.
the materials.

Art. 608 G.6. TERMINATION OF THE RIGHT OF

If destroyed property is insured before PERSON CONSTITUTING THE USUFRUCT
termination of the usufruct Example: usufructs constituted by a vendee
a retro terminate upon redemption.
When insurance If owner rebuilds,

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G.7. PRESCRIPTION The bad use must cause considerable injury

not to the thing, but to the owner.
Adverse possession against the owner or
the usufructuary. Usufructuary is liable for damages caused
to property.
It is not the non-use which extinguishes the
usufruct by prescription, but the use by a 3rd
person.
There can be no prescription as long as the
usufructuary receives the rents from the
lease of the property, or he enjoys the price
of the sale of his right.

H. CONDITIONS NOT AFFECTING

USUFRUCT

H.1. EXPRORPIATION OF THING IN

USUFRUCT [NCC 609]

If naked owner alone was given the

indemnity, he has the option:
(1) To replace with equivalent thing; or
(2) To pay to the usufructuary legal interest
on the indemnity. This requires a
security to be given by the naked owner
for the payment of the interest.

If both the naked owner and the

usufructuary were separately given
indemnity, each owns the indemnity given
to him, the usufruct being totally
extinguished.
If usufructuary alone was given the
indemnity, he must give it to the naked
owner and compel the latter to return either
the interest or to replace the property. He
may even deduct the interest himself, if the
naked owner fails to object.

H.2. BAD USE OF THING IN USUFRUCT

[NCC 610]
Bad use does not extinguish the usufruct
but entitles the owner to demand delivery
and administration of the thing with the
obligation to pay the net proceeds of fruits.

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IX. Easement even immovable by incorporation,

destination or by analogy. [NCC 613]
by

An encumbrance imposed upon an Immovable: used in its common and not in

immovable by nature for the benefit of the legal sense, meaning only property
another immovable belonging to a different immovable by nature can have easements.
owner. [NCC. 613]
A real right which burdens a thing with a
prestation of determinate servitudes for the iv. It lim its the servient owner’s right
exclusive enjoyment of one who is not an of ownership for the benefit of the
owner of a tenement. dominant estate.

A real right by virtue of which the owner has Right of limited use but no right to possess
to abstain from doing or allow somebody the servient estate.
else to do something to his property for the There exists a limitation on ownership: the
benefit of another. dominant owner is allowed to enjoy or use
part of the servient estate, or imposes on
the owner a restriction as to his enjoyment
Dom inant Estate – the immovable in of his own property.
favor of which the easement is established.
Being an abnormal limitation of ownership,
Servient Estate – the immovable which is it cannot be presumed.
subject to the easement .

v. It creates a relation between

A. CHARACTERISTICS tenem ents:
There is no transfer of ownership, but a
A.1. ESSENTIAL FEATURES: relationship is created, depending on the
type of easement.
i. It is a real right – it gives an action in
rem or real action against any possessor of
the servient estate General Rule: It may consist in the owner
Owner of the dominant estate can file a real of the dominant estate demanding that the
action for enforcement of right to an owner of the servient estate refrain from
easement doing something (servitus in non faciendo)
or that the latter permit that something be
Action in rem: an action against the thing done over the servient property (servitus in
itself, instead of against the person. patendo), but not in the right to demand
that the owner of the servient do something
(servitus in faciendo) except if such act is an
ii. It is a right enjoyed over another’s accessory obligation to a praedial servitude
property (jus in re aliena). (obligation propter rem)
When the dominant and the servient Servient owner merely allows something to
estates have the same owner, the easement be done to his estate.
is extinguished. Separate ownership is a
prerequisite to an easement.
Exception: Praedial servitudes

iii. It is a right constituted over an Right to place beams in an adjoining wall to

im m ovable by nature (land and support a structure.
buildings), not over movable properties or Right to use another’s wall to support a
building.

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Easement Distinguished from

Usufruct
vi. It is inherent or inseparable from
estate to which they actively or Easem ent Usufruct
passively belong [NCC 617]
Easements are merely accessory to the May be constituted May be constituted
only on an on either movable or
tenements, and a “quality thereof.” They
cannot exist without tenements. immovable property immovable property

Easements exist even if they are not Not extinguished by Extinguished by the
expressly stated or annotated as an the death of death of usufructuary
encumbrance on the titles. dominant owner

Non-possessory Involves a right of

vii. It is intransm issible – it cannot be right over an possession in an
alienated separately from the tenement immovable immovable
affected or benefited
Limited to particular Includes all the uses
Any alienation of the property covered or specific use of the and the fruits of the
carries with it the servitudes affecting said servient estate property
property. But this affects only the portion of
the tenement with the easement, meaning
that the portions unaffected can be
B. CLASSIFICATION
alienated without the servitude.

B.1. AS TO RECIPIENT OF BENEFITS

viii. It is indivisible [NCC 618]
i. Real or Praedial: exists for the benefit
If the servient estate is divided between two
of a particular tenement.
or more persons, the easement is not
modified, and each of them must bear it on
the part that corresponds to him.
ii. Personal: exists for the benefit of
If the dominant estate is divided between persons without a dominant tenement e.g.
two or more persons, each of them may use usus habitatio (right to reside in a house)
the easement in its entirety, without and operae servorum (right to the labor of
changing the place of its use, or making it slaves) in Roman law.
more burdensome in any other way.

B.2. AS TO CAUSE OR ORIGIN

ix. It has perm anence – once it
i. Legal: created by law, whether for public
attaches, whether used or not, it continues use or for the interest of private persons.
and may be used anytime
Once requisites are satisfied, the owner of
Perpetual: exists as long as property
the dominant estate may ask the Court to
exists, unless it is extinguished.
declare that an easement is created.
Example: Natural drainage of waters,
Abutment of land, Aqueduct, etc.

ii. Voluntary: Created by the will of the

owners of the estate through contract, last
will or donation.

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Note: Prescription starts to run from

service of notarial prohibition.
Note: There is no such thing as a JUDICIAL
EASEMENT. The Courts cannot create
easements, they can only declare the
existence of one, if it exists by virtue of the C. GENERAL RULES
law or will of the parties. [Castro v. Monsod, i. Nulli res sua servi: No one can have a
February 2, 2011] servitude over one’s own property.
ii. Servitus in faciendo consistere
nequit: A servitude cannot consist in doing.
B.3. AS TO ITS EXERCISE [NCC 615]
Although some easements seem to impose
i. Continuous: Use is or may be incessant, a positive prestation upon the owner of the
without the intervention of any act of man servient estate, in reality, the primary
ii. Discontinuous: Used at intervals, and obligation is still negative.
dependent upon the acts of man. Illustration: Under Article 680: the owner of
Note: This classification is important in a tree whose branches extend over to a
determining prescription: only continuous neighboring property is required to cut off
and apparent easements can be created the extended branches, but the real essence
by prescription. of the easement is the obligation NOT TO
ALLOW the branches of the tree to extend
beyond the land.
B.4. AS INDICATION OF ITS EXISTENCE iii. Servitus servitutes esse non
[NCC 615] potest: There can be no servitude over
i. Apparent: Made known and continually another servitude.
kept in view by external signs that reveal iv. A servitude must be exercised
the use and enjoyment of the same. civiliter – in a way least burdensome to
ii. Non-apparent: No external indication the owner of the servient estate.
of their existence. v. A servitude must have a perpetual
Note: Also important for purposes of cause
prescription.

D. RELEVANCE OF CLASSIFICATIONS
B.5. BY THE OBJECT OR OBLIGATION D.1. DETERMINES WHAT EASEMENTS
IMPOSED [NCC 616] CAN BE ACQUIRED BY PRESCRIPTION
i. Positive: Imposes upon the owner of the Continuous and apparent easements may
servient estate the obligation of allowing be acquired by prescription of 10 years
something to be done, or extraordinarily or [NCC. 620]
doing it himself.
N.B.: No need for good faith and just title.
ii. Negative: Prohibits the owner of the
servient estate from doing something that
he could lawfully do if the easement did not
D.2. DETERMINES WHAT EASEMENTS
exist.
CAN BE ACQUIRED BY TITLE
e.g. Negative Easement of Light and
Continuous nonapparent easements, and
View: An opening is made on the wall of
discontinuous ones, whether apparent or
the dominant estate, and the easement
not, may be acquired only by virtue of a title.
consists of imposing upon the servient
[NCC. 622]
estate the obligation to not build anything
that would obstruct the light.

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The existence of an apparent sign of (2) Continuous non-apparent easements,

easement between two estates, established and discontinuous ones, whether
or maintained by the owner of both, shall be apparent or not, are acquired only by
considered, as a title in order that the virtue of a title. [NCC 622]
easement may continue actively and
(3) The absence of a document or proof
passively.
showing the origin of an easement
Unless: At the time the ownership of the which cannot be acquired by
two estates is divided, the contrary should prescription may be cured by a deed of
be provided in the title of conveyance of recognition by the owner of the servient
either of them, or the apparent sign should estate or by a final judgment. [NCC 623]
be removed before the execution of the
(4) The existence of an apparent sign of
deed. This provision shall also apply in case
easement between two estates,
of the division of a thing owned in common
established or maintained by the owner
by two or more persons. [NCC. 624]
of both, shall be considered as a title in
order that the easement may continue
actively and passively.
D.3. DETERMINES HOW TO COMPUTE
THE PRESCRIPTIVE PERIOD [NCC 621] Unless: at the time the ownership of
In positive easements, from the day on either of the two estates is transferred,
which the owner of the dominant estate, or the contrary should be provided in the
the person who may have made use of the title of conveyance of either of them, or
easement, commenced to exercise it upon the sign aforesaid should be removed
the servient estate. before the execution of the deed. This
In negative easements, from the day on provision shall also apply in case of the
which the owner of the dominant estate division of a thing owned in common by
forbade, by an instrument acknowledged two or more persons. [NCC 624]
before a notary public, the owner of the
servient estate from executing an act which (5) If the easement has been acquired but
would be lawful without the easement. no proof of existence of easement
available, and the easement is one that
cannot be acquired by prescription, the
D.4. DETERMINES HOW EASEMENT IS defect may be cured by:
LOST BY PRESCRIPTION [NCC 631 (2)] (a) Deed of recognition by owner
By nonuser for 10 years: of servient estate: By an affidavit
or a formal deed acknowledging the
With respect to discontinuous easements, servitude; or
this period shall be computed from the day
on which they ceased to be used. (b) By final judgm ent: Owner of the
dominant estate must file a case in
With respect to continuous easements, from Court to have the easement
the day on which an act contrary to the declared by proving its existence
same took place. through other evidence.
(6) The existence of an apparent sign is
E. CREATION considered as title.
E.1. BY TITLE OR BY SOMETHING Illustration: The presence of 4 windows
EQUIVALENT TO A TITLE was considered an apparent sign that
created a negative easement of light
(1) Continuous and apparent easements and view (altius non tollendi) i.e. not to
may be acquired by virtue of a title. build a structure that will cover the
[NCC 620] windows. [Amor v. Florentino (1943)].

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Note: Mere passage which was permitted

and is under an implied license cannot be
E.2. BY LAW (LEGAL EASEMENTS) the basis of prescription. [Archbishop of
Easements imposed by law have for their Manila v Roxas (1912)]
object either public use or the interest of
private persons. [NCC 634]
F. LEGAL EASEMENTS
These easements may be modified by
agreement of the interested parties,
whenever the law does not prohibit it or no F.1. LAW GOVERNING LEGAL
injury is suffered by a third person. [NCC EASEMENTS
636]
i. For public easem ents
Special laws and regulations relating
E.3. BY WILL OF THE OWNERS thereto. (ex: PD 1067 and PD 705)
(VOLUNTARY EASEMENTS)
By the provisions of Chapter 2, Title VII,
Every owner of a tenement or a piece of Book II, NCC.
land may establish the easements that he
may deem suitable and best provided he ii. For private legal easem ents
does not contravene the laws, public policy, By agreement of the interested parties
or public order. [NCC 688] whenever the law does not prohibit it and
Note: If an owner constitutes an easement no injury is suffered by a 3rd person.
over his own property and makes such By the provisions of Chapter 2, title VII,
easement available to the general public, Book II.
said owner may not arbitrarily discriminate
against certain persons by not letting them
use the easement. [Negros Sugar Company
v Hidalgo (1936)] G. VOLUNTARY EASEMENTS
Every owner of a tenement or piece of land
may establish thereon the easements which
E.4. BY PRESCRIPTION he may deem suitable, and in the manner
Continuous and apparent easements may and form which he may deem best. [NCC
be acquired by prescription of 10 years. 688]
[NCC 620] The owner of a thing, the usufruct of which
Requisites: belongs to another, may impose, without
the consent of the usufructuary, any
(1) The easement must be continuous and servitudes which will not injure the right of
apparent; usufruct. [NCC 689]
(2) The easement must have been used for Whenever the naked ownership belongs to
10 years; and one person and the beneficial ownership to
(3) There is no need for good faith or just another, no perpetual voluntary easement
title. may be established thereon without the
consent of both owners. [NCC 690]
N.B. Example of a continuous and apparent
easement is of light and view, as opposed to Consent of all co-owners is required to
a right of way which is discontinuous but impose an easement on an undivided
apparent, and thus cannot be acquired by tenement. [NCC 691]
prescription.

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H. RIGHTS AND OBLIGATIONS OF the easement can be used for all the
OWNERS OF DOMINANT AND needs of the dominant estate.
SERVIENT ESTATES
(2) To notify the owner of the servient
estate before making repairs and to
make repairs in a manner least
H.1. RIGHTS OF DOMINANT ESTATE
inconvenient to the servient estate [NCC
OWNER
627(2)]
(1) To use the easement and exercise all
(3) Not to alter the easement or render it
rights necessary for it [NCC 625, 626]
more burdensome
(2) The owner of the dominant estate is
The owner of the dominant estate may
granted the right to use the principal
easement, and all accessory servitudes. make repairs at his expense, but he
cannot alter the easement or make it
Example: Easement of drawing water
more burdensome.[NCC 627]
carries with it the easement of right of
way to the place where water is drawn. Making the easement more
burdensome means widening the
Lim itation: Only for the original
easement. [Valderrama v. North Negros
immovable and the original purpose.
Sugar Co. (1925)]
(3) To make, at his own expense, on the
(4) To contribute to expenses of works
servient estate any works necessary for
necessary for use and preservation of
the use and preservation of the
servitude, if there are several dominant
servitude, but without altering it or
estates, unless he renounces his
rendering it more burdensome.
interest [NCC 628]
(4) In a right of way, to ask for change in
The contribution is in proportion to the
width of easement sufficient for needs
[NCC 651] benefits which each may derive from the
work.
(5) To renounce totally the easement, if he
desires to be exempt from contributing Anyone who does not wish to contribute
to the expenses. may exempt himself by renouncing the
The needs of the dominant property easement for the benefit of the others.
ultimately determine the width of the If the owner of the servient estate
passage. And these needs may vary from
should make use of the easement in any
time to time. [Encarnacion v. Court of
Appeals] manner whatsoever, he shall also be
obliged to contribute to the expenses in
the proportion stated, saving an
H.2. OBLIGATIONS OF DOMINANT agreement to the contrary.
ESTATE OWNER
(5) To do at his expense all necessary works
(1) To use the easement for the benefit of for the use and preservation of the
immovable and in the manner originally easement [NCC 627]
established [NCC 626]
The necessity of the works determines
If established for a particular purpose,
extent of such works.
the easement cannot be used for a
different one. However, if established in
a general way, without specific purpose,

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H.3. RIGHTS OF THE SERVIENT ESTATE H.4. OBLIGATIONS OF SERVIENT ESTATE

OWNER OWNER
(1) To retain ownership and use of his (1) Not to impair the use of the easement
property [NCC 629(1)]
The owner of the servient estate retains (2) To contribute proportionately to
the ownership of the portion on which expenses if he uses the easement [NCC
the easement is established, and may 628(2)]
use the same in such a manner as not to Unless there is an agreement to the
affect the exercise of the easement. contrary
[NCC 630]
(3) To pay for the expenses incurred for the
The servient owner must respect the use change of location or form of the
of the servitude, but retains ownership easement
and use of the same, in a manner not
affecting the easement.
I. EXTINGUISHMENT OF EASEMENTS
(2) To change the place and manner of the (1) By merger in the same person of the
use of the easement [NCC 629] ownership of the dominant and servient
General rule: The owner of the estates;
servient estate cannot impair the use of (2) By non-user for ten years;
the servitude.
(3) When either or both of the estates fall
Exceptions: By reason of either: into such condition that the easement
cannot be used;
(a) The place/manner originally
assigned, the use of such easement (4) By the expiration of the term or the
has become VERY INCONVENIENT fulfillment of the condition, if the
to the owner; easement is temporary or conditional;
(b) The easement should prevent him (5) By the renunciation of the owner of the
from making any important works, dominant estate; or
repairs or improvements thereon; (6) By the redemption agreed upon
The change must be done at his between the owners of the dominant
expense; and servient estates.

He offers another place or manner

equally convenient; and I.1. MERGER

The change is done in such a way that Must be absolute, perfect and definite, and
not merely temporary.
no injury is caused to the dominant
owner or to those who may have a right Absolute: Ownership of the property must
to use the easement. be absolute, thus not applicable to lease,
usufruct, etc.
(3) To use the easement
Perfect: Merger must not be subject to a
May use the easement but must also condition.
contribute proportionately to the If the merger is temporary, there is at most
expenses. a suspension of the easement, but no
extinguishment.

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I.2. BY A NON-USER FOR 10 YEARS I.5. RENUNCIATION OF THE OWNER OF

THE DOMINANT ESTATE
Owner of dominant estate does not exercise
right over easement. Must be specific, clear, express
(distinguished from non-user).
This is inaction, and not outright
renunciation.
This is due to the voluntary abstention by I.6. OTHER CAUSES NOT MENTION IN
the dominant owner, and not due to a NCC 631
fortuitous event.
(1) Annulment and rescission of the title
constituting the voluntary easement;
Computation of the period: (2) Termination of the right of grantor of
Discontinuous easem ents: counted the voluntary easement;
from the day they ceased to be used. (3) Abandonment of the servient estate;
Continuous easements: counted from (4) Owner of the servient estate gives up
the day an act adverse to the exercise of the ownership of the easement (e.g. the
easement took place. strip of land where the right of way is
E.g. in an easement of light and view, the constituted) in favor of the dominant
erection of works obstructing the servitude estate.
would commence the period of prescription. The easement is extinguished because
The use by a co-owner of the dominant ownership is transferred to the
estate bars prescription with respect to the dominant owner, who now owns both
others. properties.
Note: Non-user cannot extinguish (5) Eminent domain; or
servitudes not yet exercised.
Extinguishment by non-use only applies to (6) The government’s power to expropriate
easements which being in use are later property for public use, subject to the
abandoned. [Francisco v Paez (1930)] payment of just compensation.
(7) Special cause for extinction of legal
rights of way: if right of way no longer
I.3. BY IMPOSSIBILITY OF USE necessary. [NCC 655]
Impossibility referred to must render the If the right of way granted to a
entire easement unusable for all time.
surrounded estate ceases to be
Impossibility of using the easement due to necessary because its owner has joined
the condition of the tenements (e.g. it to another abutting on a public road,
flooding) only suspends the servitude until it the owner of the servient estate may
can be used again.
demand that the easement be
Except: If the suspension exceeds 10 years, extinguished, returning what he may
the easement is deemed extinguished by have received by way of indemnity. The
non-user.
interest on the indemnity shall be
deemed to be in payment of rent for the
I.4. EXPIRATION OF THE TERM OR use of the easement.
FULFILLMENT OF RESOLUTORY
The same rule shall be applied in case a
CONDITION
new road is opened giving access to the
Applicable only to voluntary easements. isolated estate.

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In both cases, the public highway must (13) Lateral and subjacent support [NCC
substantially meet the needs of the 684-687]
dominant estate in order that the
easement may be extinguished.
J.1. THOSE ESTABLISHED FOR THE USE
Right of way ceases to be OF WATERS OR RELATING TO WATERS
necessary:
(a) Owner of the dominant estate has i. Natural Drainage
joined to another abutting on a
Lower estates are obliged to receive the
public road.
waters which naturally and without the
(b) A new road is opened giving access intervention of man descend from the
to the isolated estate. higher estates (as well as the stones or
Requisite: the public highway must earth which they carry with them).
substantially meet the needs of the The owner of the lower estate cannot do any
dominant estate in order that the works that will impede this easement.
easement may be extinguished The owner of the higher estate cannot do
any works that will increase the burden.
Owner of the servient estate may
demand that the easement be
extinguished. ii. Riparian Banks
Owner of the servient estate must The banks of rivers and streams are subject
return indemnity he received (value of throughout their entire length and within a
the land) zone of 3 meters for urban areas, 20 meters
for agricultural areas and 40 meters for
forest areas (PD 1067, Water Code as
amended by PD 1067) along their margins,
J. KINDS OF PRIVATE LEGAL
to the easement of public use in the general
EASEMENTS interest of navigation, floatage, fishing,
recreation and salvage.
(1) Natural drainage of water [NCC 637] Estates adjoining the banks of navigable or
floatable rivers are subject to the easement
(2) Riparian banks [NCC 638] of towpath for the exclusiveservice of river
(3) Dam [NCC 639] navigation and floatage.
(4) Drawing water and watering animals If it be necessary to occupy lands of private
[NCC 640-641] ownership, the proper indemnity shall first
be paid.
(5) Aqueduct [NCC 642-646]
(6) Stop lock or sluice gate [NCC 647]
iii. Dam
(7) Right of way [NCC 649-657]
Whenever for the diversion of water it
(8) Party wall [NCC 658-666]
should be necessary to build a dam, and the
(9) Light and view [NCC 667-681] person who is to construct it is not the
owner of the banks, or lands which must
(10) Drainage of buildings [NCC 674]
support it, he may establish the easement
(11) Intermediate distances [NCC 677-681] of abutment of a dam, after payment of the
proper indemnity.
(12) Nuisance [NCC 682-683]

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iv. Drawing W ater and W atering This easement is considered as continuous

Animals and apparent, even though the flow of the
water may not be continuous, or its use
Compulsory easements for drawing water
depends upon the needs of the dominant
or for watering animals can be imposed
estate, or upon a schedule of alternate days
only for reasons of public use in favor of a
or hours. Therefore, it can be created by
town or village, after payment of the proper
prescription. N.B.: In the appropriation of
indemnity.
water, there is a need to apply for water
Easements for drawing water and for rights.
watering animals carry with them the
obligation of the owners of the servient
estates to allow passage to persons and vi. Stop Lock or Sluice Gate
animals to the place where such easements
The construction of a stop lock or sluice
are to be used, and the indemnity shall
gate in the bed of the stream from which
include this service.
the water is to be taken, for the purpose of
The width of the easement must not exceed improving an estate.
10 meters.
Such person may demand that the owners
of the banks permit its construction, after
payment of damages, including those
v. Aqueduct
caused by the new easement to such
Any person who may wish to use upon his owners and to the other irrigators.
own estate any water of which he can
dispose shall have the right to make it flow
through the intervening estates, with the J.2. RIGHT OF WAY
obligation to indemnify their owners, as well
W ho may demand
as the owners of the lower estates upon
which the waters may filter or descend. (1) The owner of the dominant estate; or
Person desiring to make use of this right is (2) Any person with the real right to
obliged to: cultivate or use the dominant estate e.g.
a usufructuary, a de jure possessor.
(1) To prove that he can dispose of the
water and that it is sufficient for the use Note: a lessee cannot demand such
for which it is intended; easement, because the lessor is the one
bound to maintain him in the enjoyment of
(2) To show that the proposed right of way
the property.
is the most convenient and the least
onerous to third persons; and Requisites:
(3) To indemnify the owner of the servient (1) The dominant estate is surrounded by
estate in the manner determined by the other immovables owned by other
laws and regulations persons;
Easement of aqueduct for private interest (2) There must absolutely be no access i.e.
cannot be imposed on buildings, means of entrance or exit/egress to a
courtyards, annexes, or outhouses, or on public highway;
orchards or gardens already existing.
(3) Even if there is access, it is difficult or
This easement does not prevent the owner dangerous to use, or grossly
of the servient estate from closing or insufficient;
fencing it, or from building over the
(4) Mere inconvenience in the use of an
aqueduct in such manner as not to cause
outlet does not render the easement a
the latter any damage, or render necessary
necessity;
repairs and cleanings impossible.

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(5) An adequate outlet is one that is extinguish the said easement, being
sufficient for the purpose and needs of voluntary and not compulsory. The free
the dominant owner, and can be ingress and egress along Mangyan Road
established at a reasonable expense; created by the voluntary agreement
between the parties is thus legally
(6) Does not necessarily have to be by land
demandable with the corresponding duty
– an outlet through a navigable river or
on the servient estate not to obstruct the
a lake or the sea if suitable to the needs
same. [La Vista Association v. CA]
of the tenement is sufficient;
The width of the easement of right of way
(7) The isolation of the immovable is NOT
shall be that which is sufficient for the
due to the dominant owner’s own acts
needs of the dominant estate, and may
e.g. if he constructs building to others
accordingly be changed from time to time.
obstructing the old way; and
[NCC651]
(8) There is payment of indemnity;
If right of way is permanent and
Obligations In Permanent And
continuous for the needs of the Temporary Easements Of Right Of
dominant estate = value of the land + W ay
amount of damage caused to the
servient estate; Perm anent right Tem porary right
of way of way
If right of way is limited to necessary
passage for cultivation of the estate and Indemnity
for gathering crops, without permanent Consists of the Consists of the
way = damage caused by encumbrance. damages and the damages only.
value of the land.

Rules for establishing Right of W ay: Necessary repairs

(1) Must be established at the point least Dominant owner to Servient owner to
prejudicial to the servient estate. [NCC spend on such. spend on such.
650]
(2) Insofar as consistent with the first rule, Share in taxes
where the distance from the dominant
estate to a public highway is shortest. The dominant owner Servient owner to
shall reimburse a spend on such.
proportionate share
The criterion of least prejudice to the of taxes to the
servient estate must prevail over the proprietor of the
criterion of shortest distance although this is servient estate.
a matter of judicial appreciation. While
shortest distance may ordinarily imply least
prejudice, it is not always so as when there
are permanent structures obstructing the
shortest distance; while on the other hand,
the longest distance may be free of
obstructions and the easiest or most
convenient to pass through. [Quimen v. CA
(1996)]
The fact that LGV had other means of
egress to the public highway cannot

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Rules on Indemnity for Estates (2) Right of way to raise on another’s land
Enclosed Through a Sale, Exchange, scaffolding or other objects necessary
Partition or D onation. for the work.
Sale, exchange or If it be indispensable for the
Donation construction, repair, improvement,
partition
alteration or beautification of a
Buyer, grantee or donee building, to carry materials through the
as dom inant owners estate of another, or to raise therein
scaffolding or other objects necessary
The buyer or grantee The donee shall pay
for the work, the owner of such estate
shall grant the right the donor indemnity.
of way without shall be obliged to permit the act, after
indemnity. receiving payment of the proper
indemnity for the damage caused him.
Seller, grantor or donor [NCC656]
as dom inant owners (3) Right of way for the passage of livestock
known as animal path, animal trail,
The seller or grantor The donee shall
watering places, resting places, animal
shall pay indemnity. grant the right of way
folds. [NCC 657]
without indemnity.
Easements of the right of way for the
passage of livestock known as animal
Extinguishment as Legal Easem ent path, animal trail or any other, and
of Right of W ay [NCC 655] those for watering places, resting places
(1) The owner has joined the dominant and animal folds, shall be governed by
estate to another abutting the public the ordinances and regulations relating
road. thereto, and, in the absence thereof, by
(2) A new road is opened giving access to the usages and customs of the place.
the isolated estate.
Without prejudice to rights legally
acquired, the animal path shall not
Notes on extinguishment exceed in any case the width of 75
meters, and the animal trail that of 37
(1) Extinguishment is not automatic. The
owner of the servient estate must ask meters and 50 centimeters.
for such extinguishment. Whenever it is necessary to establish a
(2) Indemnity paid to the servient owner compulsory easement of the right of
must be returned without interest. way or for a watering place for animals,
Interest on account of indemnity is the provisions of this Section and those
deemed to be rent for use of easement. of Articles 640 and 641 shall be
observed. In this case the width shall
Special Rights of W ay not exceed 10 meters

(1) Right of way to carry materials for the

construction, repair, improvement, J.3. PARTY WALL
alteration or beautification of a building
through the estate of another. Refers to all those mass of rights and
obligations emanating from the existence
and common enjoyment of wall, fence,

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enclosures or hedges, by the owners of W hen Existence Of Easement Of

adjacent buildings and estates separated by Party W all Is Presumed
such objects.
(1) In dividing walls of adjoining buildings
up to the point of common elevation.
Nature (2) In dividing walls of gardens or yards
situated in cities, or towns, or in rural
A common wall which separates two
communities.
estates, built by common agreement at the
dividing line such that it occupies a portion (3) In fences, walls and live hedges dividing
of both estates on equal parts. rural lands.
A party wall is a special form of co- Note: A title or an exterior sign, or any
ownership (a kind of compulsory co- other proof showing that the entire wall in
ownership). controversy belongs exclusively to one of
the adjoining property owners may rebut
Each owner owns part of the wall but it
these presumptions.
cannot be separated from the other
portions belonging to the others. A party
wall has a special characteristic that makes
W hen Existence Of An Exterior Sign
it more of an easement as it is called by law.
Is Presumed [NCC 660]
An owner may use a party wall to the extent
(1) Whenever in the dividing wall of
of the ½ portion on his property.
buildings there is a window or opening.
(2) Whenever one side is straight and
Co-Ownership Party W all plumb on all its facement, and on the
other, it has similar conditions on the
Before division of Shares of the co- upper part, but the lower part slants or
shares, a co-owner owners cannot be projects outward.
cannot point to any physically (3) Whenever the entire wall is built within
definite portion of segregated but they the boundaries of one of the estates.
the property as can be physically
belonging to him. identified. (4) Whenever the dividing wall bears the
burden of the binding beams, floors and
None of the co- There is no such roof frame of one of the buildings, but
owners may use the limitation not those of the others.
community property
(5) Whenever the dividing wall between
for his exclusive
courtyards, gardens, and tenements is
benefit because he
constructed in such a way that the
would be invading
coping sheds the water upon only one
the rights of the
of the estates.
others.
(6) Whenever the dividing wall, being built
In a co-ownership, Any owner may free of masonry, has stepping stones, which
partial renunciation himself from at certain intervals project from the
is allowed. contributing to the surface on one side only, but not on the
cost of repairs and other.
construction of a
party wall by (7) Whenever lands enclosed by fences or
renouncing all his live hedges adjoin others that are not
rights thereto. enclosed.

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Note: The deposit of earth or debris on one Obligations Of Owners Of A Party

side alone is an exterior sign that the owner W all
of that side is the owner of the ditch or
(1) To contribute proportionately to the
drain. The presumption is an addition to
repair and maintenance of the party
those enumerated in NCC 660.
wall unless he renounces his part-
ownership.
Right Of Owners Of A Party W all This includes the renunciation of the
share in the wall and the land

i. Generally, part-owners m ay use He cannot renounce his part if his

the wall in proportion to their building is being supported by the party
respective interests, provided that: wall
(1) The right to use by the other party is not (2) If he raises the height of the wall, he
interfered with; must:
(2) The consent by the other owner is (a) Bear the cost of maintenance of the
needed if a party wants to open a additions;
window; and
(b) Bear the cost of construction, if the
(3) The condition of the building is wall cannot support the additional
determined by experts. height;
(c) Give additional land, if necessary to
ii. To increase the height of the wall. thicken the wall;
(1) He does this at his expense, including (d) Pay for damages, if necessary, even
the thickening of the wall on his land. if temporary; and
(2) He shall indemnify the other party for (e) Bear the increased expenses for
any damages. preservation

iii. To acquire a half-interest in any J.4. EASEMENT OF LIGHT AND VIEW

increase in height or thickness of the
wall, paying a proportionate share in
the cost of the work and the value of Definition
the land covered. Easement of light (jus luminum ) is the
Note that the value of the land must be right to admit light from the neighboring
appraised at the time of acquisition. estate by virtue of the opening of a window
or the making of certain openings.
Easement of view (jus prospectus) is
iv. To renounce his part ownership of the right to make openings or windows, to
a party wall if he desires to dem olish enjoy the view through the estate of another
his building supported by the wall. and the power to prevent all constructions
He shall bear all the expenses of repairs and or works which would obstruct such view or
work necessary to prevent any damage make the same difficult.
which the demolition may cause to the party Necessarily includes the easement of light.
wall.
It is possible to have light only without a
view.

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Note: If an owner has an easement of view, Rules And Restrictions On Openings

he also has an easement of light, but not And Structures
vice versa.
i. Openings for light
When the opening is 2 meters or more
Nature away from another’s tenement, i.e. the
(1) Positive: Opening a window through a boundary line:
party wall
(a) An owner may build any kind of
When the opening is made through the opening without restriction.
wall of another
When the wall is contiguous (less than 2
When a part owner of a party wall opens meters) to another’s tenement:
a window therein, such act implies the
(b) Openings are made at the height of
exercise of the right of ownership by the the ceiling joists (horizontal beams)
use of the entire thickness of the wall. or immediately under the ceiling;
The easement is created only after the (c) Size: 30 cm square;
lapse of the prescriptive period. (d) With iron grating imbedded in the
(2) Negative: Formal prohibition upon the wall;
owner of the adjoining land or (e) With a wire screen.
tenement. Formal means that the
prohibition has been notarized [Cortes v
Yu-Tibo (1903)] ii. Openings for view
When a person opens a window on his (a) The following structures cannot be
own building, he is exercising his right built without following the
of ownership on his property, which prescribed distances:
does not establish an easement. Window, apertures, balconies and
Coexistent is the right of the owner of other projections with a direct view
the adjacent property to build or plant upon or towards an adjoining land
on his own land, even if such structures must have a distance of 2 meters
or planting cover the window. between the wall and the
contiguous property.
If the adjacent owner does not build
structures to obstruct the window, such (b) For structures with a side or oblique
view (at an angle from the boundary
is considered mere tolerance and NOT a
line), there should be a distance of
waiver of the right to build. 60 centimeters.
An easement is created only when the Measured from:
owner opens up a window and
subsequently prohibits or restrains the (i) The outer line of the wall if the
openings do not project.
adjacent owner from doing anything
that may tend to cut off or interrupt the (ii) The outer line of the openings if
light and the 10-year prescriptive period they project.
has lapsed by a notarial prohibition. (iii) The dividing line between the
two properties in cases of
oblique views.

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Effect If Distances Are Not Com plied J.5. DRAINAGE OF BUILDINGS

W ith
The owner of a building is obliged to
(1) Easement is not acquired by construct its roof or covering in such
prescription manner that the rain water shall fall on his
own land or on a street or public place, and
(2) Windows are considered unlawful
NOT on the land of his neighbor, even
openings and may be ordered by the
though the adjacent land may belong to
Court to be closed.
two or more persons, one of whom is the
(3) Even if the adjoining owner does not owner of the roof.
object to the construction of such
Even if it should fall on his own land, the
structures at first, he cannot be held to
owner shall be obliged to collect the water
be in estoppel, unless the 10-year
in such a way as not to cause damage to the
period of acquisitive prescription has
adjacent land or tenement.
passed.
The true easement is Article 675 where the
Note:
adjacent estate has the obligation of
In buildings separated by a public way or receiving the rain water falling from a
alley, not less than 3 meters wide, the neighboring roof and giving it an outlet on
distances required (2 m, 60 cm) do not his own lot so as not to cause damage to
apply. the dominant estate.
If an easement is acquired to have direct Easement of drainage if buildings [NCC
views, balconies or belvederes, the owner of 676] – to give outlet to rain water collected
the servient estate must not build at less
than 3 meters from the boundary line of the
two tenements. J.6. INTERMEDIATE DISTANCES
The distances may be stipulated by the Prohibiting the contraction and plantings
parties, but should not be less than what is near fortified places or fortresses without
prescribed by the law (2 meters and 60 cm). complying with special laws, ordinances
and regulations relative hereto. NCC 677, in
effect, establishes an easement in favor of
Notes on the Acquisition of the the State. The general prohibition is
Easem ent dictated by the demands of national
security.
Period of acquisitive prescription depends
upon whether the easement of light and The following must comply with the
view is positive or negative, and only starts regulations or customs of the place:
to run from the time the owner asserting the
(1) Construction of aqueduct, well, sewer,
servitude has forbidden the owner of the
etc. (NCC 678)
adjoining tenement from doing something
he could lawfully do. (2) Constructions, which by reason of their
nature or products are dangerous or
THUS, although the action to compel the
noxious.
closure might have prescribed because the
easement has been created by prescription,
the owner of the adjoining estate may still
build on his own land a structure that might Planting of trees (NCC 679)
obstruct the view for 10 years, thus No trees shall be planted near a tenement
extinguishing it by non-user. or piece of land belonging to another except
at the distance authorized by the
ordinances or customs of the place.

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In the absence of regulations:

X. Nuisance
(1) At least 2 meters from the dividing line
of the estates if tall trees are planted. NCC 694. A nuisance is any act, omission,
establishment, condition of property, or
(2) At least 50 centimeters if shrubs or small anything else which:
trees are planted.
Injures or endangers the health or safety of
In case of violation, a landowner shall have others; or
the right to demand the uprooting of the
plant even if it has grown spontaneously. Annoys or offends the senses; or
Shocks, defies or disregards decency or
morality; or
Branches, Roots and Fruits
Obstructs or interferes with free passage of
If the branches of any tree should extend any public highway or street, or any body of
over a neighboring estate, tenement, water; or
garden or yard, the owner of the latter shall
have the right to demand that they be cut Hinders or impairs the use of property.
off.
If it be the roots of a neighboring tree, which Note: To constitute a nuisance there must
should penetrate into the land of another, be an arbitrary or abusive use of
the latter may cut them off himself within property or disregard of commonly
his property. accepted standards set by society.

Fruits naturally falling upon adjacent land A municipal body has the power to declare
belong to the owner of said land. and abate nuisances. BUT it has no power
to find as fact that a particular thing is a
nuisance. The determination of whether or
J.7. LATERAL AND SUBJACENT SUPPORT not a nuisance exists is a judicial function,
because to declare something a nuisance is
The proprietor is prohibited from making to deprive its use. [Iloilo Cold Storage v Mun.
dangerous excavations upon his land as to Council of Iloilo (1913)]
deprive any adjacent land or building of
sufficient lateral or subjacent support.
Easement of lateral and subjacent support A. NUISANCE V. TRESPASS
is deemed essential to the stability of
Nuisance Trespass
buildings.
Support is lateral when a vertical plane Use of one’s own Direct infringement
divides the supported and supporting lands. property in such a of another’s right of
manner as to cause property.
Support is subjacent when the supported injury to the property
land is above the supporting land. or right or interest of
another, and
generally results
from the commission
of an act beyond the
limits of the property
affected.

Injury is
Injury is immediate.
consequential.

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B. NUISANCE V. NEGLIGENCE
Nuisance Negligence Per se Per accidens

Whether the The wrong is Proof of the act and

Whether it was established by proof its consequences are
defendant’s use of
unreasonable for the of the mere act. It necessary.
his property was
defendant to act as becomes a nuisance
unreasonable as to
he did in view of the as a matter of law.
plaintiff, without
threatened danger or
regard to
harm to one in Nuisance under any That which depends
foreseeability of
plaintiff’s position. and all upon certain
injury.
circumstances, conditions and
Liability for the Liability is based on a because it circumstances, and
resulting injury to want of proper care constitutes a direct its existence being a
others regardless of menace to public question of fact, it
the degree of care or health or safety, and, cannot be abated
skill exercised to for that reason, may without due hearing
avoid such injury. be abated summarily thereon in a tribunal
under the undefined authorized to decide
Principles ordinarily Principles ordinarily law of necessity whether such a thing
apply where the apply where the does in law
cause of action is for cause of action is for constitute a
continuing harm harm resulting from nuisance. [Iloilo Ice
caused by continuing one act which and Cold Storage v.
or recurrent acts created an Municipal Council of
which cause unreasonable risk of Iloilo, 24 Phil 471;
discomfort or injury. Monteverde v.
annoyance to Generoso, 52 Phil,
plaintiff in the use of 123, 127]
his property.

C.2. ACCORDING TO SCOPE OF

C. CLASSES INJURIOUS EFFECTS
C.1. ACCORDING TO NATURE Test: not the number of persons annoyed
but the possibility of annoyance to the
i. Nuisance per se or at law
public by the invasion of its rights – the fact
An act, occupation or structure which is a that it is in a public place and annoying to
nuisance at all times and under any all who come within its sphere.
circumstances, regardless of location or
surroundings.
i. Public
The doing of or the failure to do something
ii. Nuisance per accidens or in fact
that injuriously affects the safety, health or
One that becomes a nuisance by reason of morals of the public.
circumstances and surroundings.
It causes hurt, inconvenience or injury to the
It is not a nuisance by its nature but it may public generally, or to such part of the
become so by reason of the locality, public as necessarily comes in contact with
surrounding, or the manner in which it is it.
conducted, managed, etc.

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ii. Private There must be a breach of some duty on the

part of the person sought to be held liable
One which violates only private rights and
for damages resulting from a nuisance
produces damages to but one or a few
before an action will lie against him.
specific persons.
No one is to be held liable for a nuisance
which he cannot himself physically abate
Mixed without legal action against another for
that purpose.
Where several persons, acting
D. DOCTRINE OF ATTRACTIVE independently, cause damage by acts which
NUISANCE constitute a nuisance, each is liable for the
One who maintains on his premises damage which he has caused or for his
dangerous instrumentalities or appliances proportionate share of the entire damage.
of a character likely to attract children in
play, and who fails to exercise ordinary care
to prevent children from playing therewith E.3. LIABILITY OF TRANSFEREES
or resorting thereto, is liable to a child of The grantee of land upon which there exists
tender years who is injured thereby, even if a nuisance created by his predecessors in
the child is technically a trespasser in the title is not responsible therefore merely
premises. [Jarco Marketing Corp. v. CA because he becomes the owner of the
(1999)] premises, or merely because he permits it to
Basis of liability – The attractiveness is remain.
an invitation to children. Safeguards to He shall be liable if he knowingly continues
prevent danger must therefore be set up. the nuisance. Generally, he is not liable for
Note: A swimming pool or water tank is continuing it in its original form, unless he
not an attractive nuisance, for while it is has been notified of its existence and
attractive, it cannot be a nuisance, being requested to remove it, or has actual
merely an imitation of the work of nature. knowledge that it is a nuisance and
[Hidalgo Enterprises v. Balandan (1952)] injurious to the rights of others.
If the transferee cannot physically abate the
nuisance without legal action against
E. LIABILITY IN CASE OF NUISANCE another person, then he shall not be liable
for such nuisance.
E.1 WHO ARE LIABLE
Every successive owner or possessor of E.4. NATURE OF LIABILITY
property who fails or refuses to abate a All persons who participate in the creation
nuisance in that property started by a or maintenance of a nuisance are jointly and
former owner or possessor is liable therefor severally liable for the injury done.
in the same manner as the one who created
it. [NCC 696] If 2 or more persons who create or maintain
the nuisance act entirely independent of
one another, and without any community of
E.2. LIABILITY OF CREATOR OF interest, concert of action, or common
NUISANCE design, each is liable only so far as his acts
contribute to the injury.
He who creates a nuisance is liable for the
resulting damages and his liability For solidary liability, there must be some
continues as long as the nuisance joint or concurrent act or community of
continues. action or duty, or the several wrongful acts

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done at several times must have concurred (2) It must be reasonably and efficiently
in their effects as one single act to produce exercised
the injury complained of.
(3) Means employed must not be unduly
oppressive on individuals, and
E.5. RIGHT TO RECOVER DAMAGES (4) No more injury must be done to the
property or rights of individuals than is
The abatement of a nuisance does not
necessary to accomplish the
preclude the right of any person injured to
abatement.
recover damages for its past existence.
[NCC 697] (5) No right to compensation if property
taken or destroyed is a nuisance.
Abatement and damages are cumulative
remedies.
Action for Abatement
No Prescription The district health officer shall take care
that one or all of the remedies against a
The action to abate a public or private
public nuisance are availed of.
nuisance is NOT extinguished by
prescription. [NCC 1143(2)] If a civil action is brought by reason of the
maintenance of a public nuisance, such
action shall be commenced by the city or
F. REGULATION OF NUISANCES municipal mayor.
F.1. PUBLIC NUISANCE The district health officer shall determine
whether or not abatement, without judicial
NCC 695. Nuisance is either public or proceedings, is the best remedy against a
private. A public nuisance affects a public nuisance.
community or neighborhood or any
considerable number of persons, although A private person may file an action on
the extent of the annoyance, danger or account of a public nuisance if it is
damage upon individuals may be unequal. especially injurious to him.
A private nuisance is one that is not General rule: An individual has no right
included in the foregoing definition. of action against a public nuisance. The
abatement proceedings must be instituted
in the name of the State or its
Public Nuisance: That which affects a representatives.
community or neighborhood or any
considerable number of persons, although Exception: An individual who has suffered
the extent of annoyance, danger or damage some special damage different from that
upon individuals may be unequal [NCC 695] sustained by the general public may
maintain a suit in equity for an injunction to
abate it, or an action for damages which he
Remedies has sustained.
(1) The remedies against a public nuisance The action becomes a tort if an individual
are: has suffered particular harm, in which case
the nuisance is treated as a private nuisance
(a) Prosecution under the Penal Code with respect to such person.
or any local ordinance;
(b) A civil action; or
(c) Extrajudicial abatement.

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Requisites of the right of a private Remedies

individual to abate a public nuisance
(1) The remedies against a private nuisance
(1) That demand be first made upon the are:
owner or possessor of the property to
(a) A civil action; or
abate the nuisance;
(b) Extrajudicial abatement.
(2) That such demand has been rejected;
(2) The procedure for extrajudicial
(3) That the abatement be approved by the
abatement of a public nuisance by a
district health officer and executed with
private person will also be followed.
the assistance of the local police; and
(3) The person extrajudicially abating a
(4) That the value of the destruction does
nuisance liable for damages if:
not exceed P3000.
(4) If he causes unnecessary injury; or
(5) If an alleged nuisance is later declared
Rules
by the courts to be not a real nuisance.
(1) The right must be exercised only in
cases of urgent or extreme necessity.
The thing alleged to be a nuisance must Remedies of the property owner
be existing at the time that it was
(1) A person whose property is seized or
alleged to be a nuisance.
destroyed as a nuisance may resort to
(2) A summary abatement must be the courts to determine whether or not
resorted to within a reasonable time it was in fact a nuisance.
after knowledge of the nuisance is
(2) An action for replevin;
acquired or should have been acquired
by the person entitled to abate. (3) To enjoin the sale or destruction of the
property;
(3) The person who has the right to abate
must give reasonable notice of his (4) An action for the proceeds of its sale
intention to do so, and allow thereafter and damages if it has been sold; or
a reasonable time to enable the other to (5) To enjoin private parties from
abate the nuisance himself. proceeding to abate a supposed
(4) The means employed must be nuisance.
reasonable and for any unnecessary
damage or force, the actor will be liable.
The right to abate is not greater than
the necessity of the case and is limited
to the removal of only so much of the
objectionable thing as actually causes
the nuisance.
(5) The property must not be destroyed
unless it is absolutely necessary to do
so.

F.2. PRIVATE NUISANCE

Private Nuisance: That which is not
included in the definition of a public
nuisance [NCC 695]

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XI. Modes of Acquiring Mode Title

Ownership and Other Directly and

immediately
Serves merely to give
the occasion for its
Real Rights produces a real right. acquisition or
existence.

(1) Occupation Cause Means

(2) By operation of Law, e.g. hidden Proximate cause Remote cause

treasure, accession discreta and
continua, NCC 1434, 1456, FC 120, Essence of the right, Means whereby that
registration of land under PD 1529. which is to be “essence” is
created or transmitted.
(3) Donation
transmitted.
(4) Tradition
(5) Intellectual Property
A. OCCUPATION
(6) Prescription
(7) Succession
Note: Ownership of land cannot be acquired
by occupation.
Mode is a specific cause which produces Possession Occupation
dominion and other real rights as a result of
the co-existence of special status of things, Possession is the Things appropriable
capacity and intention of persons and holding of a thing or by nature which are
fulfillment of the requisites of law. the enjoyment of a without an owner,
right [NCC 523] such as animals that
are the object of
Kinds of modes: hunting and fishing,
(1) Original – occupation and intellectual hiddren treasure and
creation abandoned
movables, are
(2) Derivative – based on a pre-existing acquired by
right of another (the 5 other modes) occupation. [NCC 713]

Title is every juridical right which gives a

A.1. REQUISITES
means to the acquisition of real rights but in
itself is insufficient to produce them. (1) The property must be a corporeal
personal property susceptible of
appropriation;
It is not by contract but by delivery that the
(2) The property is either res nullius (no
ownership of property is transferred (Non
owner) or res derelict (abandoned
nudis pactis, sed traditione, dominia rerum
property);
transferentur). Contracts only constitute
titles or rights to transfer or acquisition of (3) There is seizure or apprehension with
ownership, while delivery is the mode of the intent to appropriate; and
accomplishing the same.
(4) There is an observance of requisites or
conditions prescribed by law.

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A.2. KINDS ii. Occupation of Dom esticated

Animals
i. Of Anim als
Wild animals are possessed only while they
(1) W ild or feral animals – seizure
are under one's control; domesticated or
(hunting/fishing) in open season by
tamed animals are considered domestic or
means not prohibited.
tame if they retain the habit of returning to
(2) Tamed/domesticated animals – the premises of the possessor.
General Rule: belong to the tamer for as
long as tamed animal retains the habit
of returning to the place where it is iii. Pigeons and Fish [NCC 717]
kept, but upon recovering freedom, are
Pigeons and fish which from their respective
susceptible to occupation unless
breeding places pass to another pertaining
claimed within 20 days from seizure by
to a different owner shall belong to the
another.
latter, provided they have not been enticed
(3) Tame/domestic animals – not by some artifice or fraud.
acquired by occupation except when
abandoned.
iv. Hidden Treasure [NCC 718, 438]
He who by chance discovers hidden treasure
ii. Of Other Personal Property
in another’s property: ½ shall be allowed to
(1) Abandoned – may be acquired the finder.
(2) Lost If the finder is a trespasser, he shall not be
entitled to any share of the treasure.
(3) Hidden treasure – finder gets ½ by
occupation; landowner gets ½ by If the things found be of interest to science
accession; except in CPG system, share or the arts, the State may acquire them at
goes to the partnership. their just price, which shall be divided in
conformity with the rule stated.

A.3. SPECIAL RULES [NCC 716]

v. Lost Movables; Procedure After
Finding Lost Movables [NCC 719]
i. Occupation of a Swarm of Bees
Whoever finds a movable, which is not
The owner of a swarm of bees shall have a treasure, must return it to its previous
right to pursue them to another’s land, possessor.
indemnifying the possessor of the latter for
If unknown, the finder shall immediately
the damage.
deposit it with the mayor of the city or
If the owner has not pursued the swarm, or municipality where the finding has taken
ceases to do so within 2 consecutive days, place.
the possessor of the land may occupy or
The finding shall be publicly announced by
retain the same, the owner having lost his
the mayor for two consecutive weeks in the
ownership by leaving, abandoned them (no
way he deems best.
more intention to recover)
If the movable cannot be kept without
The 20 days to be counted from their
deterioration, or without expenses which
occupation by another person. This period
considerably diminish its value, it shall be
having expired, they shall pertain to him
sold at a public auction eight days after the
who has caught and kept them.
publication.

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Six months from the publication having (4) Form as prescribed by law; and
elapsed without the owner having
(5) Impoverishment of donor’s patrimony
appeared, the thing found, or its value, shall
and enrichment on part of donee.
be awarded to the finder. The finder and the
owner shall be obliged, as the case may be,
to reimburse the expenses.
B.4. WHAT MAY BE DONATED
If the owner should appear in time, he shall
(1) All present property or part thereof of
be obliged to pay, as a reward to the finder,
the donor
one-tenth of the sum or of the price of the
thing found. (2) Provided he reserves, in full ownership
or usufruct, sufficient means for support
of himself and all relatives entitled to be
B. DONATION supported by donor at the time of
acceptance.
Donation is an act of liberality whereby a
person disposes gratuitously of a thing or (3) Provided that no person may give or
right in favor of another, who accepts it. receive by way of donation, more than
(Simple donation) he may give or receive by will [NCC 752];
also, reserves property sufficient to pay
donor’s debts contracted before
B.1. OTHER INSTANCES CONSIDERED AS donation, otherwise, donation is in
DONATION fraud of creditors [NCC 759, 1387].
When a person gives to another a thing or (4) If donation exceeds the disposable or
right on account of the latter's merits or of free portion of his estate, the donation
the services rendered by him to the donor, is inofficious.
provided they do not constitute a
demandable debt. (Remuneratory
donation) Exceptions:
When the gift imposes upon the donee a (1) Donations provided for in marriage
burden that is less than the value of the settlements between future spouses –
thing given. (Onerous donation) must be not more than 1/5 of present
property.
(2) Donation propter nuptias by an
B.2. NATURE ascendant consisting of jewelry,
Bilateral contract creating unilateral furniture or clothing not to exceed 1/10
obligations on the donor’s part. of disposable portion.
Requires consent of both donor and donee
(except for onerous donation) though it B.5. WHAT MAY NOT BE DONATED
produces obligations only on the side of the
donor, unless it is an onerous donation. (1) Future property
(2) Donations cannot comprehend future
property.
B.3. REQUISITES
(3) “Future property” is understood as
(1) Consent and capacity of the parties; anything which the donor does not
(2) Animus Donandi (intent to donate); currently own although the donor may
or may not own it later. [Osorio v Osorio
(3) Delivery of thing donated in oral
(1921)]
donation of movable valued at P5,000
or less, oncce proper form is complied (4) Inheritance is NOT considered as future
with, donation is perfected; property. [ibid]

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C. KINDS OF DONATIONS Ordinary Propter Nuptias

as wills)
C.1. AS TO ITS TAKING EFFECT
Lim it as to donation of present
property
i. Donation Inter Vivos [NCC 729]
No limit to donation If present property is
Donation which shall take effect during the of present property donated and
lifetime of the donor, though the property provided legitimes property regime is
shall not be delivered till after the donor's are not impaired. ACP, limited to 1/5.
death.
Irrevocable EXCEPT for the ff Grounds for revocation
grounds:
Law on donations See below [FC 86]
(1) Subsequent birth of the donor’s
children;
(2) Donor’s failure to comply with imposed Causes for revocation of donation
conditions; propter nuptias:

(3) Donee’s ingratitude; or (1) If the marriage is not celebrated or

judicially declared void ab initio, except
(4) Reduction of donation by reason of donations made in the marriage
inofficiousness. settlements;
(2) When the marriage takes place without
ii. Donation by Reason of Marriage/ the consent of the parents or guardian,
Donation Propter Nuptias [FC 86] as required by law;

Requisites: (3) When the marriage is annulled, and the

donee acted in bad faith;
(1) Must be made before the celebration of
marriage; (4) Upon legal separation, the one being
the guilty spouse;
(2) Made in consideration of the marriage;
and (5) If it is with a resolutory condition and
the condition is complied with; or
(3) Made in favor of one or both of the
future spouses. (6) When the donee has committed an act
of ingratitude as specified by the
provisions of the Civil Code on
Ordinary Donations v. Donations donations in general.
Propter Nuptias
Ordinary Propter Nuptias Donation between spouses

Express acceptance General Rule: Every donation or grant of

gratuitous advantage, direct or indirect,
Necessary Not required between the spouses during the marriage
shall be VOID. The prohibition applies to
persons living together as husband and wife
without a valid marriage.
As to future property
Exception: Moderate gifts which the
Cannot include May include future spouses may give each other on the
future property property (same rule occasion of any family rejoicing.

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Inter vivos Mortis causa

Donation Mortis Causa [NCC 728]
As to transfer of ownership for right
It only becomes effective upon the death of of disposition
the donor.
Ownership is Upon acceptance by
The donor’s death ahead of the donee is a
immediately the donee, but the
suspensive condition for the existence of the
transferred. Delivery effect of such
donation.
of possession is retroacts to the time
allowed after death. of death of the
donor.
Characteristics:
(1) The transferor retains ownership and As to revocation
control of the property while alive;
Irrevocable – may be Revocable upon the
(2) The transfer is revocable at will before revoked only for the exclusive will of the
his death; and reasons provided in donor.
(3) The transfer will be VOID if the CC 760, 764, 765.
transferor should survive the transferee.
As to reduction or suppression

When it is excessive When it is excessive

Inter Vivos v. Mortis Causa
or inofficious, being or inofficious, it is
Inter vivos Mortis causa preferred, it is reduced first, or even
reduced only after suppressed.
As to formalities the donations mortis
causa had been
Executed and Must be in the form reduced or
accepted with of a will, with all the exhausted.
formalities formalities for the
prescribed by CC. validity of wills.
Notes:
As to effectivity
The nature of the act, whether it’s one of
Effective during the Effective after the disposition or of execution, is controlling to
lifetime of the donor. death of the donor. determine whether the donation is mortis
causa or inter vivos.
As to acceptance
What is important is the time of transfer of
Acceptance must be ownership even if transfer of property
made after the death donated may be subject to a condition or a
of the donor, the term.
donation being Whether the donation is inter vivos or mortis
effective only after causa depends on whether the donor
Acceptance must be the death of donor. intended to transfer ownership over the
made during the Acceptance during properties upon the execution of the deed.
lifetime of the donor. the donor’s lifetime is [Gestopa v. CA (2002)]
premature and
ineffective because
there can be no C.2. AS TO CAUSE OR CONSIDERATION
contract regarding
future inheritance. Sim ple - made out of pure liberality or
because of the merits of the donee.

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Remuneratory - made for services already Onerous donations – form governed by

rendered to the donor. the rules of contracts.
Onerous - imposes a burden inferior in
value to property donated.
D.2. PERFECTION
Improper - burden equal in value to
property donated
i. Acceptance
Sub-modo or modal - imposes a
prestation upon donee as to how property Donation is perfected upon the donor’s
donated will be applied. learning of the acceptance.
Mixed donations – e.g. sale for price Acceptance may be made during the
lower than value of property. lifetime of both donor and donee.
A document merely correcting the deed of
donation does not constitute a new deed of
D. FORMALITIES REQUIRED donation so there is no need for a new
acceptance [Osorio v Osorio (1921)]
D.1. HOW MADE AND ACCEPTED
ii. W ho May Accept
i. Movable properties [NCC 748] Donee: must accept personally or through
an authorized person with special power for
The donation of a movable may be made the purpose. [NCC 745]
orally or in writing.
Note:
Oral donation: requires the simultaneous
delivery of the thing or of the document A joint donation (donation to two or more
representing the right donated. persons) could not be accepted by a donee,
independently of the other donee/s.
If the value of the movable donated exceeds [Genato v Lorenzo (1968)]
P5,000, the donation and the acceptance
should be in writing, otherwise, the
donation is void. iii. Tim e Of Acceptance
Acceptance must be done during the
ii. Im m ovable properties [NCC 749] lifetime of the donor and the donee.
Must be made in a public instrument
specifying the donated property and the D.3. QUALIFICATIONS OF DONORS AND
burdens assumed by the donee. DONEES
The acceptance must be either:
(1) In the same instrument; or i. W ho May Give Donations
(2) In another public instrument notified to All persons who may contract and dispose
the donor in authentic form and noted of their property may make a donation.
in both deeds. [NCC 735]
Note:
Exceptions: Donor’s capacity shall be determined as of
Donations propter nuptias – need no the time of the making of the donation.
express acceptance. [NCC 737]

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Capacity to donate is required for donations (b) Any person who has been convicted
inter vivos and NOT in donations mortis of an attempt against the life of the
causa. testator, his or her spouse,
descendants, or ascendants;
Donor’s capacity is determined as of the
time of the donation. Subsequent incapacity (c) Any person who has accused the
is immaterial. testator of a crime for which the law
prescribes imprisonment for six
years or more, if the accusation has
ii. W ho May Receive Donations been found groundless;
All who are not specially disqualified by law. (d) Any heir of full age who, having
[NCC 738] knowledge of the violent death of
the testator, should fail to report it
Minors and others who cannot enter into a
to an officer of the law within a
contract: acceptance may be made through
month, unless the authorities have
their parents or legal representatives. [NCC
already taken action; this
741]
prohibition shall not apply to cases
Donations made to conceived and unborn wherein, according to law, there is
children: those who would legally represent no obligation to make an
them if they were already born may accept accusation;
the donations. [NCC 737]
(e) Any person convicted of adultery or
concubinage with the spouse of the
iii. W ho May Not Give or Receive testator;
Donations (f) Any person who by fraud, violence,
intimidation, or undue influence
should cause the testator to make a
By reason of public policy [NCC 739] will or to change one already made;
(1) Those made between persons guilty of (g) Any person who by the same means
adultery or concubinage at the time of prevents another from making a
the donation; will, or from revoking one already
(2) Those made between persons guilty of made, or who supplants, conceals,
the same criminal offense if the or alters the latter’s will;
donation is made in consideration (h) Any person who falsifies or forges a
thereof; or supposed will of the decedent.
(3) Those made to a public officer, his (2) NCC 1027:
spouse, descendants, and/or
ascendants by reason of the office. (a) The priest who heard the confession
of the testator during his last
illness, or the minister of the gospel
By reason of the donee’s who extended spiritual aid to him
unworthiness or incapacity to succeed during the same period;
[NCC 740, 1032 except (6-8), and (b) The relatives of such priest or
1027 except (4)] minister of the gospel within the
(1) NCC 1032: fourth degree, the church, order,
chapter, community, organization,
(a) Parents who have abandoned their or institution to which such priest or
children or induced their daughters minister may belong;
to lead a corrupt or immoral life, or
attempted against their virtue; (c) A guardian with respect to
testamentary dispositions given by

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a ward in his favor before the final mortgages and other encumbrances
accounts of the guardianship have unless the contrary has been stipulated;
been approved, even if the testator
(6) Donations to several donees jointly: NO
should die after the approval
right of accretion EXCEPT:
thereof; nevertheless, any provision
made by the ward in favor of the (7) When the donor provides otherwise; or
guardian when the latter is his
(8) When the donation to husband and wife
ascendant, descendant, brother,
is joint with the right of accretion
sister, or spouse, shall be valid;
UNLESS the donor provides otherwise.
(d) Any physician, surgeon, nurse,
(9) Donations by a person to his non-heirs
health officer or druggist who took
are collationable. [Liguez v CA]
care of the testator during his last
illness; or (10) Donations made to one’s heirs must
expressly prohibit collation to be
(e) Individuals, associations and
exempted from collation. [De Roma v
corporations not permitted by law
CA (1987)]
to inherit.

E.2. SPECIAL PROVISIONS

By reason of prejudice to creditors or
heirs
(1) If donation is made in fraud of creditos i. Reservation by donor of power to
by debtor who is insolvent (rescissible dispose (in whole or in part) or to
for accion pauliana) encumber property donated [NCC
755]
(2) If legitimes of compulsory heirs
infringed upon (donation is inofficious The donor may reserve the right to dispose
(revocation or reduction of donation) of some things donated, or of some
amount, which shall be a charge thereon.
But if he should die without having made
E. EFFECTS OF DONATION / use of this right, the property or amount
LIMITATIONS reserved shall belong to the donee.
Donation of naked ownership to one donee
E.1. IN GENERAL and usufruct to another [NCC 756]
(1) The donee may demand actual delivery The naked ownership and the usufruct may
of thing donated; be donated separately, provided that all the
donees are living at the time of the
(2) The donee is subrogated to the rights of donation.
the donor in the property donated;
(3) The donor is not obliged to warrant the
things donated except in onerous ii. Conventional reversion in favor of
donations where the donor is liable for donor or other person [NCC 757]
eviction up to the extent of the burden; (1) If made in favor of the donor: Reversion
[NCC 754] may be for any case and circumstance.
(4) The donor is liable for eviction or hidden (2) If made in favor of other persons: Such
defects in case of bad faith on his part; persons must be living at the time of the
[NCC 754] donation.
(5) In donation propter nuptias, the donor
must release the property donated from

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If the rule is violated, the stipulation on vi. Excessive/Inofficious Donations

reversion is void but the donation is still
A type of donation in which a person gives
valid.
or receives more than what he may give or
receive by will. [NCC 752]
iii. Paym ent of donor’s debt [NCC Donation inter vivos, made by a person
758] having no children or descendants,
legitimate or legitimated by subsequent
(1) If expressly stipulated: the donee must
marriage, or illegitimate, may be revoked or
pay only the debts contracted before
reduced by the happening of any of these
the donation unless specified otherwise.
events:
But in no case shall the donee be
responsible for debts exceeding the (1) If the donor, after the donation, should
value of the property donated unless have legitimate or legitimated or
clearly intended. illegitimate children, even though they
be posthumous;
(2) If there’s no stipulation – the donee will
be answerable only for the donor’s debt (2) If the child of the donor, whom the
only in case the donation is in fraud of latter believed to be dead when he
creditors. made the donation, should turn out to
be living; or
(3) If the donor subsequently adopt a minor
iv. Illegal or im possible conditions
child.
[NCC 1183]
The donation shall be revoked or reduced
Impossible conditions: those contrary to
insofar as it exceeds the portion that may be
good customs or public policy and those
freely disposed of by will, taking into
prohibited by law shall annul the obligation,
account the whole estate of the donor at the
which depends upon them.
time of the birth, appearance or adoption of
If the obligation is divisible, that part a child [NCC 760].
thereof which is not affected by the
impossible or unlawful condition shall be
valid. Inofficious Donations
The condition not to do an impossible thing The donation shall be reduced with regard
shall be considered as not having been to the excess.
agreed upon.
But this reduction shall not prevent the
donations from taking effect during the life
of the donor, nor shall it bar the donee from
v. Double donations [NCC 744]
appropriating the fruits.
Rule: Priority in time, priority in right.
Only those who, at the time of the donor's
(1) If movable: one who first took death, have a right to the legitime and their
possession in good faith. heirs and successors-in-interest may ask for
the reduction or inofficious donations.
(2) If immovable: one who recorded in
registry of property in good faith If, there being two or more donations, the
disposable portion is not sufficient to cover
(3) If there is no inscription, the one who
all of them, those of the more recent date
first took possession in good faith.
shall be suppressed or reduced with regard
(4) If there is no possession, one who can to the excess.
present the oldest title.

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Scope of am ount [NCC 750-752]

The donations may comprehend all the F.3. THOSE MADE TO A PUBLIC OFFICER
present property of the donor, or part OR HIS WIFE, DESCENDANTS AND
thereof. ASCENDANTS, BY REASON OF HIS
OFFICE
Provided he reserves, in full ownership or in
usufruct, sufficient means for the support of
himself, and of all relatives who, at the time
F.4. THOSE MADE TO PERSONS
of the acceptance of the donation, are by
INCAPACITATED TO SUCCEED BY WILL.
law entitled to be supported by the donor
[NCC 1027]

vii. Donations cannot com prehend

future property. G. REVOCATION V. REDUCTION
Future property is understood anything
which the donor cannot dispose of at the Revocation Reduction
time of the donation.
Total withdrawal of
Amount is only
amount, whether the
viii. In fraud of creditors [NCC 759] insofar as the
legitime is impaired
legitime is prejudiced
Donation is always presumed to be in fraud or not
of creditors, when at the time thereof the
Benefits the donor’s
donor did not reserve sufficient property to
heirs (except when
pay his debts prior to the donation.
Benefits the donor made on the ground
The donee shall be responsible for donot’s of the appearance of
debts only when the donation has been a child)
made in fraud of creditors, otherwise
creditors may rescind donation by way of
accion pauliana. G.1. GROUNDS FOR REDUCTION
(1) Inofficiousness
F. VOID DONATIONS [NCC 739-740, A donation where a person gives or
1027] receives more than what he may give or
receive by will is inofficious. [NCC 752]
F.1. THOSE MADE BETWEEN PERSONS (2) Subsequent birth, reappearance of child
WHO WERE GUILTY OF ADULTERY OR or adoption of minor by donor [NCC
CONCUBINAGE AT THE TIME OF THE 760]
DONATION
Effects of subsequent birth,
NOTE: The spouse of the donor or donee reappearance or adoption:
may bring the action for declaration of
nullity and the guilt of the donor and donee (a) A donation is valid if it does not
may be proved by preponderance of exceed the free part computed as of
evidence in the same action. the birth, adoption or reappearance
of the child.
(b) The donee must return the property
F.2. THOSE MADE BETWEEN PERSONS or its value at the time of the
FOUND GUILTY OF THE SAME CRIMINAL donation.
OFFENSE, IN CONSIDERATION THEREOF

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(c) The fruits must be returned from (c) If he unduly refuses him support
the filing of the action. when the donee is legally or morally
bound to give support to the donor.
(d) Mortgages by the donee are valid
but may be discharged subject to
reimbursement from the donee.
Applies to all donations EXCEPT:
(e) Extent of revocation: only to the
(1) Mortis causa
extent of the presumptive legitime
of the child. (2) Propter nuptias
(3) Insufficient means of support (3) Onerous donations
(4) In fraud of creditors Notes:
(5) Prescription – 4 years from either: Founded on moral duty: one who received a
donation must be grateful to his benefactor.
(a) Birth of first legitimate child;
Conviction is not necessary.
(b) Legitimation, adoption, recognition
of first child; Time to file action for revocation – within 1
yr from knowledge of the offense by donor
(c) Judicial declaration of filiation; or
and it was possible for him to file the case
(d) Knowledge of information on the [NCC 769].
existence of a child believed to be
dead.
W ho may file
Action for revocation on the ground of
G.2. REVOCATION
donee’s ingratitude is personal to the
(1) Failure to comply with any of the donor; it cannot be filed by donor’s heirs,
conditions imposed by the donor upon although they may substitute the donor in
the donee case he dies during the pendency of the
case.
(2) For additional legitime for subsequent
birth, reappearance or adoption
(3) Ingratitude Effect of revocation on alienations
and encum brances [NCC 766]
The following cases are forms of
ingratitude: Alienations and mortgages effected before
the notation of the complaint for revocation
(a) If the donee should commit some in the Registry of Property shall subsist.
offense against the person, the
honor or the property of the donor, Later ones shall be void.
or of his wife or children under his
parental authority;
Effect as to fruits [NCC 768]
(b) If the donee imputes to the donor
any criminal offense, or any act When the donation is revoked for any of the
involving moral turpitude, even causes stated in NCC 760, or by reason of
though he should prove it, unless ingratitude, or when it is reduced because it
the crime or the act has been is inofficious, donee shall not return the
committed against the donee fruits except from the filing of the
himself, his wife or children under complaint.
his authority; or If the revocation is based upon
noncompliance with any of the conditions
imposed in the donation, the donee shall

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return not only the property but also the

fruits thereof which he may have received
after having failed to fulfill the condition.

W hat m ay be donated

All present property of the donor or part thereof Limitation:

(1) He reserves in full ownership or in usufruct,
sufficient means for his support and for all
relatives who are at the time of the acceptance of
the donation are, by law, entitled to be supported
Effect of non-reservation: donation is inofficious,
reduction of the donation

(2) He reserves sufficient property at the time of

the donation for the full settlement of his debts
Effect of non-reservation: considered to be a
donation in fraud of creditors subject of accion
pauliana, and donee may be liable for damages

W hat m ay not be donated

(1) Future property; those which the donor cannot

dispose of at the time of the donation [NCC 751]
(2) More than what he may give or receive by will
[NCC 752]
If exceeds: inofficious

Donations made to several persons jointly

No accretion – one donee does not get the share Exception: those given to husband and wife,
of the other donees who did not accept [NCC 753] except when the donor otherwise provides

Donor

Who are allowed: All persons who may contract (of Who are not allowed:
legal age) and dispose of their property [NCC 735]
(1) Guardians and trustees with respect to the
property entrusted to them [NCC 736]
Donor’s capacity is determined at the time of the
making of donation [NCC 737]
(2) Made between person who are guilty of
adultery or concubinage [NCC 739]
Made between persons found guilty of the same
criminal offense, in consideration thereof [NCC
739]

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Donee

Who are allowed to accept donations: Those who Who are not allowed:
are not specifically disqualified by law [NCC 738]
(1) Made between person who are guilty of
Those who are allowed, with qualifications: adultery or concubinage [NCC 739]
Minors, insane/imbecile, deaf-mute and others (2) Made between persons found guilty of the
who are incapacitated [see NCC 38], provided that same criminal offense, in consideration thereof
their acceptance is done through their parents or [NCC 739]
legal representatives [NCC 741]
(3) Made to a public officer or his wife, descendant
(2) Conceived and unborn children, provided that and ascendants, by reason of his office [NCC 739]
the donation is accepted by those who would
(4) Those who cannot succeed by will [NCC 740]
legally represent them if they were already born
Those made to incapacitated persons, although
simulated under the guise of another contract
[NCC 743]

Acceptance of the donation

Who may accept [NCC 745] When to accept: during the lifetime of the donor or
donee [NCC 746]
(1) Donee personally
(2) Authorized person with a special power for the
purpose or with a general sufficient power

W hat the donee acquires with the thing

He shall be subrogated to all the rights and

actions that would pertain to the donor in case of
eviction [NCC 754]

Obligation of the donor

No obligation to warrant [NCC 754] Exception: when the donation is onerous

Obligation of the donee

If the donation so states, the donee may be Exception: when contrary intention clearly appears
obliged to pay the debts previously contracted by
the donor and in no case shall he be responsible
for the debts exceeding the value of the thing
donated [NCC 758]

W hat m ay be reserved by the donor

Right to dispose of some of the things donated, or If the donor dies without exercising this right
of some amount which shall be a charge thereon

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Reversion

The property donated may be restored or returned Limitation to (2): the third person would be living
to at the time of the donation
(1) Donor or his estate; or
(2) Another person

Revocation/Reduction
Tim e of Action Transm issibility Effect Liability (Fruits)

Birth, appearance, adoption

Within 4 years from Transmitted to children Property is returned Fruits returned from the
birth, legitimation and and descendants upon filing of the complaint
If the property has been
adoption the death of donor
sold, its value at the
time of donation shall
be returned.
If the property was
mortgaged, the donor
may redeem the
mortgage, with right to
recover the amount from
the donee

Non-com pliance with condition

Within 4 years from non- May be transmitted to Property returned, Fruits received after
compliance donor’s heirs and may alienations and having failed to fulfill
be exercised against mortgages void subject condition returned
donee’s heirs to rights of third persons
in good faith

Ingratitude

Within 1 year after Not transmitted to heirs Property returned, but Fruits received from the
knowledge by donor of of donor/ donee, but if alienations and filing of the complaint
the fact and it was donor dies during mortgages effected returned
possible for him to bring pendency of case, heirs before the notation of
the action may be substituted. the complaint for
revocation in the registry
of property subsist

Failure to reserve sufficient means for support

At any time, by the Not transmissible Reduced to the extent Donee entitled
donor or relatives necessary to provide
entitled to support support

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Tim e of Action Transm issibility Effect Liability (Fruits)

Inofficiousness for being in excess of what the donor can give by will

Within 5 years from the Transmitted to donor’s Donation takes effect on Donee entitled
death of the donor [NCC heirs the lifetime of donor.
1149] Reduction only upon his
death with regard to the
excess

Fraud against creditors

Rescission within 4 Transmitted to creditor’s Returned for the benefit Fruits returned/ if
years from the heirs or successors-in- of the creditor who impossible, indemnify
perfection of donation/ interest brought the action creditor for damages
knowledge of the
donation

H. TRADITION H.3. KINDS

It is a derivative mode of acquiring ownership Real Tradition: physical delivery
and other real rights by virtue of which, there Constructive Tradition: when the delivery
being intention and capacity on the part of of the thing is not real or material but
the grantor and grantee and the pre- consists merely in certain facts indicative of
existence of said rights in the estate of the the same
grantor, they are transmitted to the grantee
through a just title. Sym bolical Tradition: done through the
delivery of signs or things which represent
that which is being transmitted. (e.g. keys or
H.1. REQUISITES title itself)
Pre-existence in the estate of the grantor of Tradition by public instrument:
the right to be transmitted; consists in the substitution of real delivery of
possession by a public writing with the
Just cause or title for the transmission; delivery of a document which evidences the
Intention on the part of the grantor to grant transaction.
and on the part of the grantees to acquire; Traditio longa manu: made by the grantor
Capacity to transmit and to acquire; and pointing out to the grantee the thing to be
delivered.
An act that gives it outward form, physically,
symbolically, or legally. Traditio brevi manu: takes place when the
grantee is already in possession of the thing.
(e.g. when the lessee buys the thing leased to
H.2. PURPOSE him)
Ownership and other real rights are Traditio constitutum possessorium:
transferred, among other means, by tradition. similar to brevi manu but in the opposite
sense – when the owner alienates a thing but
The delivery of a thing constitutes a remains in possession in another concept as
necessary and indispensable requisite for the lesee or depositary.
purpose of acquiring the ownership of the
same by virtue of a contract.

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Quasi-tradition: delivery of incorporeal

things or rights by the grantee exercising his XII. Prescription
rights with the grantor’s consent. By prescription, one acquires ownership and
Tradition by operation of law: delivery other real rights through the lapse of time in
which is not included in the foregoing modes the manner and under the conditions laid
of delivery and where the delivery is effected down by law. In the same way, rights and
solely by virtue of an express provision of law, conditions are lost by prescription.
e.g. NCC 1434.

It is a means of acquiring ownership and

other real rights or losing rights or actions to
enforce such rights through the lapse of time.

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

B. KINDS OF PRESCRIPTION
(1) Acquisitive prescription
(2) Extinctive prescription

B.1. ACQUISITIVE PRESCRIPTION

The acquisition of ownership and other real
rights through possession in the concept of
owner of a thing in the manner and condition
provided by law.

May be ordinary or extraordinary:

Ordinary: requires possession of things in
good faith and with just title for the time fixed
by law.
Extraordinary: acquisition of ownership
and other real rights without need of title or
of good faith or any other condition.

Prescription where possession in good

faith converted into possession in bad
faith:

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(1) Ordinary Acquisitive Extinctive

Movable properties - 4 years Prescription Prescription

Immovable properties - 10 years Requires positive Requires inaction of

action of the the owner out of
(2) Extraordinary: possessor (a possession or neglect
Movable properties - 8 years claimant) who is not of one with a right to
the owner bring his action
Immovable properties - 30 years
Applicable to all
Applicable to
kinds of rights,
ownership and other
As a mode of acquisition, prescription whether real or
real rights
requires existence of following: personal
(1) Capacity of the claimant to acquire by Vests the property Vests the property
prescription; and raise a new title and raise a new title
(2) A thing capable of acquisition by in the occupant in the occupant
prescription;
Results in the Merely results in the
(3) Adverse possession of the thing under acquisition of loss of a real or
certain conditions; and ownership or other personal right, or
(4) Lapse of time provided by law. real rights in a bars the cause of
person as well as the action to enforce said
(5) Possession must be in the concept of loss of said right
owner, not holder. ownership or real
rights in another

The following are only required in ordinary Can be proven under Should be
acquisitive prescription: the general issue affirmatively pleaded
without its being and proved to bar the
(1) Good faith of the possessor; and
affirmatively pleaded action or claim of the
(2) Proof of just title adverse party

Note: C. NO PRESCRIPTION APPLICABLE

For extraordinary prescription, only
possession in the concept of owner is
required; no need of good faith and just title. C.1. BY OFFENDER
Possession has to be in the concept of an The offender can never acquire, through
owner, public, peaceful, and uninterrupted. prescription, movable properties possessed
through a crime.

B.2. EXTINCTIVE PRESCRIPTION

C.2. REGISTERED LANDS
The loss or extinguishment of property rights
or actions through the possession by another PD 1529 (Amending and codifying the laws
of a thing for the period provided by law or relative to registration of property and for
through failure to bring the necessary action other purposes)
to enforce one’s right within the period fixed No title to registered land in derogation of
by law. the title of the registered owner shall be
acquired by prescription or adverse
possession.

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C.8. PRESCRIPTION DISTINGUISHED

FROM LACHES
C.3. RIGHTS NOT EXTINGUISHED BY
PRESCRIPTION [NCC 1143]
(1) To demand a right of way, regulated by Prescription Laches
NCC 649;
(2) To bring an action to abate a public or Concerned with the Concerned with the
fact of delay effect of delay
private nuisance.
A question or a Principally a question
matter of time of inequity of
C.4. ACTION TO QUIET TITLE IF PLAINTIFF
permitting a claim to
IS IN POSSESSION
be enforced, this
When plaintiff is in possession of the inequity being
property: the action to quiet title does not founded on some
prescribe. subsequent change
in the condition or
The reason is that the owner of the property
the relation of the
or right may wait until his possession is
parties
disturbed or his title is assailed before taking
steps to vindicate his right. Statutory NOT statutory

Applies at law Applies at equity

C.5. VOID CONTRACTS
The action or defense for the declaration of Cannot be availed of Being a defense of
the inexistence of a contract does not unless it is especially equity, need not be
prescribe. [NCC 1410] pleaded as an specifically pleaded
affirmative allegation
The title is susceptible to direct as well as to
collateral attack. [Ferrer v. Bautista, 1994] Based on a fixed time NOT based on a fixed
time

C.6. ACTION TO DEMAND PARTITION

No prescription shall run in favor of a co- D. PRESCRIPTION OR LIMITATION OF
owner or co-heir against his co-owners or co- ACTIONS
heirs so long as he expressly or impliedly
recognizes the co-ownership. [NCC 494]
D.1. TO RECOVER MOVABLE PROPERTIES
The action rescribes in 8 years from the time
C.7. PROPERTY OF PUBLIC DOMINION the possession thereof is lost. [NCC 1140]
Prescription, both acquisitive and extinctive, However, the action shall not prosper if it is
does not run against the State in the exercise brought after 4 years when the possessor has
of its sovereign function to protect its interest already acquired title by ordinary acquisitive
EXCEPT with respect to its patrimonial prescription. [NCC 1132]
property which may be the object of
prescription. [NCC 1113] If the possessor acquired the movable in
good faith at a public sale, the owner cannot
obtain its return without reimbursing the
price paid.

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D.2. TO RECOVER IMMOVABLES iv. Actions that Prescribe in 4 Years

[NCC 1145]
Real actions prescribe after 30 years [NCC
1141] (1) Upon an injury to the rights of the
plaintiff
UNLESS the possessor has acquired
ownership of the immovable by ordinary (2) Upon a quasi-delict
acquisitive prescription through possession of
But when the action arises from any act of
10 years. [NCC 1134]
any public officer involving the exercise of
powers arising from Martial Law including
the arrest, detention and/or trial of the
Action for reconveyance
plaintiff, the same must be brought within 1
(1) Based on fraud: Prescribes 4 years year.
from the discovery of fraud.
(2) Based on im plied or constructive
v. Actions that Prescribe in One Year
trust: 10 years from the alleged
or Less [NCC 1147]
fraudulent registration or date of
issuance of certificate of title over the (1) For forcible entry within one year from
property. date of dispossession thru FISTS or
unlawful detainer 1 year from date of last
demand
D.3. OTHER ACTIONS
(2) For defamation

i. Action to foreclose m ortgage:

vi. Other Actions that Prescribe in 1
Prescribes after 10 years from the time the Year under the Civil Code
obligation secured by the mortgage becomes
(1) To recover possession de facto [NCC 554
due and demandable
(4)]
(2) To revoke a donation on the ground of
ii. Actions that Prescribe in 10 Years ingratitude [NCC 769]
[NCC 1144]
(3) To rescind or recover damages if
(1) Upon a written contract immovable is sold with non-apparent
burden or servitude [NCC 1560 (3,4)]
(2) Upon an obligation created by law
(4) To enforce warranty of solvency of debts
(3) Upon a judgment
in assignment of credits [NCC 1629]
The computation of the period of prescription
of any cause or right of action, which is the
same as saying prescription of the action, vii. W here Periods of Other Actions
should start from the date the cause of action Not Fixed in the Civil Code and in
accrues or from the day the right of the Other Laws
plaintiff is violated. [Nabus v. CA, 1991]
All other actions whose periods are not fixed
in the Civil Code or in other laws must be
brought within 5 years from the time the right
iii. Actions that Prescribe in 6 Years
of action accrues. [NCC 1149]
[NCC 1145]
(1) Upon an oral contract
viii. Interruption [NCC 1155]
(2) Upon a quasi-contract
Prescription of actions is interrupted when:
(1) They are filed before the court

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(2) When there is a written extrajudicial

demand by the creditors
(3) When there is any written
acknowledgment of the debt by the
debtor
Civil actions are deemed commenced from
the date of the filing and docketing of the
complaint with the Clerk of Court. [Cabrera v.
Riano (1963)]
A written extrajudicial demand wipes out the
period that has already elapsed and starts
anew the prescriptive period [The Overseas
Bank of Manila v. Geraldez, (1979)]
Not all acts of acknowledgement of a debt
interrupt prescription. To produce such effect,
the acknowledgment must be “written”, so
that the payment, if not coupled with the
communication signed by the payor would
interrupt the running of the period of
prescription [PNB v. Osete (1968)]

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