CIVIL LAW CONCEPT OF PROPERTY All things, whether tangible or intangible, which are, or may be the object of appropriation

PROPERTY: AS A SUBJECT It is that branch of Civil Law which classifies and defines the different kinds of appropriable objects.

1) Utility, which means it is capable of

satisfying human wants, either for pleasure or for comfort. What do we understand by pleasure or comfort? Anything or something that can form part of the patrimony of man, his estate, in order to satisfy his wants. Susceptibility of appropriation. One characteristic of property is that it is susceptible to be appropriated, so that what cannot be appropriated cannot be considered as property. Individuality or Substantivity: Meaning the thing can exist by itself; it is not a part of a whole. The example given by Paras is the human hair. Once it is detached then it becomes a property.

2)

Appropriation defined as a verb as used in the definition of property which means to allot for specific use. Distribute is a very narrow word compared to appropriation. So anything that one can possess that can be allotted for specific use is property under the Civil Code.

3)

Thing As used in the Civil Code, a thing is synonymous to property. However, thing is broader than property because thing can be something that can or cannot be appropriated. It may refer to both appropriable or non-appropriable objects.

Art. 414: All things which are or may be the object of appropriation are considered either: 1) IMMOVABLE OR REAL PROPERTY; 2) 2) MOVABLE OR PERSONAL PROPERTY. Classification of Property 1) Real or immovable (buenes immuebles) 2) Personal or movable (buenes muebles)

Right to property It is the juridical tie that entitles a person to make use, enjoy, dispose, abuse, and recover the thing. CLASSIFICATION OF THINGS: According to the nature of their ownership: 1. res nullius those belonging to no one: this is either because it has not been appropriated, or there is abandonment Examples: i. Fishes swimming in the sea but once they are caught, they are appropriated; they now belong to the fishermen. They cease to be res nullius. Things which have been abandoned by their owner without the intention of owning them again; 2. res communes those belonging to everybody: no one has the right to appropriate the same exclusively at the expense of another person Examples: air we breathe, the sunlight, the wind 3. res alicujus belonging to someone. These are objects that are tangible/intangible, which are owned privately either in collective or individual capacity. So if you own something like your clothes, shoes, pen, land. These are res alicujus and are considered as property. 3 CHARACTERISITICS OF PROPERTY. (Absent any one of this, the thing may not be considered as property)

Importance of the Classification of Property Into Immovables and Movables: They do not assume importance from the fact that they are movables or immovables, but because different provisions of law govern their acquisition, possession, disposition, loss and registration.

Caltex vs. Central Board of Assessment Appeals (GR L-50466) Facts: This case is about a realty tax on machinery and equipment installed by Caltex in its gas stations located on leased land. The machines and equipment consist of underground tanks, elevated tank, water tanks, gasoline pumps, etc. The said machines and equipment are loaned by Caltex to gas station operators under a lease agreement where it is stipulated that the operators, upon deman, shall return to Caltex the machines and equipment in good condition when received, ordinary wear and tear expected. Hence the lessor of the land where the gas station is located does not become the owner of the machines and equipment installed for ownership is retained by Caltex. The city assessor of Pasay City characterized the said items as taxable realty. The city board of tax appeals ruled that they are personal property.

Issue: W/N the gas station equipment and machinery permanently affixed by Caltex to its gas station and pavement should be subject to realty tax. Held: Yes. Improvements on land are commonly taxed as realty even though for some purposes they might be considered as personalty. It is a familiar phenomenon to see things classed as real property for purposes of taxation which on general principle might be considered personal property. 2. NAVARRO VS PINEDA (GR L-18456) Facts: On Dec. 14, 1959, Rufino Pineda and his mother Juana borrowed form Navarro the sum of Php 2, 550.00 payeable 6 months after or on June 14. To secure the indebtedness, Rufino executed a document captioned "DEED OF REAL ESTATE AND CHATTEL MORTGAGES", whereby Juana, by way of real estate mortgage hypothecatd a parcel of land, and Rufino by way of Chattel mortgage, mortgaged his 2 story residential house, erected on the land of one Atty. Castro, and one motor truck. The debts became due and demandable. However, the private respondents were unable to pay despite extension grants. Thereafter, the petitioner filed a complaint for foreclosure of the mortgage and for damages. Issue: W/N the residential house can be validly the subject of a chattel mortgage Held: Yes. The trial court did not predicate its decision declaring the deed of chattel mortgage valid solely on the ground that the house mortgaged was erected on the land which belonged to a third person, but also on the doctrine of estoppel, in that "the parties have so expressly agreed" in the mortgage to consider the house as a chattel "for its smallness and mixed materials of sawali and wood". In a case, a mortgaged house built on a rented land, was held to be a personal property not only because the deed of mortgage considered. it as such, but also because it did not form an integral part of the landor it is now well settled that an object placed on land by one who has only a temporary right to the same, such as a lessee or usufructuary, does not become immobilized by attachment. Hence, if a house belonging to a person stands on a rented land belonging to another person, it may be mortgaged as a personal property if so stipulated in the document of mortgage. It should be noted, however, that the principle is predicated on statements by the owner declaring his house to be a chattel, a

conduct that may conceivably estop him from subsequent claiming otherwise. The doctrine, therefore, gathered from these cases is that although in some instances, a house of mixed materials has been considered as a chattel between the parties and that the validity of the contract between them, has been recognized, it has been a constant criterion nevertheless that, with respect to third persons, who are not parties to the contract, and specially in execution proceedings, the house is considered as an immovable property. 3. TUMALAD vs VICENCIO (GR L-30173) Facts: On Sept. 1, 1955, defendants executed a chattel mortgage in favor of the plaintiffs over their house of strong materials located at No. 550 Int. 3, Quezon Blvd, Quiapo, erected on lands which were being rented from Madrigal and Company Inc. The mortgage was to guarantee a loan of Php 4, 800.00. When defendants defaulted in paying, the mortgage was extrajudicially foreclosed and sold at a public auction pursuant to the contract. As the highest bidder, plaintiffs were issued a deed of sale. Subsequently, plaintiffs filed a civil case praying, among others, that the house be vacated and its possession surrendered to them. Issue: W/N the house can be a valid subject of a chattel mortgage, given the fact that it is made of strong materials Held: The rule about the status of buildings as immovable has been stated in many cases to the effect that "it is obvious that the inclusion of the building, separate and distinct from teh land, in the enumeration of what may constitute real properties (Art. 415) could only mean one thing, that a building is by itself an immvable property, irrespective of whether or not said structure and the land on which it is adhered to belong to the same owner. Certain exceptions have been recognized, however. In the case at bar, the house on rented land is not only expressly designated as Chattel Mortgage; it specifically provides that "the mortgagor ... voluntarily CEDES, SELLS and TRANSFERS by way of Chattel Mortgage he property together with its leasehold rights over the lot on which it is constructed and participation ..."lthough there is no specific statement referring to the subject house as personal property, yet by ceding, selling or transferring a property by way of chattel mortgage defendants-appellants could only have meant to convey the house as chattel, or at least, intended to treat the same as such, so that they should not now be allowed to make an inconsistent stand by claiming otherwise. oreover, the subject

house stood on a rented lot to which defendants-appellants merely had a temporary right as lessee, and although this can not in itself alone determine the status of the property, it does so when combined with other factors to sustain the interpretation that the parties, particularly the mortgagors, intended to treat the house as personalty. Also, unlike in the Iya cases, it is the defendants themselves who are attackin the validity of the mortgage. The doctrine of estoppel therefore applies to them. 2. ASSOCIATED INSURANCE AND SURETY CO. INC. V IYA (GR L-10837), May 30, 1958 Facts: Spouses Valino were the owners and possessors of a house of strong materials constructed on a lot located at Grace Park Subd, Caloocan, Rizal which they purchased on installment basis from the Phil. Realty Corp. To be able to purchse on credit rice from the NARIC, Lucia filed a bond in the sum of Php 11,000 subscribed by the Associated Insurance Surety Co, and as counter-guaranty, the spouses executed an alleged chattel mortgage on the aforementioned house in favor of AISCO. Having completed payment on the purchase price of the lot, the Valinos were able to secure on October 18, 1958, a certificate of title in their name. Subsequently, however, the Valinos, to secure payment of an indebtedness in the amount of P12,000.00, executed a real estate mortgage over the lot and the house in favor of Isabel Iya, which was duly registered and annotated at the back of the certificate of title. On the other hand, as Lucia A. Valino, failed to satisfy her obligation to the NARIC, the surety company was compelled to pay the same pursuant to the undertaking of the bond. In turn, the surety company demanded reimbursement from the spouses Valino, and as the latter likewise failed to do so, the company foreclosed the chattel mortgage over the house. As a result thereof, a public sale was conducted wherein the property was awarded to the surety company as the highest bidde The surety company then caused the said house to be declared in its name for tax purposes. AISCO subsequently learned of the existence of the real estate mortgage over the lot together with the improvements thereon and thus instituted a civil case naming the spouses and Iya as defendants. Held: A building cannot be divested of its character of a realty by the fact that the land on which it is constructed belongs to another. To hold it the other way, the possibility is not remote that it would result

in confusion, for to cloak the building with an uncertain status made dependent on the ownership of the land, would create a situation where a permanent fixture changes its nature or character as the ownership of the land changes hands.In the case at bar, as personal properties could only be the subject of a chattel mortgage (Section 1, Act 3952) and as obviously the structure in question is not one, the execution of the chattel mortgage covering said building is clearly invalid and a nullity. While it is true that said document was correspondingly registered in the Chattel Mortgage Register of Rizal, this act produced no effect whatsoever for where the interest conveyed is in the nature of a real property, the registration of the document in the registry of chattels is merely a futile act. Thus, the registration of the chattel mortgage of a building of strong materials produce no effect as far as the building is concerned. Human organ can be a subject of donation because there is a law allowing donations of human organs. In other words, for purposes of donations, human organs can be considered as property for purposes of giving effect thereto. A dead body by law belongs to no one and is therefore under the protection of the public. There can be no property in the person deceased.

LEUNG YEE vs. STRONG MACHINERY GR No. L-11658. February 15, 1918 Parties to a contract may treat a real property by nature as personal property. However, this is only binding insofar the parties are concerned and do not affect third persons. FACTS Compania Agricola Filipina purchased ricecleaning machineries from STRONG MACHINERY. A chattel mortgage was executed to secure payment of the sale, involving a building with the exclusion of the land on which it stood. Unable to pay the debt upon due, the mortgaged property was auctioned by the sheriff and was bought by STRONG MACHINERY. The sale was registered in the chattel mortgage registry and STRONG MACHINERY came into possession of said property. While a chattel mortgage was executed between Compania Agricola Filipina and STRONG MACHINERY, the former also entered into another mortgage concerning the same building with LEUNG YEE. Unable to pay, the building was auctioned by the sheriff and was bought by LEUNG YEE. The sale was registered in the land registry. When the execution was levied upon the building, STRONG MACHINERY, being in

possession of the property, demanded its release from the levy. LEUNG YEE filed an action to recover the possession of the property. ISSUES (1) Whether or not parties to a contract may treat an immovable property as personal property. (2) Whether or not LEUNG YEE was bound by the chattel mortgage on the building executed between Compania Agricola Filipina and STRONG MACHINERY. RULING (1) YES, parties to a contract may treat an immovable property as personal property. However, the building was real property and that mere fact that the parties seem to have dealt it separate and apart from the land on which it stood no wise changed its character as real property. Its annotation in the Chattel Mortgage Registry could not be given the legal effect of registration in the Registry of Real Property. (2) NO, he was not. LEUNG YEE was not bound by the chattel mortgage on the building executed between Compania Agricola Filipina and STRONG MACHINERY. To treat a real property, a building in this case, as personal property, is only binding between the contracting parties and does not affect third persons. Hence, LEUNG YEE, being a third person to the agreement, was not bound by it. However, because there was bad faith on the part of LEUNG YEE since he purchased the building despite having knowledge that STRONG MACHINERY had previously purchased it, the court ruled that the latter has rightful ownership over it. NAVARRO vs. PINEDA GR No. L-18456. November 30, 1963. 9 SCRA 631 Where a house standing on a rented land is made subject of a chattel mortgage, its validity cannot be assailed by the contracting parties based partly upon the principle of estoppel. FACTS PINEDA and GONZALES borrowed P2,550.00 from plaintiff NAVARRO, which was payable in 6 months. To secure the debt, PINEDA mortgaged: (1) his 2-story residential house situated on a lot belonging to another, and (2) 1 motor truck by was of chattel mortgage. GONZALES on the other hand, mortgaged her parcel of land by way or real estate mortgage. A Deed of Real Estate and Chattel Mortgages was executed. Both mortgages were registered with the Registry of Deeds and Motor Vehicles Offices. When the debt became due and PINEDA and GONZALES were unable to pay, NAVARRO granted them 2 extensions but

they still failed to give payment. NAVARRO then filed a complaint for the foreclosure of the mortgage and for damages. In a Stipulation of Facts submitted by the parties in court, PINEDA and GONZALES admitted their indebtedness to NAVARRO and that it was already long due and unpaid. They also contended that only movables can be subject of a chattel mortgage that the chattel mortgage of PINEDAs house which was erected on a lot belonging to another person made the Deed of Real Estate and Chattel Mortgages invalid. The court however, ordered the auction of the mortgaged properties. Hence, this appeal by PINEDA, contending that his house which was built on a lot not owned by him was real property that the chattel mortgage on said house was invalid. ISSUE Whether or not the Deed of Real Estate and Chattel Mortgages is valid when the house PINEDA made subject of the chattel mortgage was erected on a land belonging to a third person. RULING YES, the mortgage was valid. Where a house stands on a rented land belonging to another person, it may be subject matter of a chattel mortgage, the validity of which cannot be assailed by the contracting parties based partly upon the principle of estoppel. Parties to a contract may by agreement treat as personal property that which by nature would be real property but is only binding in so far as the contracting parties are concerned. In the case at bar, the house was treated was a personal or movable property by the parties to the contract themselves. In fact, in the Deed of Real Estate and Chattel Mortgages executed by PINEDA, said house was referred to as personal property and a chattel for its smallness and mixed materials of sawali and wood, which was to be conveyed by way of chattel mortgage. With this, PINEDA and GONZALES are estopped to question the validity of the mortgages. SORIANO vs. GALIT GR No. 156295. September 23, 2003. 411 SCRA 631 A building in itself is considered immovable. It may then be a subject of a real estate mortgage separate from the land. FACTS GALIT contracted a P480,000.00 loan from SORIANO. The loan was secured by a real estate mortgage over a parcel of land. For failure to pay his obligation, SORIANO filed a complaint for sum of money against GALIT. The court then ordered the sheriff to levy the GALIT spouses properties: (1) a parcel of land, (2) a storehouse and (3)

bodega. During the public auction, SORIANO was the only and highest bidder. A Certificate of Sale of Execution of Real Property was issued. However, the Certificate of Sale registered by SORIANO with the Registry of Deeds included: (1) a parcel of land and (2) the land on which the storehouse and bodega was erected. He then filed a petition for the issuance of a writ of possession over the land on which the storehouse and bodega were situated. The petition was granted by the court. GALIT spouses assailed via certiorari the inclusion of the land on which the storehouse and bodega was built on since only the 2 buildings were deemed sold to SORIANO to the exclusion of the land. The petition was granted and the writ of possession issued to SORIANO was declared null and void. Hence, this appeal by SORIANO. ISSUE Whether or not the purchase of the of the 2 buildings necessarily included the land on which they were constructed on since they are immovable properties. RULING NO, it did not. Buildings in themselves may be mortgaged apart form the land on which they have been built on. Such would still be considered immovable property even if dealt with separately and apart from the land. In fact, the Civil Code separately enumerated lands and buildings as immovable property. Hence, a building, by itself, is considered immovable. IMMOVABLE PROPERTY ART. 415: The following are immovable property: 1) Land, buildings, roads and constructions of all kinds adhered to 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. 5) Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry

or works. 6) Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent par of it; the animals in these places are included; 7) Fertilizer actually used on a piece of land; 8) Mines, quarries, and slag dumps while the matter thereof forms part of the bed and waters either running or stagnant; 9) Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast; 10) Contracts for public works, and servitudes and other real rights over immovable property. CLASSES PROPERTY: OF IMMOVABLE

1. Immovable by NATURE those which cannot be moved from place to place by their very nature such as land, mines, slag dumps; 2. Immovable by INCORPORATION those which are essentially movables, but are attached to an immovable in such a manner as to become an integral part thereof. Examples of which are those mentioned in Art. 415 par. 1, 2, 3, 4, and 6. 3. Immovable by DESTINATION those which are essentially movables, but by the purpose for which they have been placed in an immovable, partake the nature of the latter, such as those mentioned in Art. 415 par. 4, 6, 7, and 9. 4. Immovable by ANALOGY or by LAW those mentioned in Art. 415 par. 10, right of usufruct, easements, and servitudes Paragraph 1: Land, buildings, roads and constructions of all kinds adhered to soil; Land is immovable by NATURE. The buildings, roads, and constructions are immovable by INCORPORATION because they form part of an immovable or that they are adhered into the soil. Paragraph 2: Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable;

They can be considered as immovable by nature or incorporation. By NATURE if they are spontaneous products of the soil (naturally grows in the land). By INCORPORATION if they are essentially attached or planted in the land in such a manner to be an integral part thereof. Once, they are removed from or no longer adhered to the land, they become movables except if they timber from the timberland.

the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works. o REQUISITES: 1. the machineries must be placed by the owner of the immovable or his agent or his duly authorized representatives; 2. there must be an industry, business, or work must be carried on in building or the land; 3. the machineries must tend directly to meet the need of such industry or said work; 4. the machines must be essential and principal elements of the industry. The properties here are essentially movable but they become immovable under PARAGRAPH 5, because they are used in the industry, or in a business and placed by the owner of the immovable. What is the effect of the separation of these machineries in Paragraph 5? If the purpose is no longer there, they become movables. But if the separation is merely temporary, and there is that very intention to return them, then their immovable character remain

Paragraph 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; These are immovables by INCORPORATION because they cannot be separated from the immovables without breaking or substantial deterioration. The fact of incorporation determines the immovability of the thing. It is not necessary that the objects are placed by the owner in order to determine its immovability Paragraph 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.

It is necessary that the owner of the immovable property must place the object to the immovable property. The properties here are essentially movable but they become immovable under PARAGRAPH 4 because of the purpose of the owner to attach them permanently to the immovable;

MACHINERY ENGINEERING SUPPLY V CA Facts: MES filed a complaint for replevin against Ipo Limestone Co for the recovery of the machineries and equipments sold and delivered to the latter. The judge issued an order commanding the provincial sheriff to seize and take possession of the properties. Thereafter, the sheriff went to Bulacan for the purpose of carrying out the court's order. The manager of Ipo protested the seizure on the ground that the same were not personal property as dismantling them would result to damages to the wooden frames attached. The petitioner claims that the machineries and equipment seized are still MES properties until fully paid for and as such never became immovable. Issue: Should the sheriff execute the writ and confiscate the machines?

GR: to be considered as immovable, the machineries must be placed by the owner. If it is not placed by the owner, then it is considered as movable. Exceptions: 1) if it is placed by the tenant acting as agent of the owner of the immovable; 2) if the tenant has promised, or agreed in the contract that the tenant would leave the machinery or the equipment to the owner of the land even after the lease has expired.

Paragraph 5: Machinery, receptacles, instruments or implements intended by the owner of

Held: The machinery in question appeared to be attached to the land, particularly to the concrete foundation, in a fixed manner, in such a way that the former could not be separated from the latter without breaking the material or deterioration of the object. Hence, they are considered real property and not subject to replevin. NB: the issue of ownership of the materials were not raised in the CFI hence not discussed by the SC. DAVAO SAW MILL VS CASTILLO Facts: DSM operated a sawmill in DC. The land upon which the business was conducted belonged to another person. On the land, DSM erected a building which housed the machinery used by it. The machines were placed and mounted on foundations of cement. The contract of lease between DSM and the owner provided that all improvements and buildings introduced and erected by DSM shall pass to the exclusive property of the owner with the exception that the machineries and accessories are not included as improvements. In another action brought by Davao Light against DSM, judgment was rendered against the latter and a writ of execution was issued thereon, and the machines were levied as personalty by the sheriff. DSM now contends that the machines are real property (by destination), and thus cannot be levied. Held: Machine is movable by nature and only becomes immobilized when placed in a plant by the owner of the property or plant. Such result would not be accomplished, therefore, by the placing of machinery in a plant by a tenant or usufructuary or any person having only a temporary right. The distinction rests, as pointed out by Demolombre upon the fact that one only having a temporary right to the possession or enjoyment of property is not presumed by the law to have applied movable property belonging to him so as to deprive him of it by causing it by an act of immobilization to become the property of another. It follows that the machinery put by DSM did not lose its character of movable property and become immovable by destination. Hence could be levied. The concrete immobilizatoin (of the improvements, etc) took place because of the express provisions of the lease, since the lease deprived the tenant of any right to charge against the lessor the cost, and it was expressly stipulated that the improvements, etc should become part of the property belonging to the owner without

compensation to the lessee. Under such conditions, the tenant was acting but an agent of the owner, and the immobilization which resulted arose in legal effect from the act of the owner in giving by contract a permanent destination of the machinery. MINDANAO BUS CO VS. CITY ASSESSOR Facts: This is a petition to review the decision of the Court of Tax Appels in holding that the MBC is liable to the payment of the realty tax on its maintenance and repair equipment. Held: Movable equipments to be immobilized in contemplation of the law must first be "essential and principal elements" of an industry or works without which such industry or works would be "unable to function or carry on the industrial purpose for which it was established." The tools and equipments in question in this instant case are, by their nature, not essential and principal elements of petitioner's business of transporting passengers and cargoes by motor trucks. They are merely incidentals-acquired as movables and used only for expediency to facilitate and/or improve its service. Even without such tools and equipments, its business may he carried on since it can be repaired or serviced in a shop belonging to another. Aside from the element of essentiality the above-quoted provision also requires that the industry or works he carried on in a building or on a piece of land. In the case at bar the equipments in question are destined only to repair or service the transportation business, which is not carried on in a building or permanently on a piece of land, as demanded by the law. BERKENKOTTER VS CU UNJIENG Facts: There is a sugar central (Malabacat Sugar Co), several machines were installed in the plant. Now, there was a need for the plant to increase its production. They needed to install additional machines. The problem is that these machineries were purchased on account and the whole of the plant, including the land were the subject of a real estate mortgage. What compounds the problem is that merong mga machines installed after the execution of the real estate mortgage. Now, hindi nabayaran yung loan ng mga machines. So that finoforclose na ngayon yung mortgage. Sabi ng Malabacat, okay you can foreclose all the mortgage but exclude the machines since they are not part of the real estate mortgage because

they are not real property due to the fact that the price is unpaid. Issue: Are after acquired machines covered by the real estate mortgage executed before acquisition of the same? Held: Machinery intended by the owner of the building or land used in connection to any industry or trade being carried on therein and which are expressly adopted to meet the requirements of such trade, are considered as real property. o

Paragraph 8: Mines, quarries, and slag dumps while the matter thereof forms part of the bed and waters either running or stagnant;

if it is a contract for public works, then that is a real property. So if you have a right over immovable property, you have the right to sue somebody over the immovable property in which such right is also considered as immovable. So, there are 2 properties here: We call this real property by ANALOGY because these rights involve here are not material but they partake the essential characteristics of the immovable property.

Slag dump - these are dirt and soil taken form a mine and piled upon the surface of the ground. You can find minerals inside the dump. o They are considered immovables while they form part of the bed. le. But once the minerals are extracted from the land like gold, they become movable. So, this is immovable by incorporation, for as long as they are part of the soil.

PRC vs. JARQUE GR No. L-41506. March 25, 1935 Ship Vessels are personal property but when it is a subject of a chattel mortgage, the absence of an Affidavit of Good Faith as required under the Mortgage Law makes the mortgage void. FACTS PHILIPPINE REFINING CO. (PRC) and JARQUE executed 3 mortgages on the vessels Pandan and Zaragosa. The 2 vessels were referred to as chattel mortgage. A 4th mortgage was executed between JARQUE and Aboitiz on the vessel Zaragosa, which was entered in the chattel mortgage registry. A petition to declare JARQUE as an insolvent debtor was filed in court. After said petition was granted, all of JARQUEs properties were assigned to Corominas. However, the judge refused to order the foreclosure of the mortgages in favor of PRC declaring that it contained defects. Being that chattel mortgages require an Affidavit of Good Faith for their validity, the first 2 mortgages lacked such affidavit and while although the 3rd mortgage contained such, it was not registered within 30 days before the commencement of the insolvency proceedings against JARQUE. On appeal, PRC contended that the vessels do not need said Affidavit of Good Faith on the ground that they were real property. ISSUE Whether or not motor vessels are real property that when mortgaged, they do not need an Affidavit of Good Faith to be valid. RULING NO, motor vessels are not real property but are rather personal property under both the civil and common laws. Hence, they are subject under the Chattel Mortgage Law. A mortgage on a vessel is generally like any other chattel mortgage as to its requisites and validity. The difference is that the title to a vessel subject of a mortgage should be

Paragraph 9: Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast; o So the docks and structures have to be fixed. But if you have a houseboat that moves from one place to another, it is not considered immovable but movable. o Vessels, ships no matter how big they are, are movable properties. o In the case PRC V JARQUE, this illustrates the fact that vessels are considered as personal property. Its just that when it comes to vessels, there are certain requirements for a sale to be valid and binding against 3rd persons such as registration in the Registry of Property Vessels and the affidavit of good faith. But just take note that if a vessel is a subject of transaction, it is definitely movable. Paragraph 10: Contracts for public works, and servitudes and other real rights over immovable property. o The contract itself, the piece of paper is not immovable but movable. But what is written on the piece of paper,

recorded not with the Registry of Deed but rather with the Collector of Customs of the port of entry. The Chattel Mortgage Law includes the requirement of an Affidavit of Good Faith appended to the mortgage and recorded therewith. The absence of said affidavit vitiates a mortgage as against creditors and subsequent encumbrancers. Being that no affidavit was executed, the mortgage was lacking and was rule unenforceable against third persons. CALTEX vs. CBAA GR No. L-50466. May 31, 1982. 114 SCRA 296 Gas station equipment and machinery are taxable as realty because without them, a gas station would entirely be useless. Some improvements although have a characteristic of personalty are taxed as real property. FACTS CALTEX loaned to gas station operators, gas station equipments and machineries under an appropriate lease agreement or receipt. Said machineries and equipments consist of underground tank, elevated water tanks, water tanks, gasoline pumps, computing pumps, car washer, car hoists, truck hoists, air compressors, etc. In the contract, it was stipulated that these equipments and machineries would still be owned by CALTEX during the period of lease. The operators shall also return to CALTEX these equipments upon demand or upon the expiration of the contract in good condition as when received, ordinary tear and wear accepted. The CITY ASSESSOR OF PASAY characterized these machines as real property and thus taxable. On appeal by CALTEX, the City Board of Tax Appeals declared it as personalty. Upon appeal of the CITY ASSESSOR OF PASAY to the CENTRAL BOARD OF ASSESSMENT APPEALS (CBAA), the latter declared said machineries as real property and hence, taxable. CALTEX filed a petition via certiorari with the SC to set aside the resolution of the CBAA and to declare said machineries as personal property and hence, not taxable. It contended that their case was similar with the Davao Saw Mills case, wherein machinery fixed on rented property was ruled as personal property. ISSUES (1) Whether or not the gas station equipment and machinery were immovable property. (2) Whether or not gas station equipment and machinery permanently fixed by CALTEX to its gas station and pavement which are taxable realty, subject to realty tax. RULING

(1) The court did not rule on the mobility or immobility of the gas station equipment and machinery. (2) YES, they are subject to realty tax. These gas station equipment and machinery are taxable improvements as appurtenances to the gas station building or shed owned by CALTEX, the latter, which are also taxable realty. It is because without these equipment and machinery, the gas station would be useless. Improvements on land are commonly taxed as realty even though for some purposes, they might be considered personalty. It is a familiar phenomenon to see things classed as real property for purposes of taxation which on general principle might be considered personal property. BENGUET CORP. vs. CBAA GR No. 106041. January 29, 1993. 218 SCRA 271 A dam is an immovable property by nature and by incorporation. Hence, it is subject to realty tax. FACTS BENGUET CORP. owned a mine and a dam. The Provincial Assessor of Zambales classified the dam as a taxable improvement of the mine. On appeal by BENGUET CORP. to the CENTRAL BOARD OF ASSESSMENT APPEALS (CBAA), the latter declared that the tailings dam and the land submerged under it are subject to realty tax. BENGUET CORP. then filed a petition to the SC via certiorari asking the court set aside the resolution of CBAA. It contended that the dam should not be subject to tax because it was not an assessable improvement of the mine but rather an integral part of the mines operation. The Sol. Gen argued however that the dam was an assessable improvement because it enhanced the value and utility of the mine like holding waste from the mine and impounding water for recycling. ISSUE Whether or not the dam was an assessable improvement of the mine and thus subject to realty tax. RULING YES, the dam was an assessable improvement of the mine and subject to realty tax. The mine can operate without the dam because the primary function of the dam is merely to receive and retain the wastes and water coming from the mine. There was no allegation that it was the only source of water as to make the dam an integral part of the mine. The Real Property Code did not define what is real property that the definition in Art. 415 of the Civil Code shall apply. The dam was an immovable under pars. 1 and 3 of Art. 415 hence it was taxable realty. Under

par. 1, the dam was an immovable property since it was a construction adhered to the soil. Under par. 3, it was an immovable since it was fixed in a manner that it cannot be separated from the land without breaking or deteriorating. SERGS PRODUCTS vs. PCI GR No. 137705. August 22, 2000. 338 SCRA 499 Immovable property, when deemed as personal property in an agreement cannot be assailed by the contracting parties by virtue of the principle of estoppel. It can then be a valid subject of a replevin. FACTS SERGS PRODUCTS owned a sum of money from PCI LEASING AND FINANCE. Unable to pay, PCI LEASING filed an application for a sum of money and for a writ of replevin to obtain machineries against SERGS PRODUCTS. Upon the issuance of the replevin, the sheriff seized 1 machinery of SERGS PRODUCTS with word that he will come back for the others. SERGS PRODUCTS prayed to the court that the enforcement of the replevin be prevented on the ground that the machineries were real property by immobilization and thus not subject to said replevin. PCI LEASING on the other hand contended that the machines were personal property. The sheriff came back to seize 2 more machines but failed. The Court of Appeals classed the machineries as personal property and had only been leased and not owned by SERGS PRODUCTS. Hence this appeal. ISSUES (1) Whether or not the machineries became real property by virtue of immobilization. (2) Whether or not the machineries could be subject of a replevin. RULING (1) YES, the machineries became real property by virtue of immobilization. The machineries were real property under par. 5 of Art. 415 being that: 1) they were placed by SERGS PRODUCTS, the owner of the tenement, (2) they were intended for an industry, which in this case is the chocolate-making industry and (3) they were essential to said industry. Hence, although each of them was movable or personal property on its own, all of them have become immobilized by destination because they are essential and principal elements of the industry. However, in the Lease Agreement executed between SERGS PRODUCTS and PCI LEASING, said machineries were referred to as personal property. Contracting parties may validly stipulate that a real property be considered as personal but is only good between them and do not affect third

persons. After agreeing on such stipulation, they are consequently estopped from claiming otherwise. SERGS PRODUCTS now, is estopped from claiming that said properties were real property when it had formerly agreed in the Lease Agreement that said properties were personal properties. (2) YES, the machineries can be the subject of a replevin because although they were real property by nature, they became personal property by agreement. ARTICLE 416: The following things are deemed to be personal property: Those movables susceptible of appropriation which are not included in the preceding article; Real property which by special provision of law is considered as personalty; Forces of nature which are brought under control by science; and In general, all things which can be transported from place to place without the impairment of the real property to which they are fixed. Two tests to determine whether the property is movable or immovable

o the test by description:

if the property is capable of being moved from place to place, then it is movable; If such change in location can be made without injury to real property to which in the meantime attached, it is movable. the test by exclusion: If it is not enumerated under Art 415, then it is considered as movable But you have to take into account the special provision of law to which makes immovable property movable for that particular purpose. SIBAL vs. VALDEZ GR No. 26278. August 4, 1927 The Chattel Mortgage Law fully recognizes that growing crops are personal property. The existence of a right on the growing crop is a mobilization by anticipation. Being personal property, it could not be subject of redemption. FACTS The sugar cane on 7 parcels of land owned by SIBAL was foreclosed by the court. VALDEZ purchased the sugar cane on said 7 parcels of land. Macondray & Co. on the other hand bought the 8 parcels of land owned by SIBAL. For account of the redemption price of said parcels, SIBAL paid Macondray & Co. P2,000.00. VALDEZ purchased from Macondray & Co. all its

rights and interests in the 8 parcels of land by virtue of the P2,000.00 paid by VALDEZ to Macondray. Thereafter, VALDEZ became the absolute owner of the 8 parcels of land. SIBAL offered to redeem the sugar cane he planted but VALDEZ refused on the ground that the sugar cane was personal property and was not therefore subject of redemption. SIBAL on the other hand, contended that the sugar cane was real property as deemed under par. 2 of Art. 415 of the Civil Code where growing crops, while they are attached to the land or form part of an immovable are immovable property. The court decided in favor of VALDEZ. Hence, this appeal. ISSUE Whether or not the sugar cane was personal property and could not be subject of redemption. RULING YES, the sugar cane was personal property. Although par. 2 of Art. 415 of the Civil Code states that growing crops, while they are attached to the land or form part of an immovable are immovable property, par. 2 of Art. 416 state that real property which by any special provision of law is considered as personalty. The special provision of law in this case is found in the Chattel Mortgage Law. The Chattel Mortgage Law fully recognizes that growing crops are personal property. Hence, for purposes of attachment of property, execution of judgment and the Chattel Mortgage Law, growing crops or ungathered products raised by early labor and cultivation are considered personal property. The existence of a right on the growing crop is a mobilization by anticipation. Therefore, the sugar cane, being personal property could not be subject of redemption. ARTICLE 417: The following are also considered as personal property: Obligations and actions which have for their object movables or demandable sums; and Shares of stocks of agricultural, commercial, and industrial entities, although they may have real estate. ARTICLE 418: Movable property is either consumable or non-consumable. To the first class belong those movables which cannot be used in a manner appropriate to their nature without their being consumed; to the second class belong all the others. Classification of movable property 1. As to nature: consumables and nonconsumables 2. As to the intention of the parties: Fungible and non-fungible

Consumable - refers to things whose use according to their nature destroys the substance of the thing or causes loss to the owner. Non- consumable refers to other kind which cannot consumed. any be

Fungible can be replaced by an equal quality or quantity either by the nature of the thing or by agreement. A thing may be fungible or non-fungible depending upon the intention of the parties. PROPERTY IN RELATION TO WHOM IT BELONGS

ARTICLE 419: Property is either of public dominion or of private ownership. Properties are owned either: 1. in a public capacity (dominio publico) The function of administering and disposing of lands of the public domain in the manner prescribed by law is not entrusted to the courts but to executive officials. (Bautista v Barza) 2. in private capacity (propiedad privado) - Regarding the state, it may own properties both in its public capacity (properties of the public dominion) and in its private capacity (patrimonial property).

ARTICLE 420: The following things are property of public dominion: 1. Those intended for public use such as roads, canals, rivers, torrents, ports, and bridges constructed by the State, banks, shores, roadsteads, and others of similar character; 2. Those which belong to the State without being for public use and are intended for some public service and for the development of the national wealth. PUBLIC DOMINION means ownership by the State and that the State has control and administration or ownership by the public in general, in that not even the State or subdivisions thereof may make them the object of commerce as long as they remain properties for public use such as a river or town plaza. 3 kinds: 1. for public use like roads, canals

To constitute public use, the public in general should have equal or common rights to use the land or facility involved on the same terms, however limited in the number who can actually avail themselves of it at a given time. The yardstick now is the opportunity to use of the property is open to all under the same terms and conditions

2. for public service like the national government building, army rifles, (may be used only by duly authorized persons) 3. for the development of national wealth natural resources REPUBLIC VS GONZALES Wherein a parcel of land has been leased to a private individual, so there were improvements on these properties. Later on, there was a need to widen the road so the lease was cancelled. The lessee contended that the taking is not for public use because the people who are going to benefit from the widening of the road will be those people who have cars. The SC held the conception urged by appellants to restrict property reserved for public use to include only property susceptible of being used by a generally unlimited number of people is flawed and obsolete. The number of users is not the yardstick. To constitute public use, the public in general should have equal or common rights to use the land or facility involved on the same terms, however limited in the number who can actually avail themselves of it at a given time. The yardstick now is the opportunity to use the property is open to all under the same terms and conditions. CITY OF MANILA vs. GARCIA GR No. L-26053. February 21, 1967 Public property are outside the commerce of men and could not have been a lawful subject of a lease agreement. FACTS The CITY OF MANILA owed parcels of land, forming one compact area in Malate, Manila. Shortly after liberation from 1945 to 1947, GARCIA ET AL. entered upon these premises and built houses of second-class materials without the CITY OF MANILA's knowledge and consent, and without the necessary building permits from the city. There, they lived thru the years. Later on, when the presence of GARCIA ET AL. have been discovered, some of them were given by Mayor Fugoso lease contract permits to occupy specific areas in the

property upon conditions therein set forth and for nominal rentals charged. The rest of the 23 defendants though, exhibited none. Epifanio de los Santos Elementary School, which was close, though not contiguous to the property, came for the need of an expansion. The City Engineer, pursuant to the Mayor's directive to clear squatters' houses on city property, gave GARCIA ET AL. 30 days to vacate and remove their constructions or improvements on the premises and to pay for the amount due by reason of their occupancy. They however refused. They sought to recover the possession of the property in court. However, judgment was against them. Hence, they appealed. ISSUES (1) Whether or not GARCIA ET AL. had the right to remain in the premises. (2) Whether or not they have acquired the status of legal tenants by reason of the lease contract permits issued by the mayor. RULING (1) NO, they did not have the right. Defendants had absolutely no right to remain in the premises. The excuse that they had permits from the mayor is at best flimsy. The city's right to throw defendants out of the area could not be gainsaid. The city's dominical right to possession is paramount. If there was error in the finding that the city needs the land, such error is harmless and will not justify reversal of the judgment below. The houses and constructions planted by defendants on the premises clearly hindered and impaired the use of that property for school purposes, hence, constituted public nuisance per se. The selfish interests of defendants must have to yield to the general good for the use of the property for a badly needed school building, so as not to prejudice the education of the youth of the land. The public purpose of constructing the school building annex is paramount. (2) NO, they have not acquired the legal status of tenants. Their homes were erected without city permits. These constructions were illegal. In a language familiar to all, defendants were squatters. Squatting is unlawful and no amount of acquiescence on the part of the city officials will elevate it into a lawful act. Official approval of squatting should not, therefore, be permitted to obtain in this country where there is an orderly form of government. The permits then were null and void. The property in controversy was not a valid subject for lease because of the fact that public property are outside the commerce of men and could not have been a lawful subject of a lease agreement. REPUBLIC vs. VDA. DEL CASTILLO GR No. L-69002. June 30, 1988

Property of public dominion being outside the commerce of men, could not be subject to registration and they could not be acquired by prescription. FACTS The late MODESTO CASTILLO applied for the registration of two parcels of land located in Tanauan, Batangas. In a decision of the court, MODESTO CASTILLO, who was married to AMANDA LAT, was declared the true and absolute owner of the land with the improvements thereon and an original certificate of title was issued to him by the Register of Deeds. By virtue of an instrument, the 2 lots were consolidated and sub-divided into 9 lots. After the death of MODESTO CASTILLO, AMANDA LAT VDA. DE CASTILLO and co-defendants executed a deed of partition and assumption of mortgage in favor of the latter. As a result of which, new transfer certificates of title were issued to them. The REPUBLIC OF THE PHILIPPINES filed a case with the lower court for the annulment of said certificates of title issued to VDA. DE CASTILLO ET AL., as heirs/successors of MODESTO CASTILLO and for the reversion of the lands covered thereby to the State. It was alleged that said lands had always formed part of the Taal Lake, washed and inundated by the waters thereof and being of public ownership, it could not be the subject of registration as private property. DEFENDANTS on the other hand alleged that the Government's action was already barred by the decision of the registration court, that the action has prescribed, and that the government was estopped from questioning the ownership and possession of appellants. The lower court ruled in favor of the REPUBLIC OF THE PHILIPPINES. However, The Court of Appeals on appeal reversed and set aside the appealed decision. Hence, thIS instant petition. ISSUES (1) Whether or not the Government's action was already barred by the decision of the registration court under the principle of res adjudicata. (2) Whether or not the action has prescribed. RULING (1) NO, it was not. Under par. 1, Art. 420 of the Civil Code, shores are properties of the public domain intended for public use. Thus, it has long been settled that portions of the foreshore or of the territorial waters and beaches could not be registered. Their inclusion in a certificate of title did not convert the same into properties of private ownership or confer title upon the registrant. The property in controversy were not subject to registration, being outside the commerce of men; and that since the lots in litigation were of public domain, the registration court did not have jurisdiction

to adjudicate said lands as private property, hence, res judicata did not apply. (2) NO, the action has not prescribed. One of the characteristics of property falling under public dominion is that they could not be acquired by prescription as again, they are outside the commerce of men. The defense of long possession is likewise not available in this case because, as already ruled by this Court, mere possession of land does not by itself automatically divest the land of its public character. REPUBLIC vs. CA GR No. 100709. November 14, 1997 Shores are property of public dominion. When the sea moved towards the estate and the tide invaded it, the invaded property became foreshore land and passed to the realm of the public domain. FACTS MORATO filed a free patent application on a parcel of land situated at Calauag, Quezon. The patent was approved and the Register of Deeds issued an original certificate of title to MORATO. Both the free patent and the title specifically mandate that the land shall not be alienated nor encumbered within five years from the date of the issuance of the patent. MORATO mortgaged the land to respondents CO and QUILATAN, the later who constructed a house therein. Portion of it was also leased to another person, where a warehouse was constructed. Acting upon reports that respondent MORATO had encumbered the land in violation of the condition of the patent, the DISTRICT LAND OFFICER conducted an investigation. Thereafter, it was established that the subject land is a portion of the Calauag Bay and not suitable to vegetation. The DIRECTOR OF LANDS filed an action in court to cancel the title of the land and its reversion to the public domain as foreshore land. However, both the lower court and the Court of Appeals dismissed the said petition on the ground that there was no violation of the 5-year period ban against alienating or encumbering the land, because the land was merely leased and not alienated. Hence, this appeal. ISSUE Whether or not the questioned land was part of a disposable public land. RULING NO, it was not but rather belonged to the public domain as foreshore land. Foreshore land is the strip of land that lies between the high and low water marks and that is alternatively wet and dry according to the flow of the tide. While at the time of the grant of free patent to respondent Morato, the land was not reached by the water yet. However, due to gradual sinking of the land caused by

natural calamities, the sea advanced and had permanently invaded a portion of the subject land. The land in question already became foreshore land since during high tide, at least half of the land was 6 feet deep under water and 3 feet deep during low tide. When the sea advances and private properties are permanently invaded by the waves, such as in this case, they become part of the shore or breach. They are then passed to the public domain, but the owner thus dispossessed does not retain any right to the natural products resulting from their new nature; it is a de facto case of eminent domain, and not subject to indemnity. Par. 1, Art. 420 of the Civil Code provides that shores are property of public dominion. When the sea moved towards the estate and the tide invaded it, the invaded property became foreshore land and passed to the realm of the public domain. The subject land in this case, being foreshore land, should therefore be returned to the public domain. CHAVEZ vs. PEA GR No. 133250. July 9, 2002 Only an official classification and formal declaration can convert reclaimed lands into alienable or disposable lands of the public domain. FACTS In 1973, the government, through the Commissioner of Public Highways, signed a contract with the Construction and Development Corporation of the Philippines (CDCP) to reclaim certain foreshore and offshore areas of Manila Bay, which also included the construction of Phases I and II of the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP). CDCP obligated itself to carry out all the works in consideration of 50% of the total reclaimed land. In 1977, then Pres. Marcos issued PD 1084 creating the PHILIPPINE ESTATES AUTHORITY (PEA), a wholly government owned and controlled corporation with a special charter. The P.D. tasked PEA to reclaim land, including foreshore and submerged areas, and to develop, improve, acquire, lease and sell any and all kinds of lands. Another P.D. 1085 was issued, transferring to PEA the lands reclaimed in the foreshore and offshore of the Manila Bay under the MCCRRP. In 1981, then Pres. Marcos issued a memorandum directing PEA to amend its contract with CDCP, so that all future works in MCCRRP shall be funded and owned by PEA. A Memorandum of Agreement was then executed between PEA and CDCP, which stated that CDCP shall: (1) undertake all reclamation, construction, and such other works in the MCCRRP as may be agreed upon by the parties and that

all the financing required for such works shall be provided by PEA, and (2) CDCP shall give up all its development rights and hereby agrees to cede and transfer in favor of PEA, all of the rights, title, interest and participation of CDCP in and to all the areas of land reclaimed by CDCP in the MCCRRP. In 1988, then Pres. Aquino issued Special Patent No. 3517, granting and transferring to PEA the parcels of land so reclaimed under the MCCRRP. The Register of Deeds of the Municipality of Paraaque issued 3 Transfer Certificates of Title in the name of PEA, covering the 3 reclaimed islands known as the Freedom Islands. In 1995, PEA entered into a Joint Venture Agreement (JVA) with AMARI COASTAL BAY AND DEVELOPMENT CORPORATION (AMARI), a private corporation, to develop the Freedom Islands. The JVA also required the reclamation of an additional 250 hectares of submerged areas surrounding these islands to complete the configuration in the MCCRRP. PEA and AMARI entered into the JVA through negotiation without public bidding. The Board of Directors of PEA, in its resolution, confirmed the JVA, which was later approved by then Pres. Ramos, through then Exe. Sec. Ruben Torres. In 1996, then Senate Pres. Ernesto Maceda delivered a privilege speech in the Senate and denounced the JVA as the grandmother of all scams. As a result, 2 of the Senate Committees: (1) the Senate Committee on Government Corporations and Public Enterprises and (2) Committee on Accountability of Public Officers and Investigations, conducted a joint investigation. In its Senate Committee Report No. 560, the Senate Committees concluded that: (1) the reclaimed lands PEA seeks to transfer to AMARI under the JVA were lands of the public domain which the government has not classified as alienable lands and therefore PEA cannot alienate these lands , (2) the certificates of title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal. In 1997, then Pres. Ramos issued A.O. 365 creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate Committee Report No. 560. The Legal Task Force upheld the legality of the JVA, contrary to the conclusions reached by the Senate Committees. It declared that reclaimed lands were classified as alienable and disposable lands of the public domain. In 1998, the Philippine Daily Inquirer and Today published reports that there were ongoing renegotiations between PEA and AMARI under an order issued by then President Fidel V. Ramos. On April of the same year, a certain Antonio M. Zulueta filed before the Court a Petition seeking to nullify the JVA. The Court dismissed the petition for unwarranted disregard of judicial hierarchy.

In the same month, petitioner FRANK I. CHAVEZ as a taxpayer, filed the instant Petition for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order. CHAVEZ assailed the following: (1) that the sale to AMARI of lands of the public domain as a blatant violation of Sec. 3, Article XII of Constitution prohibiting the sale of alienable lands of the public domain to private corporations and (2) that he sought to enjoin the loss of billions of pesos in properties of the State that are of public dominion. CHAVEZ prayed that PEA publicly disclose the terms of any renegotiation of the JVA, invoking the Constitutional right of the people to information on matters of public concern. In a Resolution dated 1999, the Court gave due course to the petition and required the parties to file their respective memoranda. However, PEA and AMARI signed the Amended Joint Venture Agreement (Amended JVA). The subject matter of the Amended JVA, consisted of 3 properties, which covered a reclamation area of 750 hectares. Only 157.84 hectares of the 750hectare reclamation project have been reclaimed, and the rest of the 592.15 hectares are still submerged areas forming part of Manila Bay. The Amended JVA, was the result of a negotiated contract, not of a public bidding. The Amended JVA was not an ordinary commercial contract but one which sought to transfer title and ownership to 367.5 hectares of reclaimed lands and submerged areas of Manila Bay to a single private corporation. Under the Amended JVA, PEA was obligated to transfer to AMARI, the latters 70% proportionate share in the reclaimed areas as the reclamation progressed. The Amended JVA even allowed AMARI to mortgage at any time the entire reclaimed area to raise financing for the reclamation project. The Office of the President under the administration of then Pres. Estrada approved the Amended JVA. Due to the approval of the Amended JVA by the Office of the President, CHAVEZ now prayed that on constitutional and statutory grounds the renegotiated contract be declared null and void. ISSUE Whether or not AMARI can claim under the Amended JVA, hectares of reclaimed foreshore and submerged areas in Manila Bay held by PEA in view of the constitutional ban prohibiting the alienation of lands of the public domain to private corporations. RULING NO, the reclaimed foreshore and submerged areas in Manila Bay could not be alienated in favor of AMARI. The petition of CHAVEZ was granted. The Regalian doctrine is the foundation of the time-honored principle of land

ownership that all lands that were not acquired from the Government, either by purchase or by grant, belong to the public domain. The Civil Codes of 1889 (Art. 339) and 1950 (Art. 420) incorporated the Regalian doctrine. History of Laws (1) Spanish Law of Waters of 1866. Land reclaimed from the sea belonged to the party undertaking the reclamation, provided the government issued the necessary permit and did not reserve ownership of the reclaimed land to the State. (2) Civil Code of 1889. Property of public dominion, when no longer devoted to public use or to the defense of the territory, shall become a part of the private property of the State provided that the legislature, or the executive department pursuant to law, must declare the property no longer needed for public use or territorial defense before the government could lease or alienate the property to private parties. (3) Act No. 1654 of the Philippine Commission of 1907. It mandated that the government should retain title to all lands reclaimed by the government. The Act also vested in the government control and disposition of foreshore lands. Private parties could lease lands reclaimed by the government only if these lands were no longer needed for public purpose. Act No. 1654 mandated public bidding in the lease of government reclaimed lands. Act No. 1654 made government reclaimed lands sui generis in that unlike other public lands which the government could sell to private parties, these reclaimed lands were available only for lease to private parties. (4) Public Land Act of 1919 (Act No. 2874). It authorized the Governor-General to classify lands of the public domain into alienable or disposable lands and to declare what lands are open to disposition or concession. Lands disposable shall be classified as government reclaimed, foreshore and marshy lands, as well as other lands. Disposable lands of the public domain classified as government reclaimed, foreshore and marshy lands shall be disposed of to private parties by lease only and not otherwise. It reiterated the State policy to lease and not to sell government reclaimed, foreshore and marshy lands of the public domain, a policy first enunciated in 1907 in Act No. 1654. Government reclaimed, foreshore and marshy lands remained sui generis, as the only alienable or disposable lands of the public domain that the government could not sell to private parties. Under this Act, the government could not sell government reclaimed, foreshore and marshy lands to private parties, unless the legislature passed a law allowing their sale. The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy public lands for non-agricultural purposes retain their inherent potential as

areas for public service. This is the reason the government prohibited the sale, and only allowed the lease, of these lands to private parties. The State always reserved these lands for some future public service. (5) 1935 Constitution. It barred the alienation of all natural resources except public agricultural lands, which were the only natural resources the State could alienate. Thus, foreshore lands, considered part of the States natural resources, became inalienable by constitutional fiat, available only for lease for 25 years, renewable for another 25 years. The government could alienate foreshore lands only after these lands were reclaimed and classified as alienable agricultural lands of the public domain. Government reclaimed and marshy lands of the public domain, being neither timber nor mineral lands, fell under the classification of public agricultural lands. However, government reclaimed and marshy lands, although subject to classification as disposable public agricultural lands, could only be leased and not sold to private parties because of Act No. 2874. (6) C.A. 141 of 1936. This act remains to this day the existing general law governing the classification and disposition of lands of the public domain other than timber and mineral lands. It empowers the President upon the recommendation of the Secretary of Agriculture and Commerce to (1)classify lands of the public domain into alienable or disposable lands of the public domain, which prior to such classification are inalienable and outside the commerce of man and (2) declare what lands are open to disposition or concession. The State policy prohibiting the sale to private parties of government reclaimed, foreshore and marshy alienable lands of the public domain, first implemented in 1907 was thus reaffirmed in CA No. 141 after the 1935 Constitution took effect. Since then and until now, the only way the government can sell to private parties government reclaimed and marshy disposable lands of the public domain is for: (1) the legislature to pass a law authorizing such sale and (2) in case of sale or lease, it is required that it be in a public bidding. (7) The Civil Code of 1950. It readopted substantially the definition of property of public dominion found in the Civil Code of 1889. Again, the government must formally declare that the property of public dominion is no longer needed for public use or public service, before the same could be classified as patrimonial property of the State. In the case of government reclaimed and marshy lands of the public domain, the declaration of their being disposable, as well as the manner of their disposition, is governed by the applicable provisions of CA No. 141. Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those properties of the State which, without being for public use, are

intended for public service or the development of the national wealth. Thus, government reclaimed and marshy lands of the State, even if not employed for public use or public service, if developed to enhance the national wealth, are classified as property of public dominion. (8) 1973 Constitution. The 1973 Constitution prohibited the alienation of all natural resources with the exception of agricultural, industrial or commercial, residential, and resettlement lands of the public domain. Both the 1935 and 1973 Constitutions, therefore, prohibited the alienation of all natural resources except agricultural lands of the public domain. Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public domain only through lease. Only individuals could now acquire alienable lands of the public domain. (9) PD No. 1084 Creating the Public Estates Authority. PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public domain. Foreshore areas are those covered and uncovered by the ebb and flow of the tide. Submerged areas are those permanently under water regardless of the ebb and flow of the tide. Foreshore and submerged areas indisputably belong to the public domain and are inalienable unless reclaimed, classified as alienable lands open to disposition, and further declared no longer needed for public service. The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public domain did not apply to PEA since it was then, and until today, a fully owned government corporation. Thus, PEA can hold title to private lands, as well as title to lands of the public domain. In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain, there must be legislative authority empowering PEA to sell these lands. This legislative authority is necessary in view of CA No.141. Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and submerged alienable lands of the public domain. Nevertheless, any legislative authority granted to PEA to sell its reclaimed alienable lands of the public domain would be subject to the constitutional ban on private corporations from acquiring alienable lands of the public domain. Hence, such legislative authority could only benefit private individuals. (10) 1987 Constitution. The 1987 Constitution declares that all natural resources are owned by the State, and except for alienable agricultural lands of the public domain, natural resources cannot be alienated. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding 25 years, renewable for not more than 25, and not to exceed 1,000 hectares in area. Citizens of

the Philippines may lease not more than 500 hectares, or acquire not more than 12 hectares thereof by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefore. The 1987 Constitution continues the State policy in the 1973 Constitution banning private corporations from acquiring any kind of alienable land of the public domain. Like the 1973 Constitution, the 1987 Constitution allows private corporations to hold alienable lands of the public domain only through lease. As in the 1935 and 1973 Constitutions, the general law governing the lease to private corporations of reclaimed, foreshore and marshy alienable lands of the public domain is still CA No. 141. In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from acquiring more than the allowed area of alienable lands of the public domain. Without the constitutional ban, individuals who already acquired the maximum area of alienable lands of the public domain could easily set up corporations to acquire more alienable public lands. An individual could own as many corporations as his means would allow him. An individual could even hide his ownership of a corporation by putting his nominees as stockholders of the corporation. The corporation is a convenient vehicle to circumvent the constitutional limitation on acquisition by individuals of alienable lands of the public domain. PEAs contention: Lands reclaimed from foreshore or submerged areas of Manila Bay are alienable or disposable lands of the public domain.(Note: this contention is erroneous) Under the Public Land Act (CA 141), reclaimed lands are classified as alienable and disposable lands of the public domain. Section 8 of CA No. 141 provides that only those lands shall be declared open to disposition or concession which have been officially delimited and classified. The President has the authority to classify inalienable lands of the public domain into alienable or disposable lands of the public domain. Under the 1987 Constitution, the foreshore and submerged areas of Manila Bay are part of the lands of the public domain, waters and other natural resources and consequently owned by the State. As such, foreshore and submerged areas shall not be alienated, unless they are classified as agricultural lands of the public domain. The mere reclamation of these areas by PEA

does not convert these inalienable natural resources of the State into alienable or disposable lands of the public domain. There must be a law or presidential proclamation officially classifying these reclaimed lands as alienable or disposable and open to disposition or concession. Under Article 422 of the Civil Code, a property of public dominion retains such character until formally declared otherwise. PD No. 1085, coupled with President Aquinos actual issuance of a special patent covering the Freedom Islands, is equivalent to an official proclamation classifying the Freedom Islands as alienable or disposable lands of the public domain. However, at the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the Freedom Islands although subsequently there were partial erosions on some areas. The government had also completed the necessary surveys on these islands. Thus, the Freedom Islands were no longer part of Manila Bay but part of the land mass. Being neither timber, mineral, nor national park lands, the reclaimed Freedom Islands necessarily fall under the classification of agricultural lands of the public domain. Under the 1987 Constitution, agricultural lands of the public domain are the only natural resources that the State may alienate to qualified private parties. AMARIs contention: The Freedom Islands are private lands because CDCP, then a private corporation, reclaimed the islands under a contract in 1973 with the Commissioner of Public Highways .It cited Article 5 of the Spanish Law of Waters of 1866, argues that if the ownership of reclaimed lands may be given to the party constructing the works, then it cannot be said that reclaimed lands are lands of the public domain which the State may not alienate. (Note: this contention is erroneous) Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the disposition of public lands. In particular, CA No. 141 requires that lands of the public domain must first be classified as alienable or disposable before the government can alienate them. These lands must not be reserved for public or quasi-public purposes. Moreover, the contract between CDCP and the government was executed after the effectivity of the 1973 Constitution which barred private corporations from acquiring any kind of alienable land of the public domain. This contract could not have converted the Freedom Islands into private lands of a private corporation. The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares which are still submerged and forming part of Manila Bay. There is no legislative or Presidential act classifying

these submerged areas as alienable or disposable lands of the public domain open to disposition. These submerged areas are not covered by any patent or certificate of title. There can be no dispute that these submerged areas form part of the public domain, and in their present state are inalienable and outside the commerce of man. Until reclaimed from the sea, these submerged areas are, under the Constitution, waters owned by the State, forming part of the public domain and consequently inalienable. Only when actually reclaimed from the sea can these submerged areas be classified as public agricultural lands, which under the Constitution are the only natural resources that the State may alienate. Once reclaimed and transformed into public agricultural lands, the government may then officially classify these lands as alienable or disposable lands open to disposition. Thereafter, the government may declare these lands no longer needed for public service. Only then can these reclaimed lands be considered alienable or disposable lands of the public domain and within the commerce of man. EO No. 525, by declaring that all lands reclaimed by PEA shall belong to or be owned by the PEA, could not automatically operate to classify inalienable lands into alienable or disposable lands of the public domain. Otherwise, reclaimed foreshore and submerged lands of the public domain would automatically become alienable once reclaimed by PEA, whether or not classified as alienable or disposable. As manager, conservator and overseer of the natural resources of the State, DENR exercises supervision and control over alienable and disposable public lands. DENR also exercises exclusive jurisdiction on the management and disposition of all lands of the public domain. Thus, DENR decides whether areas under water, like foreshore or submerged areas of Manila Bay, should be reclaimed or not. This means that PEA needs authorization from DENR before PEA can undertake reclamation projects in Manila Bay, or in any part of the country. DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain. Hence, DENR decides whether reclaimed lands of PEA should be classified as alienable under CA No. 141. In short, DENR is vested with the power to authorize the reclamation of areas under water, while PEA is vested with the power to undertake the physical reclamation of areas under water, whether directly or through private contractors. DENR is also empowered to classify lands of the public domain into alienable or disposable lands subject to the approval of the President. On the other hand, PEA is tasked to develop, sell or lease the reclaimed alienable lands of the public domain.

In the case at bar, 2 official acts are absent (1) a classification that these lands are alienable or disposable and open to disposition and (2) a declaration that these lands are not needed for public service, lands reclaimed by PEA remain inalienable lands of the public domain. Only such an official classification and formal declaration can convert reclaimed lands into alienable or disposable lands of the public domain, open to disposition under the Constitution, Title I and Title III of CA No. 141 and other applicable laws. Procedure to be followed in classifying reclaimed lands as alienable: 1. DENR decides that the reclaimed lands should be classified as alienable 2. DENR Secretary recommends to the President the issuance of a proclamation classifying the lands as alienable or disposable lands of the public domain open to disposition. 3. The President issues a proclamation classifying such land as alienable or disposable and open to disposition and that they are no longer needed for public service. 4. Congress must enact a law approving the Proclamation of the President. Said reclassification needs both executive and legislative concurrence. PEAs contention: PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to sell its reclaimed lands. (Note: this contention is erroneous) There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed lands. PD No. 1085 merely transferred ownership and administration of lands reclaimed from Manila Bay to PEA, while EO No. 525 declared that lands reclaimed by PEA shall belong to or be owned by PEA. EO No. 525 expressly states that PEA should dispose of its reclaimed lands in accordance with the provisions of Presidential Decree No. 1084, the charter of PEA. PEAs charter, however, expressly tasks PEA to develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any and all kinds of lands owned, managed, controlled and/or operated by the government. There is, therefore, legislative authority granted to PEA to sell its lands, whether patrimonial or alienable lands of the public domain. PEA may sell to private parties its patrimonial properties in accordance with the PEA charter free from constitutional limitations. The constitutional ban on private corporations from acquiring alienable lands of the public domain does not apply to the sale of PEAs patrimonial lands. PEA may also sell its alienable or disposable lands of the public domain to private individuals since, with the legislative authority, there is no longer any statutory prohibition against such sales and

the constitutional ban does not apply to individuals. Private corporations remain barred from acquiring any kind of alienable land of the public domain, including government reclaimed lands. Procedure in selling inalienable land as alienable: Although PEA has authority to determine the mode of payment of the buyer of the land, whether it be in cash or in installment, the following is still required in the sale (PD 1445 - Government Auditing Code): 1. When government property is no longer needed, it should be inspected by the head of the agency or his duly authorized representative in the presence of the auditor concerned. 2. If found to be valuable, it must be sold through a public bidding and awarded to the highest bidder. At the public auction sale, only Philippine citizens are qualified to bid for PEAs reclaimed foreshore and submerged alienable lands of the public domain. Private corporations are barred from bidding at the auction sale of any kind of alienable land of the public domain. 3. Prior to the bidding, there must be an advertising by printed notice for not less than three consecutive days in the Official Gazette, or in any newspaper of general circulation. 4. If the public auction fails, the property may be sold at a private sale at such price as may be fixed by the same committee or body concerned and approved by the Commission on Audit. It is only when the public auction fails that a negotiated sale is allowed, in which case the Commission on Audit must approve the selling price. What happened in the PEA-AMARI bidding: PEA originally scheduled a public bidding for the Freedom Islands in. PEA imposed a condition that the winning bidder should reclaim another 250 hectares of submerged areas to regularize the shape of the Freedom Islands, under a 60-40 sharing of the additional reclaimed areas in favor of the winning bidder. No one, however, submitted a bid. In 1994, the Government Corporate Counsel advised PEA it could sell the Freedom Islands through negotiation, without need of another public bidding, because of the failure of the public bidding on in 1991. However, the original JVA dated 1995 covered not only the Freedom Islands and the additional 250 hectares still to be reclaimed, it also granted an option to AMARI to reclaim another 350 hectares. The original JVA, a negotiated contract, enlarged the reclamation area to 750 hectares. The failure of public bidding in 1991, involving only 407.84 hectares. is not a valid justification for a negotiated sale of 750 hectares, almost double the area publicly auctioned. Besides, the failure of

public bidding happened in 1991, more than 3 years before the signing of the original JVA in 1995. The economic situation in the country had greatly improved during the intervening period. PEA and AMARIs contention: The issuance of Special Patent No. 3517 and the corresponding certificates of titles, the 157.84 hectares comprising the Freedom Islands have become private lands of PEA. (Note: this contention is erroneous) In the instant case, the only patent and certificates of title issued are those in the name of PEA, a wholly government owned corporation performing public as well as proprietary functions. No patent or certificate of title has been issued to any private party. No one is asking the Director of Lands to cancel PEAs patent or certificates of title. In fact, the thrust of the instant petition is that PEAs certificates of title should remain with PEA, and the land covered by these certificates, being alienable lands of the public domain, should not be sold to a private corporation. Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or public ownership of the land. Registration is not a mode of acquiring ownership but is merely evidence of ownership previously conferred by any of the recognized modes of acquiring ownership. Registration does not give the registrant a better right than what the registrant had prior to the registration. The registration of lands of the public domain under the Torrens system, by itself, cannot convert public lands into private lands. To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands will sanction a gross violation of the constitutional ban on private corporations from acquiring any kind of alienable land of the public domain. PEA will simply turn around, as PEA has now done under the Amended JVA, and transfer several hundreds of hectares of these reclaimed and still to be reclaimed lands to a single private corporation in only one transaction. This scheme will effectively nullify the constitutional ban, which was intended to diffuse equitably the ownership of alienable lands of the public domain among Filipinos, now numbering over 80 million strong. This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain since PEA can acquire any and all kinds of lands. This will open the floodgates to corporations and even individuals acquiring hundreds of hectares of alienable lands of the public domain under the guise that in the hands of PEA these lands are private lands. This will result in corporations amassing huge landholdings never before seen in this country - creating the very evil that the constitutional ban was designed to prevent. This will completely reverse the clear

direction of constitutional development in this country. The 1935 Constitution allowed private corporations to acquire not more than 1,024 hectares of public lands. The 1973 Constitution prohibited private corporations from acquiring any kind of public land, and the 1987 Constitution has unequivocally reiterated this prohibition. AMARIs contention: The Amended JVA is not a sale to AMARI of the Freedom Islands or of the lands to be reclaimed from submerged areas of Manila Bay. In the words of AMARI, the Amended JVA is not a sale but a joint venture with a stipulation for reimbursement of the original cost incurred by PEA for the earlier reclamation and construction works performed by the CDCP under its 1973 contract with the Republic. (Note: this contention is erroneous) Whether the Amended JVA is a sale or a joint venture, the fact remains that the Amended JVA requires PEA to cause the issuance and delivery of the certificates of title conveying AMARIs Land Share in the name of AMARI. This stipulation still contravenes the 1987 Constitution which provides that private corporations shall not hold such alienable lands of the public domain except by lease. The transfer of title and ownership to AMARI clearly means that AMARI will hold the reclaimed lands other than by lease. The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas form part of the public domain and are inalienable. Lands reclaimed from foreshore and submerged areas also form part of the public domain and are also inalienable, unless converted pursuant to law into alienable or disposable lands of the public domain. Historically, lands reclaimed by the government are sui generis, not available for sale to private parties unlike other alienable public lands. Reclaimed lands retain their inherent potential as areas for public use or public service. Alienable lands of the public domain, increasingly becoming scarce natural resources, are to be distributed equitably among our ever-growing population. To insure such equitable distribution, the 1973 and 1987 Constitutions have barred private corporations from acquiring any kind of alienable land of the public domain. Those who attempt to dispose of inalienable natural resources of the State, or seek to circumvent the constitutional ban on alienation of lands of the public domain to private corporations, do so at their own risk.

Property of public dominion could not be burdened by a voluntary easement of right of way FACTS VILLARICO was the owner of a lot in Paraaque City, Metro Manila. His lot was separated from the Ninoy Aquino Avenue (highway) by a strip of land belonging to the government. As this highway was elevated by 4 meters and therefore higher than the adjoining areas, the DPWH constructed stairways at several portions of this strip of public land to enable the people to have access to the highway. SARMIENTO and his daughter and the latters husband (RESPONDENTS), had a building constructed on a portion of said government land. A part thereof was occupied by 2 establishments (lechonan and carinderia). By means of a Deed of Exchange of Real Property, VILLARICO acquired a 74.30 square meter portion of the same area owned by the government. VILLARICO filed in court a complaint for accion publiciana against RESPONDENTS arguing that the latters structures on the government land closed his right of way to the Ninoy Aquino Avenue and that it encroached on a portion of his lot. RESPONDENTS denied VILLARICOs allegations contending that VILLARICO had no right over the subject property as it belonged to the government. The trial court found that VILALRICO was not deprived of his right of way and had never been in possession of any portion of the public land in question. On the contrary, the DEFENDANTS were the ones who had been in actual possession of the area. The Court of Appeals affirmed said decision upon appeal. Hence, this petition. ISSUE Whether or not VILLARICO may acquire a voluntary easement of right of way over the land of the government which is between his property and the Ninoy Aquino Avenue. RULING NO. It is not disputed that the lot on which petitioners alleged right of way existed belonged to the state or property of public dominion. Property of public dominion under Art. 420 are those intended for public use. Public use is use that is not confined to privileged individuals, but is open to the indefinite public. Records showed that the lot on which the stairways were built was for the use of the people as passageway to the highway. Consequently, it was a property of public dominion. Property of public dominion is outside the commerce of man and hence it: (1) cannot be alienated or leased or otherwise be the subject matter of contracts; (2) cannot be acquired by prescription against the State; (3) is not subject to attachment and execution; and (4) cannot be burdened by any voluntary easement.

VILLARICO vs. SARMIENTO GR No. 136438. November 11, 2004

Considering that the lot on which the stairways were constructed was a property of public dominion, it could not be burdened by a voluntary easement of right of way in favor of VILLARICO. In fact, its use by the public was by mere tolerance of the government through the DPWH. VILLARICO could not appropriate it for himself. Verily, he could claim any right of possession over it since only things and rights which are susceptible of being appropriated may be the object of possession. ARTICLE 421: All other property of the State, which is not of the character stated in the preceding Article, is patrimonial property. PATRIMONIAL PROPERTY It is the wealth owned by the State in its private, as distinguished from its public capacity. Patrimonial property may be acquired by private individuals or corporations thru prescription. However, if a municipality has been taking the products of a certain parcel of land, and planting thereon certain other crops, this is NOT proof of ownership, but only of the usufruct thereof. CEBU OXYGEN vs. BERCILLES GR No. L-40474. August 29, 1975 An abandoned road, declared by the City Council through a resolution forms part of the patrimonial property of the State. FACTS The terminal portion of M. Borces St. in Cebu City was declared an abandoned road by the City Council of Cebu through a resolution. The council later, authorized the Acting Mayor to sell the land. In the public bidding, the land was awarded to CEBU OXYGEN & ACETYLENE CO. being the highest bidder. A Deed of Absolute Sale to CEBU OXYGEN was executed by the Acting Mayor. It then filed an application in court to have its title to the land registered. However, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the ground that the property sought to be registered being a public road intended for public use was considered part of the public domain and therefore outside the commerce of man. Consequently, it could not be subject to registration by any private individual. JUDGE PASCUAL BERCILLES of the trial court then issued an order dismissing the petitioner's application for registration of title. Hence, the instant petition for review. ISSUE Whether or not the declaration of the road, as abandoned by the City Council of Cebu, made it the patrimonial property of the City of Cebu, making said property as a valid object of a common contract.

RULING YES, it became patrimonial property and hence a valid subject of a contract. The City of Cebu was empowered to close a city road or street. The City Council is the authority competent to determine whether or not a certain property is still necessary for public use. Such power to vacate a street or alley is discretionary and the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Since that portion of the city street subject of petitioner's application for registration of title was withdrawn from public use by an ordinance of the City Council of Cebu, it follows that such withdrawn portion becomes patrimonial property, which can be the object of an ordinary contract. Article 422 of the Civil Code expressly provides that "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." Accordingly, the withdrawal of the property in question from public use and its subsequent sale to the petitioner was valid. Hence, the petitioner has a registerable title over the lot in question. LAUREL vs. GARCIA GR No. 29013. July 25, 1990. 187 SCRA 797 Abandonment of a property of public domain cannot be inferred from the nonuse alone. It must be a certain and positive act based on correct legal premises. FACTS Under the Reparations Agreement entered with in 1956, the Philippine government has acquired 4 properties in Japan as part of the indemnification to the Filipino people for their losses in life and property and their suffering during World War II. One of these properties is the Raponggi property located in Tokyo, Japan, which was specifically designated under the Reparations Agreement to house the Philippine Embassy. Said property consisted of the land and building, which indeed became the site of the Philippine Embassy until the latter was transferred to Nampeidai in 1976 when the Rappongi building needed major repairs. Due to the failure of our government to provide necessary funds, the Rappongi property has remained undeveloped since that time. Amidst opposition by various sectors, the Executive branch of the government has been pushing, with great vigor, its decision to sell the reparations properties starting with the Roppongi lot. A bidding was then set. Petitioner SALVADOR LAUREL filed this action to enjoin respondents from selling the Raponggi property. LAUREL asserted that the Roppongi property is classified as one of public dominion, and not of private ownership under Article 420 of the Civil

Code because it is a "property intended for public service" in paragraph 2 of the above provision. Hence, it could not be appropriated, is outside the commerce of man, or to put it in more simple terms, it could be alienated nor be the subject matter of contracts. RESPONDENTS Ramon Garcia (Head of the Asset Privatization Trust), Raul Manglapus (Secretary of Foreign Affairs) and Catalino Macaraig (Executive Secretary) on the other hand, contended that the Rappongi property has ceased to become property of public dominion. It has become patrimonial property because it has not been used for public service or for diplomatic purposes for over 13 years already and because the intention by the Executive Department and the Congress to convert it to private use has been manifested by overt acts. ISSUES (1) Whether or not the Raponggi property is a property of public dominion. (2) Whether or not the abandonment of the Rappongi property for over 13 years has ceased it from being a property of public dominion and was transformed into a patrimonial property. RULING (1) YES. The nature of the Rappongi lot as property for public service is expressly spelled out. It was dictated by the terms of the Reparations Agreement and the corresponding contract of procurement, which specifically designated it as the site of the Philippine Embassy. Such agreement bound both the Philippine government and the Japanese government. As property of public dominion, the Rappongi lot is outside the commerce of man. It could be alienated. Its ownership is a special collective ownership for general use and enjoyment, an application to the satisfaction of collective needs, and resides in the social group. The purpose is not to serve the State as a juridical person, but the citizens. It is intended for the common and public welfare and cannot be the object of appropriation. The applicable provisions of the Civil Code are Arts. 419 and 420. The Roppongi property was correctly classified under paragraph 2 of Article 420 of the Civil Code as property belonging to the State and intended for some public service. (2) No. A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment of the Roppongi property's original purpose. The fact that the Roppongi site has not been used for a long time for actual Embassy service does not automatically convert it to patrimonial property. Any such conversion happens only if the property is withdrawn from public use. A property continues to be part of the public domain, not available for private appropriation or ownership until there is a formal declaration on the part of the

government to withdraw it from being such. An abandonment of the intention to use the Roppongi property for public service and to make it patrimonial property under Article 422 of the Civil Code must be definite. Abandonment cannot be inferred from the non-use alone specially if the non-use was attributable not to the government's own deliberate and indubitable will but to a lack of financial support to repair and improve the property. Abandonment must be a certain and positive act based on correct legal premises. INTERNATIONAL HARDWOOD vs. UP GR No. L-52518. August 13, 1991. 200 SCRA 554 Ownership by the State of a property of the public domain may be transferred in order to become patrimonial property under the authority of a statute. FACTS INTERNATIONAL HARDWOOD AND VENEER COMPANY OF THE PHILIPPINES was engaged in the manufacture, processing and exportation of plywood. In 1953, it was granted by the government an exclusive license to cut, collect and remove timber from that portion of timber land located in certain municipalities in the provinces of Quezon and Laguna. Said license was renewed for another 25 years that was to expire in 1985 under License Agreement 27-A. In 1961, the President Carlos P. Garcia issued Executive Proclamation No. 791 which withdrew from sale or settlement a parcel of land in the municipalities of Quezon and Laguna in reservation for an experiment station for the proposed Dairy Research and production studies of the UNIVERSITY OF THE PHILIPPINES (UP). In 1964, Congress enacted RA 3990, which established a central experiment station for UP. It ceded and transferred in full ownership to UP, the reserved area under Executive Proclamation No. 791 subject to any existing concessions, if any. The said experiment station was within the area covered by INTERNATIONAL HARDWOODs timber license. Later, UP demanded from INTERNATIONAL HARDWOOD in writing: (1) the payment of forest charges, reforestation fees and royalties under the License Agreement 27-A and (2) that the scaling, measuring, sealing and selling of any timber felled or cut by plaintiff within the boundaries of the Central Experiment Station as defined in RA 3990 be performed by UP personnel. INTERNATIONAL HARWOOD then sought an action to enjoin UP from its demands since it believed that RA 3990 did not empower UP, in lieu of the BIR and Bureau of Forestry, to scale, measure and seal the timber cut by the petitioner within the tract of land referred to in said act and collect

the corresponding forest charges prescribed by the National Internal Revenue Code. ISSUE Whether or not the property has been removed from the public domain in favor of UP that it was vested with the right to regulate INTERNATIONAL HARDWOODs timber cutting and to demand from it the payment of forest charges and other dues. RULING YES. Pursuant, however, to RA 3990, which established a central experiment station for the use of the UP in connection with its research and extension functions, the reserved area was ceded and transferred in full ownership to the University of the Philippines subject to any existing concessions, if any. When it ceded and transferred the property to UP through RA 3990, the State completely removed it from the public domain. All its rights as grantor of the license were effectively assigned, ceded and conveyed to UP as a consequence of the above transfer of full ownership. With respect to the areas covered by the timber license of petitioner, it removed and segregated it from a public forest. The State divested itself of its rights and title thereto and relinquished and conveyed the same to the UP and made the latter the absolute owner thereof, subject only to the existing concession. The proviso regarding existing concessions referred to the timber license of petitioner. All that it means, however, is that the right of petitioner as a timber licensee must not be affected, impaired or diminished; it must be respected. It follows then that respondent UP was entitled to supervise, through its duly appointed personnel, the logging, felling and removal of timber within the area covered by R.A. No. 3990. Note: In this case, the area ceded to UP by the state was considered by the court as to have been removed from the land of the public domain and became patrimonial property. However, under Art. 422, property of the public domain include those intended for public service. Being that UP is a state university and that it is devoted for public service by way of providing education, the subject property here should have still remained under the States property of public domain and should not have been classified as patrimonial property. (Atty. Suarezs comment) ARTICLE 422: Property of public dominion, when no loner intended for public use or for public service, shall form part of the patrimonial property of the State. CEBU OXYGEN V BERCILLES.

FACTS: The City Council of Cebu, in 1968, considered as an abandoned road, the terminal portion of one its streets. Later it authorized the sale thru public bidding of the property. The Cebu Oxygen and Acetylene Co. was able to purchase the same. It then petitioned the RTV for the registration of the land. The petition was opposed by the provincial fiscal who argued that the lot is still part of the public domain, and cannot therefore be registered. ISSUE: May the lot be registered in the name of the buyer? HELD: YES. The land can be registered in the name of the buyer because the street has already been withdrawn from public use, and accordingly has become patrimonial property. The lots sale was therefore valid. WHEN CHANGE TAKES EFFECT: 1. Property of public dominion ceases to be such and becomes private property of the State ONLY UPON DECLARATION BY THE GOVERNMENT, thru the legislative or executive departments, to the effect that it is no longer needed for public use or public service. 2. if the property has been intended for such use or service and the government has not devoted it to other uses, or adopted any measure w/c amounted to a withdrawal thereof from public use or service, the same remains property for public use or service notwithstanding the fact that it is not actually devoted for public use or service. ARTICLE 423: The property of provinces, cities, and municipalities is divided into property for public use and patrimonial property. Properties of Political Subdivisions 1. Property for public use 2. Patrimonial property Alienation of the Properties 1. Properties of the political subdivision for public use can not be alienated as such, and may not be acquired by prescription. 2. Properties of a political subdivision which are patrimonial in character may be alienated, and may be acquired by others thru prescription. ARTICLE 424: Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal waters, promenades, and public works for public service paid for by said provinces, cities, or municipalities. All other property possessed by any of then is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws.

ARTICLE 425: Property of private ownership, besides the patrimonial property of the State, provinces, cities, and municipalities, consist of all property belonging to private persons, either individually or collectively. Laurel vs. Garcia Facts: The Roponggi property was acquired from the Japanese government through reparations contract. No. 300. It consisted of the land and the building for the Philippine Embassy. As intended, it became the site of the Embassy until the latter was transferred to Nampeidai as the Roponggi property needed major repairs. However, due to the lack of funds, the property remained undeveloped. On July 25, 2987, Pres. Aquino issued EO 296 entitling non-filipino citizens or entities to avail of reparations capital goods and service in the event of sale, lease or disposition. Issue: What is the nature of the Roponggi property Held: The nature of the Roponggi lot as property for public service is expressly spelled out under the Reparations Agreement between the Phil. Gov't and Japan. As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be alienated. Its ownership is a special collective ownership for general use and enjoyment, an application to the satisfaction of collective needs, and resides in the social group. The purpose is not to serve the State as a juridical person, but the citizens; it is intended for the common and public welfare and cannot be the object of appropriation, Issue: Has it become patrimonial? Held: The fact that the Roponggi property has not been used for a long time for actual Embassy service does not automatically convert it to patrimonial property. Any such conversio happens only if the property is withdrawn from public use. A property continues to be part of the public domain, not available for private appropriation or ownership "until there is a formal declaration on the part of the government to withdraw it from being such. The respondents enumerate various pronouncements by concerned public officials insinuating a change of intention. We emphasize, however, that an abandonment of the intention to use the Roppongi property for public service and to make it patrimonial property under Article 422 of the Civil Code must be definite. Abandonment cannot be inferred from the non-use alone specially if the non-use was attributable not to the government's own deliberate and indubitable will but to a lack

of financial support to repair and improve the property. Issue: Does the President have authority to sell said property? Held: Assuming arguendo that the Roppongi property is no longer of public domain, there is another obstacle to its sale by the respondents: THERE IS NO LAW AUTHORIZING ITS CONVEYANCE. Sec. 79 of the Revised Administrative Code provides that for conveyances and contracts which the gov't is a party, respective Dept. Sec. shall submit the papers to the Congress for approval. This is retained in Sec. 48, EO 292. Hence, it is not for the President to convey valuable real property of the government on her own sole will. Any such conveyance must be authorized and approved by a law enacted by the Congress. - Are rivers whether navigable or not, properties of public dominion? A: it would seem that art 420 makes no distinction. However, jurisprudence provides that if a river is capable in its natural state of being used for commerce, it is navigable in fact, and therefore, becomes a public river. OWNERSHIP ARTICLE 427: Ownership exercised over things or rights. may be

Ownership is the independent and general right of the person to control a thing particularly in his possession, to enjoy it, to dispose it, and to recover it when it is lost. Restrictions: a) those imposed by law example is the easement of right of way b) imposed by the State expropriation, the power of taxation c) those imposed by the owner entering into a contract of lease (the owner puts limitation to himself over his property) d) those imposed by the grantor conditions of the donor KINDS OF OWNERSHIP:

a)

full ownership includes all the rights of the owner, to control, to enjoy, to dispose, and to recover; b) naked ownership there is this kind of ownership that one has when like usufruct giving

this person the usufructuary to use the land and to enjoy the fruits of the land. So your ownership over your land is merely naked because you do not enjoy its fruits. c) sole ownership where ownership is vested only to one person; d) co-ownership when the ownership is vested to 2 or more persons ARTICLE 428: The owner has the right to enjoy and dispose of a thing, without other limitations than established by law. The owner has also a right of action against the holder and possessor of the thing in order to recover. Under Art. 428, the owner has 3 rights: 1. the right to enjoy (jus utendi) the right to enjoy includes the right to possess. This is the right to exclude any person from enjoyment and disposal thereof. 2. the right to consume or abuse (jus abutendi) 3. the right to consume, destroy and abuse. 4. the right to dispose ( jus disponendi ) 5. the right to encumber and alienate. the right to recover or vindicate (jus vindicandi)- the right to recover. THE RIGHT TO RECOVER

1. That the plaintiff was in prior possession of the property; 2. That he had been unlawfully deprived of his possession by another person thru FISTS

3. UNLAWFUL DETAINER it is an
action that is brought when possession by a landlord, vendee, vendor, or other person of any land or building is being unlawfully withheld after the expiration or termination of the right to hold possession by virtue of any contract, express or implied. 1. PRESCRIPTIVE PERIOD: 1-year from the date of withholding REQUIREMENTS: a) that the defendant originally had lawful possession of the property; b) that the defendant is now unlawfully withholding the possession of the property from the plaintiff. Unlawful Detainer vs Forcible Entry 1. In forcible entry, the requirement is that the plaintiff was in prior possession (essential) and then he was unlawfully deprived of possession by the defendant by means of FISTS. 2. In unlawful detainer, the defendant had lawful possession but his possession became unlawful. The possession of the defendant was lawful because of a contract, his possession becomes unlawful perhaps because the contract expired or he violated the terms or conditions of the contract.

1) REPLEVIN an action or provisional

remedy filed by the complainant for the recovery of the possession of the personal property. For the recovery of real property, the 1st action is forcible entry. That is also related to the 2nd one which is unlawful detainer. The 3rd is accion publiciana, and the 4th is accion reinvindicatoria. 2) FORCIBLE ENTRY it is an action to recover material or physical possession because another person unlawfully deprived him of possession because of FISTS (Force, Intimidation, Stealth, Threats, Strategy). 3) The issue here is possession only, not ownership

Characteristics common to unlawful detainer and forcible entry 1. Ownership is not an issue, but only the right of possession of the premises. 2. the action must be filed within 1 yr from the discovery, from the dispossession, and from the withholding

4) ACCION PUBLICIANA This action is intended for the recovery of the better right to possess. The issue here is possession de jure not possession de facto. This is no longer a summary proceeding but a full blown trial. PRESCRIPTIVE PERIOD: 10 years

The PRESCRIPTIVE PERIOD to file forcible entry is one year from dispossession. When you file a complaint for forcible entry, what are the facts that you have to state?

 KINDS: 1. When the entry was not obtained thru FISTS; 2. When the entry was thru FISTS and there was a failure to file a case of unlawful detainer or forcible entry within one year. 5) ACCION REINVINDICATORIA the purpose here is to recover ownership over the real property. PRESCRIPTIVE PERIOD: 10 years if possessor in good faith; 30 years if in bad faith.

2. neither can it be used against the lawful exercise of the functions of a public official. 2. The act however need not be illicit from the subjective point of view. 1. it is immaterial that the aggression is executed because of error of fact or law 2. the existence of a danger of violation of law and right is sufficient, for the possessor is not a position to the error of the aggressor and he has to make a quick decision. PEOPLE vs. NARVAEZ GR No. L-33466. April 30, 1983 The owner has the right to use force as may be reasonably necessary to prevent an actual or threatened unlawful physical invasion of his property. The force exerts must commensurate the unlawful aggression on his property. FACTS MAMERTO NARVAEZ was among those persons from Luzon who went to Mindanao in 1937 and settled in Maitum, North Cotabato. He established his residence therein, built his house, cultivated the area. He was among those who petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes and Kalaong Plantations, for distribution among the settlers, which included him. Shortly thereafter, Fleischer and Company, headed by GEORGE W. FLEISCHER, an American landowner in Negros Oriental, filed Sales Application No. in 1937 over the same area formerly leased and later abandoned by Celebes Plantation Company. Fleischer and Company purchased the said property upon public auction. In 1966, the settlers in said property were ousted. Among those ejected was NARVAEZ, who voluntarily dismantled his house and transferred to his other house which he built near the highway. The second house was not far from the site of the dismantled house and was nearer the highway. Aside from the store, he built a rice mill located about 15 meters cast of the house, and a concrete pavement between the rice mill and the house, which is used for drying grains and copra. In 1966, the settlers including NARVAEZ questioned in court, the ownership of Fleischer and Company of the disputed land. During the pendency of the case in 1967, he entered into a contract of lease with the company concerning Lot 38 of the latters property in order to avoid trouble, until the question of ownership could be decided. He never paid the agreed rental, although he alleged that the milling job they did for the deceased FLAVIANO RUBIA, who was the assistant manager of Fleischer and Company, was considered payment. Unable to pay, for 6 months, Fleischer and Company decided to terminate the contract to lease and NARVAEZ was also ordered to leave the premises and remove the

ISSUE: Ownership

ARTICLE 429: The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.

Doctrine of SELF-HELP. The

doctrine of self-help exists once there is an actual or threatened danger or physical usurpation of property. Principle of self-Help: 1. It is lawful to repel force by means of force. Implies that the state of things to be deemed enjoys juridical protection. 2. It is sort of self-defense, where the use of such necessary force to protect proprietary or possessory rights constitutes a justifying circumstances under the Penal Code. The actual invasion of self-help: 1. Mere disturbance of possession force may be used against it any time as long as it continues, even beyond the prescriptive period for an action of forcible entry. Thus, if a ditch was opened by Perdo in the land of Juan, Juan may close it or cover it by force at any time. 2. Real Dispossession force, to regain possession can only be used immediately after the dispossession. Thus, if Juan w/o the permission of Pedro picks up a book belonging to Pedro and runs off with it, Pedro can pursue Juan and recover the book by force. Nature of the Aggression: 1. The aggression must be illicit or unlawful. 1. the right to self-help is not available against the exercise of right by another, such as when the latter executes an extra-judicial abatement of nuisance.

structures therein within 6 months until December 1968 or else the company itself will cause its demolition. However, while it was still August 1968, Fleischer and Company sent the 2 deceased, DAVIS Q. FLEISCHER (secretarytreasurer and son of owner) and FLAVIANO RUBIA (assistant manager), whom together with 3 laborers, commenced fencing Lot 38 leased by NARVAEZ by putting bamboo posts along the property line parallel to the highway. Some posts were planted right on the concrete drier of NARVAEZ thereby cutting diagonally across its center, with the last post just adjacent to appellant's house. The fence, when finished, would have the effect of shutting off the accessibility to appellant's house and rice mill from the highway, since the door of the same opens to the Fleischer and Company's side. The next day, the fencing was continued with the installation of four strands of barbed wire to the posts. At that time, NARVAEZ was taking his rest, but when he heard that the walls of his house were being chiseled, he arose and there he saw the fencing going on. If the fencing would go on, NARVAEZ would be prevented from getting into his house and the bodega of his rice mill. So he told the group to stop the construction and just talk it over. The deceased FLEISCHER, however, refused angrily. Upon hearing this, NARVAEZ apparently lost his equilibrium, got his shotgun and shot FLEISCHER, hitting him. As FLEISCHER fell down, RUBIA ran towards the jeep, knowing there is a gun in the jeep. NARVAEZ fired at RUBIA, likewise hitting him. Both died as a result of the shooting. NARVAEZ surrendered to the police thereafter, bringing with him shotgun, claiming he shot two persons. He was tried for murder and was found guilty in a 1970 decision by the trial court. On appeal, NARVAEZ alleged that although he has killed FLEISCHER and RUBIA, he should be exempted from criminal liability because he merely acted in defense of his person and right. The prosecution on the other hand, claim that the deceased were in lawful exercise of their rights of ownership over the land in question, when they did the fencing that sealed off appellant's access to the highway. ISSUES (1) Whether or not the deceased in constructing a fence were in the lawful exercise of their rights of ownership over the land, leased by NARVAEZ. (2) Whether or not there was unlawful aggression on NARVAEZs property. RULING (1) NO, they were not in the lawful exercise of ownership. Although ownership over the land was still pending in court, the fact that Fleischer and Company gave him until December 1968 to vacate the premises, the company should have

allowed NARVAEZ to enjoy peaceful enjoyment of his properties up to that time. (2) YES. There was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of the Civil Code. However, when NARVAEZ fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack. Although under Art. 429 of the Civil Code, he was the owner or lawful possessor of the property and that he has the right to use force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion of his property, the force he exerted was unreasonable to commensurate the unlawful aggression on his property. It must be noted that the reasonableness of means employed to prevent or repel the unlawful aggression is also a requirement of the justifying circumstance of self defense or defense of one's rights in the Revised Penal Code. Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification were present. He should therefore be held responsible for the death of his victims, but he could be credited with the special mitigating circumstance of incomplete defense under the RPC. NARVAEZ was found guilty of two crimes of homicide with the privileged mitigating circumstance of incomplete defense as well as by two (2) generic mitigating circumstances of voluntary surrender and obfuscation, without any aggravating circumstance. He was sentenced to suffer an imprisonment of 4 months of arresto mayor and payment of indemnification. But considering that he has been under detention for almost 14 years, his immediate release is hereby ordered. ARTICLE 430: Every owner may enclose or fence his land or tenements by means of walls. Ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon. ARTICLE 431: The owner of a thing cannot make use thereof in such manner as to injure the rights of a 3rd person. ARTICLE 432: 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. STATE OF NECESSITY This principle allows the use of defensive force to preserve an existing situation, as against an external event which the passive subject is entitled to repel as much

as an unlawful aggression by another This superior to the doctrine of selfhelp

REQUISITES: 1. existence of an evil sought to be avoided 2. the injury feared is greater than that done to avoid it 3. that there be no other practical and less harmful means of preventing it 4. the means employed is necessary and indispensable to avert danger. EFFECT: Indemnity may be demanded by the owner from the person benefited. Effect of Mistake The right to act in a state of necessity depends upon the objective existence of the danger with the requisites provided by law. If through error, one believed himself to be in a state of necessity, or used means in excess of the requirements, his act would be illicit and the owner of the property can use the defensive force authorized in art 429. EFFECT OF NEGLIGENCE The law does not require that the person acting in a state of necessity be free from negligence in the creation of such situation. Thus, if a person picks up an unknown object in a drug store and eats it, thinking it to be candy, and it turns out to be poison, he can lawfully drink any antidote he may find in the store, even without the consent of the owner. Basis of liability the benefit derived Conflict of rights the rights of self-help under Art 429 is not available against the act in a state of necessity. SPOUSES CUSTODIO vs. CA GR No. 116100. February 9, 1996. 253 SCRA 483 The owners have the right to enclose and fence their property provided that it should be without detriment to servitudes constituted thereon. FACTS PACIFICO MABASA owned a parcel of land with a 2-door apartment erected thereon in Taguig, Metro Manila. Said property was surrounded by other houses owned by PETITIONERS Spouses CRISTINO and BRIGIDA CUSTODIO and Spouses LITO and MARIA CRISTINA SANTOS. Taking P. Burgos Street as the point of reference, there are two passageways, which could be used to reach MABASAs apartment.

When said property was purchased by MABASA, there were tenants already occupying the premises and who were acknowledged by MABASA as tenants. In 1982, one of said tenants vacated the apartment. When MABASA went to see the premises, he saw that the spouses SANTOS had built an adobe fence in the first passage, making it narrower in width. Defendant MORATO also constructed her adobe fence and even extended said fence in such a way that the entire passageway was enclosed. It was then that the remaining tenants of said apartment vacated the area. MABASA filed an action for the grant of an easement of right of way against defendants CUSTODIOs and SANTOSes. The trial court granted said petition and ordered them to give MABASA permanent access to the public streets. However, it also ordered MABASA to pay them P8,000 as indemnity for the permanent use of the passageway. MABASA subsequently died and was represented by his heirs, when the case was appealed with the Court of Appeals, raising the sole issue of whether or not the lower court erred in not awarding damages in their favor. It affirmed the trial courts decision with modification that MABASA be awarded damages for incurred losses of unrealized rentals when the tenants vacated the leased premises by reason of the closure of the passageway. Hence, this appeal by PETITIONERS. ISSUE Whether or not PETITIONERS has the right to build the adobe fences to enclose their property even if it blocked the passageway to and fro MABASAs property. RULING YES. The act of PETITIONERS in constructing a fence within their lot was a valid exercise of their right as owners, hence not contrary to morals, good customs or public policy. The law recognizes in the owner the right to enjoy and dispose of a thing, without other limitations than those established by law. Under Art. 430 of the Civil Code, it is within the right of PETITIONERS, as owners, to enclose and fence their property provided that it should be without detriment to servitudes constituted thereon. At the time of the construction of the fence, the lot was not subject to any servitudes. There was no easement of way existing in favor of private respondents, either by law or by contract. The fact that the HEIRS OF MABASA had no existing right over the said passageway is confirmed by the very decision of the trial court granting a compulsory right of way in their favor after payment of just compensation. Hence, prior to said decision, PETITIONERS had an absolute right over their property and their act of fencing and enclosing the same was an act which they may lawfully perform in the employment and exercise of

said right. Whatever injury or damage may have been sustained by the HEIRS OF MABASA by reason of the rightful use of the said land by PETITIONERS is damnum absque injuria, which is damage caused by a person by his lawful acts done upon his own property. ARTICLE 433: Actual possession under claim of ownership raises a disputable presumption of ownership. The true owner must resort to judicial process for the recovery of the property. ARTICLE 435: No person shall be deprived of his property except by competent authority and for public use and always upon payment of just compensation. Should this requirement be not first complied with, the courts shall protect and in proper case, restore the owner in his possession. REQUISITES: 1. The taking must be done by the competent authority; 2. observance of the due process of law; 3. taking must be for public use; 4. upon payment of just compensation ARTICLE 436: When any property is condemned or seized by competent authority in the interest of health, safety, or security, the owner thereof, shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified. RULE ON SEIZURE: GENERAL RULE: Owner should not be entitled for any compensation as to property seized or condemned by competent authority if it is done in the interest of health, safety, or security. EXCEPTION: The owner should be entitled to compensation if he can show that such condemnation or seizure is unjustified. ARTICLE 437: The owner of the parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he my deem proper, without detriment to servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation. ARTICLE 438: Hidden treasure belongs to the owner of the land, buildings, or other

property on which it is found. Nevertheless, when the discovery is made on the property of another, or of the State, or any of its subdivisions, and by chance, thereof shall be allowed the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of interest to science or the arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated. If the treasure is discovered on the property of the finder, the treasure belongs to him If the treasure is discovered on the property of another, the sharing is 50-50. 50% belongs to the landowner; 50% goes to the finder.

Requirements: 1. The finder must not be a trespasser; 2. It should be found by chance If the finder is a tenant, lessee, or usufructuary of the property, the sharing is 50-50. If the finder is the employee of the owner of the property, the sharing is 50-50, if he discovered it by chance. If he is, however, employed to look for treasure, then, the treasure belongs to the owner.

ARTICLE 439: By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry, or other precious objects, the lawful ownership of which does not appear CUSTODIO VS CA Facts: Mabasa owned a parcel of land with a 2 door apartment erected thereon. The property is surrounded by other immovables belonging to Custodios, Morato and the Santoses. There are two possible passageways to the said property. One passing through row of houses, and the other through the residence of Morato and the Santoses. When one of the tenants of the petitioner's left, Mabasa saw that the Santoses had built an adobe fence in the first passage making it narrower in width. Said adobe fence was first constructed by defendants Santoses along their property which is also along the first passageway. Defendant Morato constructed her adobe fence and even extended said fence in such a way that the entire passageway was enclosed. It was then that the remaining tenants of the apartment vacated the area. RTC ordered the private respondents to give plaintiff ingress and access. Issue: W/N private respondents are liable for damages

Held: No. The act of petitioners in

constructing a fence within their lot is a valid exercise of their right as owners, hence not contrary to morals, good customs or public policy. The law recognizes in the owner the right to enjoy and dispose of a thing, without other limitations than those established by law. It is within the right of petitioners, as owners, to enclose and fence their property. Article 430 of the Civil Code provides that "(e)very owner may enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon." At the time of the construction of the fence, the lot was not subject to any servitudes. There was no easement of way existing in favor of private respondents, either by law or by contract. The fact that private respondents had no existing right over the said passageway is confirmed by the very decision of the trial court granting a compulsory right of way in their favor after payment of just compensation. It was only that decision which gave private respondents the right to use the said passageway after payment of the compensation and imposed a corresponding duty on petitioners not to interfere in the exercise of said right. ACCESSION ARTICLE 440: The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. Accession is the extension of ownership over a thing to whatever it produces thereby or which is incorporated or attached thereto, either naturally or artificially. KINDS: 1. ACCESSION DISCRATA (fruits)- the right of the owner to own everything which is produced thereby; Example: natural fruits, industrial fruits, and civil fruits; 2. ACCESSION CONTINUA (incorporated) the right of the owner to own everything which is incorporated or attached thereto either naturally or artificially SECTION 1: RIGHT OF ACCESSION WITH RESPECT TO WHAT IS PRODUCED BY PROPERTY ACCESSION DISCRETA: ARTICLE 441: To the owner belongs: 1. the natural fruits; 2. the industrial fruits;

3.

the civil fruits.

GENERAL RULE: if you are the owner of the land, you are the owner of the fruit EXCEPTIONS: 1. if there is a possessor in good faith; 2. when there is usufructuary; 3. when the lessee gets the fruits of the land (the owner gets the civil fruits in the form of rentals); 4. the contract of antichresis BACHRACH MOTOR vs. TALISAY-SILAY GR No. 352230. September 17, 1931 Bonus granted as compensation for the risk of having subjected ones land to a lien in favor of the bank is not a civil fruit of the mortgaged property. FACTS In 1923, the TALISAY-SILAY MILLING CO. INC., was indebted to the PHILIPPINE NATIONAL BANK (PNB). To secure the payment of its debt, it succeeded in inducing its planters, among whom was MARIANO LACSON LEDESMA, to mortgage their land to the creditor bank. In order to compensate these planters for the risk they were running with their property under that mortgage, TALISAY undertook to credit the owners of the plantation bonuses which is 2% of the debt secured according to the yearly balance. LEDESMA owned a sum of money to BACHRACH MOTOR CO. that the latter filed a complaint for the delivery of LEDESMAs bonus of P13,850 or promissory notes in its favor. PNB, to which LEDEMSAs land was mortgaged filed a third party claim alleging a preferential right to receive any amount which LEDESMA might be entitled to from TALISAY as bonus. It argued that said bonus were civil fruits of the land mortgaged to said bank by LEDESMA. PNB prayed that TALISAY be ordered to deliver directly to the bank, LEDESMAs bonus. The trial court ruled against PNB. Hence, this instant appeal. ISSUE Whether or not the bonus in question is civil fruits. RULING NO. The bonus which the TALISAY, had to pay the planters who had mortgaged their lands to PNB in order to secure the payment of the company's debt to the bank, is not a civil fruit of the mortgaged property. Article 441 of the Civil Code (then Art. 441) considers 3 things as civil fruits: (1) the rents of buildings; (2) the proceeds from leaes of lands; and (3) the income from perpetual or life annuities, or other similar sources of revenue. As the bonus in question is not the rent of a building or of land, the only meaning of

"civil fruits" left to be examined is that of "income." The said bonus bore no immediate, but only a remote and accidental relation to the land mentioned. It was only granted as compensation for the risk of having subjected one's land to a lien in favor of the bank, for the benefit of the entity granting said bonus. If this bonus be income or civil fruits of anything, it is income arising from said risk or from LEDESMA's generosity in facing the danger for the protection of TALISAY. But, it certainly is not civil fruits or income from the mortgaged property, which, as far as this case is concerned, has nothing to do with it. ARTICLE 442: Natural fruits are the spontaneous products of the soil, and the young and other products of the animals. Industrial fruits are those produced by lands of any kind thru cultivation or labor. Civil fruits are the rents of buildings, the price of leases of lands and other property and the amount of perpetual or life annuities or other similar income. ARTICLE 443: He who receives the fruits has the obligation to pay the expenses made by a 3rd person in their production, gathering, and preservation. ARTICLE 444: Only such as are manifest or born are considered as natural or industrial fruits. With respect to animals, it is sufficient that they are in the womb of the mother, although unborn. DISCRETA ( PRODUCED) NATURAL INDUSTRIAL 1. Spontaneo Those us produced by products of lands of any the soil kind of 2. The young cultivation and other or labor products of animals CIVIL - rents - price of - leases amount of perpetua l or life annuitie s

The union musty, w. certain exception, be effected in such a manner that to separate the principal from the accessory, would result in substantial injury to either He who is in good faith may be held liable but he should not be penalized He who is in bad faith may be penalized TACAS vs. TOBON GR No. 30240. August 23, 1929

The possessor in good faith must return the fruits received from the time the answer to the complaint was filed, that is, from the time he became aware that he was in undue possession. During that time, before the law, good faith ceased. FACTS 3 parcels of land were owned by and registered in the name of Francisco Dumadag. He died in 1911. In 1912, during the season for planting tobacco immediately following the death of Dumadag, EVARISTO TOBON took possession of the 3 parcels of land in question planting them with tobacco. Since then, TOBON had been collecting the fruits therefrom, which consisted of rice and tobacco. AQUILINA TACAS ET AL., Francisco Dumadags predecessor in interest filed an action seeking to recover from TOBON the ownership and possession of said 3 parcels of land, together with the fruits collected by him during the time he was in possession of said land since 1912. They alleged that TOBON unlawfully took said parcels upon the death of Francisco Dumadag and that he remained in possession, enjoying the fruits thereof. TOBON however insisted that he was the owner of said lands, having purchased them from one Exequiel or Gil Tacas, deceased, about fifteen years before. The trial court found that the 3 parcels of land under discussion, were parts of an estate belonging to Francisco Dumadag, having inherited them from his parents. It declared the HEIRS OF TACAS to be the absolute owners of the 3 parcels of land in litigation and ordered TOBON to deliver said parcels of land to the them, together with the fruits collected each year since 1912 until the complete termination. Hence, this appeal by TOBON, questioning the order of the court that he should deliver the fruits collected each year since 1912 until the complete termination of the case. ISSUE Whether or not the restitution should be made since 1912 when TOBON collected the fruits of the land of the late TACAS until the termination of the case. RULING

SECTION 2: RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY ARTICLE 445: Whatever is built, planted or sown on the land of another and the improvements or repairs made therein belong to the owner of the land, subject to the provisions of the following articles. This article deals with accession: 1. building 2. planting 3. sowing To the owner of the principal (land) must belong also the accession

NO. The possessor in good faith must return the fruits received from the time the answer to the complaint was filed, that is, from the time he became aware that he was in undue possession. The court affirmed the decision of the lower court but modified the award of damages, said judgment and ruled that TOBON should only be bound to return to the HEIRS OF MABASA, the fruits received from April 1918 (when TOBON filed his answer) to 1927. The restitution must be made when there was already the legal consequences of the interruption. Before the law, good faith ceased when the answer to the complaint was filed, taking this doctrine from the partidas. In the present case, TOBON hopefully believed in good faith that the subject property was his and his belief only disappeared upon the unfavorable judgment of the court against him. Although he may not have been convinced of it before, TOBON became aware that his possession is unlawful from the time he learned of the complaint or from the time he was summoned to the trial. It was at this time that his possession was interrupted and that he ceased to receive the fruits. Whether or not the defendant was a possessor in good faith, there existed an act that his right was not secure, that someone disputed it, and that he might yet lose it. However, on the basis of Art. 443 of the Civil Code (then Art. 365), TOBON was also given the right to deduct the expenses of planting and harvesting, which shall be determined by the trial court, after hearing both parties. BERNARDO vs. BATACLAN GR No. 44606. November 28, 1938 A builder in good faith, looses his right of retention when after the owner of the land has chosen that the builder pay for the land over indemnifying the builder instead for the building, the builder fails to pay. FACTS VICENTE STO. DOMINGO BERNARDO entered into a contract of sale in 1920 with Pastor Samonte and others, over a parcel of land in Silang, Cavite. To secure possession of the land from the vendors, BERNARDO instituted a civil case, where the court rendered judgment in his favor. When he entered the premises, he found CATALINO BATACLAN therein, who was authorized to clear the land and make improvements thereon by the previous owners since 1922. BERNARDO then filed a case against BATACLAN, where the lower court held that indeed, BERNARDO was the owner but nevertheless, BATACLAN was a possessor in good faith. Because of this, the court ordered that BATACLAN be reimbursed for work done and improvements he made on the property.

When both parties appealed to the Supreme Court, the compensation in favor of BATACLAN was increased and BERNARDO was given the option to either sell the land to the BATACLAN or to buy the improvements from him within 30 days. BERNARDO chose to sell the land to BATACLAN. The latter however, informed the court that he was unable to pay. The court then issued and order that BERNARDO should pay BATACLAN for the improvements made on the subject property within 30 days or else the land would be ordered sold at public auction. Being that BERNARDO did not have money to pay BATACLAN for the improvements he made on the land, he moved to reconsider that he be preferred in the order of payment over BATACLAN. Said motion was denied by the court though. At the instance of BERNARDO and without objection from BATACLAN, the court ordered the sale of the land in question at public auction. The land was sold to Toribio Teodoro. Teodoro moved that he be placed in possession of the land purchased by him, which was granted by the court. BATACLAN complained that he was a possessor in good faith and that the amount for reimbursement, to which he was entitled has not yet been paid to him by BERNARDO. Therefore, he said that he has a right to retain the land in accordance with the provisions of Article 453 of the Civil Code. ISSUE Whether or not the BATACLAN is still entitled to reimbursement in lieu of the improvements he constructed on the disputed property. RULING NO, he was not. BATACLAN has lost his right of retention. The Civil Code confirms certain timehonored principles of the law of property. One of these is the principle of accession whereby the owner of property acquires not only that which it produces but that which is united to it either naturally or artificially. Under Art. 445 (then Art. 385), whatever is built, planted or sown on the land of another, and the improvements or repairs made thereon, belong to the owner of the land. Where, however, the planter, builder, or sower has acted in good faith, a conflict of rights arises between the owners and it becomes necessary to protect the owner of the improvements without causing injustice to the owner of the land. In view of the impracticability of creating what Manresa calls a state of "forced coownership", the law has provided a just and equitable solution by giving the owner of "the land the option to acquire the improvements after payment of the proper indemnity or to oblige the builder or planter to pay for the land and the sower to pay the proper rent (Art. 361). It is the owner of the land who is

allowed to exercise the option because his right is older and because, by the principle of accession, he is entitled to the ownership of the accessory thing. In the case before us, BERNARDO as owner of the land, chose to require BATACLAN, as owner of the improvements, to pay for the land. But since BATACLAN said he could not pay, the land was sold at public auction to Toribio Teodoro. The law, as we have already said, requires no more than that the owner of the land should choose between indemnifying the owner of the improvements or requiring the latter to pay for the land. When he failed to pay for the land, the defendant herein lost his right of retention. ARTICLE 446: All works, sowing, and planting are presumed made by the owner and at his expense, unless the contrary is proved. ARTICLE 447: The owner of the land who makes thereon, personally or thru another, plantings, constructions or works with the materials of another, shall pay their value; and, if he acted in bad faith, he shall also be obliged to the reparation of damages. The owner of the materials shall have the right to remove them only in case he can do so without injury to the work constructed, or without the plantings, constructions or works being destroyed. However, if the landowner acted in bad faith, the owner of the materials may remove them in any event, with a right to be indemnified for damages.

If the MO acted in good faith a. reimbursement provided he does not remove them b. removal provided no substantial injury is caused

If the MO acted in bad faith a. absolute right or removal and damages whether or not substantial injury is caused b. reimbursement (value of the materials) and damages in case he chooses not to remove Landowner is in Good Faith but Material Owner is in Bad Faith Landowner would: not only be exempted from reimbursement but he would also be entitled to consequential damages as when the materials are of inferior quality Material Owner would lose all rights such as the right to removal, regardless of whether substantial injury would be caused PACIFIC FARMS vs. ESGUERRA GR No. L-21783. March 25, 1970 The buyer of the building is obliged to pay for the unpaid balance for the materials use in its construction. Compensation should be borne by the person who has been benefited by the accession. FACTS 6 buildings were constructed by INSULAR FARMS INC. Lumber and construction materials used therein were furnished by CARRIED LUMBER COMPANY. When INSULAR was unable to pay the price of the lumber and construction materials, a case was filed by CARRIED LUMBER against it to redeem the unpaid purchase price. Being that PACIFIC FARMS contended that it was the owner of the 6 buildings, the lower court ordered that it pay the unpaid portion of the procurement price of the lumber and construction materials furnished by the CARRIED LUMBER to its predecessor-in-interest, INSULAR. It ordered for the sale of the 6 buildings but granted the option to redeem the same to PACIFIC FARMS, in order to pay CARRIED LUMBER the unpaid balance of the construction materials. Hence, PACIFIC appealed. It contended that it was a purchaser for value and in good faith of the six buildings in question. ISSUE Whether or not PACIFIC, as buyer of the buildings should pay CARRIED LUMBER the unpaid lumber and materials used by the

Rights and Obligations of the Landowner who Uses the Materials of Another: The owner is also the builder, sower, planter but the materials do not belong to him If the landowner (LO) acted in good faith: a. he becomes the owner of the materials but he must pay for their value b. exception: when they can be removed w/o destruction to the work made or the plants the material owner can remove them If the LO acted in bad faith a. he becomes the owner of the materials, but he must pay their value and damages b. exception - when the material owner decides to remove them whether or not destruction would be caused the materials will revert to the material owner who will still be entitled to damages Rights and Obligations of the Material owner (MO)

previous owner INSULAR in the construction of said buildings. RULING YES. In applying Article 447 by analogy, the 6 buildings were the principal and the lumber and construction materials that went into their construction were the accessory. Thus, PACIFIC, if it did own the 6 buildings, must bear the obligation to pay for the value of the said materials. CARRIED LUMBER, which apparently had no desire to remove the materials, and, even if it were minded to do so, it could not have removed them without necessarily damaging the building. It had acquired then the corresponding right to recover the value of the unpaid lumber and construction materials. Because it was assumed that PACIFIC was in good faith, it was not pronounced that it be liable for the reparation of damages but only for the payment of the unpaid price of the lumber and construction materials due to CARRIED LUMBER. Thus, since PACIFIC benefited from the accession, i.e., from the lumber and materials that went into the construction of the 6 buildings, it should shoulder the compensation due to CARRIED LUMBER, as unpaid furnisher of materials. Hence, compensation should be borne by the person who has been benefited by the accession. ARTICLE 448: The owner of the land on which anything has been built, sown or planted in good faith shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in the Articles 546 and 548 or to oblige the one built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof. This article applies only if the builder, planter or sower is in Good Faith 3 options available to the landowner in good faith if the BPS is in good faith: 1. right to appropriate as his own the works, sowing or planting, after payment of the indemnity; 2. to compel the builder/planter (BP) to pay the price of the land. With respect to the sower, pay the proper rent 3. to demand the BP to pay the proper rent, , if the owner of

the land does not choose to appropriate the building or trees, after proper indemnity

The land owner (LO) has the

choice whether to appropriate or compel the builder/planter/sower (BPS) to purchase the land. And once the choice is made by the LO, he cannot change it anymore. However, the option granted to the LO is not absolute as when it is impractical for the LO to exercise the option #1. If the option #1 is not practical then the probable solution is the 2nd alternative. Art 448, however, is inapplicable when: 1. the BPS does not claim ownership over the land but merely possesses it as a mere holder 2. the BPS is a co-owner. 4. when the land owner constructed a building in his own land and he sold the land, excluding the building, to another.

MARTINEZ vs. BAGANUS GR No. 9438. November 25, 1914. Art. 448 applies only if there is good faith on both the part of the land owner and the builder, planter or sower. It is Art. 546 of the Civil Code which governs this situation. FACTS PAULA MARTINEZ was an owner of a town lot situated in Batangas. His son, JOSE MOJICA, sold the said lot to VICTORINO BAGANUS for P70. MARTINEZ filed a case seeking recovery of ownership and possession of the lot. She also prayed that the sale made by his son MOJICA to BAGANUS be declared null and void. BAGANUS in contrast alleged that: 1. he bought the lot from MOJICA with the consent of MARTINEZ in the belief that it belonged to the former, 2. he had paid a deposit of P30 in advance and agreed to pay the P40 balance when the instrument of sale had already been executed as was later done and 3. relying in good faith in the validity of his acquisition, he had made necessary improvements on the lot, having built a house and a warehouse and having planted fruit trees. MOJICA confirmed the sale of the land for the price of P70, having received P30 in advance and P40 later when the sale was put to record. However, he contended that he made the condition that if his mother, MARTINEZ, would not agree to the sale, he might take back the land and would return

the money received. MARTINEZ, in fact, did not agree to it. The court declared that the sale made by MOJICA as null and void and ordered BAGANUS: 1. to return the lot to claimed to MARTINEZ, 2. to remove at his own expense the buildings and plants he had placed thereon, and 3. to pay the costs. Said order was without prejudice to the right of action he had against MOJICA, which was reserved, on the ground of ejectment. ISSUES (1) Whether or not BAGANUS acquired the land in good faith. (2) Whether or not he should return the lot claimed and to remove the buildings and plants he placed thereon at his own expense. RULING (1) NO. BAGANUS acquired the lot in bad faith, for he himself said that he dealt with MARTINEZ but later on consented that MOJICA, who was not the owner, should appear as the vendor. However, MARTINEZ was also in bad faith. Bad faith on the part of the owner is understood whenever the act (of building or planting) has been executed in his presence with his knowledge and tolerance and without objection. (2) YES. Being that there was bad faith on the part of MARTINEZ, the owner and BAGANUS, the builder and planter, the bad faith of one cancels the bad faith of the other. It is Art. 546 of the Civil Code which governs this situation and not Art. 448, as the latter applies only if there is good faith on both the part of the land owner and the builder, planter or sower. The court ordered without special finding as to the costs: 1. that MARTINEZ should indemnify BAGANUS to the value of the he has placed thereon, with the right on his part to retain it until she has reimbursed him for said necessary and useful improvements; or 2. that BAGANUS should pay MARTINEZ the price of the land, making himself the legitimate owner thereof. IGNACIO vs. HILARIO GR No. L-175. April 30, 1946 The owner of the land, on which buildings, plantings and sowings had been erected thereon under Art. 448 has 2 options either: (1) to pay for the building or (2) to sell his land to the owner of the building. He cannot refuse to choose an option.

FACTS ELIAS HILARIO and his wife DIONISIA DRES filed a case against DAMIAN, FRANCISCO and LUIS IGNACIO, concerning the ownership of a parcel of land, which was partly rice-land and partly residential. The lower court rendered judgment in favor of HILARIO and DRES declaring: 1. that HILARIO and DRES were the owners of the whole property and entitled to the possession of the same, 2. that the IGNACIOs were still entitled to hold the possession of the residential lot until after they are paid the actual market value of their houses and granaries erected thereon, unless HILARIO and DRES prefer to sell them said residential lot, in which case the IGNACIOs shall pay HILARIO and DRES the proportionate value of said residential lot taking as a basis the price paid for the whole land, and 3. that upon the IGNACIOs failure to purchase the residential lot in question, they shall remove their houses and granaries after this decision haD becomes final and within the period of 60 days from the date that the court is informed in writing of the attitude of the parties in this respect. The court also declared that should the parties could not come to an extra-judicial settlement with regards to their rights under Art. 448 (then Art. 361), they may appear again before court to determine said rights. HILARIO and DRES prayed for an order of execution alleging that since they chose neither to pay the IGNACIOs for the buildings nor to sell to them the residential lot, the latter should be ordered to remove the structure at their own expense and to restore plaintiffs in the possession of said lot. Although the IGNACIOs objected to this motion, the court granted the same. Hence, this appeal. ISSUE Whether or not PACIFIC the IGNACIOs should remove their buildings from the land belonging to HILARIO and DRES because the latter chose neither to pay for such buildings nor to sell the land to the IGNACIOs. RULING NO, they should not. The provisions applicable are Art. 448 (then Art. 361) and Art. 546 (then Art. 453) of the Civil Code. Under Art. 546, the owner of the building erected in good faith on a land owned by another, is entitled to retain the possession of the land until he is paid the value of his building. Under Art. 448, the owner of the land, upon the other hand, has 2 options either: (1) to pay for the building or (2) to sell his land to the owner of the building. But the owner cannot, refuse both to pay for the building and to sell the land and

compel the owner of the building to remove it from the land where it is erected, as in the present case when HILARIO and DRES refused to choose any of the options. The landowner is entitled to a demotion only when, after having chosen to sell his land, the other party fails to pay for the same. IGNAO vs. IAC GR No. 72876. January 18, 1991 Art. 448 of the Civil Code cannot apply where a co-owner builds, plants or sows on the land owned in common for then he did not build, plant or sow upon land that exclusively belongs to another but of which he is a co-owner. EXEPTION: Unless the co-ownership was already terminated by partition. The court cannot also exercise the options given to the landowner under Art. 448. FACTS FLORENCIO IGNAO and his uncles JUAN and ISIDRO IGNAO were co-owners of a 523 sq. meter parcel of land with in Kawit, Cavite. Pursuant to an action for partition filed by FLORENCIO, the court directed the partition of said land, alloting 133.5 square meters or 2/8 thereof to JUAN and ISIDRO, and giving the remaining portion with a total area of 266.5 square meters to FLORENCIO. However, no actual partition was ever effected. Later, FLORENCIO instituted a complaint for recovery of possession of real property against Juan and Isidro, wherein he alleged that the area occupied by the 2 houses built by JUAN and ISIDRO exceeded the 133.5 square meters previously allotted to them by the trial court during partition. Upon agreement of the parties, the trial court ordered a licensed geodetic engineer to conduct a survey to determine the exact area occupied by the houses of JUAN and ISIDRO. The survey subsequently disclosed that the house of Juan occupied 42 square meters while that of Isidro occupied 59 square meters of Florencio's land or a total of 101 square meters. In its decision, the trial court ruled in favor of JUAN and ISIDRO. In its decision, it was stated therein that although they occupied a portion of FLORENCIO's property, they should be considered builders in good faith. Furthermore, the trial court stated that pursuant to Art. 448 of the Civil Code, the owner of the land (FLORENCIO) should have the choice to either appropriate that part of the house' standing on his land after payment of indemnity or oblige the builders in good faith (JUAN AND ISIDRO) to pay the price of the land. However, the trial court observed that based on the facts of the case, it would be useless and unsuitable for

Florencio to exercise the first option since this would render the entire houses of Juan and Isidro worthless. The trial court then applied the ruling in the similar case of Grana vs. Court of Appeals, where the Supreme Court had advanced a more "workable solution". Thus, it ordered Florencio to sell to Juan and Isidro those portions of his land respectively occupied by the latter and to execute the necessary deed of conveyance to them. On appeal, FLORENCIO argued that Art. 448 does not apply in the present case but rather Art. 486 since the land in question was not owned by different parties but were owned in common by the contending parties. ISSUES (1) Whether or not Art. 448 should apply to a builder in good faith on a property held in co-ownership by the contending parties. (2) Whether or not the court may choose the options given to the landowner under Art. 448. RULING (1) NO. Art. 448 of the Civil Code cannot apply where a co-owner builds, plants or sows on the land owned in common for then he did not build, plant or sow upon land that exclusively belongs to another but of which he is a co-owner. The co-owner is not a third person under the circumstances, and the situation is governed by the rules of coownership. However, in this case, the co-ownership was terminated by the partition. It appeared that the homes of JUAN and ISIDRO overlapped or occupied a portion of 5 sq. meters of the land pertaining to FLORENCIO, which the former obviously built in good faith, then the provisions of Art. 448 should apply. In fact, Manresa and Navarro Amandi agree that the said provision of the Civil Code may apply even when there is a coownership if good faith has been established. In other words, when the co-ownership was terminated by a partition and it appeared that the house of an erstwhile coowner has encroached upon a portion pertaining to another co-owner, which was however made in good faith, then the provisions of Art. 448 should apply to determine the respective rights of the parties. (2) NO. When both the trial and appellate courts peremptorily ordered the owner of the land, FLORENCIO, to sell to private respondents, JUAN and ISIDRO, the part of the land they intruded upon adopted, they deprived FLORENCIO of his right to choose. Such ruling contravened the explicit provisions of Art. 448 where it is clear and unambiguous that the right of choice is conferred upon the landowner and not upon the builder and the courts.

The Supreme Court then modified the decision and directed FLORENCIO IGNAO within 30 days from entry of judgment to exercise his option to either appropriate as his own the portions of the houses of JUAN and ISIDRO IGNAO occupying his land upon payment of indemnity in accordance with Articles 546 and 548 of the Civil Code, or sell to private respondents the 101 square meters occupied by them at such price as may be agreed upon. Should the value of the land exceed the value of the portions of the houses that JUAN and ISIDRO have erected thereon, they may choose not to buy the land but they must pay reasonable rent for the use of the portion of FLORENCIO's land as may be agreed upon by the parties. In case of disagreement, the rate of rental and other terms of the lease shall be determined by the trial court. Otherwise, JUAN and ISIDRO may remove or demolish at their own expense the said portions of their houses encroaching upon petitioner's land. PECSON vs.CA GR No. 115814. May 26, 1995 The court cannot also exercise the options given to the landowner under Art. 448. FACTS Petitioner PEDRO P. PECSON was the owner of a commercial lot located in Quezon City, on which he built a 4-door 2storey apartment building worth P53,000 in 1965. For his failure to pay realty taxes, the lot was sold at public auction by to Mamerto Nepomuceno, who in turn sold it to the spouses JUAN and ERLINDA NUGUID. PECSON challenged the validity of the auction sale on the ground that the apartment building was not included in the sale because it was not subject of the litigation. Indeed, the lower court ruled that there was no basis for the inclusion of the apartment building in the auction sale because what was sold was merely the lot for PECSONs failure to pay his taxes. Said decision was affirmed by the Court of Appeals and the Supreme Court. Later on, the SPOUSES NAGUID filed with the trial court a motion for the delivery of possession of the lot and the apartment building. They cited Art. 546 of the Civil Code. They agreed to comply with said provision of the law considering that PECSON was a builder in good faith and has in fact, opted to pay the cost of the construction spent PECSON. From the complaint itself the plaintiff stated that the construction cost of the apartment was much more than the lot. This amount of P53,000.00 is what the SPOUSES NAGUID was supposed to pay under the law before a writ of possession placing him in possession of both the lot and apartment would be issued.

However, they also alleged that 3 doors of the apartment building were being leased at the rent of P7,000 a month each. The decision having become final as per Entry of Judgment dated June 23, 1993 and from this date on, being the uncontested owner of the property, the rents should be paid to them instead of PECSON collecting them. From June 23, 1993, the rents collected by PECSON amounting to more than P53,000.00 from tenants should be offset from the rents due to the lot which according to SPOUSES NAGUID's affidavit is more than P21,000.00 a month. The court rendered judgment in favor of them and ordered the reimbursement of PECSON for the construction of the apartment building at P53,000 and that this amount due should be made to offset against the amount of rents collected previously by the PECSON. On appeal, the Court of Appeals partly affirmed said decision. Hence, this appeal. ISSUES (1) How should Art. 448 in relation to Art. 546 be applied? (2) Whether or not the cost of construction of the apartment building in 1965 in the amount of P53,000 and not its current market value, was sufficient reimbursement for necessary and useful improvements made by PECSON. (3) Whether or not PECSON should pay monthly rentals equal to the aggregate rentals paid by the lessees of the apartment buildings. RULING (1) Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof. By its clear language, Article 448 refers to a land whose ownership is claimed by two or more parties, one of whom has built some works, or sown or planted something. The building, sowing or planting may have been made in good faith or in bad faith. The rule on good faith laid down in Article 526 of the Civil Code shall be applied in determining whether a builder, sower or planter had acted in good faith. Article 448 does not apply to a case where the owner of the land is the builder, sower, or planter who then later loses ownership of the land by sale or donation. Elsewise stated, where the true owner himself is the builder of works on his own land, the issue of good faith or bad faith is entirely irrelevant. Thus in strict point of law, Article 448 is not opposite to the case at bar. Nevertheless, we believe that the provision therein on indemnity may be applied by analogy considering that the primary intent of Article 448 is to avoid a

state of forced co-ownership and that the parties, including the two courts below, in the main agree that Articles 448 and 546 of the Civil Code are applicable and indemnity for the improvements may be paid although they differ as to the basis of the indemnity. (2) NO. Article 546 does not specifically state how the value of the useful improvements should be determined. The respondent court and the private respondents espouse the belief that the cost of construction of the apartment building in 1965, and not its current market value, is sufficient reimbursement for necessary and useful improvements made by the petitioner. The objective of Article 546 of the Civil Code is to administer justice between the parties involved. In this regard, this Court had long ago stated that the said provision was formulated, in trying to adjust the rights of the owner and possessor in good faith of a piece of land, to administer complete justice to both of them in such a way as neither one nor the other may enrich himself of that which does not belong to him. Guided by this precept, it is therefore the current market value of the improvements which should be made the basis of reimbursement. A contrary ruling would unjustly enrich the private respondents who would otherwise be allowed to acquire a highly valued incomeyielding four-unit apartment building for a measly amount. Consequently, the parties should therefore be allowed to adduce evidence on the present market value of the apartment building upon which the trial court should base its finding as to the amount of reimbursement to be paid by the landowner. The value so determined shall be forthwith paid by the SPOUSES NAGUID otherwise, PECSON shall be restored to the possession of the apartment building until payment of the required indemnity. (3) NO. Since the SPOUSES NAGUID have opted to appropriate the apartment building, PECSON was thus entitled to the possession and enjoyment of the apartment building, until he was paid the proper indemnity, as well as of the portion of the lot where the building has been constructed. This is so because the right to retain the improvements while the corresponding indemnity is not paid implies the tenancy or possession in fact of the land in which it is built, planted or sown. PECSON not having been so paid, he was entitled to retain ownership of the building and, necessarily, the income therefrom. PLEASANTVILLE DEVT CORP. vs. IAC GR No. 79688. February 1, 1996 Good faith is presumed. It consists in the belief of the builder that the land he is building on is his and his

ignorance of any defect or flaw in his title. FACTS Edith Robillo purchased from PLEASANTVILLE DEVELOPMENT CORPORATION a parcel of land designated as Lot 9 in Pleasantville Subdivision, Bacolod City. In 1975, ELDRED JARDINICO bought the rights to the lot from Robillo. At that time, Lot 9 was vacant. Upon completing all payments, JARDINICO secured a transfer certificate of title in his name. It was then that he discovered that improvements had been introduced on Lot 9 by respondent WILSON KEE, who had taken possession thereof. It appeared that in 1974, KEE bought on installment Lot 8 of the same subdivision from C.T. TORRES ENTERPRISES, INC. (CTTEI), the exclusive real estate agent of PLESANTVILLE. Under the Contract to Sell on Installment, Kee could possess the lot even before the completion of all installment payments. After the preparation of the lot plan, CTTEI through its employee, Zenaida Octaviano, accompanied KEE's wife, Donabelle Kee, to inspect Lot 8. Unfortunately, the parcel of land pointed by Octaviano was Lot 9. Thereafter, KEE proceeded to construct his residence, a store, an auto repair shop and other improvements on the lot. After discovering that Lot 9 was occupied by KEE, JARDINICO confronted him. The parties tried to reach an amicable settlement, but failed. In 1981, JARDINICO's lawyer wrote KEE, demanding that the latter remove all improvements and vacate Lot 9. When KEE refused to vacate Lot 9, JARDINICO filed with a complaint for ejectment with damages against KEE. KEE, in turn, filed a third-party complaint against petitioner and CTTEI. The court held that the erroneous delivery of Lot 9 to Kee was attributable to CTTEI. However, it was found out that PLESANTVILLE had already rescinded its contract with KEE over Lot 8 for the latter's failure to pay the installments due, and that KEE had not contested the rescission, the court then concluded that KEE no longer had any right over the lot subject of the contract. He was ordered to vacate the premises of Lot 8, to remove all structures and improvements he introduced thereon, to pay reasonable rentals for the use of Lot 9, and, furthermore, he could not claim reimbursement for the improvements he introduced on said lot. On appeal, the RTC ruled that PLESANTVILLE and CTTEI were not at fault or were not negligent, there being no preponderant evidence to show that they directly participated in the delivery of Lot 9 to KEE. It found KEE a builder in bad faith. It further ruled that even assuming arguendo that KEE was acting in good faith, he was, nonetheless, guilty of unlawfully usurping the possessory right of JARDINICO over Lot

9 from the time he was served with notice to vacate said lot, and thus was liable for rental. The Court of Appeals however ruled that KEE was a builder in good faith with respect to the improvements he introduced on Lot 9, and is entitled to the rights granted him under Articles 448, 546 and 548 of the New Civil Code. It was because he was unaware of the "mix-up" when he began construction of the improvements on Lot 8. It further ruled that the erroneous delivery was due to the negligence of CTTEI, and that such wrong delivery was likewise imputable to its principal, PLESANTVILLE. It also ruled that the award of rentals was without basis. PLESANTVILLE, having been ordered to be solidarily liable with CTTEI., filed this instant petition against KEE, JARDINICO and CTTEI. ISSUES (1) Whether or not KEE, a lot buyer who constructed improvements on the wrong property erroneously delivered by the owner's agent, a builder in good faith. (2) What or not PLEASANTVILLE and its agent CTTEI be solidarily liable for damages due to negligence. RULING (1) YES. Good faith consists in the belief of the builder that the land he is building on is his and his ignorance of any defect or flaw in his title. And as good faith is presumed, PLESANTVILLE had the burden of proving bad faith on the part of KEE. At the time he built improvements on Lot 8, KEE believed that said lot was what he bought from PLEASANTVILLE. He was not aware that the lot delivered to him was not Lot 8. Thus, KEE's in good faith. Petitioner failed to prove otherwise. The roots of the controversy can be traced directly to the errors committed by CTTEI, when it pointed the wrong property to KEE and his wife. It is highly improbable that a purchaser of a lot would knowingly and willingly build his residence on a lot owned by another, deliberately exposing himself and his family to the risk of being ejected from the land and losing all improvements thereon, not to mention the social humiliation that would follow. Under the circumstances, KEE had acted in the manner of a prudent man in ascertaining the identity of his property. Because he was a layman not versed in the technical description of his property, he had to find a way to ascertain that what was described in his transfer certificate of title matched Lot 8. Thus, he went to the subdivision developer's agent and applied and paid for the relocation of the lot, as well as for the production of a lot plan by CTTEI's geodetic engineer. Upon KEE's receipt of the map, his wife went to the subdivision site accompanied by CTTEI's employee, Octaviano, who authoritatively declared that the land she was pointing to as indeed

Lot 8. Having full faith and confidence in the reputation of CTTEI, and because of the company's positive identification of the property, KEE saw no reason to suspect that there had been a misdelivery. The steps KEE had taken to protect his interests were reasonable. (2). YES. PLEASANTVILLEs liability lies in the negligence of its agent CTTEI. For such negligence, PLEASANTVILLE should be held liable for damages. Now, the extent and/or amount of damages to be awarded is a factual issue which should be determined after evidence is adduced. However, there was no showing that such evidence was actually presented in the trial court; hence no damages could now be awarded. The rights of Kee and Jardinico vis-a-vis each other, as builder in good faith and owner in good faith, respectively, are regulated by law (i.e., Arts. 448, 546 and 548 of the Civil Code). It was error for the Court of Appeals to make a "slight modification" in the application of such law, on the ground of "equity". At any rate, as it stands now, KEE and JARDINICO have amicably settled through their deed of sale their rights and obligations with regards to Lot 9. ALVIOLA vs. CA GR No. 117642. April 24, 1998 To fall under Art. 448, the contruction must be of permanent character. If it is not, like a copra dryer and store, there is no accession and the builder must remove them. FACTS In 1950, Victoria Sonjaconda Tinagan purchased from Mauro Tinagan 2 parcels of land situated in Valencia, Negros Oriental. Thereafter, Victoria and her son Agustin Tinagan, took possession of said parcels of land. Sometime in 1960, EDITHA ALVIOLA and PORFERIO ALVIOLA occupied portions of said land, where they built a copra dryer and a store wherein they engaged in the business of buying and selling copra.In 1975, Victoria died. 4 months thereafter, Agustin died, survived by his wife, FLORENCIA BULING VDA. DE TINAGAN and children (TINAGANs). In 1976, petitioner EDITHA assisted by her husband filed a complaint for partition and damages, claiming to be an acknowledged natural child of deceased Agustin Tinagan and demanding the delivery of her shares in the properties left by the deceased. Said petition was dismissed by both the trial court and upon appeal, by the Supreme Court on the ground that recognition of natural children may be brought only during the lifetime of the presumed parent.

In 1988, the TINAGANS filed a complaint for recovery of possession against the SPOUSES ALVIOLA, praying, among others, that they be declared absolute owners of the said parcels of land, and that said spouses be declared to vacate the same, to remove their copra dryer and store. The court granted the petition of the TINAGANs and ruled that they were the absolute owners of said property and that the SPOUSES ALVIOLA were in bad faith in possessing the disputed properties and in ruling that the improvements thereon are transferable. Hence, they were ordered to remove their store and dryer on the premises without injury and prejudice to the TINAGANs. ISSUE Whether or not the SPOUSES ALVIOLA possessed the property in bad faith. RULING YES. There was bad faith on the part of the SPOUSES ALVIOLA when they constructed the copra dryer and store on the disputed portions since they were fully aware that the parcels of land belonged to VICTORIA TINAGAN. And, there was likewise bad faith on the part of the TINAGANs, having knowledge of the arrangement between petitioners and VICTORIA TINAGAN relative to the construction of the copra dryer and store. Thus, for purposes of indemnity, Article 448 of the New Civil Code should be applied. However, the copra dryer and the store, as determined by the trial court and respondent court, are transferable in nature. Thus, it would not fall within the coverage of Article 448. As the noted civil law authority, Senator Arturo Tolentino, aptly explains: "To fall within the provision of this Article, the construction must be of permanent character, attached to the soil with an idea of perpetuity; but if it is of a transitory character or is transferable, there is no accession, and the builder must remove the construction. The proper remedy of the landowner is an action to eject the builder from the land." GEMINIANO vs. CA G.R. No. 120303. July 24, 1996. Art. 448 only applies when the possessor in good faith, i.e., one who builds on land with the belief that he is the owner thereof. It does not apply where one's only interest is that of a lessee under a rental contract. FACTS Paulina Amado vda. de Geminiano, mother or petitioner GEMINIANOs originally owned a lot containing 314 sq. m. A 12 sq. m. portion of it stood the GEMINIANOs bungalow, which they sold to DOMINADOR

NICOLAS and MARY NICOLOS in 1978 for P6, 000 with an alleged promise to sell to the latter that portion of the lot occupied by the house. Subsequently, vda. De Geminiano, executed a contract of lease over a 126 sq. m. portion of the lot, including that portion on which the house stood in favor of the NICOLASes for P40.00 per month for a period of 7 years. The NICOLASes then introduced additional improvements and registered the house in their names. After the expiration of the lease contract however, vda. De Geminiano refused to accept the monthly rentals. It turned out that the lot in question was the subject of a suit, which resulted in its acquisition by one Maria Lee in 1972. In 1982, Lee sold the lot to Lily Salcedo, who in turn sold it in 1984 to the spouses Agustin and Ester Dionisio. In 1992, the Dionisio spouses executed a Deed of Quitclaim over the said property in favor of the GEMINIANOs as such, the lot was registered in the latter's names. Later in 1993, the GEMINIANOs sent a letter to the NICOLASes demanding that the premises be vacated and that the rentals in arrears be paid within 20 days. Upon failure of the NICOLASes to heed the demand, the GEMINIANOs filed a complaint for unlawful detainer and damages. In its decision, the lower court ruled that since the private respondents were assured by the petitioners that the lot they leased would eventually be sold to them, they could be considered builders in good faith, and as such, were entitled to reimbursement of the value of the house and improvements with the right of retention until reimbursement had been made. ISSUE Whether or not the NICOLASes were builders in good faith and entitled to reimbursement for the value of the house and improvements they erected on the property of the GEMINIANOs or were mere lesees. RULING NO, they could not be considered as possessors nor builders in good faith. Being mere lessees, the private respondents knew that their occupation of the premises would continue only for the life of the lease. Article 448 of the Civil Code, in relation to Article 546 of the same Code, which allows full reimbursement of useful improvements and retention of the premises until reimbursement is made, applies only to a possessor in good faith, i.e., one who builds on land with the belief that he is the owner thereof. It does not apply where one's only interest is that of a lessee under a rental contract', otherwise, it would always be in the power of the tenant to "improve" his landlord out of his property.

Suffice it to say, "a state of forced coownership" would not be created between the petitioners and the private respondents. It must be stressed, however, that the right to indemnity under Article 1678 of the Civil Code arises only if the lessor opts to appropriate the improvements. Since the petitioners refused to exercise that option, the private respondents cannot compel them to reimburse the one-half value of the house and improvements. Neither can they retain the premises until reimbursement is made. The private respondents' sole right then is to remove the improvements without causing any more impairment upon the property leased than is necessary. PADA-KILARIO vs. CA G.R. No. 134329. Jan. 19, 2000. If a possessor were in possession of the property without paying any rental as they only relied on the liberality and tolerance of the landowner are not possessors nor builders in good faith because they know that their occupation of the premises may be terminated any time. FACTS Jacinto Pada owned a parcel of land of residential and coconut land in Leyte denominated as Cadastral Lot No. 5581. During his lifetime, his half-brother, Feliciano Pada, obtained permission from him to build a house on the northern portion of Cadastral Lot No. 5581. When Feliciano died, his son, Pastor, continued living in said house. Petitioner Verona Pada-Kilario, one of Pastor's children, had been living in that house since 1960. Later, Jacinto Pada died intestate. His 6 children, 1 personally and others through their children, entered into an extra-judicial partition of his estate, which included Cadastral Lot No. 5881. One of the sons of Jacinto Pada was Marciano Pada. The latters daughter, Maria Pada, sold the co-ownership right of his father to respondent SILVERIO PADA, who was also a first cousin. Thereafter, SILVERIO demanded that spouses VERONA PADA-KILARIO and RICARDO KILARIO vacate the northern portion of Cadastral Lot No. 5581 so his family can utilize the said area. Unable to settle for an amicable settlement, SILVERIO instituted a complaint for ejectment with prayer for damages against spouses KILARIO. Later, heirs of Amador Pada, also a son of Jacinto Pada, executed a Deed of Donation, transferring to petitioner Verona Pada-Kilario, their respective shares as coowners of Cadastral Lot No. 5581. Hence, the SPOUSES KILARIO averred that the northern portion of Cadastral Lot No. 5581 had already been donated to them by the heirs of Amador Pada. Hence, they were

virtually converted as standing co-owners of the land under controversy and became the undivided owners of the whole estate. Their possession then in the northern portion was being lawful. They also contended that they had been occupying the subject property since 1960 without ever paying any rental. The RTC ordered the SPOUSES KILARIO to vacate the premises in issue and return peaceful possession to SILVERIO being the lawful possessor in concept of owner. When the SPOUSES KILARIO appealed with the CA, the same was denied. Hence, this petition ISSUE Whether or not the SPOUSES KILARIO were builders in good faith. RULING NO, they were not builders in good faith. The SPOUSES KILARIO were estopped from impugning the extrajudicial partition executed by the heirs of Jacinto Pada after explicitly admitting in their Answer that they had been occupying the subject property since 1960 without ever paying any rental as they only relied on the liberality and tolerance of the Pada family. Considering that petitioners were in possession of the subject property by sheer tolerance of its owners, they knew that their occupation of the premises may be terminated any time. Persons who occupy the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that they will vacate the same upon demand, failing in which a summary action for ejectment is the proper remedy against them. Thus, they could be considered possessors nor builders in good faith. It is well-settled that both Article 448 and Article 546 of the New Civil Code which allow full reimbursement of useful improvements and retention of the premises until reimbursement is made, apply only to a possessor in good faith, i.e., one who builds on land with the belief that he is the owner thereof. Verily, persons whose occupation of a realty is by sheer tolerance of its owners are not possessors in good faith. Neither did to donate by some of the heirs, convert SPOUSES KILARIO into builders in good faith for at the time the improvements were built on the premises, such promise was not yet fulfilled, i.e., it was a mere expectancy of ownership that may or may not be realized. More importantly, even as that promise was fulfilled, the donation was void for the sonors were not the owners of Cadastral Lot No. 5581. As such, petitioners cannot be said to be entitled to the value of the improvements that they built on the said lot. ARTICLE 449: He who builds, plants, or sows in bad faith on the land of another,

loses what is built, planted, or sown without the right of indemnity. ARTICLE 450: The owner of the land on which anything has been built, planted, or sown in bad faith may demand the demolition of the work, or that the planting or sowing be removed, in order to replace things in their former condition at the expense of the person who built, planted, or sowed or he may compel the builder or planter to pay the price of the land and the sower the proper rent. 1. The landowner has : i. the right of removal of whatever is built, planted, or sown on his property in bad faith; or ii. may compel the builder/planter to pay the price of the land; or the sower to pay the proper rent 2. The right of removal is absolute. 3 options available to the land owner if the builder is in bad faith: 1.) appropriation without need to indemnify the builder in bad faith plus damages; 2.) demand the builder in bad faith to remove the house he built. He has the absolute right of removal plus damages; 3.) compel the builders in bad faith to pay the value of the land if the value of the land is not considerably more than the value of the improvements. If the LO chooses to compel the builder to pay the land, he has to do so, plus damages. DE VERA vs. COURT OF APPEALS GR No. 97761. April 14, 1999 He who builds in bad faith on the land of another, losses what he built, without right to indemnity. FACTS In 1947, private respondent RICARDO RAMOS filed a homestead application for a parcel of land in Isabela. His homestead application was approved by the District Land Officer. In 1955, a homestead patent and an original certificate of title was was issued to RAMOS, covering an area of 9 hectares, 28 acres and 20 centares. RAMOS then brought a complaint for recovery of possession against several people occupying his land. The court came out with a decision adjudging the validity of the title of Ramos. In 1981, RAMOS wrote petitioners AGUEDA DE VERA, and her children MARIO DE LA CRUZ, EVANGELINE DELA CRUZ, and EDRONEL DE LA CRUZ (DE VERA ET AL.), reminding them that their house was on his titled property. He asked them whether

they were going to buy the portion occupied by them or to lease the same on a yearly or monthly basis; otherwise, he would be constrained to proper legal action against them. But the letter of RAMOS was ignored by DE VERA ET AL. Hence, in 1983, RAMOS filed, a complaint for recovery of property against DE VERA ET AL. He alleged that he was the legal and absolute owner of a certain parcel of land, containing an area of 3,670 square meters and that a triangular portion of it, containing an area of 22 square meters was occupied by DE VERA ET AL.. He also averred that DE VERA ET AL. had constructed a house of strong and permanent material that year after removing their previous building of light materials in January or February of 1970. He added that he demanded that DE VERA ET AL. remove their improvement thereon and vacate the said portion but they had refused without any just or lawful cause to do so. DE VERA ET AL alleged on the other hand that they had been in possession not only of 22 square meters but 70 square meters of land. Their predecessor-ininterest, Teodoro de la Cruz, husband of AGUEDA DE VERA, during his lifetime, filed a Miscellaneous Sales Application, which although pending was given due course. In fact, Teodoro de la Cruz also declared the said land for taxation purposes and after his death, by them, as his heirs. During trial, the patries agreed that a relocation survey of subject property be conducted. The survey showed that RAMOS owned the land occupied by DE VERA ET AL., particularly portions A B & C. Hence, the court ordered DEVERA ET AL., to vacate the land, to deliver the possession thereof to the plaintiff, and to remove, at their expense, all improvements they have constructed or erected thereon. It also declared that they were possessors in bad faith and were made liable to RAMOS for rental payments for the use of the disputed property. On appeal with the Court of Appeals, said decision was modified, dismissing the complaint as to portion A of the property. Unsatisfied, DE VERA ET AL. filed a petition via certiorari. They contended that they should not have found to be possessors in bad faith since their possession was by virtue of a valid title, the Miscellaneous Sales Application of their predecessor-ininterest, Teodoro dela Cruz. ISSUES (1) Whether or not DE VERA ET AL. were possessors in bad faith. (2) Whether or not they should also be made liable to RAMOS for rental payments for the use of the disputed property. RULING (1) YES, they were possessors in bad faith.

Records disclose that prior to the construction in 1983 of DE VERA ET AL.'s house on the land under controversy, a demand letter dated 1981 was sent to them by RAMOS, informing them that the land they were possessing and occupying is within his titled property. In the same letter, the RAMOS gave petitioner AGUEDA DE VERA the option to either pay him the value of the property or lease the same on a yearly or monthly basis. However, the contending parties failed to reach a compromise agreement. Although they were sent said latter in 1981, DE VERA ET AL. still constructed their house on said propety. Such were "outward acts and proven conduct" indicating bad faith of DE VERA ET AL. as possessor and builder. (2) NO, they should be made liable for rental payments for the use of the disputed property but rather should remove what they built, as the option chosen by RAMOS. Under Art. 449 He who builds in bad faith on the land of another, losses what he built, without right to indemnity. Applying Art. 449, in relation to Art. 450, the landowner has three alternative rights, either: 1. to appropriate what has been built without any obligation to pay indemnity therefor; or 2. to demand the builder to remove what he had built; or 3. to compel the builder to pay the value of the land. In any event, the landowner is entitled to be indemnified by the builder in bad faith, pursuant to Article 451. In the case under consideration, RAMOS, the landowner, availed of the second alternative, which option is legally feasible under the attendant facts and circumstances. HEIRS OF DURANO vs. UY GR No.136456. October 24, 2000 The landowner, when the builder is in bad faith, may compel (1) appropriation what was built, (2) removal of what was built, or (3) payment for the value of the land. In any of this options, the landowner is entitled for payment of damages. FACTS A 128-hectare parcel of land located in the barrios of Dunga and Cahumayhumayan, Danao City eas owned by Cebu Portland Cement Company (CEPOC). Said proerty had been purchased by Durano & Co., Inc. In 1973, the late Congressman RAMON DURANO, SR., together with his son RAMON DURANO III, and the latters wife, ELIZABETH HOTCHKISS DURANO, instituted an action for damages against SPOUSES ANGELES SUPELVEDA UY and EMIGDIO

BING SING UY ET AL. (SPOUSES UY ET AL). They accused SPOUSES UY ET AL of: 1. officiating a hate campaign against them by lodging complaints in the Police Department of Danao City for their so-called invasion of SPOUSES UYs ET AL. alleged properties, 2. sending another complaint to the President of the Philippines in February 1971, which depicted petitioners as oppressors, landgrabbers and usurpers of respondents alleged rights, 3. After 2 investigations, the complaints if SPOUSES UY ET AL. were dismissed as baseless and 4. spreading false rumors and damaging tales which put petitioners into public contempt and ridicule. SPOUSES UY ET AL. on the other hans, alleged: 1. that they were the owners of the land as some came into ownership through inheritance from their parents, who in turn inherited them from their own parents and some by purchase from the former occupants thereof. 2. that they and their predecessors were responsible for the plantings and improvements on the property. 3. that they were the ones who sought for the properties to be taxdeclared in their respective names, and they continually paid the taxes thereto. 4. that they received notices dated signed by the late Ramon Durano, Sr., informing them that t he lands which they were tilling and residing in, formerly owned by the Cebu Portland Cement Company (CEPOC), had been purchased by Durano & Co., Inc. 5. However, even before many of the respondents received notices to vacate, men who identified themselves as employees of Durano & Co. proceeded to bulldoze the lands occupied by various respondents, destroying in their wake the plantings and improvements made by the respondents therein. 6 .On some occasions, respondents alleged, these men fired shots in the air. 7. Respondents maintained that they were unaware of anyone claiming adverse possession or ownership of these lands until the bulldozing operations in 1970. In 1970, Durano & Co. sold the disputed property to petitioner Ramon Durano III, who procured the registration of these lands in his name. The court rendered judgment in favor of SPOUSES UY ET AL. and against the HEIRS OF DURANO, directing the latter to pay the former for indemnity in reparation of the destroyed properties during the demolition. It also declared that SPOUSES UY ET AL.

were in possession of the properties to be in the concept of owner and that the HEIRS OF DURANO were the ones in good faith. Dissatisfied, the HEIRS OF DURANO appealed to the Court of Appeals, which affirmed the trial courts decision. On appeal to the Supreme Court, the HEIRS OF DURANO alleged that they were builders in bad faith and that the order for the return and payment of indemnity in favor of the SPOSES UY ET AL. was erroneous. ISSUES (1) Whether or not the HEIRS OF DURANO were builders on bad faith. (2) Whether or not the HEIRS OF DURANO should return the properties to the SPOUSES UY ET AL. and pay indemnity in reparation of the destroyed properties overran by the bulldozers. . RULING (1) YES, they were builders in bad faith. A purchaser of a parcel of land cannot close his eyes to facts which should put a reasonable man upon his guard, such as when the property subject of the purchase is in the possession of persons other than the seller. A buyer who could not have failed to know or discover that the land sold to him was in the adverse possession of another is a buyer in bad faith. In the same manner, the purchase of the property by petitioner Ramon Durano III from Durano & Co. could not be said to have been in good faith. It is not disputed that Durano III acquired the property with full knowledge of respondents occupancy thereon. There even appears to be undue haste in the conveyance of the property to Durano III, as the bulldozing operations by Durano & Co. were still underway when the deed of sale to Durano III was executed on September 15, 1970. There was not even an indication that Durano & Co. attempted to transfer registration of the property in its name before it conveyed the same to Durano III. Since petitioners knew fully well the defect in their titles, they were correctly held by the Court of Appeals to be builders in bad faith. (2) YES, they should. Art. 449. states that He who builds, plants or sows in bad faith on the land of another, loses what is built, planted or sown without right of indemnity. In relation to Art. 50 & 51, the owner of the land has three alternative rights: (1) to appropriate what has been built without any obligation to pay indemnity therefor, or (2) to demand that the builder remove what he had built, or (3) to compel the builder to pay the value of the land.

In any case, the landowner is entitled to damages under Article 451. Hence, the award of damages was proper. ARTICLE 451: In the cases of the 2 preceding articles, the landowner is entitled for damages from the builder, planter, or sower. In summary: a. BPS (in good faith) = 2 rights under 448 + limited right of removal and no damages. b. BPS (in bad faith) = 2 rights under 448 + absolute right of removal + damages. BAES vs. CA GR No. 108065. July 6, 1993 If the riparian owner is entitled to compensation for the damage to or loss of his property due to natural causes, there is all the more reason to compensate him when the change in the course of the river is effected through artificial means such as when the government dug up a canal therein to improve the flow of a creek. FACTS In 1962, the government dug a canal on a private parcel of land covering an area of 33,902 sq. m. to streamline the Tripa de Gallina creek. This lot was later acquired by FELIX BAES, who registered it in his name. He then had it subdivided into three lots, Lots A, B and C. In exchange for Lot B, which was totally occupied by the canal, the government gave BAES a lot with exactly the same area through a Deed of Exchange of Real Property. Said property was near but not contiguous to Lot C of BAES. It was later registered in the name of BAES. The soil displaced by the canal was used to fill up the old bed of the creek. Meanwhile, BAES had Lot C and a portion of Lot A was resurveyed and subdivided. In 1968, he submitted a petition for the approval of his resurvey and subdivision plane, claiming that after the said lots were plotted by a competent surveyor, it was found that there were errors in respect of their bearings and distances. Said resurvey-subdivision plan was approved by the CFI of Pasay City. As a result, the old TCTs covering the said lots were canceled and new ones were issued, further dividing said lots into 4 lots. Lots 3 & 4 were later consolidated and this time further subdivided into 4 more lots. In 1978, the Republic of the Philippines discovered that Lot 2, on which the petitioners had erected an apartment building covered a portion of the Pasay Cadastre, which was a filled-up portion of the Tripa de Gallina creek. It also found that

the land covered by BAES TCTs had been unlawfully enlarged. In 1982, the government filed a petition for cancellation of the TCTs of BAES. The trial court therefore decreed that the original be reverted to its status before the resurveysubdivision and ordered the cancellation of the TCTs. The Court of Appeals affirmed the same decision in toto. On appeal with the Supreme Court, FELIX and RAFAELA BAES in relying on Article 461 of the Civil Code, claimed as their own, the old bed of the Tripa de Gallina Creek, which was filled up by soil excavated from Lot B. Said Lot B was the land of BAES, on which the government dug a canal. The petitioners relied heavily on Dr. Arturo M. Tolentino's interpretation of Article 461 to wit: This article (461) refers to a natural change in the course of a stream. If the change of the course is due to works constructed by concessionaires authorized by the government, the concession may giant the abandoned river bed to the concessionaires. If there is no such grant, then, by analogy, the abandoned river bed will belong to the owners of the land covered by the waters, as provided in this article, without prejudice to a superior right of third persons with sufficient title. On the basis of their claim of ownership, FELIX and RAFAELA BAES claimed for compensation. The government rejected this claim and averred that the petitioners had already been fully compensated for it in 1970 when they agreed to exchange their B with another lot belonging to the government. ISSUE (1) Whether or not the riparian owner is entitled to compensation for the damage to or loss of his property due to the act of the government of digging therein. (2) Whether or not FELIX and RAFAELA BAES should be allowed compensation. RULING (1) YES, the riparian owner is entitled to compensation for the damage to or loss of his property. If the riparian owner is entitled to compensation for the damage to or loss of his property due to natural causes, there is all the more reason to compensate him when the change in the course of the river is effected through artificial means. The loss to the petitioners of the land covered by the canal was the result of a deliberate act on the part of the government when it sought to improve the flow of the Tripa de Gallina creek. It was therefore obligated to compensate FELIX and RAFAELA BAES for their loss.

(2) NO. FELIX and RAFAELA BAES have already been so compensated. FELIX BAES was given another lot in exchange for the Lot B through the Deed of Exchange of Real Property dated 1970. This was a fair exchange because the two lots were of the same area and value and the agreement was freely entered into by the parties. FELIX and RAFAELA BAES could not now claim additional compensation because, as correctly observed by the Solicitor General, to allow petitioners to acquire ownership of the dried-up portion of the creek would be a clear case of double compensation and unjust enrichment at the expense of the state. The exchange of lots between the petitioners and the Republic was the result of voluntary negotiations. If these had failed, the government could still have taken Lot B under the power of eminent domain, upon payment of just compensation, as the land was needed for a public purpose. ARTICLE 452: The builder, planter, or sower in bad faith is entitled to reimbursement for the necessary expenses of preservation of the land. ARTICLE 453: If there was bad faith, not only on the part of the person who built, planted or sowed on the land of another, but also on the part of the owner of such land, the rights of one and the other shall be the same as though both had acted in good faith. It is understood that there is bad faith on the part of the landowner whenever the act was done with his knowledge and even without opposition on his part. In other words, bad faith + bad faith = good faith ARTICLE 454: When the landowner acted in bad faith and the builder, planter, sower, preceded in good faith, the provisions of Article 447 shall apply. The LO must pay for the value of the house + DAMAGES because he is in bad faith. If the material owner chose to remove or destroy the house, the LO would still be liable for damages.

ARTICLE 455: If the materials, plants or seeds belong to a 3rd person who has not acted in bad faith, the owner of the land shall answer subsidiarily for their value and only in the event that the one who made use of them has no property with which to pay. This provision shall not apply if the owner makes use of the right granted by Article 450. if the owner of the materials, plants or seeds has been paid by the builder, planter or sower, the latter may demand form the landowner the value of the materials and labor.

Three a. b. c.

parties involved: land owner (LO) builder/ planter/sower (BPS) material owner (MO)

GENERAL RULE: If they (all parties) are all in good faith, the BPS who uses the material of another must reimburse the MO for the materials. EXCEPTIONS: a. the BPS may demand reimbursement from the LO provided the BPS is insolvent; b. the BPS is in good faith; c. the LO decides to appropriate whatever is built, planted, or sown. The LO is only oblige to reimburse if the 3 items enumerated above are present. The LO has also the option to reimburse the BPS if he chooses to reimburse. Now after the BPS pays the MO, when can he not ask for reimbursement from the LO? a. If he is in bad faith; b. if the LO exercises his option under 450 which is the demolition; c. if he compels the BPS to buy his land.

b) the cause of the alluvium is the current of the river ( not due to work expressly designed for that purpose); c) current must be that of a river, lake, steam or creek; d) river must continue to exist; e) The increase must be comparatively little (It should not be so big.) 2. avulsion 3. change of course of rivers 4. formation of islands GRANDE vs. CA GR No. L-17652. June 30, 1962 To the owner of lands adjoining the banks of rivers, belongs the accretion which they gradually receive from the effects of the current of the water. But just because that it was adjoined to the riparian owners unregistered land does not ipso facto mean that it is automatically registered as well. Thus, if it is unregistered, third persons may acquire equitable title thereto through acquisitive prescription. FACTS IGNACIO GRANDE ET AL. were owners of a parcel of land in the province of Isabela by inheritance from their deceased mother Patricia Angui. When it was surveyed for purposes of registration sometime in 1930, its northeastern boundary was the Cagayan River. Since then, and for many years thereafter, a gradual accretion on the northeastern side took place, by action of the current of the Cagayan River, so much so, that by 1958, the bank thereof had receded to a distance of about 105 meters from its original site, and an alluvial deposit of .9964 hectares, more or less, had been added to the registered area. ESTEBAN CALALUNG and DOMINGO CALALUNG were found to be possessing said alluvium that GRANDE ET AL. filed an action to quiet title to said portion formed by accretion against the CALALUNGs. They alleged that they and their predecessors-ininterest were formerly in peaceful and continuous possession thereof, until September, 1948, when the CALALUNGs entered upon the land under claim of ownership. The CALALUNGs on the other hand, claimed ownership in themselves, asserting that they had been in continuous, open, and undisturbed possession of said portion, since prior to the year 1933 to the present. Hence, they had already acquired the property by accretion. The CFI ruled in favor of GRANDE ET AL. and ordered the CALALUNGs to vacate the

ARTICLE 456: In the cases regulated in the preceding articles, good faith does not necessarily exclude negligence, which gives right to damages under Article 2176. ACCESSION NATURAL ARTICLE 457: To the owners of the lands adjoining the banks of the rivers belong to the accretion which they gradually receive form the effects of the current of the waters. GENERAL RULE To the owners of the lands adjoining the banks of the rivers belong to the accretion which they gradually receive form the effects of the current of the waters 4 FORMS ACCESSION: OF NATURAL

1. alluvium is the soil deposited or added to the lands adjoining the bank of rivers. Accretion - the process by which the soil is deposited. Riparian owner - the owner of the land adjacent to the river and this includes creeks, streams, and lakes. REQUISITES: a) should be natural, imperceptible; gradual, and

premises of said property. The CA on the other hand, ruled that the CALALUNGs had rightful ownership over the contested property by prescription. ISSUE (1) Whether or not the alluvium belonged to GRANDE ET AL. (2) Whether or not the CALALUNGs have acquired the alluvial property in question through acquisitive prescription. RULING (1) YES. That the area in controversy has been formed through a gradual process of accretion which started in the early thirties, is a fact conclusively established by the evidence for both parties. By law, therefore, unless some superior title has supervened, it should properly belong to the riparian owners, specifically in accordance with the rule of natural accession in Art. 366 of the old Civil Code (now Art. 457), which provides that 'to the owner of lands adjoining the banks of rivers, belongs the accretion which they gradually receive from the effects of the current of the water. The land in question being an accretion to the mother or registered land of GRANDE ET AL, the accretion belongs to the them. Assuming, arguendo that the accretion has been occupied by the CALALUNGs since 1948, or earlier, is of no moment, because the law does not require any act of possession on the part of the owner of the riparian owner, from the moment the deposit becomes manifest. Further, no act of appropriation on the part of the riparian owner is necessary, in order to acquire ownership of the alluvial formation, as the law does not require the same. There can be no dispute that both under Article 457 of the new Civil Code and Article 966 of the old, petitioners are the lawful owners of said alluvial property, as they are the registered owners of the land to which it adjoins. (2) YES. GRANDE ET AL. lost right over the land through prescription because the CALALUNGs were in possession of the alluvial lot since 1933 or 1934, openly, continuously and adversely, under a claim of ownership up to the filing of the action in 1958. Just as an unregistered land purchased by the registered owner of the adjoining land does not, by extension, become ipso facto registered land. Ownership of a piece of land is one thing, and registration under the Torrens system of that ownership is quite another. To acquire Imprescriptibility of registered land, it must first be registered. However, in the present case, GRANDE ET AL. failed to register the contested property. The increment, therefore, never became registered property, and hence is not entitled or subject to the protection of imprescriptibility enjoyed by registered

property under the Torrens system. Consequently, it was subject to acquisition through prescription by third persons. ZAPATA vs. DIR. OF LANDS GR No. L-17645. October 50, 1962 The accretion on the land must be made by the natural current of the river and must not be artificially induced, so that it may be rightfully claimed by the riparian owner. When fish traps are set up on the river and cause accretion, the riparian owner may still claim ownership over the alluvium provided that said fish traps were not expressly intended or designed to cause or bring about the accretion. FACTS JULIANA ZAPATA owned 2 parcels of in the province of Pampanga, adjoining a nonnavigable and non-floatable river called the Candalaga Creek. These 2 lands were registered in her name. In 1915, when the cadastral survey of San Fernando was begun, the width of the Candalaga Creek adjoining the two parcels of land owned by Juliana Zapata was about 90 or 100 meters. However, later, the width was reduced to 15 meters, because soil bad been accumulated by the water current of the river on the banks of said 2 lots that an additional 3 lots had been added to the property. In 1956, ZAPATA filed a petition to claim the 3 lots belong to her by accretion, as provided for in Art. 457 of the Civil Code and prayed that the same be registered in her name. The DIRECTOR OF LANDS objected to the petition and prayed that the registration of the 3 lots in the name of Zapata be denied and that they be declared to form part of the public domain. The trial court granted the petition of ZAPATA. Hence, the DIRECTOR OF LANDS appealed. The DIRECTOR OF LANDS contended that Art. 457 of the Civil Code should not be applied in the present case because the accretion or deposit of alluvial soil was not due to the natural effect of the current of Calandaga Creek but was artificially induced on account of the erection of the fish traps on the creek, such as salag net, bunuan (bamboo trap), sabat (cutting of channels) and fencing that the fishermen bad built in the stream, ISSUE Whether or not the alluvial accretion was entirely due to the setting tip of such fish traps. RULING NO. True, those fish traps might have slowed down the current of the Candalaga Creek and might have brought about or caused the accretion. But as there was no

evidence to show that the setting up or erection of the fish traps was expressly intended or designed to cause or bring about the accretion ZAPATA may still invoke the benefit of the provisions of Art. 457 of the Civil Code to support her claim of title thereto. Moreover, the fishermen who since 1894 used to set up fish traps in the creek, later on secured permit from the Government that auctioned off the right or license to set up fish traps in the creek, and the setting up of such fish traps stopped or was discontinued even before 1926. Being that the petition to was only 1956, years after, it all showed that the alluvial accretion was not entirely due to the setting up of such fish traps. AGUSTIN vs. IAC GR No. 66075-76. July 5, 1990 Because of accretion, the land of A was transferred to the land of B. The alluvium then is owned by B. However, when because of a sudden change in the course of river, the land was reverted back to the property of A, B still owned the same. FACTS The Cagayan River separates the towns of Solana on the west and Tuguegarao on the east in the province of Cagayan. In 1919, the lands east of the Cagayan River were covered by the Tuguegarao Cadastre. On the left of the River are the towns of Solana. In 1925, EULOGIO AGUSTIN was issued an Original Certificate of Title, covering the land east of the Cagayan River. As the years went by, the Cagayan River moved gradually eastward, depositing silt on the western bank. The shifting of the river and the siltation continued until 1968. In 1950, all lands west of the river were included in the Solana Cadastre. Among these occupying lands covered by the Solana Cadastre were RESPONDENTS MARIA MELAD, TIMOTEO MELAD, PABLO BINAYUG & GERONIMA UBINA, respondents. Through the years, the Cagayan River eroded lands of the Tuguerarao Cadastre on its eastern bank among which was AGUSTIN's lot, depositing the alluvium as accretion on the land possessed by BINAYUG on the western bank. However, in 1968, after a big flood, the Cagayan River changed its course, returned to its 1919 bed, and, in the process, cut across the lands of RESPONDENTS, whose lands were transferred on the eastern, or Tuguegarao, side of the river. To cultivate those lots they had to cross the river. In 1969, while the RESPONDENTS and their tenants were planting corn an their lots located on the eastern side of the Cagayan River, AGUSTIN, accompanied by the mayor and some policemen of

Tuguegarao, claimed the same lands as their own and drove away the RESPONDENTS from the premises. Hence, RESPONDENTS filed a complaint to recover their lots and their accretions. The lower court ruled in their favor. Hence, AGUSTIN appealed. ISSUE Whether or not the accretion belong to RESPONDENTS. RULING YES. The accretion belonged to RESPONDENTS and not AGUSTIN. Accretion benefits a riparian owner when the following requisites are present: (1) that the deposit he gradual and imperceptible; (2) that it resulted from the effects of the current of the water; and (3) that the land where accretion takes place is adjacent to the bank of a river (Republic vs. CA, 132 SCRA 514). All these requisites of accretion are present in this case for, as the trial court found that the Cagayan River did move year by year from 1919 to 1968 or for a period of 49 years. It was gradual and imperceptible. Within this period, the alluvium deposited on the other side has become greater in area than the original lands of AGUSTIN in both cases. Still the addition in every year is imperceptible in nature, one could not discern it but can be measured after the lapse of a certain time. The reason for this principle is because, if lands bordering on streams are exposed to floods and other damage due to the destructive force of the waters, and if by virtue of law they are subject to encumbrances and various kinds of easements, it is only just that such risks or dangers as may prejudice the owners thereof should in some way be compensated by the right of accretion. The RESPONDENTS' ownership of the accretion to their lands was not lost upon the sudden and abrupt change of the course of the Cagayan River in 1968 or 1969 when it reverted to its old 1919 bed, and separated or transferred said accretions to the other side (or eastern bank) of the river. Articles 459 and 463 of the New Civil Code apply to this situation. In the case at bar, the sudden change of course of the Cagayan River as a result of a strong typhoon in 1968 caused a portion of the lands of the private respondents to be "separated from the estate by the current." Hence, RESPONDENTS have retained the ownership of the portion that was transferred by avulsion to the other side of the river. VDA. DE NAZARENO vs. CA GR No. 98054. June 6, 1996

Accretion to be rightfully claimed by the riparian owner must not me man-made or artificial. When the accretion was caused by the sawdust dumped on the river, the riparian owner cannot claim the deposited land because it already formed part of the public domain.

of boulders, soil and other filling materials into the Balacanas Creek and Cagayan River bounding his land. ISSUE (1) Whether or not the subject land formed part of the property of NAZARENO through accretion. (2) Whether or not the property was a public land. RULING (1) NO. Accretion, as a mode of acquiring property under Art. 457 of the Civil Code, requires the concurrence of these requisites: (1) that the deposition of soil or sediment be gradual and imperceptible; (2) that it be the result of the action of the waters of the river (or sea); and (3) that the land where accretion takes place is adjacent to the banks or rivers (or the sea coast). These are called the rules on alluvium which if present in a case, give to the owners of lands adjoining the banks of rivers or streams any accretion gradually received from the effects of the current of waters. However, in the case at bar, the 2nd and 3rd requisites were absent. Hence, VDA. DE NAZARENO ET AL., could not claim the rights of a riparian owner. The 3rd requisite that the alluvium be the result of the action of the waters of the river was not met since the subject land was the direct result of the dumping of sawdust by the Sun Valley Lumber Co. consequent to its sawmill operations. Even if this Court were to take into consideration petitioners' submission that the accretion site was the result of the late Antonio Nazareno's labor consisting in the dumping of boulders, soil and other filling materials into the Balacanas Creek and Cagayan River bounding his land, the same would still be part of the public domain. The 2nd requisite that the deposit of soil or sediment be gradual and imperceptible was also not met it could not be claimed that the accumulation of such boulders, soil and other filling materials was gradual and imperceptible, resulting from the action of the waters or the current of the Balacanas Creek and the Cagayan River. The word "current' 'Indicates the participation of the body of water in the ebb and flow of waters due to high and low tide. The conclusion of the court, therefore, was that the accretion was man-made or artificial. The requirement that the deposit should be due to the effect of the current of the river is indispensable. This excludes from Art. 457 of the Civil Code all deposits caused by human intervention. Putting it differently, alluvium must be the exclusive work of nature.

FACTS Antonio Nazareno, predecessor-ininterest of petitioners DESAMPARADO VDA. DE NAZARENO and LETICIA NAZARENOTAPIA owned a parcel of land in Cagayan de Oro City. In 1979, he leased portions of said land to private respondents JOSE SALASALAN and LEO RABAYA, who built their respective houses therein. In the latter part of 1982, SALASALAN ET AL. allegedly stopped paying rentals. As a result, Antonio Nazareno and VDA. DE NAVARENO ET AL. filed a case for ejectment, which was granted by the court. Later, despite successive efforts in court by SALASALAN ET AL., the court finally executed its judgment and they were ejected from the lots they occupied. Before he died, Antonio Nazareno caused the approval by the Bureau of Lands of a survey plan with a view to perfecting his title over the accretion area being claimed by him. Before the approved survey plan could be released to the applicant however, SALASALAN ET AL. protested. Upon order of the District Land Officer, respondent Land Investigator AVELINO LABIS conducted an investigation and rendered a report, recommending that the survey plan in the name of Antonio Nazareno, be cancelled and that private respondents be directed to file appropriate public land applications. Based on the said report, respondent Regional Director of the Bureau of Lands Roberto Hilario ordered the amendment of the survey plan in the name of Antonio Nazareno by segregating therefrom the areas occupied by SALASALAN ET AL. who, if qualified, may file public land applications covering their respective portions. Respondent Director of Lands ABELARDO PALAD then ordered Antonio Nazareno to vacate the portions adjudicated to SALASALAN ET AL. and to remove whatever improvements they have introduced thereon. He also ordered that SALASALAN ET AL. be placed in possession thereof. Upon the denial of the motion for reconsideration, VDA. DE NAZARENO ET AL., as heirs of late Antonio Nazareno filed a case to annul the order of PALAD. Their argument was that the subject land was not a public land but rather a private land being an accretion to Antonio Nazarenos titled property, applying Article 457 of the Civil Code. They added that the accretion site was the result of the late Antonio Nazareno's labor consisting in the dumping

(2) YES. The property was a public land, being an artificial accretion of sawdust.. Hence, it was a proper subject of a public land applications. The court agreed with SALASALAN ET AL. that VDA. DE NAZARENO ET AL. were estopped from denying the public character of the subject land, as well as the jurisdiction of the Bureau of Lands when the late Antonio Nazareno filed his Miscellaneous Sales Application (MSA). The mere filing of said Application constituted an admission that the land being applied for was public land, having been the subject of a survey plan. HEIRS OF NAVARRO vs. IAC GR No. 116290. December 8, 2000 Manila Bay is a sea and not a lake. When by the action of Manila Bay, land is formed, it is not accretion to be owned by the riparian owner under the Civil Code but is rather converted into foreshore land as a property of public domain, as deemed under the Spanish Law of Waters of 1866. In 1946, SINFOROSO PASCUAL filed an applications for foreshore lease covering a tract of foreshore land in Bataan, having an area of approximately 17 hectares. This application was denied. Subsequently, EMILIANO NAVARRO, predecessor-in-interest of the HEIRS OF EMILIANO also filed fishpond application with the Bureau of Fisheries covering 25 hectares of foreshore also in Bataan. Initially, such application was denied by the Director of Fisheries on the ground that the property, formed part of the public domain but upon a motion for reconsideration, the Director gave due course to his application but only to the extent of 7 hectares of the property. In the early part of 1960, PASCUAL filed an application to register and confirm his title to a parcel of land and said have area an area of 146,611 square meters. PASCUAL claimed that this land is an accretion to his property. It is bounded on the eastern side by the Talisay River as well as the Bulacan River flow downstream and meet at the Manila Bay thereby depositing sand and silt on PASCUALs land, thus claiming accretion as the riparian owner. NAVARRO thereupon filed an opposition to PASCUAL's application. NAVARRO claimed that the public domain, it being a part of the foreshore of Manila Bay; that he was a lessee and in possession of a part of the subject property by virtue of a fishpond permit issued by the Bureau of Fisheries and confirmed by the Office of the President; and that he had already converted the area covered by the lease into a fishpond. During the pendency of the land registration case, PASCUAL filed a complaint for ejectment against Emiliano Navarro, one

Marcelo Lopez and their privies, alleged by Pascual to have unlawfully claimed and possessed, through stealth, force and strategy, a portion of the subject property covered by his land. Because of the similarity of the parties and the subject matter, the appealed case for ejectment was consolidated with the land registration case and was jointly tried by the court a quo. In 1961, during the pendency of the trial of the consolidated cases, NAVARRO died and was substituted by his HEIRS. Subsequently, in 1962, PASCUAL died and was substituted by his HEIRS as well. During trial, the court found out that the land of PASCUAL was bounded on the east by the Talisay River, on the west by the Bulacan River, and on the north the Manila Bay. The Talisay and Bulacan rivers come from inland flowing downstream towards the Manila bay. In other words, between the Talisay River and the Bulacan River is the property of applicants with both rivers acting as the boundary to said land and the flow of both rivers meeting and emptying into the Manila Bay. The subject land was formed at the tip or apex of PASCUALs land adding thereto the land now sought to be registered. In 1975, the court rendered judgment in favor of the HEIRS OF PASCUAL, finding the subject property to be foreshore land and, being a part of the public domain, it cannot be the subject of land registration proceedings. On appeal, IAC reversed the said decision. Aggrieved, the HEIRS OF NAVARRO appealed the case. They contended that they owned the disputed land by accretion under Art. 457 of the Civil Code as said land was an accretion caused by the joint action of the Talisay and Bulacan Rivers, which run their course on the eastern and western boundaries of their land. ISSUES (1)Whether or not Manila Bay is a lake. (2) Whether or not the land was formed by the action of the Talisay and Bulacan rivers as an accretion of was formed by the action of the Manila Bay as a foreshore land. RULING (1) NO. It is a sea. It should not be compared with Laguna de Bay, which is a lake. A Bay is an opening into the land where the water is shut in on all sides except at the entrance; an inlet of the sea; an arm of the sea, distinct from a river, a bending or curbing of the shore of the sea or of a lake. The disputed land, thus, is an accretion not on a river bank but on a sea bank, or on what used to be the foreshore of Manila Bay which adjoined petitioners own tract of land on the northern side. As such, the applicable law is not Article 457 of the Civil Code but Article 4 of the Spanish Law of Waters of 1866, which states that:

Lands added to the shores by accretions and alluvial deposits caused by the action of the sea, from part of the public domain. When they are no longer washed by the waters of the sea and are not necessary for the coast guard service, the Government shall declare them to be the property of the owners of the estates adjacent thereto and as increment thereof." (2) The land was not formed by the action of the Talisay and Bulacan rivers. It was formed by the action of Manila Bay, hence, it was a foreshore land, which belonged to the public domain. Accretion is the process whereby the soil is deposited, while alluvium is the soil deposited on the estate fronting the river bank. The owner of such estate is called the riparian owner. Riparian owners, the latter being owners of lands bordering the shore of the sea or lake or other tidal. The alluvium, by mandate of Article 457 of the Civil Code, is automatically owned by the riparian owner from the moment the soil deposit can be seen but is not automatically registered property, hence, subject to acquisition through prescription by third persons. Accretion as a mode of acquiring property under said Article 457 requires the concurrence of the following requisites: (1) that the accumulation of soil or sediment be gradual and imperceptible; (2) that it be the result of the action of the waters of the river; and (3) that the land where the accretion takes place is adjacent to the bank of the river. In the present case, the 2nd and 3rd requisites were absent. The 2nd requisite was absent because if the accretion were to be attributed to the action of either or both of the Talisay and Bulacan Rivers, the alluvium should have been deposited on either or both of the eastern and western boundaries of petitioners own tract of land, not on the northern portion thereof which is adjacent to the Manila Bay. Clearly lacking, thus, is the third requisite of accretion, which is, that the alluvium is deposited on the portion of claimant's lot, which is adjacent to the river bank. BAGAIPO vs. CA GR No. 116290. December 8, 2000 The decrease in petitioners land area and the corresponding expansion of respondents property were the combined effect of erosion and accretion respectively. Art. 457 and not Art. 461 of the Civil Code then is applicable. Registration does not protect the riparian owner against the

diminution of the area of his land through gradual changes in the course of the adjoining stream. FACTS Petitioner DIONISIA P. BAGAIPO was the registered owner of Lot No. 415, an agricultural land situated in Ma-a, Davao City. It was bounded on the southeast by the Davao River. Respondent LEONOR LOZANO on the other hand, was the owner of a registered parcel of land located across and opposite the southeast portion of petitioners lot facing the Davao River. LOZANO acquired and occupied her property in 1962 when his wife inherited the land from her father who died that year. In 1989, BAGAIPO a complaint for Recovery of Possession against Lozano for the recovery of a land area , which BAGAIPO lost when the Davao River traversed her property. BAGAIPO contended that as a result of a change in course of the said river, her property became divided into three lots. Later, BAGAIPO commissioned a survey of Lot 415 and it was showed therein that her land was taken up by the new course of the Davao River and was then illegally occupied by LOZANO. She presented a witness who testified that the change of the course of the Davao River was caused by a big flood in 1968 and that the river which flowed previously in front of a chapel located 15 meters away from the riverbank within Bagaipos property now flowed behind it. For his part, LOZANO insisted that the land claimed by BAGAIPO was actually an accretion to their titled property. He asserted that the Davao River did not change its course and that the reduction in BAGAIPOs domain was caused by gradual erosion due to the current of the Davao River. He added that it was also because of the rivers natural action that silt slowly deposited and added to his land over a long period of time. He presented 3 witnesses, all who concurred that each time there was flood, there was erosion that occurred on the property of BAGAIPO, which carried away the soil therein. In 1991, after the trial court conducted an ocular inspection, it dismissed the complaint. It concluded that the applicable law was not Art. 461 but rather Art. 457, which states that to the owners of lands adjoining the banks of rivers belong the accretion which they gradually receive from the effects of the current of the waters. Hence, this appeal by BAGAIPO. ISSUE (1) Whether or not the decrease in land area was brought about by erosion and not a change in the rivers course. (2) Whether or not Art. 453 and not Art. 461 should be applied. (3) Whether or not the registration of BAGAIPO over the accretion to the land by a

Torrens certificate of title precluded LOZANO from being the owner thereof. RULING (1) The trial court and the appellate court both found that the decrease in land area was brought about by erosion and not a change in the rivers course. This conclusion was reached after the trial judge observed during ocular inspection that the banks located on petitioners land are sharp, craggy and very much higher than the land on the other side of the river. Additionally, the riverbank on respondents side is lower and gently sloping. The lower land therefore naturally received the alluvial soil carried by the river current. (2) The decrease in petitioners land area and the corresponding expansion of respondents property were the combined effect of erosion and accretion respectively. Art. 461 of the Civil Code then is inapplicable. Petitioner could not claim ownership over the old abandoned riverbed because the same was inexistent. The riverbeds former location could not even be pinpointed with particularity since the movement of the Davao River took place gradually over an unspecified period of time, up to the present. The rule is well-settled that accretion benefits a riparian owner when the following requisites are present: 1) That the deposit be gradual and imperceptible; 2) That it resulted from the effects of the current of the water; and 3) That the land where accretion takes place is adjacent to the bank of the river. These requisites were sufficiently proven in favor of respondents. In the absence of evidence that the change in the course of the river was sudden or that it occurred through avulsion, the presumption is that the change was gradual and was caused by alluvium and erosion. (3)The fact that the accretion to his land used to pertain to plaintiffs estate, which is covered by a Torrens certificate of title, cannot preclude him (defendant) from being the owner thereof. Registration does not protect the riparian owner against the diminution of the area of his land through gradual changes in the course of the adjoining stream. Accretions which the banks of rivers may gradually receive from the effect of the current become the property of the owners of the banks. Such accretions are natural incidents to land bordering on running streams and the provisions of the Civil Code in that respect are not affected by the Land Registration Act. ARTICLE 458: The owners of the estates adjoining ponds or lagoons do not require the land left dry by the natural decrease of the waters, or lose that inundated by them

in extraordinary floods. The owners of the lands adjoining ponds and lagoons do not acquire the lands left dry by the natural decrease of the water. ARTICLE 459: Whenever the current of a river, creek, or torrent, segregates from an estate on its banks known portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains the ownership of it provided that he removes the same within 2 years. This is AVUSION. It is the process whereby the current of a river, creek, or torrent segregates from an estate on its bank a known portion of land and transfers it to another state. avulsion is also referred as delayed accession

DISTINCTIONS BETWEEN ALLUVIUM AND AVULSION 1. Alluvium is a piece of land created by accretion under 457. The deposit of soil is gradual; in avulsion, it is a sudden or abrupt process. 2. In the former, the soil cannot be identified whereas in the latter, the portion that is segregated is identifiable or verifiable. 3. Alluvium belongs to the owner to which it was attached but avulsion belongs to the owner from whom the property was detached ARTICLE 460: Trees uprooted and carried away by the current of the waters belong to the owner of the land upon which they may be cast, if the owners do not claim them within 6 months. If such owners claim them, they shall pay the expenses incurred in gathering them or putting them in a safe place ARTICLE 461: River beds which are abandoned thru the natural change in the course of the waters ipso facto belong to the owners whose lands are occupied by the new course in proportion to the area lost. However, the owners of the lands adjoining the old bed shall have the right to acquire the same by paying the value thereof, which vale shall not exceed the value of the area occupied. GENERAL RULE: The abandoned river beds ipso facto belong to the owners whose land are occupied by the new course in proportion of the area lost. But the owners of the land adjoining the old bed shall have the right to acquire the same by paying the value thereof. REQUISITES: 1. the change must be sudden, not gradual;

2.

3.

4.

5.

the changing of the course must be more or less permanent and not temporary over flooding of anothers land; the change of the river bed must be natural one and not by artificial means; there must be a definite abandonment by the government. No effort has been made to bring back the river to its old bed; the river must continue to exist.

Arts. 464 and 465. In the first, no accession takes place, the owner retaining his ownership of the segregated portion; in second, accession takes place. ARTICLE 464: Islands which may be formed on the seas within the jurisdiction of the Philippines, on lakes, and of navigable or floatable rivers belong to the State. ARTICLE 465: Islands which thru successive accumulation of alluvial deposits are formed in non-navigable and nonfloatable rivers, belong to the owners of the margins or banks nearest to each of them, or to the owner of both margins if the island is in the middle of the river, in which case it shall be divided longitudinally in halves. If a single island this formed be more distant from one margin than from the other, the owner of the nearer margin shall be the sole owner thereof. Who owns the island formed by unidentifiable accumulated deposits? It depends. i. if formed on the sea Within the territorial waters or maritime zone or jurisdiction of the Philippines State (464 Patrimonial property) ii. If formed on lakes, or navigable or floatable rivers the State. iii. If formed in nonnavigable or non-floatable rivers 1. If NEARER margin to one bank, owner of nearer margin is the sole owner; 2. If EQUIDISTANT, the island shall be divided longitudinally in halves, each bank getting half.

If the river dries up, then it belongs to the public domain. It has no effect on the private lands.

1.

Art. 58 of PD 1067 states that when the river or stream suddenly changes its course to private lands, the owners of the affected lands: 1. may not compel the government to restore the river to its former bed; 2. they cannot restrain the govt. from taking steps to revert the river or stream to its former course; So, the owners have no right as to the acts or omission by the government. 3. they are not entitled to compensation for any damage sustained thereby. The owners of the affected lands may undertake to return the stream or river to its bed at their own expense, provided: a permit is secured from the DOH and DOTC; 2. work commence within 2 yrs from the change of the course of the river or stream. ARTICLE 462: Whenever a river, changing its course by natural causes, opens a new bed thru a private estate, this bed shall become of public dominion. ARTICLE 463: Whenever the current of a river divides itself into branches, leaving a piece of land or part thereof isolated, the owner if the land retains his ownership. He also retains it if a portion of land is separated from the estate by the current. This refers to the formation of island by the branching off a river as distinguished from the formation of islands by successive accumulation of alluvial deposits (unidentifiable sediments) referred to in

NAVIGABLE OR FLOATABLE RIVER if useful for floatage and commerce, whether the tides affect the water or not should benefit trade and commerce. SECTION 3: RIGHT OF ACCESSION WITH RESPECT TO MOVABLE PROPERTY ARTICLE 466: Whenever two movable things belonging to different owners are, without bad faith, united in such a way that they form a single object, the owner of the principal thing acquires the accessory, indemnifying the former owner thereof for its value. 3 TYPES OF ACCESSION WITH RESPECT TO MOVABLE PROPERTY: a.) adjunction b.) mixture c.) specification

ADJUNCTION a process by virtue of which two movable things belonging to different owners are untied in such a way that they form a single object. It is also called conjunction. It may be done in good faith or bad faith. KINDS: (a)inclusion (b) soldering (c) escritura (d) Pintura (e) weaving ARTICLE 467: The principal thing, as between to things incorporated, is deemed to be that to which the other has been united as an ornament, or for its use or perfection. ARTICLE 468: If it cannot be determined by the rule given in the preceding article which of the two things incorporated is the principal one, the thing of the greater value shall be considered, and as between two things of equal value, that of the greater volume. In painting and sculpture, writings, printed matter, engraving and lithographs, the board, metal, stone, canvas, paper or parchment, shall be deemed the accessory thing. The principal is: (order of preference) a. that to which the other has been united as an ornament, or for its use, or perfection; b. that of greater volume; c. that of greater value; d. that which has greater merits.

incorporated and shall have the obligation to indemnify the owner of the principal thing for the damages he may have suffered. If the one who has acted in bad faith is the owner of the principal thing, the owner of the accessory thing shall have a right to choose between the former paying him its value or that the thing belonging to him by separated, even though for this purpose it be necessary to destroy the principal thing, and on both cases, furthermore, there shall be indemnity for damages. If either one of the owners has made the incorporation with the knowledge and without the objection of the other, their respective rights shall be determined as though both acted in good faith. RULES IN CASE OF BAD FAITH IN THE ADJUNCTION Owner of Accessory is in bad faith If I in bad faith, will use the varnish on the chair of my brother, I lose all rights to the varnish. Moreover, I will be responsible for damages. Owner of the principal in bad faith If I, in bad faith, will use my brothers lead in soldering my pipes, my brother has the right to ask for payment of the lead plus damages; or he may choose to have the lead removed from the pipes even if the pipes be destroyed plus damages. ARTICLE 471: Whenever the owner of the material employed without his consent has a right to an indemnity, he may demand that this consist in the delivery of a thing equal in kind and value, and in all other respects, to that employed, or else in the price thereof, according to expert appraisal. Indemnity how paid? Either by: a) delivery of a thing equal in kind and value (quantity, (quality); b) or payment of price a appraised by experts. This rule is applicable only when the consent of the owner had not been obtained. The material may have been the principal or accessory. ARTICLE 472: If by the will of the owners two things of the same or different kinds are mixed, or if the mixture occurs by chance, and in the latter case things are not separable without the injury, each owner shall acquire a right proportional to the part belonging to him, bearing in mind the value of the things mixed or confused. ARTICLE 473: If by the will of only one owner, but in good faith, two things of the same or different kinds are mixed or confused, the rights of the owners shall be determined by the provisions of the

ARTICLE 469: Whenever the things united can be separated without the injury, their respective owners may demand their separation. Nevertheless, in case the thing united for the use, embellishment or perfection of the other, is much more precious than the principal thing, the owner of the former may demand its separation, even though the thing to which it has been incorporated may suffer some injury. In a separation without injury (1st par) there is no real accession here. It is understood that the 1st paragraph can apply only to soldering and inclusion because all the rest, separation would result in substantial injury. In the 2nd par, there is separation, although with injury (but not destruction) is allowed, if the thing united for the use, embellishment, or perfection of the other is much more precious than the principal. ARTICLE 470: Whenever the owner of the accessory thing has made the incorporation in bad faith, he shall lose the thing

preceding article. If the one who caused the mixture or confusion acted in bad faith, he shall lose the thing belonging to him thus mixed or confused, besides being obliged to pay indemnity for the damages caused to the owner of the other thing with which his own was mixed. MIXTURE - combination or union of materials where the respective identities of the component elements are lost. (As distinguished from adjunction, there is in mixture greater inter-penetration or decomposition of the objects that have been mixed. 2 KINDS OF MIXTURE: 1. COMMIXTION (if solids are mixed) 2. CONFUSION (if liquids are mixed) RULES OF MIXTURE: If the mixture is caused by one owner in good faith, or by the will of both owners, or by chance (accident), or by a common agent, then CO-OWNERSHIP results, each owner acquiring an interest or right proportional to the value of his material i) if the mixture is made by the owner in bad faith, then -1. he loses his material 2. and is liable for damages to penalize his bad faith. ii) When the things mixed or confused are of exactly the same kind, quantity and quality, all that is needed would be to divide the mixture into equal parts. SANTOS vs. BERNABE GR No. 31163. November 6, 1929 When the palays of 2 different owners were mixed up and it could not be determined as to who owns which. The owners shall be paid not for the entire palay but only a right proportional to the part belonging to him. FACTS In 1928, plaintiff URBANO SANTOS deposited in defendant JOSE BERNABEs warehouse 778 cavans and 38 kilos of palay. On the same day, co-defendant PABLO TIONGSON also deposited 1,026 cavans and 9 kilos of the same grain. Later, TIONGSON filed in court a complaint in against BERNABE, to recover from the latter the 1,026 cavans and 9 kilos of palay he deposited in the latters warehouse. At the same time, the court granted him a writ of attachment. At the time of the attachment, the sheriff only

found only 924 cavans and 311 kilos of palay in said warehouse. SANTOS intervened in the attachment of the palay but the sheriff proceeded with the attachment upon filing of the proper bond by TIONGSON. The attached property was sold at public auction and the proceeds from it were delivered to TIONGSON. SANTOS then filed an action in court. He contended that TIONGSON could not claim the 924 cavans and 31 kilos of palay attached by the sheriff as part of those were deposited by him. The court ordered TIONGSON to pay SANTOS the value of the 778 cavans and 38 kilos of palay, at the rate of P3 per cavan. Hence, TIONGSON and the PROVINCIAL SHERIFF appealed. ISSUE Whether or not TIONGSON should refund the value of SANTOS 778 cavans and 38 kilos of palay. RULING NO. SANTOS should not be paid for the entire palay he deposited but only a right proportional to the part belonging to him. The palay of SANTOS and TIONGSON were mixed up when they both deposited their palays in BERNABEs warehouse. It was because the palays did not bear any marks or signs, nor were they separated one from the other. At the time of the attachment and the sheriff only found 924 cavans and 311 kilos of palay in BERNABEs warehouse. There being no means of separating from said 924 cavans and 31 1/2 kilos of palay those belonging to SANTOS and those to TIONGSON, Art. 472 (then Art. 381) of the Civil Code shall apply. Being that the number of kilos in a cavan was not determined, each of the owner then, SANTOS and TIONGSON shall acquire a right proportional to the part belonging to each. Hence, 924 cavans of palay were attached and sold. SANTOS, who deposited 778 cavans, shall have the right over 398.49 thereof or the value thereof at the rate of P3 per cavan. TIONGSON, who deposited 1,026 cavans, shall have the right over 525.51, or the value thereof at the rate of P3 per cavan. ARTICLE 474: One who in good faith employs the material of another in whole or in part in order to make a thing if a different kind, shall appropriate the thing thus transformed as his own, indemnifying the owner of the material for its value. If the material is more precious than the transformed thing or is more value, its owner may, at his option, appropriate the new thing to himself. After first paying indemnity for the value of the work, or demand indemnity for the material. If in making of the thing bad faith intervened, the owner of the material shall have the right to appropriate the work to

himself without paying anything to the maker, or to demand of the latter that he indemnify him for value of the material and the damages he nay have suffered. However, the owner of the material cannot appropriate the work in case of the value of the latter, for artistic or scientific reasons are considerably more than that of the material. SPECIFICATION - the giving of a new form to anothers material thru the application of labor. The material undergoes a transformation or change of identity. RULE IN CASE THE OWNER AND WORKER ARE IN GOOD FAITH: a. appropriation on the part of the owner of the work; b. reimbursement of the materials employed by the worker. RULE IN CASE WORKER IS IN BAD FAITH: 1. appropriate the work without paying for labor; 2. demand payment for the material used plus damages. EXCEPTION: The thing shall be used for scientific purposes. ADJUNCTION 1. involves at least 2 things; 2. As a rule, accessory follows the principal 3. The things joined retain their nature MIXTURE 1. involves at least 2 things 2. As a rule, coownership results 3. The things mixed or confused may either retain or lose their respective nature. SPECIFICATION 1. may involve only 1 thing (may be more) but form is changed 2. As a rule, accessory follows the principal 3. The new object retains or preserves the nature of the original object.

AGUIRRE vs. PHENG GR No. l-20851. September 3, 1966 Although ordinarily, an owner of a property would be entitled to any accession thereto, the rule is different where the works or improvements or the accession was made on the property by one who acted in good faith. The governing provision is Art. 474. FACTS In 1954, Vicente and Aldaba sold to petitioner JESUS AGUIRRE a circular bolted steel tank with a capacity of 5,000 gallons,

for the sum of P900.00. AGUIRRE, however, failed to take physical possession of the tank, having been prevented from doing so by the municipal authorities of Los Baos, Laguna (where the tank was located), in view of the claim of ownership being made by the Bureau of Public Highways. However, 6 months after the tank was sold to AGUIRRE, Vicente and Teresa Aldaba again sold the same tank on to Zosimo Gabriel, for P900.00. Gabriel, in turn, sold it to the LEONORA & COMPANY on for P2,500.00. After some alterations and improvements made on the tank, Leonora & Company was able to sell the tank to National Shipyard & Steel Corporation (NASSCO), for P14,500.00. AGUIRRE immediately filed with NASSCO a formal notice of his claim of ownership of the tank. As a consequence, NASSCOs payment of the purchase price to LEONORA & COMPANY was suspended. Then, AGUIRRE instituted a civil case against VICENTE PHENG, in his capacity as General Manager of LEONORA & COMPANY and the ALDABAS, for delivery to him of the tank, with damages. On the other hand, because of the suspension of payment of the purchase price, LEONORA & COMPANY filed a civil case against NASSCO, praying for the delivery of the purchase price of P14,500.00, or the reimbursement of the sum of P12,229.00 allegedly representing the actual investment and expenses made and incurred to put the tank in usable condition. AGUIRRE intervened in said proceeding. These two cases were jointly heard by the trial court. The court then declared AGUIRRE as the absolute owner of the tank and that the subsequent sales were declared null and void and of no effect. Aldaba and Leonora and Co. and the National Shipyards and Steel Corporation were ordered: 1. to deliver AGUIRRE the tank wherein the latter would have to pay Leonora and Co. P11,299.00 which it spent for the improvement of the tank. 2. in case that delivery is impossible, to pay AGUIRRE P900, the original purchase price of the tank, or From this decision, AGUIRRE appealed to the Court of Appeals, which affirmed the same. Hence, this appeal. AGUIRRE alleged that he should not only be paid P900 but P14,500, which was the value of the tank at the time of its delivery to NASSCO. He also contended that under Art. 440 of the Civil Code, his ownership of the property entitled him to everything that is produced thereby, or is incorporated or attached thereto, either naturally or artificially. ISSUE (1) Whether or not AQUIRRE, as owner of the tank, would be entitled to any accession thereto.

(2) Whether the value for indemnifying AGUIRRE should be P900, which was its original value or P14,500, which was its present value then. RULING (1) NO. Although ordinarily, an owner of a property would be entitled to any accession thereto, the rule is different where the works or improvements or the accession was made on the property by one who acted in good faith. And it is not contended that the making of the improvements and incurring of expenses amounting to P11,299.00 by Leonora & Company was done in bad faith. The governing provision is Art. 474 (then Art. 466) of the Civil Code. (2) The reimbursement should be P900, the original value of the tank when it was bought by AGUIRRE. It was clear that there was an accession by specification: LEONORA AND COMPANY, as purchaser acting in good faith, spending P11,299.00 for the reconditioning of the tank which was later adjudged to belong to AGUIRRE. Furthermore, to uphold AGUIRRE's contention that he was entitled to the sum of P14,500 for the price of the tank in its present condition, would be to allow him to enrich himself at the expense of another. The lower courts, therefore, acted correctly in ordering the reimbursement to LEONORA & COMPANY for the expenses it made on the tank. ARTICLE 475: In the preceding articles, sentimental value shall be duly appreciated. QUIETING OF TITLE ARTICLE 476: Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. WHEN IS TITLE? THERE A CLOUD IN THE

What would be the test? If proof is essential, the cloud exists. If proof is not needed, cloud is not present. The rule merely refers to immovable or real property or any interest therein. But by analogy, the principle may also apply to personal property particularly the vessels which partake the nature of real property.

Nature of the action:

a) This is an action in personam

because it is directed against the defeated party or privies. b) It may also be considered quasi in rem since it involves interest in a real property. c) An action to quiet title against a coowner is not res judicata as to the other co-owners if they were not made parties thereto WHEN DOES THE ACTION TO QUIET THE TITLE PRESCRIBE? a. If the plaintiff is in POSSESSION of the property, the action does not prescribe. He may wait until his possession is disturbed or his title is attacked before taking steps to vindicate his right. b. If the plaintiff is not in possession of the property, the action may prescribe. Moreover, if the action is brought within the period of limitation, it may be barred by laches where there is no excuse offered for the failure to assert the title sooner. If somebody else has possession, the period of prescription for the recovery of land is either 10 yrs (GF) or 30 yrs (BF). But as a GENERAL RULE, it is settled that the action to quiet title does not prescribe. SECUYA vs. VDA. DE SELMA GR No. 136021. February 22, 2000 In an action to quiet title, the plaintiffs or complainants must demonstrate a legal or an equitable title to, or an interest in, the subject real property. Likewise, they must show that the deed, claim, encumbrance or proceeding that purportedly casts a cloud on their title is in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy. If the title is not valid on its face, an action for quieting of title cannot be given due course. FACTS

1) There is an instrument (deed or contract) or record or claim or encumbrance or proceeding; 2) Which is APPARENTLY valid or effective; 3) But in truth and in fact, invalid, ineffective, voidable, or unenforceable, or extinguished or barred by extinctive prescription; 4) And may be prejudicial to the title.

A parcel of land was originally sold, and the covering patent issued, to Maxima Caballero Vda. de Cario. During her lifetime, she entered into an Agreement of Partition with Paciencia Sabellona, whereby the former bound herself and parted 1/3 portion of said lot in favor of the latter. Sabellona took possession and occupation of that 1/3 portion of said lot adjudicated to her. In 1953, Sabellona sold 3,0000 sq. m. portion thereof to Dalmacio Secuya for P1,850 by means of a private document which was lost. Such sale was admitted and confirmed by Ramon Sabellona, only heir of Paciencia Sabellona in a Deed of Confirmation of Sale. In 1972, defendant-respondent GERARDA SELMA bought a parcel of land, which embraced the 3,000 sq. m. portion of land possessed by the SECUYAS. SELMA lodged a complaint against the SECUYAS, asserting ownership over the land inherited by plaintiffs-petitioners from Dalmacio Secuya of which they had long been in possession in concept of owner. SECUYA claimed that she was the registered owner of said lot having bough it from one Cesaria Caballero and had been in possession of the same since then. An action for quieting of title was filed by the SECUYAS against VDA. DE SELMA. They anchored their claim of ownership on two documents: the Agreement of Partition executed by Maxima Caballero and Paciencia Sabellona and the Deed of Confirmation of Sale executed by Ramon Sabellona. The appellate court debunked the SECUYAS' claim of ownership of the land, affirming the trial court's ruling, and upheld VDA. DE SELMAs title thereto, since the latter's title can be traced to a valid TCT. Hence, this appeal by the HEIRS OF SECUYAS. ISSUE Whether or not the HEIRS OF SECUYAS had the requisite title to pursue an action for quieting of title. RULING NO. Under Art. 476, in an action to quiet title, the plaintiffs or complainants must demonstrate a legal or an equitable title to, or an interest in, the subject real property. Likewise, they must show that the deed, claim, encumbrance or proceeding that purportedly casts a cloud on their title is in fact invalid or inoperative despite its prima facie appearance of validity or legal efficacy. The HEIRS OF SECUYA insisted that they had been occupying the disputed property for 47 years before they filed their Complaint for quieting of title. However, there was no proof that they had exercised their rights and duties as owners of the same. They argue that they had been gathering the fruits of such property; yet, it would seem that they had been remiss in

their duty to pay land taxes. If petitioners really believed that they owned the property, they should have been more vigilant in protecting their rights thereto. As noted earlier, they did nothing to enforce whatever proprietary rights they had over the disputed parcel of land. The HEIRS OF SECUYA relied their ownership on the Agreement of Partition executed by Maxima Caballero and Paciencia Sabellona and the Deed of Confirmation of Sale executed by Ramon Sabellona. The Agreement of Partition was a mere Express Trust was because there was no property to partition and the parties were not co-owners. Being that there was a repudiation of the express trust when the heirs of Maxima Caballero failed to deliver or transfer the property to Paciencia Sabellona, and instead sold the same to a third person not privy to the Agreement., all, the subsequent sales transactions involving the land in dispute and the titles covering it must be upheld, in the absence of proof that the said transactions were fraudulent and irregular. Although there was a Deed of Confirmation of Sale executed by Ramona Sabellona, there was an absence of the Deed of Sale itself. Moreover, the lot, including the disputed portion, had been the subject of several sales transactions. The title thereto had been transferred several times, without any protestation or complaint from the HEIRS OF SECUYA. In any case, VDA. DE SECUYAs title was amply supported by clear evidence, while SECUYA's claim was barren of proof. METROPOLITAN BANK & TRUST COMPANY vs. ALEJO GR No. 141970 . September 10, 2001 What was asked by Metrobank was for relief from the peremptory declaration of nullity of the TCT covering the mortgaged land, which had been issued without first giving METROPOLITAN BANK an opportunity to be heard. Filing an action for quieting of title will not remedy what it perceived as a disregard of due process; it is therefore not an appropriate remedy. FACTS In 1995 and 1996, Spouses Raul and Cristina Acampado obtained loans from METROPOLITAN BANK, & TRUST COMPANY in the amounts of P5,000,000 and P2,000,000, respectively. As security for the payment of these credit accommodations, the Acampados executed in favor of METROPOLITAN BANK, a real estate mortgage over a registered parcel of land in Valenzuela City. Later, a Complaint for Declaration of

Nullity of the TCT of said lot was filed by Respondent SY TAN SE against Spouses Acampado. Despite being the registered mortgagee of the real property covered by the title sought to be annulled, METROPOLITAN BANK was not made a party thereto nor was it notified of the pending case. Because the spouses defaulted in the payment of their loan, extrajudicial foreclosure proceedings over the mortgaged property were initiated in 1997. During the public auction, METROPOLITAN BANK was the highest bidder. A Certificate of Sale was issued in its favor. When the redemption period lapsed exactly a year after, METROPOLITAN BANK executed an Affidavit of Consolidation of Ownership for the issuance of a new TCT in its name. However, the Register of Deeds informed of the existence of the civil case filed by Respondent SY TAN SE against Spouses Acampado, where the RTC declared that the TCT of the Spouses Acampado were null and void since it was proceeded from an illegitimate source. METROPOLITAN BANK then filed a petition for the annulment of the RC decision with the Court of Appeals. The same was however denied because there were other different remedies available but they were not resorted to by petitioner. It ruled that petitioner ought to have filed, instead, a petition for relief from judgment or an action for quieting of title. Hence, this petition by METROPOLITAN BANK. ISSUE Whether or not METROPOLITAN BANK should have instead filed an action for quieting of title. RULING NO. An action for quieting of title was not an appropriate remedy. It should be stressed that this case was instituted to ask for relief from the peremptory declaration of nullity of the TCT covering the mortagged land, which had been issued without first giving METROPOLITAN BANK an opportunity to be heard. METROPOLITAN BANK focused on the judgment in the civil case between Respondent SY TAN SE against Spouses Acampado which adversely affected it, and which it therefore sought to annul. Filing an action for quieting of title will not remedy what it perceived as a disregard of due process; it is therefore not an appropriate remedy. Equally important, an action for quieting of title is filed only when there is a cloud on title to real property or any interest therein. As defined, a "cloud on title is a semblance of title which appears in some legal form but which is in fact unfounded." In this case, the subject judgment cannot be considered as a cloud on petitioners title or interest over the real property covered bysaid TCT,

which does not even have a semblance of being a title. It would not be proper to consider the subject judgment as a cloud that would warrant the filing of an action for quieting of title, because to do so would require the court hearing the action to modify or interfere with the judgment or order of another co-equal court. Well-entrenched in our jurisdiction is the doctrine that a court has no power to do so, as that action may lead to confusion and seriously hinder the administration of justice. Clearly, an action for quieting of title is not an appropriate remedy in this case. ARTICLE 477: The plaintiff must have legal or equitable title to, or interest in the real property which is the subject-matter of the action. He need not be in possession of said property. ARTICLE 478: There may also be an action to quiet title or remove a cloud therefrom when the contract, instrument or other obligation has been extinguished or has terminated, or has been barred by extinctive prescription. There are 2 INSTANCES where the action may be used: a) when the contract etc has ended; b) when the action is barred by extinctive prescription. ARTICLE 479: The plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to the plaintiffs benefit. ARTICLE 480: The principles of the general law on the quieting of title are hereby adopted insofar as they are not in conflict with this Code. ARTICLE 481: The procedure for the quieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the Supreme Court shall promulgate. ARTICLE 482: If a building, wall, column, or any other construction is in danger of falling, the owner shall be obliged to demolish it or to execute the necessary work in order to prevent it from falling. If the proprietor does not comply with the obligation, the administrative authorities may order the demolition of the structure at the expense of the owner, or take measures to insure public safety. ARTICLE 483: Whenever a large tree threatens to fall in such a way as to cause damage to the land or tenement of another or to travellers over public or private road, the owner of the tree shall be obliged to fell and remove it; and should he not do so, it shall be done at his expense by order of the

administrative authorities. SAPTO vs. FABIANA GR No. L-11285. May 16, 1958 The court will treat an action for reconveyance as an action to quiet title provided that it has all the requisites of the latter. Actions to quiet title to property in the possession of the plaintiff are imprescriptible. But if he is not in possession thereof, the right may as well prescribe and barred by acquisitive prescription. FACTS Vicente Sapto was the registered owner of a parcel of land located in Toril, Davao. When he died, he left his children Samuel, Constancio, and Ramon as heirs of the property in question. Ramon pre-deceased his two brothers, leaving no other heirs. In 1931, Samuel and Constancio Sapto executed a Deed of Sale of a portion of 4 hectares of the said land in favor of defendant APOLONIO FABIANA, in consideration of the amount of P245.00. The sale was duly approved by the Provincial Governor of Davao, but was never registered. Possession of the land conveyed was however, transferred to FABIANA, who had been in the possession thereof from 1931 up to the present. Thereafter, Constancio Sapto died without any issue. When Samuel Sapto died, he was survived by his wife DORA BAGOBA and two children, LAUREANA and VICENTE SAPTO. In 1954, DORA BAGOBA and LAUREANA and VICENTE SAPTO, filed an action in court for the recovery of the parcel of land sold by their predecessors to FABIANA in 1931. After trial, the lower court held that although the sale between Samuel and Constancio Sapto and defendant in 1931 was never registered, it was valid and binding upon the parties and the vendors' heirs. It also ordered the plaintiffs to execute the necessary deed of conveyance in defendant's favor and its annotation in the certificate of title. From this judgment, DORA BAGOBA and LAUREANA and VICENTE SAPTO appealed. They cited several cases wherein the court has held that under the martens system, registration is the operative act that gives validity to the transfer or creates a lien upon the land. The also averred that it was error to require them to execute a deed of conveyance in favor of FABIANA since the latter's action to obtain it had long prescribed, 20 years having elapsed since the original sale. ISSUE (1) Whether or not registration is the operative act that gives validity to the transfer or creates a lien upon the land.

(2) Whether or not the right of FABIANA to obtain a deed of conveyance has already prescribed since 20 years had already elapsed since the original sale. RULING (1) NO. No enforcement of the contract was in fact needed, since the delivery of possession of the land sold had consummated the sale and transferred title to the purchaser, registration of the contract not being indispensable as between the parties. Actually the action for reconveyance was one to quiet title, i.e., to remove the cloud cast upon appellee's ownership by the refusal of the appellants to recognize the sale made by their predecessors. This action accrued only when appellants initiated their suit to recover the land in 1954. In this case, the sale entered into was valid and binding upon the vendors, one of whom was Samuel Sapto and is equally binding and effective against his heirs, DORA BAGOBA and LAUREANA and VICENTE SAPTO. To hold otherwise would make of the martens system a shield for the commission of fraud by the vendors or his heirs, who would then be able to reconvey the same property to other persons. (2) NO. Actions to quiet title to property in the possession of the plaintiff are imprescriptible. Art. 480 of the Civil Code, states that the principles of the general law on the quieting of title are hereby adopted insofar as they are not in conflict with this Code. The general law referred to is American jurisprudence. Under American jurisprudence, actions to quiet title to property in the possession of the plaintiff are imprescriptible. The prevailing rule is that the right of a plaintiff to have his title to land quieted is not barred while the plaintiff or his grantors remain in actual possession of the land, claiming to be owners thereof. But the rule that the statute of limitations is not available as a defense to in action to remove a cloud from title can only be invoked by a complaint when he is in possession. If the plaintiff is not in possession of the property, the action to quite title may also prescribe. BUCTON vs. GABAR GR No. L-36359. January 31, 1974 The court will treat an action for specific performance as an action to quiet title provided that it has all the requisites of the latter. Actions to quiet title to property in the possession of the plaintiff are imprescriptible. But if he is not in possession thereof, the right may as well prescribe and barred by acquisitive prescription.

FACTS In 1946, defendant JOSEFINA LLAMOSO GABAR bought a parcel of land from the spouses Villarin on installment basis. JOSEFINA entered into a verbal agreement with her sister-in-law, plaintiff NICANORA GABAR BUCTON, that the latter would pay of the purchase price (P1000) and would then own of the land. Then, NICANORA gave JOSEFINA the initial amount of P1,000 and a receipt was issued. NICANORA also paid P400 and P1,000 respectively on successive dates, for which, receipts were also issued. Afterwards NICANORA and her husband FELIX BUCTON took possession of the portion of the land indicated to them by defendants and built a modest nipa house therein. 2 years after, they built another house for rent behind the nipa house. Later, they demolished the nipa house and in its place constructed a house of strong materials, with three apartments in the lower portion for rental purposes. They occupied the upper portion of this house as their residence until 1969, when they moved to another house, converting and leasing the upper portion as a dormitory. In 1947, the spouses Villarin executed the deed of sale of the land abovementioned in favor of JOSEFINA. Hereafter, NICANORA and FELIX BUCTON sought to obtain a separate title for their portion of the land in question. But despite several demands, JOSEFINA and his husband ZOSIMO GABAR declined to accommodate them on the excuse that the entire land was still mortgaged with the Philippine National Bank as guarantee for their loan of P3,500. Nevertheless, NICORA still paid JOSEFINA P400 and P1,000 respectively, as payment for the remaining balance for their half of the land. For said payment, separate receipts were also issued. NICANORA and FELIX BUCTON continued enjoying their portion of the land, planting fruit trees and receiving the rentals of their buildings. In 1953, with the consent of defendants JOSEFINA and ZOSIMO GABAR, they had the entire land surveyed and subdivided preparatory to obtaining their separate title to their portion. Upon demand for their separate title to the property, however, JOSEFINA and ZOSIMO GABAR still refused, giving the same excuse. Despite the employment of 2 lawyers, the same title was not issued. Hence, NICANORA and FELIX BUCTON filed in court an action for specific performance to compel JOSEFINA and ZOSIMO GABAR to execute in a deed of sale of the western half of a parcel of land in their favor. The lower court, ordered the execution of a deed of conveyance in favor of NICANORA and FELIX BUCTON. The Court of Appeals however, reversed the judgment of the lower court on the premise that NICANORA and FELIX BUCTONS right of

action had already prescribed being that 22 years and 26 days had already elapsed from the time the receipt in 1946 was issued until 1968 when they filed the action for specific performance. It was then barred by Art. 1144 of the Civil Code, which provides that an action arising from a written contract prescribes after 10 years. Hence, this appeal by NICANORA and FELIX BUCTON. ISSUE Whether or not the right of NICANORA and FELIX BUCTON for specific action for the execution of a deed of conveyance has already prescribed. RULING NO. Actions to quiet title to property in the possession of the plaintiff are imprescriptible. The real and ultimate basis of petitioners' action is their ownership of onehalf of the lot coupled with their possession thereof, which entitles them to a conveyance of the property. Under the circumstances no enforcement of the contract is needed, since the delivery of possession of the land sold had consummated the sale and transferred title to the purchaser, and that, actually, the action for conveyance is one to quiet title, i.e., to remove the cloud upon the appellee's ownership by the refusal of the appellants to recognize the sale made by their predecessors. Art. 480 of the Civil Code, states that the principles of the general law on the quieting of title are hereby adopted insofar as they are not in conflict with this Code. The general law referred to is American jurisprudence. Under American jurisprudence, actions to quiet title to property in the possession of the plaintiff are imprescriptible. The prevailing rule is that the right of a plaintiff to have his title to land quieted is not barred while the plaintiff or his grantors remain in actual possession of the land, claiming to be owners thereof. But the rule that the statute of limitations is not available as a defense to in action to remove a cloud from title can only be invoked by a complaint when he is in possession. If the plaintiff is not in possession of the property, the action to quite title may also prescribe. By the delivery of the possession of the land, the sale was consummated and title was transferred to NICANORA and FELIX BUCTON. The action was actually not for specific performance, since all it sought is to quiet title, to remove the cloud cast upon their ownership as a result of JOSEFINA and ZOSIMO GABAR's refusal to issue the deed of conveyance. Being that NICANORA and FELIX BUCTON was in possession of the land, the action is imprescriptible. Only in a case that the

buyer did not possess the land, that their right may be subject to prescription. CORONEL vs. IAC GR No. L-70191. October 29, 1987 The court will treat an action for recovery of possession of land as an action to quiet title provided that it has all the requisites of the latter. Actions to quiet title to property in the possession of the plaintiff are imprescriptible and are not barred by laches. But if he is not in possession thereof, the right may as well prescribe and barred by acquisitive prescription and laches as well. FACTS Petitioner RODOLFO CORONEL filed a complaint for recovery of a registered possession of a parcel of land, situated in Naic, Cavite. The complaint was filed against the ELIAS MERLAN, BRIGIDO MERLAN, JOSE MERLAN, TEODORICO NOSTRATES, SEVERO JECIEL, SANTIAGO FERNAN and FORTUNATO OCAMPO (PRIVATE RESPONDENTS). CORONEL alleged that at the time he purchased the subject parcel of land, the PRIVATE RESPONDENTS were already occupying a portion thereof as "tenants at will" and that despite demands to vacate the premises, the defendants failed and refused to move out from the land. The PRIVATE RESPONDENTS denied that CORONEL was the owner of the whole parcel of land and alleged that: the lots occupied by them form part of a 1/3 undivided share of brothers Brigido Merlan and Jose Merlan which they inherited from their deceased father, the 3 heirs never sold their undivided 1/3 share of the lot to anybody, it was actually their other co-heirs who sold their undivided portions, plaintiff's claim of ownership of the whole parcel of land, if ever it has basis, was fraudulent, void, and without effect, that the Merlans have always been in open and peaceful possession of their undivided share of the lot throughout the years from the first sale by their co-heirs, the other defendants were legitimate tenants and the plaintiff should respect their rights over 1/3 of the land. PRIVATE RESPONDENTS included as third-party defendant, Mariano Manalo whom they charged might have connived with others including CORONEL to deprive them of their share in the subject parcel of land. During trial, the court found that the co-owners of PRIVATE RESPONDENTS sold

to Ignacio Manalo their 2/3 share of the same lot; and that Ignacio Manalo sold only the 2/3 share to third-party defendant Mariano Manalo, the predecessor-in-interest of CORONEL. Consequently, there was a mistake when the Transfer Certificate of Title was issued to Mariano Manalo since it covered not only the 2/3 portion sold but the whole area of the land. The lower court dismissed the complaint of CORONEL and ruled in favor of PRIVATE RESPONDENTS. On appeal, CORONEL contended that the claim of the private respondents over their 1/3 undivided portion of the land, 25 years after the registration of the deed of sale in favor of Ignacio Manalo in 1950 and more than five (5) years after the registration of the deed of sale in favor of Mariano Manalo is barred by prescription or laches. ISSUE Whether or not the claim was barred by prescription or laches. RULING NO. The claim was neither barred by prescription nor laches. The claim was not barred by prescription. As lawful possessors and owners of the lot in question, PRIVATE REPSPODNENTs cause of action fell within the settled jurisprudence that an action to quiet title to property in one's possession is imprescriptible. Their undisturbed possession over a period of more than 25 years gave them a continuing right to seek the aid of a court of equity to determine the nature of the adverse claim of a third party and the effect of his own title. If at all, the PRIVATE RESPONDENTS' right to quiet title accrued only in 1975 when they were made aware of a claim adverse to their own, it was only at that time that the statutory period of prescription may be said to have commenced to run against them. The claim was not also barred by laches. Laches has been defined as the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence could or should have been done earlier, it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. The facts of the case show that the private respondents have always been in peaceful possession of the 1/3 portion of the subject lot, exercising ownership thereto for more than 25 years disrupted only in 1975, when the petitioner tried to remove them by virtue of his title. It was only at this point that private respondents knew about the supposed sale of their 1/3 portion of Lot 1950-A of the Naic Estate and they immediately resisted.

FERNANDEZ vs. CA GR 83141. September 21, 1990 The court will treat an action for reconveyance as an action to quiet title provided that it has all the requisites of the latter. Actions to quiet title to property in the possession of the plaintiff are imprescriptible. But if he is not in possession thereof, the right may as well prescribe and barred by acquisitive prescription. FACTS In 1966, SPOUSES FLORENTINO and VIVENCIA FERNANDEZ and SPOUSES ZENAIDA and JUSTIANO FERNANDEZ, purchased in common a parcel of land in Pag-asa Subdivision, Quezon City. The parcel of land was purchased for P15,500. SPOUSES FLORENTINO and VIVENCIA advanced the downpayment of P5,500 to the vendors. A Deed of Conditional Sale was executed by the vendors in favor of the two couples. In 1967, the vendors executed a Deed of Absolute Sale in favor of SPOUSES ZENAIDA and JUSTINIANO only. When SPOUSES FLORENTINO and VIVENCIA learned that the Absolute Deed of Sale did not include their names as vendees, they confronted SPOUSES ZENAIDA and JUSTIANO. Hence, the latter spouses executed an affidavit in which they acknowledged the sale to petitioners SPOUSES FLORENTINO and VIVENCIA. A duplex building was constructed on the subject land. The 2 units were occupied by the 2 couples. In 1970, SPOUSES ZENAIDA and JUSTINIANO caused the issuance of a certificate of title only in their names. In 1976, SPOUSES ZENAIDA and JUSTINIANO filed a Petition for voluntary dissolution of their conjugal partnership. In the petition, the couple prayed for judicial approval of their compromise agreement wherein Justiniano waived all his rights to the conjugal properties including the subject parcel of land. The court awarded said land to ZENAIDA. In 1977, ZENAIDA demanded that SPOUSES FLORENTINO and VIVENCIA vacate the premises of the lot awarded to her. In 1981, SPOUSES FLORENTINO and VIVENCIA filed an action to quiet title and damages against ZENAIDA. The Court of Appeals ruled in favor of JUSTIANA on the ground that the cause of action of SPOUSES FLORENTINO and VIVENCIA had already prescribed in view of the issuance in 1970 of a certificate of title in the name of the Spouses JUSTINIANO and ZENAIDA FERNANDEZ. Hence, this appeal. ISSUE

Whether or not the right of SPOUSES FLORENTINO and VIVENCIA had already prescribed in view of the issuance in 1970 of a certificate of title in the name of the SPOUSES JUSTINIANO AND ZENAIDA. RULING NO. Actions to quiet title to property in the possession of the plaintiff are imprescriptible. The issuance of a certificate of title in the name appearing therein did not preclude SPOUSES FLORENTINO and VIVENCIA from asserting their right of ownership over the land in question. Time and again it has been ruled that the torrens system should not be used as a shield to protect fraud. Moreover, prescription could not be considered against SPOUSES FLORENTINO and VIVENCIA who had been in possession of subject premises from the time it was purchased from the vendors in 1967 and continue to possess the same under claim of ownership. Prescription cannot be invoked in an action for reconveyance, which is, in effect an action to quiet title against the plaintiff therein who is in possession of the land in question. As lawful possessor and owner of the disputed portion, her cause of action for reconveyance which, in effect, seeks to quiet title to property in one's possession is imprescriptible. While the owner in fee continues liable to an action, proceeding, or suit upon the adverse claim, he has a continuing right to the aid of a court of equity to ascertain and determine the nature of such claim and its effect on his title, or to assert any superior equity in his favor. He may wait until his possession is disturbed or his title is attacked before taking steps to vindicate his right. But the rule that the statute of limitations is not available as a defense of an action to remove a cloud from title can only be invoked by a complainant when he is in possession. MAMADSUAL vs. MOSON GR No. 92557. September 27, 1990 Actions to quiet title to property in the possession of the plaintiff are imprescriptible. But if he is not in possession thereof, the right may as well prescribe and barred by acquisitive prescription. It is not necessary that the person seeking to quiet his title is the registered owner of the property in question because the law embraces both legal and equitable owners. FACTS In 1988, SPOUSES HADJI ALI and HADJI SALIKA MAMADSUAL filed a complaint against SPOUSES KAGUI ABDULA and KAGUI

RAKMA MACARAPAN for Quieting of Title To Property and Annulment of Original Certificate of Title, with the Shari'a District Court in Cotabato City. They claimed that they have been in open, continuous, exclusive and notorious possession of the land since time immemorial in the concept of owners though the same was registered in the name of SPOUSES MACARAPAN. The SPOUSES MACARAPAN, on the other hand, prayed that the case be dismissed because: SPOUSES MAMADSUAL had no title to the property, they were not the proper parties to ask for the annulment or cancellation of the Certificates of Title of SPOUSES MACARAPAN and the action, being based on an implied trust, had already prescribed and could not therefore be maintained. SPOUSES MAMADSUAL rebutted that: 1.the title referred to by them in the complaint meant the legal title or ownership or dominion over the land in dispute acquired by them from their ancestors by operation of the law on succession; 2.they are real party in interest because they will be benefited by the judgment or entitled to the avails of the suit in their own right, independent of any other interest, but with the authority of the law; and 3. since they are in possession of the land, an action to quiet title does not prescribe. The lower court dismissed the complaint on the ground that the action had prescribed. It also held that in an action to quiet title the plaintiff must have legal or equitable title to, or interest in the real property which is the subject matter of the action. It interpreted legal title to mean registered ownership and equitable title to mean beneficial ownership. ISSUE (1) Whether or not the right of SPOUSES MAMADSUAL had already prescribed. (2) Whether or not the person seeking to quiet his title must be the registered owner of the property in question. RULING (1) NO. An action to quiet title is imprescriptible if the plaintiffs are in possession of the property. It is an established rule of American jurisprudence (made applicable in this jurisdiction by Art. 480 of the New Civil Code) that actions to quiet title to property in the possession of the plaintiff am imprescriptible. The prevailing rule is that the right of a plaintiff to have his title to land quieted as against one who is asserting some adverse claim thereon, is not barred while the plaintiff or his grantors remain in actual possession of the land, claiming to be

owners thereof. The reason for this rule being that while the owner in fee continues liable to an action, proceeding, or suit upon the adverse claim, he has a continuing right to the aid of a court of equity in his favor to ascertain and determine the nature of such claim and its effect on his title, or to assert any superior equity in his favor. He may wait until his possession is disturbed or his title is attacked before taking steps to vindicate his right. But the rule that the statute of limitations is not available as a defense to an action to remove a cloud from title can only be invoked by a complainant when he is in possession. One who claims property which is in the possession of another must, it seems, invoke his remedy within the statutory period. (2) NO. It is not necessary that the person seeking to quiet his title is the registered owner of the property in question. Thus, "title'' to property does not necessarily mean the original transfer certificate of title. It can connote acquisitive prescription by possession in the concept of an owner thereof. Indeed, one who has an equitable right or interest in the property may also file an action to quiet title under the law. Since the action in this case is one to quiet title to property whereby petitioners claim to have acquired title to the same by prescription, the property was thereby effectively withdrawn from the public domain and became property of private ownership. Thus, the ruling of the trial court that the action being one for reversion only the Solicitor General can institute the same has no cogent basis. PINGOL vs. CA GR No. 102909. September 6, 1993 The court will treat an action for specific performance as an action to quiet title provided that it has all the requisites of the latter. Actions to quiet title to property in the possession of the plaintiff are imprescriptible. But if he is not in possession thereof, the right may as well prescribe and barred by acquisitive prescription. FACTS VICENTE PINGOL was the owner of a registered land in Caloocan City. In 1969, he executed a Deed of Sale of of an undivided portion of said land in favor Francisco N. Donasco which was acknowledged before a notary public. The agreed price was P25,000 where P2,000 shall be paid as advance payment and the remaining balance, on equal installment basis for 6 years.

Thereafter, Donasco immediately took possession of the subject lot and constructed a house thereon. In January 1970, he started paying the monthly installments but was able pay only up to 1972. When Donasco died in 1984, he left an unpaid balance of P10,161 for the contract price of said land. But the possession thereof, still remained with DONASCOs HEIRS, MELINDA D. PELAYO, MARIETTA D. SINGSON, MYRNA D. CUEVAS, NATIVDAD D. PELAYO, YOLANDA D. CACERES and M ARY DONASCO. In 1988, the HEIRS OF DONASCO filed an action for Specific Performance to compel VICENTE PINGOL to accept their offer to pay the balance of P10,161 plus the stipulated legal rate of interest thereon and to execute the final deed of sale on the portion of the lot. It was alleged that VICENTE PINGOL rebuffed their offer and had been demanding for a bigger and unreasonable amount, in complete variance to what was lawfully due and payable. VICENTE PINGOL however claimed that the HEIRS OF DONASCO's cause of action had already prescribed. The Court of Appeals ruled in favor of the HEIRS OF DONASCO and ordered VICENTE PINGOL to accept the payment of P10,161 and to execute the final deed of sale on the portion of the lot. It also ruled that THE HEIRS OF DONASCOs action was imprescriptible since it was akin to an action to quiet title to property in one's possession. Hence, this appeal by SPOUSES VICENTE and LOURDES PINGOL. ISSUE Whether or not the action of the HEIRS OF DONASCO had already prescribed being based upon a written contract, has prescribed since it was brought only in 1988 or more than ten years from the time when the latter could have lawfully demanded performance. RULING NO, the action had not prescribed. Although the private respondents' complaint before the trial court was denominated as one for specific performance, it is in effect an action to quiet title. The real and ultimate basis of the HEIRS OF DONASCOs' action was their ownership of one-half of the lot coupled with their possession thereof, which entitled them to a conveyance of the property. That a cloud has been cast on the title of the HEIRS OF DONASCOs was indubitable. Despite the fact that the title had been transferred to them by the execution of the deed of sale and the delivery of the object of the contract, the SPOUSES PINGOL adamantly refused to accept the tender of payment by HEIRS OF DONASCO and steadfastly insisted that their obligation to transfer title had been rendered ineffective.

Prescription thus could not be invoked against the HEIRS OF DONASCO for it is aphoristic that an action to quiet title to property in one's possession is imprescriptible. The owner of real property who is in possession thereof may wait until his possession is invaded or his title is attacked before taking steps to vindicate his right. A person claiming title to real property, but not in possession thereof, must act affirmatively and within the time provided by the statute. Possession is a continuing right as is the right to defend such possession. So it has been determined that an owner of real property in possession has a continuing right to invoke a court of equity to remove a cloud that is a continuing menace to his title. Such a menace is compared to a continuing nuisance or trespass which is treated a successive nuisances or trespasses, not barred by statute until continued without interruption for a length of time a sufficient to affect a change of title as a matter of law. HEIRS OF OLVIGA vs. CA GR No. 104813. October 21, 1993 The court will treat an action for reconveyance as an action to quiet title provided that it has all the requisites of the latter. Actions to quiet title to property in the possession of the plaintiff are imprescriptible. But if he is not in possession thereof, the right may as well prescribe and barred by acquisitive prescription. FACTS In 1950, a parcel of land was still forest land when Eutiquio Pureza, then only twelve years old, and his father cleared and cultivated it. In 1954, they introduced improvements such as fruit trees thereon. When the area was released for disposition, the Bureau of Lands surveyed the same in 1956 in the name of Pureza and since then, the land had been known as Lot 13. In 1960, Pureza filed a homestead application over Lot 13. Without his application having been acted upon, he transferred his rights in said lot to CORNELIO GLOR in 1961. Neither the homestead application of Eutiquio nor the proposed transfer of his right to GLOR was acted upon by the Director of Lands. GLORs neighbor was JOSE OLVIGA. OLVIGA occupied Lot 12 while GLOR occupied Lot 13. In 1967, OLVIGA obtained a registered title for said lot in a cadastral proceeding when he claimed both Lots 12 and 13, in fraud of the rights of GLOR and family, who were the real and actual occupants of the land. As a result, both Lots

12 and 13 were declared as uncontested in the name of OLVIGA. Then, THE HEIRS OF GLOR, Angelita Glor and her children, filed a case for reconveyance of said land against the HEIRS OF OLVIGA. The HEIRS OF OLVIGA contended that the right of action by the HEIRS OF GLOR had already been barred by prescription. The appellate court ruled in favor of the HEIRS OF GLOR and declared that such action was really one for quieting of title. Thus, it did not prescribe. Hence,this appeal by the HEIRS OF OLVIGA. ISSUE Whether or not the action of the HEIRS OF OLVIGA had already prescribed. RULING NO. An action for reconveyance of a parcel of lands based on implied or constructive trust prescribed in ten years, the point of reference being the date of registration of the deed or the date of the issuance of the certificate of title over the property. But this rule applies only when the plaintiff is not in possession of the property, since if a person claiming to be the owner thereof is in actual possession of the property, the right to seek reconveyance which in effect seeks to quiet title to the property, does not prescribe. In the case at bar, the HEIRS OF OLVIGA and their predecessors-in-interest were in actual possession of the property since 1950. Their undisturbed possession gave them the continuing right to seek the aid of a court of equity to determine, the nature of the adverse claim of petitioners, who in 1988 disturbed their possession. CO-OWNERSHIP ARTICLE 484: There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. In default of contracts, or special provisions, co-ownership shall be governed by the provisions of this Title. Co-ownership - state where an undivided thing or right belongs to two or more persons. A co-ownership is not a juridical person, nor is it granted any form of juridical personality. WHAT GOVERNS CO-OWNERSHIP? 1) Contracts 2) Special legal provisions 3) Provisions of the title on coownership SOURCES OF CO-OWNERSHIP a. by law Art. 144 of the New Civil Code where marriage that is void; b. by contract stipulation of the parties;

c. by chance commixtion, confusion, hidden treasure d. by occupation e. by succession or will in case of interests of heirs before partition. KINDS OF OWNERSHIP From the viewpoint of the subject matter: (1) Co-ownership of an undivided thing; (2) Co-ownership of an undivided right. From the viewpoint of source: (1) Contractual co-ownership (stipulation not to divide the property for 10 yrs) (2) Non-contractual co-ownership (if the source is not a contract) From the viewpoint of the rights of the co-owners: (1) Tenancy in common (2) Joint tenancy

Characteristics: 1. plurality of subjects: Undivided thing owned by several persons.. lets say A B C: 1/3 interest each but there is no boundary, no division only undivided interest. Unidentified noh.. hindi alam ang metes and bounds. 2. singularity of object or unity of object. Only one object: undivided thing 3. recognition of ideal shares : A recognizes B and C as the co-owners; B recognizes A and C as co-owners and C recognizes A and B as co-owners. If one does not recognize the ideal shares of the other co-ownership. as a matter of fact, if he repudiates their shares, then there is no co-ownership, because of the characteristic of ideal shares. Rules regarding ideal shares 1. Each co-owner has full ownership of his part and to the fruits of that ideal shares. So that if he owns 1/3, he would also share 1/3 of the proceeds. 2. The co-owner may alienate, assign or encumber his ideal share even without consent of other co-owners. Of course this is the general rule, there are exceptions like when personal rights are involved. SPOUSES SI vs. CA GR No. 122047. October 12, 2000 After the physical division of the lot among the brothers, the community ownership terminated, and the right of preemption or redemption for each brother was no longer available.

Co-owners with actual notice of the sale are not entitled to written notice. FACTS Escolastica, wife of Severo Armada, Sr. originally owned a 340-sq. m. of land situated in San Jose District, Pasay City. This was covered by a Transfer Certificate of Title (TCT). In 1954, during the lifetime of the spouses, Escolastica, with the consent of her husband, transferred the property to their children. She executed 3 separate deeds of sale conveying 113.34 square meters of the property to and Dr. Severo R. Armada, and 113.33 square meters each to Crisostomo R. Armada and JOSE R. ARMADA. Thereafter, the Registry of Deeds issued another TCT in the names of the three sons. Also in the title is an annotation for the cancellation of said title by virtue of the Deed of Sale dated 1979. It was executed by Cresenciana V. Alejo, as attorney-in-fact of Crisostomo R. Armada, conveying 113.34 sq. m. of his inherited portion of the property in favor of ANITA BONODE SI, married to Serafin D. Si for the sum of P75,000. The Registry of Deeds then issued another TCT in lieu of the other. In 1980, spouses JOSE ARMADA and REMEDIOS ALMANZOR (SPOUSES ARMADA) filed a complaint for Annulment of Deed of Sale and Reconveyance against ANITA and SERAFIN SI (SPOUSES SI). Conrado Isada, brother-in-law of Cresenciana was also included in the complaint as he brokered the sale. The complaint alleged when the SPOUSES SI registered the deed of absolute sale, they inserted the phrase that the coowners were not interested in buying the same in spite of notice to them when in fact, the other co-owners, JOSE and Severo, Jr., had no written notice of the sale. The SPOUSES SI on the other hand, alleged that in 3 deeds of sale excuted by the 3 sons mother Escolastica, it particularly described the portion conveyed to each son in metes and bounds. They contended that that since the property was already 3 distinct parcels of land, there was no longer co-ownership among the brothers. Hence, Jose and Severo, Jr. had no right of redemption when Crisostomo sold his share to the SPOUSES SI. The trial court ruled for the SPOUSES SI and dismissed the complaint. On appeal with the Court of Appeals, said court reversed the decision of the trail court and ruled for SPOUSES ARMADA. It ruled that there was still co-ownership between the 3 brothers since the TCT issud by Escolastico to his 3 sons did not indicate the particular area sold. The court also stated that what was then sold to the SPOUSES SI were still undetermined and unidentifiable, as the area sold remains a portion of the whole. The brothers JOSE and SEVERO, who were co-owners were not informed of the notice

and are then entitled to redeem the sold property. Hence, this appeal by the SPOUSES SI. ISSUES (1) Whether or not co-ownership existed between the brothers SEVERO JR., CRISOSTOMO and JOSE. (2) Whether or not SEVERO has the right of redemption. RULING (1) NO, the co-ownership did not exist. Under Art. 484 of the Civil Code, there is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. There is no coownership when the different portions owned by different people are already concretely determined and separately identifiable, even if not yet technically described. In the present case, the lot in question had already been partitioned extrajudicially when their parents executed 3 deeds of sale in favor of Jose, Crisostomo and Severo. The disputed land was not part of an undivided estate. The portion sold to SPOUSES SI by Crisostomo and Cresenciana Armada was concretely determined and identifiable. The following facts support such claim: (1) the 3 deeds of absolute sale technically described the portion sold to each son, (2) the portions belonging to the 3 sons were separately declared for taxation purposes, and (3) JOSE's wife testified that they had been receiving rent from the property specifically allotted to Jose. The fact that the three portions are embraced in one certificate of title did not make said portions less determinable or identifiable or distinguishable, one from the other, nor that dominion over each portion less exclusive, in their respective owners. (2) NO, they did not have the right of redemption. After the physical division of the lot among the brothers, the community ownership terminated, and the right of preemption or redemption for each brother was no longer available. Moreover, JOSE ARMADA was wellinformed of the impending sale of Crisostomo's share in the land when the latter sent the former a letter. Co-owners with actual notice of the sale are not entitled to written notice. A written notice is a formal requisite to make certain that the co-owners have actual notice of the sale to enable them to exercise their right of redemption within the limited period of thirty days. But where the co-owners had actual notice of the sale at the time thereof and/or afterwards, a written notice of a fact already known to them, would be superfluous. The statute does not demand what is unnecessary.

MERCADO-FEHR vs. FEHR GR No. 122047. October 12, 2000 A man and a woman who are capacitated to marry but are living together under a marriage declared as void ab initio by the court for the husbands psychological incapacity,shall be coverned by coownership as to the properties they acquired during the cohabitation. As regards the settlement of the common properties, the Civil Code provisions on co-ownership should apply. FACTS ELNA MERCADO-FEHR filed a petition for declaration of nullity of marriage against respondent BRUNO FRANZ FEHR on the ground of psychological incapacity to comply with the essential marital obligations under Article 36 of the Family Code. After due proceedings, the trial court declared the marriage between petitioner and respondent void ab initio under Article 36 of the Family Code. The court also ordered the dissolution of their conjugal partnership of property and in lieu thereof, a regime of complete separation of property between the said spouses was established. The custody over the 2 minor children, MICHAEL BRUNO MERCADO FEHR and PATRICK FRANZ FEHR was hereby awarded to ELNA MERCADO-FEHR, she being the innocent spouse. ELNA MERCADO-FEHR then filed a motion for reconsideration of said Order. She alleged that Suite 204 was purchased on installment basis at the time when she and BRUNO FRANZ FEHR were living exclusively with each other as husband and wife without the benefit of marriage. Hence the rules on co-ownership should apply in accordance with Article 147 of the Family Code and not the complete separation of property. She also proposed that the Upper Basement and the Lower Ground Floor of the LCG Condominium be adjudicated to her so that she could use the income from the lease of said premises for the support of the children, for the latters best interest. The trial court held that since the marriage between petitioner and respondent was declared void ab intio, the rules on co-ownership should apply in the liquidation and partition of the properties they own in common pursuant to Article 147 of the Family Code. The court, however, affirmed its previous ruling that Suite 204 of LCG Condominium was acquired prior to the couples cohabitation and therefore pertained solely to BRUNO FRANZ FEHR. On appeal with the Court of Appeals, ELNA MERCADO-FEHRs petition was dismissed for lack of merit. Hence, this appeal. She contended that the trial courts order was erronoeous when

it held that Suite 204 of the LCG Condominium was the exclusive property of BRUNO FRANZ FEHR, although it was established that they lived together as husband and wife beginning March 1983, before the execution of the Contract to Sell on July 1983. BRUNO FRANZ FEHR however claimed that Suite 204 of LCG Condominium to be his exclusive property as it was acquired on July 1983, prior to their marriage on March 1985. ISSUES (1) Whether or not Suite 204 of LCG Condominium was exclusively owned by BRUNO FRANZ FEHR. (2) Being that the marriage of ELNA MERCADO-FEHR and BRUNO FRANZ FEHR were declared to be void ab initio for the latters psychological incapacity, what economic regime of property shall govern them? RULING (1) NO, it was not exclusively owned by BRUNO FRANZ FEHR. It appears from the facts, as found by the trial court, that in March 1983, after two years of long-distance courtship, petitioner left Cebu City and moved in with respondent in the latters residence in Metro Manila. Their relations bore fruit and their first child, Michael BRUNO FRANZ FEHR, was born in 1983. The couple got married on March 14, 1985. In the meantime, they purchased on installment a condominium unit, Suite 204, at LCG Condominium, as evidenced by a Contract to Sell dated 1983 executed by respondent as the buyer and J.V. Santos Commercial Corporation as the seller. Petitioner also signed the contract as witness, using the name Elna Mercado Fehr. Upon completion of payment, the title to the condominium unit was issued in the name of petitioner. Hence, Suite 204 was acquired during the parties cohabitation. Accordingly, under Article 147 of the Family Code, said property should be governed by the rules on co-ownership. (2) What shall govern them is coownership. Article 147 applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but without the benefit of marriage, or whose marriage is nonetheless void, as in the case at bar. This provision creates a coownership with respect to the properties they acquire during their cohabitation. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said partys efforts consisted in the care and maintenance of the family household.

The disputed property, Suite 204 of LCG Condominium, was purchased on installment basis on July 26, 1983, at the time when petitioner and respondent were already living together. Hence, it should be considered as common property of petitioner and respondent. The property regime of the parties should be divided in accordance with the law on co-ownership. As regards the settlement of the common properties of petitioner and respondent, the Civil Code provisions on co-ownership should apply. Under Art. 484, in default of contracts or special provisions, co-ownership shall be governed by the provisions of Title III of the Civil Code. ARTICLE 485: The share of the co-owners, in the benefits as well as in charges, shall be proportional to their respective interests. Any stipulation in contract to the contrary shall be void. RULES IN BENEFITS AND SHARES: 1. The share in the benefits and charges is proportional to interest of each. Hence, if one co-owner owns 2/3, he shares 2/3 of the taxes. 2. Contrary stipulation is void. To do so would be to run against the nature of co-ownership. 3. Each co-owner share proportionally in the accretion or alluvium of the property. This is because an increase in the area benefits all. JIMENEZ vs. FERNANDEZ GR No. L-46364. April 6, 1990 A property held in common, upon the death of a co-owner who died without any issue or heir shall be owned by the other co-owner. The portions belonging to each are presumed to be equal. FACTS Fermin Jimenez owned a parcel of residential land in Pangasinan. Fermin Jimenez had 2 sons named Fortunato and Carlos Jimenez. This Fortunato Jimenez who predeceased his father had only one child, petitioner SULPICIA JIMENEZ. After the death of Fermin Jimenez, the entire parcel of land was registered under Act 496 in the name of Carlos Jimenez and SULPICIA JIMENEZ (uncle and niece) in equal shares pro-indiviso. As a result, an OCT was issued in their names. Later, Carlos Jimenez and his illegitimate daughter, Melecia Cayabyab, also known as Melecia Jimenez, took possession of the eastern portion of the property consisting of 436 sq. m. Melecia Jimenez sold said portion of the property to Edilberto Cagampan. The latter also sold the same property to respondent TEODORA GRADO, who has been in occupation since.

Subsequently, petitioner SULPICIA JIMENEZ executed an affidavit adjudicating unto herself the other half of the property appertaining to Carlos Jimenez, upon manifestation that she is the only heir of her deceased uncle. Consequently a TCT was issued in her name alone. Then, SULPICIA JIMENEZ and her husband, TORIBIO MATIAS instituted an action for the recovery of the eastern portion of the property consisting of 436 square meters occupied by respondent TEODORA GRADO and her son. The trial court dismissed said complaint and held TEODORA GRADO as the absolute owner of the property. On appeal with the Court of Appeals, the same decision was affirmed in toto. Hence, this appeal. ISSUE Whether or not the disputed portion of the property was owned by SULPICIA JIMENEZ as a co-owner. RULING YES. SULPICIA JIMENEZ's title over her 1/2 undivided property remained good and continued to be good when she segregated it into a new title. She should be entitled for the relief of recovery of the disputed property and be declared as its sole and absolute owner with right to its possession and enjoyment. Since her uncle Carlos Jimenez died in 1936, his pro-indiviso share in the properties then owned in coownership with his niece Sulpicia descended by intestacy to Sulpicia Jimenez alone because Carlos died without any issue or other heirs. Melecia Jimenez, who sold the property in question to TEODORA GRADO was not the daughter of Carlos Jimenez and therefore, had no right over the property in question. Melecia Cayabyab in the absence of any voluntary conveyance to her by Carlos Jimenez or Sulpicia Jimenez of the litigated portion of the land could not even legally transfer the parcel of land to Edilberto Cagampan who accordingly, could not also legally transfer the same to herein private respondents HOSPICIO FERNANDEZ and TEODORA GRADO. ARTICLE 486: Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such way as not to injure the interest if the co-ownership or prevent the other co-owners from using it according to their rights. The purposes of the co-ownership may be changed by agreement, express or implied. 4. This article grants each co-owner the right to use the property for the purpose intended (said purpose being alterable by express or implied agreement). But:

1) the interest of the co-ownership must not be injured or prejudiced; 2) and the other co-owners must not be prevented from using it. ARTICLE 487: Any one of the co-owners may bring an action in ejectment. 5. It is believed that ejectment covers the following actions: a) forcible entry b) unlawful detainer c) accion publicianca d) accion reinvindicatoria e) quieting of title f) replevin PUNSALAN vs. BOON LIAT GR No. 18009. January 10, 1923 Co-owners file an action for recover not only against strangers but also against a co-owner, when the latter performs with respect to the thing held in common, acts for their exclusive benefit, or of exclusive ownership, or which are prejudicial to, and in violation of, the right of the community. FACTS In 1920, TAMSI saw from the CawitCawit shores in the Province of Zamboanga, a big bulky object in the distance which attracted his attention. Thereupon, together with BAYRULA, he went in a small boat to investigate and found it to be a large fish. They then returned to shore and requested others to held them catch the fish. 22 people rode in 3 small boats to catch said fish, among them was respondent AHAMAD. After having arrived at the place where the fish was, which was found to be a whale, they proceeded to pull it toward the shore up to the mouth of the river, where they quartered it. They found in its abdomen a great quantity of ambergris, which was placed in 3 sacks, 2 of which were full and the other half full. It was then taken to the house of Maharaja Butu, where they left it to the care of AHAMAD. All of these twenty-two persons made an agreement that they were to be the sole owners of this ambergris and that none of them could sell it without the consent of the rest. The contents of the 2 full sacks were placed in three trunks. As to the half sack of ambergris they agreed that some of them should take it to Zamboanga to sell for the purpose of ascertaining the market price of the ambergris, in order that they might dispose of the rest accordingly. TAMSI, together with some of the coowners went to Zamboanga to sell the half sack of ambergris where they disposed of it to Chinamen Lim Chiat and Cheong Tong. They also offered to sell the rest of the ambergris to them. After the Chinamen

agreed so, they back to Cawit-Cawit to get the ambergris so sold. It appeared however that HENRY E. TECK also knew of the existence of the ambergris in the house of Maharaja Butu. Knowing that some of the co-owners were away, he proposed to the master of the revenue cutter Mindoro to go to Cawit-Cawit to seize some supposedly contraband opium. They then immediately proceeded to Cawit-Cawit, among them were HENRY E. TECK, Chinamen C. BOON LIAT, ONG CHUA and GO TONG, and some others who were to assist in the arrest of the smugglers. Upon arrival in the house of Maharaja Butu, the master proceeded to search the house. He found 3 large trunks containing a black substance which had a bad odor, stating that it was opium. When he asked the owner of the house to whom those trunks belonged to, the latter pointed to AHAMAD. The latter stated that the contents came from the abdomen of a large fish but the master, however insisted that it was opium and told AHAMAD that he would take the 3 trunks on board the ship to Zamboanga. AHAMAD and others asked permission of the master to accompany him on the voyage to Zamboanga, to which the master consented. When already on board and during the voyage, the master became convinced that the contents of the three trunks were not opium. During the voyage, HENRY E. TECK offered to purchase the ambergris contained in the 3 trunks, but AHAMAD refused to sell it for the reason that he was not the sole owner thereof, but owned it in common with other persons who were in .Zamboanga. However, upon telling AHAMAD that he would answer whatever might happen, AHAMAD sold the ambergris to HENRY E. TECK and the Chinamen C. BOON LIAT, ONG CHUA and GO TONG. He received down payment immediately and the remaining balance was paid later. When the other co-owners arrived at the house of Maharaja Butu, together with the Chinamen buyers LIM CHIAT and CHEONG TONG, they found out that the ambergris was no longer there. The 21 plaintiffs who had caught the whale (PUNSALAN ET AL.) and the Chinamen buyers, Lim Chiat and Cheong Tong, who had purchased from Tamsi the ambergris filed an action against C. BOON LIAT, ONG CHUA, GO TONG, HENRY E. TECK and AHAMAD. They claimed the 801 kilos of ambergris contained in the 3 trunks or its value in the amount of P60,000 and damages in the sum of P20,000. ISSUES (1) Whether or not the action was barred because one of the respondents AHAMAD was a co-owner. (2) Whether or not the sales made by TAMSI and AHAMAD were valid. RULING

(1) NO. It was no bar to the bringing of this action that the respondent AHAMAD is one of the co-owners. The action for recovery which each co-owner has, derived from the right of ownership inherent in the co-ownership. The right may be exercised not only against strangers but also against co-owners themselves, when the latter perform with respect to the thing held in common, acts for their exclusive benefit, or of exclusive ownership, or which are prejudicial to, and in violation of, the right of the community. In this case, the selling of the ambergris by the respondent AHAMAD as his exclusive property and his attitude in representing himself to be the sole owner thereof placed him in the same position as the stranger who violated any right of the community. Hence, he was not sued as a co-owner for the cause of action is predicated upon the fact that he has acted not as a co-owner but as an exclusive owner of the ambergris sold by him. (2) NO. The sales were not valid. The ambergris in question was the undivided common property of the plaintiffs and the respondent AHAMAD. This common ownership was acquired by occupancy, so that neither TAMSI, IMAM LUMUYOD, or IMAM ASAKIL had any right to sell it, as they did, to LIM CHIAT and CHEONG TONG, nor had the Moro Ahamad any right to sell this same ambergris, as he did, to C. BOON LIAT, ONG CHUA, GO TONG, and HENRY E. TECK. There was an agreement between the coowners not to sell this ambergris without the consent of all. Both sales having been made without the consent of all the owners, the same have no effect, except as to the portion pertaining to those who made them. Note: An ambergris is a solid, opaque, waxy, ash-colored secretion from whales, which is used in perfumery. DE GUIA vs. CA GR No. 120864. October 8, 2003 Art. 487 covers all kinds of actions for the recovery of possession. A coowner may file an action for recovery of possession against a coowner who takes exclusive possession of the entire co-owned property. However, the only effect of such action is a recognition of the co-ownership. Before partition, co-owners have joint right of dominion over property. FACTS 2 parcels of land covering a fishpond with a total area of 79,220 sq. m., situated in Meycauayan, Bulacan was equally owned

by Primitiva Lejano and Lorenza Araniego. The property was registered in both their names. In 1974, the whole fishpond was the subject of a Salin ng Pamumusisyong ng Palaisdaan executed by the heirs of Primitiva Lejano in favor of one Aniano Victa and petitioner MANUEL DE GUIA. Said Lease Contract was with the knowledge and consent of Teofilo Abejo, sole heir of Lorenza Araniego. The contract provided that the period of lease shall be until 1979. Later, Teofilo Abejo acquired Lorenza Araniego Abejos undivided share in the FISHPOND by intestate succession. In 1983, of the undivided portion owned by Araniego corresponding to 39,611 sq. m. was later purchased by JOSE ABEJO from his father Teofilo Abejo. When the contract expired and DE GUIA failed to surrender the fishpond, written demands were made for him to pay back rental and to vacate the premises in question. However, DE GUIA refused to deliver possession and also to pay the rentals due. In anticipation, however, that DE GUIA wouldl vacate the fishpond, JOSE ABEJO in 1983 entered into a 2-year Kasunduan ng Buwisan ng Palaisdaan with Ruperto C. Villarico for P50,000. This contract had to be cancelled and the consideration was also returned because DE GUIA refused to vacate the fishpond. Hence, in 1986 ABEJO filed an action for recovery of possession of of his share of the said fishpond with damages against DE GUIA. On the other hand, DE GUIA contended that ABEJO was not the owner of the entire FISHPOND but one Maxima Termulo who died intestate with Primitiva Lejano as her only heir. The entire fishpond with an area of 79,200 sq. m. was leased to him by the heirs of Primitiva Lejano. Subsequently, he became the absolute owner of of the undivided area of the fishpond from the heir of Lejano and he questioned ABEJOs ownership of the other half as void and fraudulent. As to the area pertaining to ABEJO, DE GUIA claimed that he introduced improvements worth P500,000 and being a builder in good faith, he asked that he should be reimbursed by ABEJO. The court rendered judgment in favor of ABEJO and ordered DE GUIA to return to the former, the undivided portion of the 79,200 sq. m. fishpond and to equally enjoy its benefits and fruits until such time that partition of the property be effected. On appeal, with the Court of Appeals, the court dismissed the petition for lack of merit. Agrrieved, DE GUIA petitioned the Supreme Court for review. He claimed that an action for recovery of possession and turn-over of the undivided portion of a common property is not proper before partition and that the recovery of rent was also erroneous since the exact identity of the portion in question had not yet been

clearly defined and delineated. ISSUES (1) Whether an action for recovery of possession and turn-over of the undivided portion of a common property is proper before partition. (2) Whether or not the recovery of rent is proper even if the exact identity of the portion in question had not yet been clearly defined and delineated. RULING (1) NO, partition is necessary to effect physical division of the FISHPOND between ABEJO and DE GUIA. Article 487 of the Civil Code provides, [a]ny one of the co-owners may bring an action in ejectment. This article covers all kinds of actions for the recovery of possession. Article 487 includes forcible entry, unlawful detainer, recovery of possession (accion publiciana), and recovery of ownership (accion de reivindicacion). A co-owner may file an action for recovery of possession against a co-owner who takes exclusive possession of the entire co-owned property. However, the only effect of such action is a recognition of the co-ownership. The courts cannot proceed with the actual partitioning of the co-owned property. Thus, judicial or extra-judicial partition is necessary to effect physical division of the FISHPOND between ABEJO and DE GUIA. An action for partition is also the proper forum for accounting the profits received by DE GUIA from the FISHPOND. However, as a necessary consequence of such recognition of co-ownership, ABEJO shall exercise an equal right to possess, use and enjoy the entire FISHPOND. Hence, ABEJO and DE GUIA had become owners of the whole and over the whole, they exercise the right of dominion. However, they were at the same time individual owners of a portion, which is truly abstract because until there is partition, such portion remains indeterminate or unidentified. As coowners, ABEJO and DE GUIA may jointly exercise the right of dominion over the entire FISHPOND until they partition the FISHPOND by identifying or segregating their respective portions. (2) YES, recovery of rent is proper even if the exact identity of the portion in question had not yet been clearly defined and delineated was proper. The Lejano Heirs and Teofilo Abejo agreed to lease the entire FISHPOND to DE GUIA. After DE GUIAs lease expired in 1979, he could no longer use the entire FISHPOND without paying rent. To allow DE GUIA to continue using the entire FISHPOND without paying rent would prejudice ABEJOs right to receive rent, which would have accrued to his share in the FISHPOND had it been leased to others. Since ABEJO acquired his undivided

share in the FISHPOND on 22 November 1983, DE GUIA should pay ABEJO reasonable rent for his possession and use of ABEJOs portion beginning from that date. ARTICLE 488: Each co-owner shall have the right to compel the other co-owners to contribute o the expenses of preservation of the thing or right owned in common and to the taxes. Any one of the latter may exempt himself from this obligation by renouncing so much of his undivided interest as may be equivalent to his share of the expenses and taxes, no such waiver shall be made if it is prejudicial to the coownership. ARTICLE 489: Repairs for preservation may be made at the will of one of the co-owners, but he must, if practicable, first notify his co-owners of the necessity for such repairs. Expenses to improve or embellish the thing shall be decided upon by a majority as determined in Article 492. Two (2) kinds of repair: (1) repair for the preservation of the thing; o These are necessary expenses to preserve the thing owned in common. o They may be made by the will of one of the co-owners. A co-owner can actually go ahead and repair the thing owned in common but he must notify his co-owners of the necessity for such repairs. So he does not need to acquire the consent. (2) Repair for improvement or embellishment. These are not necessary repairs but repairs to improve the thing coowned.

REQUIREMENT: It must be made by the financial majority, as determined under Art. 492. o Financial majority - co-owners who represent the controlling interest of the object of the coownership.

o Rule
o

if notification was practicable but not made: The other co-owners may claim that had they been notified they could have found cheaper materials and therefore they should pay less than what is being charged. But because of Art 488, they still have to reimburse. The co-owner who failed to make notification has the burden of proof to prove the reasonableness of the expenses. And if he failed to prove the

reasonableness of the expenses then he must take care of the difference, he must take care of the excess. ADILLE vs. CA GR No. 44546. January 29, 1988 When a co-owner has repurchased a property held in common with his own funds alone, it did not terminate the co-ownership. The expenses he incurred shall be subject to reimbursement from the remaining co-owners. FACTS Leliza Alzul originally owned a lot of the Cadastral Survey of Albay in Legaspi City, containing an area 11,325 sq. m. Alzul married twice in her lifetime. The first, marriage was with one Bernabe Adille, with whom she had as an only child, herein petitioner RUSTICO ADILLE. The second, was with one Procopio Asejo, with whom she has 5 children, herein respondents EMETERIA ASEJO, TEODORICA ASEJO, DOMINGO ASEJO, JOSEFA ASEJO, and SANTIAGO ASEJO (ASEJOs). In 1939, Alzul sold the property in pacto de retro to certain 3rd persons with a period of 3 years for repurchase. She died in 1942 without being able to redeem said property. However, after her death, but during the period of redemption, RUSTICO ADILLE repurchased by himself alone said property. In 1955, he executed a deed of extrajudicial partition representing himself to be the only heir and child of his mother that he was able to secure a title, transferring the said property registered in the name of his mother, in his name alone. After some efforts of compromise had failed, ADILLEs half-brothers and sisters, the ASEJOs filed an action for partition with accounting on the position that he was only a trustee on an implied trust when he redeemed said property. ADILLE also filed a counterclaim against her half-sister and one of the defendants herein EMETERIA ASEJO, who was found to be in possession of a portion of said property to vacate the premises. The trial court declared ADILLE as absolute owner of the property in question and condemned EMETRIA ASEJO to vacate the property. The Court of Appeals though, ruled in favor of the ASEJOs. Aggrieved, ADILLE file this petition. He contended that the property subject of dispute devolved upon him upon the failure of his coheirs to join him in its redemption within the period required by law. ISSUE Whether or not a ADILLE who was a co-owner may acquire exclusive ownership over the property he held in common with the ASEJOs?

RULING NO. The right of repurchase may be exercised by a co-owner with respect to his share alone. While the records show that the petitioner redeemed the property in its entirety, shouldering the expenses therefore, that did not make him the owner of all of it. In other words, it did not put to end the existing state of co-ownership. There is no doubt that redemption of property entails a necessary expense. Necessary expenses then may be incurred by one co-owner, subject to his right to collect reimbursement from the remaining co-owners under Art. 488. The redemption by one co-heir or coowner of the property in its totality does not vest in him ownership over it. Failure on the part of all the co-owners to redeem it entitles the vendee a retro to retain the property and consolidate title thereto in his name. But the provision does not give to the redeeming co-owner the right to the entire property. It does not provide for a mode of terminating a co-ownership. Neither does the fact that the petitioner had succeeded in securing title over the parcel in his name terminate the existing co-ownership. While his half-brothers and sisters are, as we said, liable to him for reimbursement as and for their shares in redemption expenses, he cannot claim exclusive right to the property owned in common. Registration of property is not a means of acquiring ownership ARTICLE 490: Whenever the different stories of a house belong to different owners, if the titles of ownership do not specify the terms under which they should contribute to the necessary expenses and there exists no agreement on the subject, the following rules shall be observed: (1.) The main and party walls, the roof and the other things used in common, shall be preserved at the expense of all the owners in proportion to the value of the story belonging to each; (2.) Each co-owner shall bear the cost of maintaining the floor of his story; the floor of the entrance, front door, common yard and sanitary works common to all, shall be maintained at the expense of all the owners pro rata. (3.) The stairs from the entrance to the first story shall be maintained at the expense of all the owners pro rata, with the exception of the owner on the ground floor, the stairs from the first to the second story shall be preserved at the expense of all, except the owner of the ground floor and the owner of the first story, and so on successively.

Art. 490 talks about perpendicular co-ownership. Condominium Act, RA 4726.

Condominium - It is an interest in a real property consisting of: Separate interest in a unit of a building as sole ownership. Sole ownership with respect to the unit. An individual interest with respect to the common areas like the land, stairs, beams, elevators, and other common areas. And, this is coownership. In condominium, there is sole ownership and co-ownership at the same time. A condominium is actually a corporation. When you a buy a unit in a condo, you become a member of the condominium corporation. A condominium is the exception to the constitutional provision that aliens cannot own properties in the Philippines. Condo units can be sold to aliens provided that 60% of the condo is owned by Filipinos

In 1977, Private respondent LIM SIU LENG was assigned a unit called "Alegria" of the Sunset View Condominium Project by Alfonso Uy who had entered into a "Contract to Buy and Sell" with Tower Builders, Inc. over the said unit on installment basis. In 1979, SUNSENT VIEW CONDO filed an action for the collection of overdue accounts on assessments and insurance premiums and the interest thereon from LIM. LIM filed a motion to dismiss on the ground that by having purchased the condominium unit, she has automatically become a stockholder of SUNSET VIEW CONDO, pursuant to Sec. 2 of The Condominium Act. Hence, the dispute being intra-corporate should have been under the exclusive jurisdiction of the Securities & Exchange Commission as provided in Sec. 5 of P.D. No. 902-A. The respondent JUDGE JOSE C. CAMPOS dismissed the 2 cases and opined that AGUILAR REALTY and LIM, respectively were holders of a separate interest pursuant to Sec. 2 of The Condominium Act. Thus, being a shareholder of SUNSET VIEW CONDO, the case should have been filed with the Securities & Exchange Commission which had exclusive original jurisdiction on controversies arising between shareholders of the corporation. A motion for reconsideration was also denied. Aggrieved, SUNSET VIEW CONDO filed a petition to review with the Court of Appeals. In both cases, private respondents therein AGUILAR REALTY and LIM argued that every purchaser of a condominium unit, regardless of whether or not he has fully paid the purchase price, is a "holder of a separate interest" mentioned in Sec. 2 of The Condominium Act and is automatically a shareholder of the Condominium Corporation. ISSUE Whether or not AGUILAR REALTY and LIM, who had not yet fully paid the purchase price of the condominium units they respectively bought from SUNSET VIEW CONDO had automatically become a stockholder of the Condominium Corporation. RULING NO. Sec. 5 of The Condominium Act (RA 4726) expressly provides that the shareholding in the Condominium Corporation will be conveyed only in a proper case. It is clear then that not every purchaser of a condominium unit is a shareholder of the Condominium Corporation. The court held that a purchaser of a condominium unit shall only become a shareholder of the Condominium Corporation. The court premised it on the Master Deed of the condominium, the deed of conveyance and The Condominium Act itself.

SUNSET VIEW vs. CAMPOS GR Nos. 52361 & 52524. April 27, 1981 Ownership over a condominium unit is acquired by the buyer only after he had paid the purchase price. The ownership of the unit is what makes the buyer a shareholder in the condominium. FACTS The petitioner SUNSET VIEW CONDOMINIUM CORPORATION was a Condominium Corporation within the meaning of The Condominium Act (RA 4726). It filed 2 separate cases against private respondents AGUILAR-BERNARES REALTY and LIM SIU LENG. The court consolidated the 2 cases being that it involved similar facts and raised identical questions of law. GR No. 52361 Private respondent AGUILAR-BERNARES REALTY was a registered business owned and operated by the spouses Emmanuel and Zenaida B. Aguilar. It was the assignee of a unit, "Solana", in the SUNSET VIEW CONDOMINIUM PROJECt with LA PERLA COMMERCIAL INCORPORATED, as assignor. LA PERLA bought the "Solana" unit on installment from the Tower Builders, Inc. In 1979, SUNSET VIEW CONDO, filed for the collection of assessments levied on the unit against AGUILAR REALTY. The latter filed a motion to dismiss. GR No. 52524

First. The Condominium Act leaves to the Master Deed the determination of when the shareholding will be transferred to the purchaser of a unit. The Master Deed states that the shareholding in the Condominium Corporation is inseparable from the unit to which it is only appurtenant, and that only the owner of a unit is a shareholder in the Condominium Corporation. Second. In both deeds of conveyance entered into by AGUILAR REALTY and LIM, it was provided that only after the full payment of the purchase price shall the buyer of the condominium unit be granted shares of stocks. Consequently, even under the contract, it is only the owner of a unit who is a shareholder of the Condominium Corporation. Hence, a purchaser of a unit who has not paid the full purchase price thereof is not the owner of the unit and consequently is not a shareholder of the Condominium Corporation. Third. Under The Condominium Act, ownership of a unit is a condition sine qua non to being a shareholder in the Condominium Corporation. It follows that a purchaser of a unit who is not yet the owner thereof for not having fully paid the full purchase price, is not a shareholder. By necessary implication, the "separate interest" in a condominium, which entities the holder to become automatically a shareholder in the Condominium Corporation, as provided in Sec. 2 of the Condominium Act, can be no other than ownership of a unit. This is so because nobody can be a shareholder unless he is the owner of a unit and when he ceases to be the owner, he also ceases automatically to be a shareholder. The private respondents, therefore, who have not fully paid the purchase price of their units and are consequently not owners of their units are not members or shareholders of the petitioner Condominium Corporation. Being that they were not shareholders in the Condominium Corporation, the Securities and Exchange Commission did not have jurisdiction over the case. Art. 491: None of the co-owners shall, without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom. However, if the withholding of the consent by one or more of the coowners is clearly prejudicial to the common interest, the courts may afford adequate relief. Act of alteration is an act ownership, not merely an act administration. there is a need for the unanimity consent Consent here may be tacit express of of of or

the co-owner who is deemed to have tacitly consented to the alteration cannot ask for its demolition, neither can he be held liable to answer for any part of the expenses incurred therein because the obligation to pay such expenses cannot be deemed to be the subject of his tacit consent, unless he wants or if he derives benefit out of the new undertaking, then the other coowners may compel him to contribute. Alteration: Characteristics: 1) Alteration is a change which is more or less permanent in character. 2) It changes the use of the thing owned in common. 3) It prejudices the condition of co-ownership or the enjoyment by others. Examples of alteration: sale, donation, mortgage, voluntary easement When is the alteration illegal? 1. When the co-owner does not ask for the consent of the other co-owners; 2. when he asks for the consent of the other co-owners but they object; 3. When he proceeds with the alteration even though the other c0-owners object. So, what is the effect of illegal alteration without the consent? The co-owner responsible may lose what has spent; the demolition may be compelled; the co-owner responsible will be liable for losses and damages to the other co-owners. But whatever benefits the coownership derives belong to it. For example, the house has already been built, B and C were abroad, they were not informed about the construction and when they came back, they saw the house, can B and C benefit? YES. In case a house is constructed on a common lot, all the co-owners will be entitled to a proportionate share of the rent. Take note of the unanimity of consent. If it involves acts of ownership, there must be unanimity of consent. If it merely involves acts of administration, then majority may suffice.

1)

THE FF. ARE ACTS OF ADMINISTRATION: They are those that do not involve an alteration;

Effect of a tacit consent:

2) Those that maybe renewed from time to

time. What are the acts of administration which may be renewed from time to time? For example, the coownership, A and B own a hotel and they want to change the manager, thats an act of administration. Those that have transitory effect, that is, do not bind the co-ownership for a long time in the future; Those that do not give rise to a real right over the thing owned in common; Those, which even if called an alteration, do not affect the substance or nature of the thing. JAVIER vs. JAVIER GR No. 2812. October 18, 1906 The ownership of a house by one person, and of the land on which it stands by another, does not create a community of property. If a co-owner has constructed an improvement on the land without the consent of the other co-owners, he shall have no right of reimbursement. FACTS Since 1860, a parcel of lot locate in Malate, Manila was owned by Manuel Javier, father of petitioner LONGINOS JAVIER and respondent SEGUNDO JAVIER. Since then, it had been occupied by his children and that no one of these children ever made any claim to the ownership thereof, and no one of them ever occupied the property as owner. Thereon, SEGUNDO and his wife ISABEL HERNANDEZ constructed a house thereon. Subsequently, LONGINOS, as administrator of the estate of his father filed an action in court contesting ownership over the house and lot. The lower court ruled that the land belonged to LONGINOS as administrator of the estate of his father while the house was owned by respondents ISABEL HERNANDEZ and her son MANUEL RAMON JAVIER. Judgment was rendered in favor of LONGINOS for the possession of the property but SEGUNDO ET AL. were given a reasonable opportunity to remove the house. On appeal, SEGUNDO ET AL. contended that the case should be decided by an application of the principles of law relating to the community of property because a community of property existed as the house was owned by them while the land by the LONGINOS. They also declared that they were possessors in good faith and that they should be reimbursed for the construction of the house. ISSUES

(1) Whether or not there is a coownership when the house and the land are owned by different persons. (2) Whether or not SEGUNDO ET AL. was entitled for reimbursement for the construction of the house. RULING (1) NO. The ownership of a house by one person, and of the land on which it stands by another does not create a community of property Such a condition of affairs did not create a community of property. If, on the other hand, it was meant that community of property existed because the land itself belonged to the heirs of Manuel Javier, and that two of the respondents were such heirs, it can be said that the decision of the court below was fully as favorable to the appellants as it could be. (2) NO, he should not be entitled for reimbursement of the house he constructed thereon. SEGUNDO could not claim for reimbursement a builder in good faith since he was in bad faith as he and his wife had always believed that the land did not belong to them but belonged to the estate of Manuel Javier. He could not also be reimbursed under Art. 491 (then Art. 397) of the Civil Code, which relates to improvements made upon the common property by one of the coowners. The burden of proof was on SEGUNDO ET AL. to show that the house was built with the consent of their cotenants. According to Manresa, Even if a tacit consent was shown, this would not require such co-tenants to pay for the house. ARTICLE 492: For the administration and better employment of the thing owned in common, the resolutions of the majority of the co-owners shall be binding. There shall be no majority unless the resolution is approved by the co-owners who represent the controlling interest in the object of the co-ownership. Should there by no majority, or should the resolution of the majority be seriously prejudicial to those interested in the property owned in common, the court, at the instance of an interested party, shall order such measures as it may deem proper, including the appointment of an administrator. Whenever a part of the thing belongs exclusively to one of the co-owners and the remainder is owned in common, the preceeding provisions shall apply only to the part owned in common. The phrase "administration and better enjoyment" contemplates acts or decisions for the common benefit of all the co-owners and not for the benefit of only one of the coowner or some of them.

3) 4) 5)

Financial majority refers to those who represent a controlling interest in the object of co-ownership. So you look at the percentage of ownership of the particular co-owner. The general rule is a financial majority's decision is sufficient, only that it requires notice to such minority. Exception, in cases of extreme urgency and the impracticability of giving notice, as one of the co-owners is nowhere to be found. Now, when may the court interfere with the division spend for improvement or embellishment? 1. when there is no financial majority or according to provision; or 2. even if there is financial majority, if the resolution of the majority is seriously prejudicial to those interested in the property owned in common. However, the court cannot interfere motu propio without any case filed by an interested party.

fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. MERCADO vs. LIWANAG GR No. L-14429. June 30, 1962 What a co-owner may dispose of under Article 493 is only his undivided aliquot share, which shall be limited to the portion which may be allotted to him upon the termination of the co-ownership. He has no right to divide the property into parts and then convey one part by metes and bounds. FACTS Petitioner RAMON MERCADO and his wife, BASILIA MERCADO, as co-owners, owned a parcel of land in Quezon City, with an area of 4,392 sq. m. Said land was registered in both their names. In 1956, without the consent of his wife, RAMON MERCADO sold half of the said land with an area of 2,196 sq. m. at P70 per sq. m. to respondent PIO D. LIWANAG. A Deed of Sale was subsequently executed which described the sold property in metes and bounds. When LIWANAG registered the Deed of Sale, he found out that out of the total area of 4,392 sq. m., an area consisting of 391 sq. m. was expropriated by the National Power Corporation sometime in 1953 at a price of P10 per sq. m. Pursuant to the Deed of Sale, aTCT was issued in the name of LIWANAG and BASILIA MERCADO. Later, RAMON and BASILIA MERCADO filed an action in court to annul the Deed of Sale based on Art. 493 of the Civil Code. For his part, LIWANAG submitted a receipt of a check signed by RAMON MERCADO and a promissory note. However, RAMON MERCADO disclaimed payment and receipt of such check and promissory note, the check being un-encashed and is still in the possession of one Atty. de Gracia. The trial court however, held that under Art. 493 of the Civil Code, the sale in question was valid and so it dismissed the complaint. Hence, this appeal. SPOUSES MERCADO alleged that the Deed of Sale sought to be annulled because RAMON MERCADO disposed of a divided and determinate half of the land under co-ownership when in the TCT, only stated that what was merely sold was an undivided half-share of the property ISSUE

ARTICLE 493: Each so-owner shall have the full ownership of his part, and of the fruits and benefits pertaining thereto and he may therefore alienate, assign, or mortgage it, and even substitute another person in its enjoyment, except when the personal rights are involved. But the effect of the alienation or the mortgage, with respect to the coowners, shall be limited to the portion which maybe allotted to him in the division upon the termination of the co-ownership. What are the rights of the coowner with respect to his ideal share? He has full ownership of his part. He has full ownership of the fruits of their part and the benefits. Each co-owner may alienate, assign, or mortgage his undivided share. When a co-owner alienates his undivided share to a stranger, the other co-owner has the right of legal redemption. He may even substitute another person in its enjoyment except when personal rights are involved. For example, my 1/3 share shall be given to my son, I can do that. He may exempt himself from necessary expenses and taxes by renouncing part of his interest in the co-ownership.

1.
2. 3.

4.

5.

Each co-owner shall have the full

ownership of his part and of the

Whether or not a Deed of Sale may be validly annulled. RULING NO, the Deed of Sale may not be validly annulled. What a co-owner may dispose of under Article 493 is only his undivided aliquot share, which shall be limited to the portion which may be allotted to him upon the termination of the co-ownership. He has no right to divide the property into parts and then convey one part by metes and bounds. In the deed of sale, MERCADO transferred and conveyed to LIWANAG his title and interests on half of the portion of said property in metes ad bounds. Nevertheless, upon registration of the sale, the new TCT did not reproduce the description in the instrument but carried the names of PIO D. LIWANAG and BASILIA MERCADO as co-owners pro-indiviso. As far as Basilia Mercado is concerned she retained in all their integrity her rights as co-owner which she had before the sale, and consequently she had no cause to complain. Much less has Ramon Mercado, for it was he who was responsible for whatever indicia there may be in the deed of sale that a determinate portion of the property was being sold. The title is the final and conclusive repository of the rights of the new coowners. The question of whether or not the Deed of Sale should be annulled must be considered in conjunction with the title issued pursuant thereto. Since, according to the title, what LIWANAG acquired by virtue of the sale is only an undivided half-share of the property, which under the law the vendor RAMON MERCADO had the absolute right to dispose of, the trial court committed no error in dismissing the action. The endresult of the transaction is in accordance with Article 493 of the Civil Code. ACEBEDO vs. ABESAMIS GR No. 102380. January 18, 1993 It is within the jurisdiction of the probate court to approve the sale of properties of a deceased person by his prospective heirs before final adjudication. An heir can sell his ideal share including the rights, interests, or participation he may have in the property held in common under administration. FACTS The late Felix Acebedo left an estate consisting of several real estate properties located in Quezon City and Caloocan City, with a conservative estimated value of about P30 million. His estate has several unsettled claims. He was succeeded by eight heirs. Two of whom, were petitioners

HERODOTUS (administrator) and DEMOSTHENES (PETITIONER HEIRS) and the others, private respondents MIGUEL, ALEXANDER, NAPOLEON, RIZALINO, REPUBLICA and FILIPINAS (RESPONDENT HEIRS), all of whom were surnamed ACEBEDO. In 1989, due to the prolonged pendency of the settlement of the estate of the deceased before the respondent court under JUDGE BERNARDO P. ABESAMIS for 16 years, RESPONDENT HEIRS filed a Motion for Approval of Sale. The said sale involved the properties, which formed part of the estate. The consideration for said lots was twelve P12 million and by that time, they already had a buyer. In the motion, it was also alleged by the RESPONDENT HEIRS that they had already received their proportionate share of the P6 million paid by the buyer, YU HWA PING, as earnest money. They also averred that the remaining balance of P6 million was more than enough to pay the unsettled claims against the estate. Thus, they prayed for the Court to direct the administrator, HERODOTUS ACEBEDO to sell the properties, to pay all the claims against the estate with the balance of P6 million, and to distribute the residue among the Heirs in final settlement of the Estate. However, Petitoner-administrator HERODOTUS ACEBEDO, interposed an Opposition to Approval of Sale, wherein he contended that some of the real properties left by their father was sold at a shockingly low price without the consent of the court. PETITIONER HEIRS also moved that they be given 45 days to look for a buyer who was willing to pay the properties at a price higher than P12 million. However, during hearing, the PETITIONER HEIRS did not find any buyer offering better terms that they asked for a 30-day extension. After having miserably failed to find a better buyer for 7 months, Petitoneradministrator HERODOTUS ACEBEDO filed another Opposition to Approval of Sale. The court issued an order denying the petition of the RESPONDENT HEIRS to sell the properties in favor of YU HWA PING. Later, the court issued an order resolving to call the parties to a conference but during the conference, still, the parties were unable to arrive at an agreement. Later, it was agreed by the he parties that the heirs be allowed to sell their shares of the properties to YU HWA PING for the price already agreed upon while herein PETITIONER HEIRS negotiated for a higher price with YU HWA PING. Subsequently, PETITIONER HEIRS instead filed a Supplemental Opposition to the approval of the Deed of Conditional Sale. However, the Court in its decision, approved the Conditional Sale executed by the REPONDENT HEIRS in favor of YU HWA PING, pertaining to their respective shares in the properties. Petitioner-administrator Herodotus Acebedo was then ordered to sell

the remaining portions of the said properties also in favor of Yu Hwa Ping at the same price. Pending resolution the Motion for Execution of the Order filed by RESPONDENT HEIRS, PETITIONER HEIRS filed a petition for certiorari. They maintained that said Conditional Sale was null and void for lack of prior court approval. ISSUES (1) Whether or not the lower court acting as a probate court may validly issue an order approving the Deed of Conditional Sale executed by RESPONDENT HEIRS without prior court approval and to order PETITIONER-ADMINISTRATOR to sell the remaining portion of said properties. (2) Whether or not an heir can sell whatever right, interest, or participation he may have in the property under administration r RULING (1) YES. it is within the jurisdiction of the probate court to approve the sale of properties of a deceased person by his prospective heirs before final adjudication. This authority is necessarily included in its capacity as a probate court. Therefore, it is clear that the probate court in the case at bar, acted within its jurisdiction in issuing the Order approving the Deed of Conditional Sale. The position maintained by herein petitioners that said conditional sale is null and void for lack of prior court approval was erroneous. The sale precisely was made conditional, the condition being that the same should first be approved by the probate court. This is a matter, which comes under the jurisdiction of the probate court. (2) YES, an heir can sell whatever right, interest, or participation he may have in the property under administration. The right of an heir to dispose of the decedent's property, even if the same is under administration, is based on the Civil Code provision stating that the possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. Where there are however, two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs. The Civil Code, under the provisions on co-ownership, further qualifies this right. Although it is mandated that each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another person in its enjoyment, the effect of the alienation or the mortgage, with respect to the coowners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. In

other words, the law does not prohibit a coowner from selling, alienating or mortgaging his ideal share in the property held in common. BAILON vs. CA GR No. L-18178. April 15,1988 Since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other coowners is not null and void. However, only the rights of the coowner-seller are transferred, thereby making the buyer a coowner of the property. FACTS A parcel of land with an area of 48,849 square meters was covered by an OCT in the names of Rosalia, Gaudencio, SABINA, Bernabe, Nenita and Delia Bailon, as coowners, each with a 1/6 share. Gaudencio and Nenita were then dead, the latter being represented in this case by her children Luz, Emma and Nilda. Bernabe went to China in 1931 and had not been heard from since then. In 1948, Rosalia and Gaudencio Bailon sold a portion of the said land consisting of 16,283 square meters to Donato Delgado. A year after, Rosalia alone sold the remainder of the land consisting of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On the same date, Lanuza acquired from Delgado the 16,283 sq. m. of land, which the latter had earlier acquired from Rosalia and Gaudencio. In 1975, John Lanuza, acting under a special power of attorney given by his wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to CELESTINO AFABLE. In all these transfers, it was stated in the deeds of sale that the land was not registered under the provisions of Act No. 496 when the fact was that it was. In 1981, petitionners DELIA BAILONCASILAO, LUZ PAULINO-ANG, EMMA PAULINO-YBANEZ, NILDA PAULINOTOLENTINO, and SABINA BAILON (BAILONs) filed a case for recovery of property and damages with notice of lis pendens herein private respondent, CELESTINO AFABLE. In his defense, AFABLE claimed that he had acquired the land in question through prescription and contended that the BAILONs were guilty of laches. He later filed a third-party complaint against Rosalia for damages allegedly suffered as a result of the sale to him of the land. After trial, the lower court declared AFABLE as a co-owner of the land, having validly bought 2/6 respective undivided shares of Rosalia and Gaudencio. It also ordered the termination of the co-ownership and the delineation of the specific part of each owner though a Geodetic Engineer. On appeal, the respondent Court of Appeals

affirmed the decision of the lower court. Hence, this appeal. ISSUE Whether or not the sale of the entire property made by 2 co-owners Rosalia and Gaudencio was invalid beause it was made without the consent of the other co-owners. RULING NO. The rights of a co-owner of a certain property are clearly specified in Article 493 of the Civil Code. Even if a co-own sells the whole property as his, the sale will affect only his own share but not those of the other coowners who did not consent to the sale. This is because under Art. 493, the sale or other disposition affects only his undivided share and the transferee gets only what would correspond to his grantor in the partition of the thing owned in common. Consequently, by virtue of the sales made by Rosalia and Gaudencio, which were valid with respect to their proportionate shares, and the subsequent transfers which culminated in the sale to private respondent AFABLE, the latter thereby became a co-owner of the disputed parcel of land. The sales produced the effect of substituting the buyers in the enjoyment thereof. Hence, since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property. Thus, it is now settled that the appropriate recourse of co-owners in cases where their consent were not secured in a sale of the entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action for partition. Neither recovery of possession nor restitution can be granted since the defendant buyers are legitimate proprietors and possessors in joint ownership of the common property claimed. SPOUSES CRUZ vs. LEIS GR No. 125233. March 9, 2000 The right of repurchase may be exercised by a co-owner with respect to his share alone. Although Gertrudes redeemed the property in its entirety, shouldering the expenses therefor, that did not make her the owner of all of it. FACTS Adriano Leis and Gertrudes Isidro were married in1923. In 1955, Gertrudes acquired from the then Department of Agriculture and Natural Resources (DANR), a parcel of land with an area of 100 sq. m. situated in Marikina, Rizal. The Deed of

Sale, Gertrudes was described as a widow. Hence, a TCT was issued in her name, which described her as a widow. In 1973, Adriano died intestate. In 1985, Gertrudes obtained a P15,000 loan from petitioners SPOUSES ALEXANDER AND ADELAIDA CRUZ at 5% interest. The loan was secured by the a mortgage over the Rizal property. Gertrudes however, failed to pay the loan on the due date. Unable to pay her obligation, Gertrudes in 1986 executed 2 contracts in favor of ALEXANDER CRUZ. The first was a Kasunduan, which the parties conceded was a pacto de retro sale, granting Gertrudes 1 year within which to repurchase the property. The was a Kasunduan ng Tuwirang Bilihan, a Deed of Absolute Sale covering the same property for the price of P39,083, the same amount stipulated in the Kasunduan. For failure of Gertrudes to repurchase the property, ownership thereof was consolidated in the name of ALEXANDER CRUZ. In 1987, A TCT was issued in his name, canceling the TCT in the name of Gertrudes. In 1987 Gertrudes died. Thereafter, her heirs, herein private respondents, ELEUTERIO LEIS, RAYMUNDO LEIS, ANASTACIO L. LAGDANO, LORETA L. CAYONDA (LEIS ET AL.) received demands from SPOUSES CRUZ to vacate the premises as they were already new owners of the property. In response, LEIS ET AL. filed an action seeking the nullification of the contracts of sale executed by their mother Gertrudes in favor of petitioner ALEXANDER CRUZ, as well as the TCT subsequently issued in the name of the latter. They claimed that the contracts were vitiated by fraud as Gertrudes was illiterate and already 80 years old at the time of the execution of the contracts. They also contended that the price for the land was insufficient as it was sold lower than its fair market value. They added that the property subject of the sale was conjugal and, consequently, its sale without the knowledge and consent of private respondents was in derogation of their rights as heirs. The trial court rendered a decision in favor of LEIS ET AL. It concluded that the land was conjugal property thus Gertrudes could only sell to SPOUSES CRUZ her onehalf share in the property. However, it also ruled that there was no fraud in the execution of the contract but nullified the same because the SPOUSES CRUZ failed to comply with certain procedural requirements in its registration. The same decision was affirmed when the case was appealed with the Court of Appeals. Hence, the SPOUSES CRUZ filed a petition for review with the Supreme Court. They alleged that the property was not conjugal but was owned exclusively by Gertrudes as described in the TCT. They also averred that assuming the property was conjugal, the same became exclusive

since Gertrudes mortgaged the same property but redeemed the same in 1983. ISSUE Whether or not the property was exclusively owned by Gertrudes since she redeemed the property over the exclusion of her co-owners. RULING NO. The redemption of the land by Getrudes did not terminate the coownership nor give her title to the entire land subject of the co-ownership. The right of repurchase may be exercised by a co-owner with respect to his share alone. Although Gertrudes redeemed the property in its entirety, shouldering the expenses therefor, that did not make her the owner of all of it. In other words, it did not put to end the existing state of coownership. Under Art. 493, a co-owner such as Gertrudes could only dispose of her share in the property owned in common. However, being that neither Gertrudes nor her co-owners, LEIS ET AL. were able to redeem the same within the one-year period stipulated in the Kasunduan, ownership then remained with the SPOUSE CRUZ. The essence of a pacto de retro sale is that title and ownership of the property sold are immediately vested in the vendee a retro, subject to the resolutory condition of repurchase by the vendor a retro within the stipulated period. Failure thus of the vendor a retro to perform said resolutory condition vests upon the vendee by operation of law absolute title and ownership over the property sold. SPOUSES DEL CAMPO vs. CA GR No. 108228. February 1, 2001 A co-owner is entitled to sell his undivided share in the property held in common. However, a co-owner cannot alienate more than his share in the co-ownership. If a co-owner had an undisturbed possession for a considerable number of years, it had the effect of a partial partition of the co-owned property, which entitled the possessor to the definite portion which he occupies. FACTS Lot 162 of the Cadastral Survey in Pontevedra, Capiz, consisting of 27,179 sq. m. were co-owned by the 8 Bornales brothers and sisters, the same registered in their names. Said lot was divided in aliquot shares among them. In 1940, SALOME, one of the co-owners sold part of her 4/16 share in for P200.00 to Soledad Daynolo. In the Deed of Absolute

Sale signed by SALOME and two other coowners, CONSORCIA and ALFREDO, the portion of the sold lot was delineated in metes and bounds. Thereafter, Soledad immediately took possession of the land and built a house thereon. A few years later, she and her husband, Simplicio Distajo, mortgaged the property as security for a P400 debt to respondent JOSE REGALADO, SR. In 1948, 3 of the 8 co-owners, specifically SALOME, CONSORCIA and ALFREDO sold 24,993 sq. m. of Lot 162 to REGALADO, SR. In 1951, Simplicio Distajo, heir of Soledad Daynolo who had since died, paid the mortgage debt and redeemed the mortgaged portion the lot from REGALADO, SR. The latter, in turn, executed a Deed of Discharge of Mortgage in favor of Soledads heirs. On same date, the heirs of Soledad sold the redeemed portion for P1,500 to herein petitioners, SPOUSES MANUEL DEL CAMPO AND SALVACION QUIACHON (SPOUSES DEL CAMPO). Meanwhile, REGALADO, SR. caused the transfer of the title in his name and subdivided the entire property into smaller lots, each covered by a respective title in his name. One of these small lots is Lot No. 162-C-6 with an area of 11,732 sq. m. In 1987, the SPOUSES DEL CAMPO brought a complaint for repartition, resurvey and reconveyance against the heirs of the now deceased REGALADO, SR. They claimed that they owned an area of 1,544 square meters located within Lot 162C-6, which was erroneously included in the issued in the name of Regalado. They alleged that they occupied the disputed area as residential dwelling ever since they purchased the property from the Distajos way back in 1951. They also declared the land for taxation purposes and paid the corresponding taxes. In 1990, however, the trial court dismissed the complaint. It held that while Salome could alienate her pro-indiviso share in Lot 162, she could not validly sell an undivided part thereof by metes and bounds to Soledad, from whom petitioners derived their title. The trial court also reasoned that petitioners could not have a better right to the property even if they were in physical possession of the same and declared the property for taxation purposes, because mere possession cannot defeat the right of the Regalados who had a Torrens title over the land. The same judgment was affirmed by the Court of Appeals on appeal. Hence, this petition. ISSUES (1) Whether or not a sale by co-owner Salome of a portion of an undivided property held in common in favor of Soledad was valid. (2) Whether or not co-owners Salome, Consorcia and Alfredo could validly sell the

shares of the common property pertaining to Soledad. (3) Whether or not the SPOUSES DEL CAMPO may rightfully claim the specific 1,544 sq. m. located within Lot 162-C-6. RULING (1) NO. The mere fact that Salome purportedly transferred a definite portion of the co-owned lot by metes and bounds to Soledad, did not per se render the sale a nullity. This much is evident under Article 493 of the Civil Code and pertinent jurisprudence on the matter. Salomes right to sell part of her undivided interest in the co-owned property is absolute in accordance with the wellsettled doctrine that a co-owner has full ownership of his pro-indiviso share and has the right to alienate, assign or mortgage it, and substitute another person in its enjoyment. Since Salomes clear intention was to sell merely part of her aliquot share in Lot 162, no valid objection can be made against it and the sale can be given effect to the full extent. In the case at bar, the transaction entered into by Salome and Soledad could be legally recognized in its entirety since the object of the sale did not even exceed the ideal shares held by the former in the co-ownership. In such sale, Soledad stepped into the shoes of the Salome as co-owner and acquired a proportionate abstract share in the property held in common. (2) NO. Based on the principle that no one can give what he does not have, Salome, Consorcia and Alfredo could not legally sell the shares pertaining to Soledad since a co-owner cannot alienate more than his share in the co-ownership. Being that the sale entered into by Salome and Soledad did not even exceed the ideal shares held by the former in the co-ownership, it was deemed valid. It follows then that Salome, Consorcia and Alfredo could not have sold the entire Lot 162 to Jose Regalado, Sr. in 1948 because at that time, the ideal shares held by the three co-owners/vendors were equivalent to only 10/16 of the undivided property less the aliquot share previously sold by Salome to Soledad. Even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other coowners who did not consent to the sale. Since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner will only transfer the rights of said co-owner to the buyer, thereby making the buyer a co-owner of the property. In this case, Regalado merely became a new co-owner of Lot 162 to the extent of the shares which Salome, Consorcia and Alfredo could validly convey. Soledad retained her rights as co-owner and could validly transfer her share to her heirs in 1951.

(3) YES. The area subject matter of this petition had already been effectively segregated from the mother lot even before title was issued in favor of REGALADO. The SPOUSES DEL CAMPO enjoyed uninterrupted possession thereof for a total of 36 years until the complaint was filed. Prior to that, at no instance did REGALADO nor his HEIRS question the SPOUSES DEL CAMPOs right over the land in dispute. Such undisturbed possession had the effect of a partial partition of the co-owned property, which entitled the possessor to the definite portion which he occupies. Conformably, petitioners are entitled to the disputed land, having enjoyed uninterrupted possession thereof for a total of 49 years up to the present. SANCHEZ vs. CA GR No. 152766. June 20, 2003 Although assigned an aliquot but abstract part of the property, the metes and bounds of LILIANs lot has not been designated. As she was not a party to the Deed of Absolute Sale voluntarily entered into by the other co-owners, her right to 1/6 of the property must be respected. FACTS Petitioner LILIAN SANCHEZ, constructed a house on a 76-square meter lot owned by her parents-in-law. The lot was registered in the name of 6 co-owners: Eliseo, Sanchez, LILIAN, Nenita, Susana and Felipe, all surnamed Sanchez. In 1995, the lot was registered in the name of private respondent VIRGINIA TERIA by virtue of a Deed of Absolute Sale supposed to have been executed by all 6 co-owners in her favor. However, LILIAN claimed that she did not affix her signature on the document. For her subsequent refusal to vacate the said lot, TERIA filed an action for recovery of possession of the said lot. The MeTC ruled in favor of TERIA declaring that the sale was valid only to the extent of 5/6 of the lot and the other 1/6 remaining as the property of LILIAN, on account that her signature in the Deed of Absolute Sale was forged. In 1998, the MeTC issued an order for the issuance of a writ of execution in favor of TERIA as the buyer of the property. A year later, a Notice to Vacate was served by the sheriff upon LILIAN who however refused to heed the Notice. In 1999, TERIA demolished LILIANs house without any special permit of demolition from the court. Due to the demolition of her house, LILIAN was forced to inhabit the portion of the premises that used to serve as the houses toilet and laundry area. LILIAN filed her Petition for Relief from

Judgment with the RTC on the ground that she was not bound by the inaction of her counsel who failed to submit petitioners appeal memorandum. However, the RTC denied the Petition and the subsequent Motion for Reconsideration. She subsequently filed a petition for certiorari with the Court of Appeals but it was denied, the same with a following Motion for Reconsideration. Hence, this appeal. ISSUE Whether or not LILIAN SANCHEZ could validly claim ownership over her 1/6 undivided share in the property. RULING YES. Being that LILIAN was not a part of the Deed of Sale, she was not bound by it. Hence her 1/6 share should be respected. In co-ownership, the relationship of such co-owner to the other co-owners is fiduciary in character and attribute. Whether established by law or by agreement of the co-owners, the property or thing held proindiviso is impressed with a fiducial nature so that each co-owner becomes a trustee for the benefit of his co-owners and he may not do any act prejudicial to the interest of his co-owners. Thus, the legal effect of an agreement to preserve the properties in co-ownership is to create an express trust among the heirs as co-owners of the properties. Coownership is a form of trust and every coowner is a trustee for the others. Before the partition of a land or thing held in common, no individual or co-owner can claim title to any definite portion thereof. All that the co-owner has is an ideal or abstract quota or proportionate share in the entire land or thing. Article 493 of the Civil Code gives the owner of an undivided interest in the property the right to freely sell and dispose of it, i.e., his undivided interest. He may validly lease his undivided interest to a third party independently of the other co-owners. But he has no right to sell or alienate a concrete, specific or determinate part of the thing owned in common because his right over the thing is represented by a quota or ideal portion without any physical adjudication. Although assigned an aliquot but abstract part of the property, the metes and bounds of LILIANs lot has not been designated. As she was not a party to the Deed of Absolute Sale voluntarily entered into by the other co-owners, her right to 1/6 of the property must be respected. Partition needs to be effected to protect her right to her definite share and determine the boundaries of her property. Such partition must be done without prejudice to the rights of TERIA as buyer of the 5/6 portion of the lot under dispute. Note:

Definitions of Co-ownership Sancher Roman: It is the right of common dominion which two or more persons have in a spiritual part of a thing, not materially or physically divided. Manresa: It is the manifestation of the private right of ownership, which instead of being exercised by the owner in an exclusive manner over the things subject to it, is exercised by two or more owners and the undivided thing or right to which it refers is one and the same. The characteristics of co-ownership are: (a) plurality of subjects, who are the co-owners, (b) unity of or material indivision, which means that there is a single object which is not materially divided, and which is the element which binds the subjects, and (c) the recognition of ideal shares, which determines the rights and obligations of the co-owners. DE GUIA vs. CA GR No. 120864. October 8, 2003 (refer to Page 3) HEIRS OF SPOUSES BALITE vs. LIM GR No. 152168. December 10, 2004 When a co-owner sold a concrete portion of an undivided property held in common, it did not per se render the sale void. The sale is valid, but only with respect to the aliquot share of the selling coowner. FACTS The spouses Aurelio and Esperanza Balite were owners of a registered parcel of land, located at Catarman, Northern Samar, with an area of 17,551 sq. m. In 1985, Aurelio died intestate. Hence, by inheritance, said property was then coowned by his wife Esperanza and their children, herein petitioners ANTONIO BALITE, FLOR BALITE-ZAMAR, VISITACION BALITE-DIFUNTORUM, PEDRO BALITE, PABLO BALITE, GASPAR BALITE, CRISTETA (TITA) BALITE and AURELIO BALITE, JR. (HEIRS OF BALITE). Each of then inherited an undivided share of 9,751 sq. m. Later, Esperanza became ill and was in dire need of money for her hospital expenses. She, through her daughter, CRISTETA, offered to sell to respondent RODRIGO LIM, her undivided share for the price of P1 million. A Deed of Absolute Sale was executed, wherein it was stated

therein that the property sold to LIM was an area of 10,000 sq. m. A Joint Affidavit was also executed, wherein it was agreed that P30,000 should be paid by LIM and the remaining purchase price be paid in installments. Only Esperanza and two of her children, namely, ANTONIO and CRISTETA knew about the said transaction. A Geodetic Engineer conducted a subdivision survey of the property and prepared a Sketch Plan. Said Sketch Plan was signed by LIM and Esperanza. Thereafter, LIM took actual possession of the property and introduced improvements thereon. When the other heirs, GASPAR, VISITACION, FLOR, PEDRO and AURELIO, JR. learned of the sale, they wrote a letter to the Register of Deeds saying that they were not informed of the sale of a portion of the said property by their nor did they give their consent thereto. They then requested that the registration of the property in the name of LIM be held in abeyance until the validity of the sale had already been cleared. Later, ANTONIO received from LIM, the amount of P30,000 in partial payment of the property and signed a Receipt for the said amount. Esperanza signed a letter addressed to LIM informing the latter that her children did not agree to the sale of the property to him and that she was withdrawing all her commitments until the validity of the sale is finally resolved. However, a few days later, Esperanza died intestate and was survived by her children. In 1997, the HEIRS OF BALITE filed a complaint against Rodrigo for the Annulment of Sale, Quieting of Title, Injunction and Damages. In the meantime, the Registry of Deeds had issued a TCT under the name of LIM over said property as LIM had been granted a writ of mandamus against the former for its refusal to register the property in his name. Subsequently, LIM secured a loan from the Rizal Commercial Banking Corporation in the amount of P2 million and executed a Real Estate Mortgage over the subject property as security therefor. The trial court dismissed the Complaint filed by the HEIRS OF BALITE. It held that, pursuant to Art. 493 of the Civil Code, a coowner has the right to sell his/her undivided share. The sale made by a coowner is not invalidated by the absence of the consent of the other co-owners. Hence, the sale by Esperanza of the 10,000-sq. m. portion of the property was valid; the excess from her undivided share should be taken from the undivided shares of Cristeta and Antonio, who expressly agreed to and benefited from the sale. On Appeal, with the court of Appeals, judgment was still unfavorable to them. Hence, this appeal. ISSUE Whether or not the Deed of Sale

executed by co-owner Esperanza was valid despite absence of consent of some of the other co-owners. RULING YES, it was valid but only insofar as the pro indiviso share of Esperanza was concerned. Art. 493 of the Civil Code gives the owner of an undivided interest in the property the right to freely sell and dispose of such interest. The co-owner, however, has no right to sell or alienate a specific or determinate part of the thing owned in common, because such right over the thing is represented by an aliquot or ideal portion without any physical division. Nonetheless, the mere fact that the deed purports to transfer a concrete portion does not per se render the sale void. The sale is valid, but only with respect to the aliquot share of the selling co-owner. Furthermore, the sale is subject to the results of the partition upon the termination of the co-ownership. Hence, the transaction between Esperanza and LIM could be legally recognized only in respect to the formers pro indiviso share in the co-ownership. As a matter of fact, the Deed of Absolute Sale executed between the parties expressly referred to the 10,000-square-meter portion of the land sold to respondent as the share of Esperanza in the conjugal property. Her clear intention was to sell merely her ideal or undivided share in it. No valid objection can be made against that intent. Clearly then, the sale can be given effect to the extent of 9,751 square meters, her ideal share in the property as found by both the trial and the appellate courts. ARTICLE 494: No co-owner shall be obliged to remain in the co-ownership. Each coowner shall be obliged to remain in the coownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a coowner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. What is the rationale behind the general rule? 1) The law discourages coownership; 2) To avoid conflicts in management; and

3) More

significantly the disposition or enjoyment of the thing owned in common is subject to the desires of all the co-owners

repudiation and the prescriptive period is met. REQUISITIES OF REPUDIATION: 1. He must make known to the other co-owners that he is definitely repudiating the co-ownership. He is claiming complete ownership over the entire property. He does not recognize co-ownership. Hence, he must make it known to the other coowner. 2. There must be evidence of repudiation by the owner and knowledge on the part of the other co-owners. 3. The other requirements of prescription must exist. OCEAN (open, continuous, exclusive, adverse, notorious) possession over the property. 4. The period of prescription starts to run from the time of repudiation. When there is repudiation, it means that he is no longer recognizing the co-ownership and he is claiming ownership over the entire property and so that his possession must be adverse. Adverse means that he does not recognize ownership in somebody else, particularly the co-owners. Notorious, open: making known to the public that he is the owner of the property to the exclusion of the other co-owners Aguilar vs. CA 227 SCRA 470 Fx: In 1969, Brothers Virgilio and Semen purchased a house and lot where his father would live for the rest of his years in a peaceful environment. They signed a memorandum agreeing that their shares are equal and that Semen could live in the house as long as he would take care of the needs of his father. In 1974, their father died. Consequently, in 1975 Virgilio demanded from Semen to vacate the premises so that the property could be sold to third parties and the proceeds divided between them in accordance with their respective shares. S refused, so in '79, Virgilio instituted an action against S to compel the sale, praying for the payment of monthly rentals beginning 1975. The court rendered judgment ordering S to vacate the house so that the same may be sold, and ordered to him to pay rentals from 1975 upto the date of the decision. Issue: W/N court was correct in ordering Semen to vacate the property and the payment of rents.

GENERAL RULE: No co-owner shall be obliged to remain in the co-ownership. He may demand that his share may be taken out from the co-ownership. Any co-owner may demand partition anytime. EXCEPT: 1. If there is a contract prohibiting partition for a certain period of time. It is the contract which shall prevail under Art. 494, upon the expiration of the period, partition may be demanded The law allows non-partition not exceeding 10 years but this can be extended for another 10 years upon the expiration of the period. NB: there is no automatic renewal. If the agreement is more than 10 years, then the agreement is void as to the excess. If the agreement is perpetual, valid only up to 10 years. If the agreement is subject to a resolutory condition, the agreement ends upon the fulfillment of the condition provided it does not exceed 10 years

2. By the existence of a will, in cases of donation or a testamentary succession. 3. When the prohibition is prohibited by law. 4. Physical partition would render the property unserviceable. Physical partition is not allowed but there are ways of dividing the property. 5. Legal nature of the common property does not allow partition. But this is not absolute because there are ways of dividing the property. Prescription: GR: prescription against a co-owner does not lie. Ceniza vs. CA 181 SCRA 552 Exceptions:

1) When a co-owner gives notice

to the co-owners that he is repudiating the co-ownership and that he is claiming ownership of the entire property. The requirement of the open, continuous, public and adverse possession for a period of time required by law must be met. (30 years). So there must first be

2)

Held: SC said lower court was correct except as to the payment of rents (kailangan mag start). Art. 494 corollary to this rule is Art. 498. Being a co-owner of the property, S is entitled to use the house without paying any rent to V as he may use the property owned in common so long as it is in accordance with the purpose for which it was intended and in a manner not injurious to the interest of the other coowners. Each co-owner of the property held pro indiviso exercises his right over the whole property and may use and enjoy the same with no other limitation than that he will not injure the rights of the co-owners. The reason being that until a division is made, the respective shares of each cannot be determined and each co-owner exercises together with his co-participants joint ownership over the pro-indiviso property in addition to his use and enjoyment of the same. In fairness, S should pay a rental of Php 1,200.00 per month with legal interest from the time the lower court ordered him to vacate for his use and enjoyment of the other half of the property pertaining to V. When petitioner (V) filed an action to compel the sale of the property, and trial court granted the petition and ordered the ejectment of respondent (S), the ownership was deemed terminated and the right to enjoy the property jointly also ceased. Thereafter, the continued stay of S in the house prejudiced the interest of V as the property should have been sold and the proceeds divided equally between them. ARTICLE 495: Notwithstanding the provisions of the preceding article, the coowners cannot demand a physical division of the thing owned in common, when to do so would render it unserviceable for the use for which it is intended. But the coownership may be terminated in accordance with Article 498. ARTICLE 496: Partition may be made agreement between the parties or judicial proceedings. Partition shall governed by the Rules of Court insofar they are consistent with this Code. 2 KINDS OF PARTITION: 1. EXTRA-JUDICIAL PARTITION 2. JUDICIAL PARTITION FABIAN vs. FABIAN GR No. L-20449. January 29, 1968 GEN. RULE: An action for partition among co-owners does not prescribe. EXCEPTION: If a co-owner had (1) adverse claim in the concept of an owner, (2) in open, continuous, exclusive and notorious possession and (3) in the span of more than 10 years, he had acquired the property by by be as

by prescription against all the other co-owners. FACTS In 1909, Pablo Fabian bought from the Philippine Government, Lot 164 of the Friar Lands Estate in Muntinlupa, Rizal. The lot had an area 1 hectare, 42 ares and 80 centares and the consideration for the sale was P112, which was agreed to be paid in installments. He was able to pay 5 installments. By virtue of this purchase, a Sale Certificate was issued in Pablo Fabians favor. In 1928, Pablo Fabian died and was survived by 4 children, namely Esperanza, Benita I, Benita II and Silbina. In 1928, respondents SILBINA (daughter) TEODORA FABIAN (niece) executed an Affidavit. In said document, it was stated therein that SILBINA was the only daughter of the deceased Pablo Fabian and that she and TEODORA, as niece were his only heirs. On the strength of this Affidavit, the Sale Certificate previously issued to Pablo Fabian was assigned to them. Thereafter, the Director of Lands sold Lot 164 to SILBINA (married to FELICIANO LANDRITO) and TEODORA (married to FRANCISCO DEL MONTE) for the price of P120. In 1929, RESPONDENTS SPOUSES then took physical possession of Lot 164, cultivated it and appropriated the produce therefrom. Since 1929, they has been paying the real estate taxes thereon. In 1937, the Register of Deeds issued a TCT over Lot 164 in their names. In 1945, after they have caused the subdivision of the lot into 2 equal parts, Lot A and Lot B. 2 separate TCTs were subsequently issued in the names of SILBINA and TEODORA. In 1960, petitioners ESPERANZA, BENITA and DAMASO FABIAN filed an action for reconveyance against the RESPONDENTS SPOUSES. They averred that SILBINA and TEODORA perpetrated fraud in the Affidavit as what was contained therein was a false narration of facts. It was because SILBINA knew that she was not the only daughter and heir of the deceased Pablo Fabian and TEODORA likewise knew all along that, as a mere niece of the deceased, she was precluded from inheriting from him in the presence of his 4 surviving daughters. Because of said Affidavit, the Sale Certificate was assigned and transferred to them, which thereafter caused the issuance of certificate of titles in their favor. RESPONDENTS SPOUSES on the other hand claimed that Pablo Fabian was not the owner of Lot 164 at the time of his death because he had not paid in full the amortizations on the lot. They alleged that it was them who were the absolute owners thereof, having purchased it from the Government for the sum of P120, and from that year having exercised all the attributes of ownership thereof up to the present. They alleged that the action for

reconveyance filed against them had long prescribed. The trial court dismissed their action for reconveyance. Hence, PETITIONER FABIANS appealed for review. ISSUE Whether or not RESPONDENTS SPOUSES as co-owners of the land had acquired it through prescription against the PETITIONERS FABIANS, the other co-owners. RULING YES, they had acquired the land against the co-owners through prescription. The Court concluded that Lot 164 was the property of Pablo Fabian. When he died intestate in 1928, his 4 daughters had acquired said property by succession and they commonly owned the property under the principle of co-ownership. General Rule & Exception. Although, as a general rule, an action for partition among co-heirs does not prescribe. As an exception, this is true only as long as the respondents do not hold the property in question under an adverse title. REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY OWNED IN COMMON BY PRESCRIPTION: (1) Co-owner has made known to the other co-owners that he has: repudiated the co-ownership and claimed complete ownership over it. SILBINA, one of the coowners had repudiated the co-ownership by executing the Affidavit with TEODORA, which bore that they were the sole heirs of the late Pablo Fabian. SILBINA claimed complete ownership over it by securing title in her name to the exclusion of the other 3 sisters. (2) There is evidence of repudiation and knowledge on the part of other co-owners. The evidence of the repudiation was the Affidavit, which excluded all the other coowners as to ownership over the property. Upon the registration of the Affidavit and the issuance of the title, already served as a constructive notice to the whole world. (3) There is an open, continuous, exclusive, adverse and notorious possession of the property. RESPONDENT SPOUSES occupied the property in the concept of owners since 1929 since they took physical possession of the land up to 1960. They had cultivated it, harvested and appropriated the fruits for themselves. Such acts logically meant the adverse character of the possession they exercised. (4) Possession of the Property has started from the time of repudiation until the filing of the action in court should be at least 10 years. It was in 1928 when SILBINA executed the Affidavit which made possible the issuance of title in her favor. The action for reconveyance was only made in 1960 or 32 big years later after. Said 32 years is even beyond the 10-year requirement under the law.

Hence, acquisitive prescription of ownership acquired by one of the coowners, co-heirs, and administrator, depositary, or lessee by means of an adverse possession under claim of title and after the lapse of the time fixed by law can completely extinguish the right of the other co-owners, co-heirs, or owners of the property in the possession of the one claiming ownership by prescription. CENIZA vs. CA GR No. 46345. January 30, 1990 In a case where the co-owners had agreed that the title to the property be named after only one of them, there existed a trust relation. Thus, prescription could not run in favor of the co-owner in whose name the title was registered to except from the time that he repudiated the coownership and made the repudiation known to the former. FACTS Petitioners RESTITUTO and JESUS CENIZA were the descendants of Manuel Ceniza. Respondents on the other hand, MAGNO, VICENTA, TERESITA, EUGENIA and TOMAS DABON were the descendants of Vicente Dabon. Hacienda de Mandaue of the Seminario de San Carlos de Cebu was located in Madaue, Cebu City. In 1929, it was subdivided for resale to the occupants therein. Jose Ceniza and Vicente Dabon, who were residing in the hacienda, jointly purchased Lot 627 on installment basis and they agreed for convenience, to have the land registered in the name of Dabon. Since then, Jose Ceniza, Vicente Dabon and their heirs had possessed their respective portions of the land, declared the same for taxation, paid real estate taxes on their respective shares, and made their respective installment payments to the Seminario de San Carlos de Cebu. In 1939, a title was issued in the name of Vicente Dabon. In 1957, Vicente Dabon died and heirs continued to remain in possession of the property. In 1961, a private land surveyor, on the request of Jacinta Dabon and Restituto Ceniza who jointly defrayed the cost, divided Lot 627 into three parts, Lot A to Marcelo Ceniza, Lot B to Restituto Ceniza and Lot C to Nemesis Ceniza Albina, who later bequeathed her share to her brother, Jesus Ceniza. The DABONs refused to convey Lots B and C to the CENIZAs. They claimed that their predecessor-in-interest Vicente Dabon was the sole and exclusive owner of Lot 627. Hence, in 1967, RESTITUTO and JESUS CENIZA filed an action for recovery of their title to Lots B and C. The DABONs on the

other hand, alleged that the CENIZAs right of action had already prescribed. However, the CENIZAs alleged that Vicente Dabon held the property in trust for them, as coowners, hence, their action for reconveyance was imprescriptible. In 1970, the trial court rendered judgment for the CENIZAs. It found that there existed a co-ownership among the parties and ordered the DABONs the B to execute deeds of conveyance of Lots B -C in favor of CENIZAs. On appeal of the DABONs, the Court of Appeals reversed that decision of the trial court. It ruled that the petitioners' right of action had prescribed after the lapse of 20 years from the date of registration of the land in 1939 in Vicente Dabon's name. Hence, this instant petition. ISSUES (1) Whether or not the DABONs has acquired the property by prescription against the other co-owners, the CENIZAS. (2) Whether or not the registration of the title of the land in the name of one of Vicente Dabon constituted a repudiation of the co-ownership for purposes of acquisitive prescription. RULING (1) NO, the action of the CENIZAs had not prescribed. Since a trust relation and co-ownership were proven to exist between the predecessors-in-interest of both the CENIZAs and DABONs, prescription did not run in favor of the latter except from the time that they repudiated the co-ownership and made the repudiation known to the former. Paragraph 5 of Article 494 of the Civil Code provides: "No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership." The registration of Lot No. 627 in the name of Vicente Dabon created a trust in favor of his co-owner Jose Ceniza, and the latter's heirs. Article 1452 of the Civil Code states: "If two or more persons agree to purchase property and by common consent the legal title is taken in the name of one of them for the benefit of all, a trust is created by force of law in favor of the others in Proportion to the interest of each. As a general rule, the trustee's possession is not adverse and therefore cannot ripen into a title by prescription. Adverse possession requires the concurrence of the following circumstances: a) that the trustee has performed unequivocal acts of repudiation amounting to the ouster of the cestui que trust;

b) that such positive acts of repudiation have been made known to the cestui que trust; and c) that the evidence thereon should be clear and conclusive. The above elements were not present here for the co-owners CENIZAs had not been ousted from the land. They continued to possess their respective shares of Lot 627 and they had been paying the realty taxes thereon. In fact, RESTITUTO CENIZA's house stands on his portion of the land. Where title to land was issued in the name of a co-heir merely with the understanding that he would act as a trustee of the other co-owners, and there is no evidence that this trust relation had ever been repudiated by said trustee, the relation then cannot be barred by prescription, despite the lapse of a big number of years from the date of registration of the land in the trustee's name. The courts have the duty to shield fiduciary relations "against every manner of machinery or fiduciary design cloaked by legal technicalities and to guard against misuse of the Torrens system "to foment betrayal in the performance of a trust." (2) NO, the registration was not a repudiation of the co-ownership. Assuming that the DABONs rejection of the subdivision plan for the partition of the land was an act of repudiation of the coownership, prescription had not yet set in when the petitioners instituted the action for reconveyance. In this case, since the statutory period of limitation within which to file an action for reconveyance, after the defendants had repudiated the co-ownership in 1961, had not yet run its course when the petitioners filed said action in 1967, the action was not barred by prescription. BICARME vs. CA GR No. 51914. June 6, 1990 The right of a co-owner for partition against another co-owner, who holds a common property in trust may be barred by prescription provided that it is being held in trust. In the case at bar, MARIA had not proved her adverse claim over the property against her co-owner CRISTINA that the existence of the co-ownership was sustained. FACTS Spouses Juan Bicarme and Florencia Bidaya were the original co-owners of two parcels of land: a cornland and a riceland, both in Benguet, Abra. The spouses died intestate and were survived by 3 children, Victorina, Sebastian and petitioner MARIA BICARME. Sebastian Bicarme died when he was a little boy and without any issue. Later, Victorina Bicarme died intestate,

survived by her only daughter, respondent CRISTINA BICARME. CRISTINA claimed that upon the death of her grandparents, Spouses Juan and Florencia, her mother Victorina and her aunt, MARIA, became co-owners or co-heirs of the litigated parcels of land. Upon the death of her mother Victorina, she became co-heirs with MARIA, having inherited the share and interest of her mother corresponding to of the 2 parcels of land. MARIA however refused to share with CRISTINA the yearly fruits of the 2 parcel of lands. Hence, in 1974, CRISTINA filed an action for partition against her aunt MARIA. Maria, however, maintained that she acquired these 2 parcels of land from the deceased spouses Placido Bidays and Margarita Bose, the cornland in 1925 and the riceland in 1926. She averred that since then, she had been in open, public, peaceful, continuous, adverse possession and enjoyment and in the concept of absolute owner thereof. She further claimed that Cristina, her niece, never shared or contributed to the payment of taxes of said 2 parcels of land and that CRISTINA was presumed already dead. The trial court ruled that MARIAN and CRISTINA were co-heirs. It held that MARIA was as trustee with respect to CRISTINA's share. As such, prescription, as a mode of acquiring title, could not apply. It also added that co-owners/trustees even if they possess the land held in common could never acquire the property through prescription because of the presence of a trust relation. The Court of Appeals affirmed the same decision. Hence, this petition. MARIA alleged that assuming that CRISTINA was indeed a co-heir, her rights over the 2 parcels of land had already prescribed. She alleged that from the moment she ignored and repudiated CRISTINA's hereditary rights in 1940, the latter's right of action already accrued and the period of prescription began to run. CRISTINAs action for partition was only filed in 1974 or 34 years after. CRISTINAs action then was barred by prescription as she slept on her rights. ISSUES 1. Whether or not MARIA and CRISTINA were indeed co-owners. 2. Whether or not the lower court erred in stating that MARIA and CRISTINA were co-owners because the right of a co-owner for partition against another co-owner, who holds a common property in trust with adverse possession cannot be barred by prescription. 3. Whether or not the MARIA acquired the property by prescription. RULING (1) YES, they were co-owners. The trial court theorized that Victorino and MARIA Bicarme never partitioned even orally the two parcels of lands which were

then owned in common by them. It remained undivided even after the death of Victorino. Without the knowledge of CRISTINA, MARIA sold the cornland and executed 3 Deeds of Sales in favor of 3 third persons. In these 3 Deeds of Sale, MARIA admitted that she inherited and acquired the lands from his late father Juan Bicarme. Said provision in the Deeds of Sale was in the nature of a trust provision in favor of Cristina as a co-owner/co-heir. (2) YES, the lower court erred as in such case, the right to partition may still be barred by prescription. An action for partition implies that the thing is still owned in common. If a coowner or co-heir holds the property in exclusive adverse possession as owner, asserting sole and exclusive dominion for the required period, he can acquire sole title to it as against the co-heirs or coowners. The imprescriptibility of an action for partition cannot thus be invoked when one of the coowners has possessed the property as exclusive owner, and for a period sufficient to acquire it by prescription. From the moment one of the co-owners claims that he is the absolute and exclusive owner of the properties and denies the others any share therein, the question involved is no longer one of partition, but of ownership. In this sense, the trial court erred in saying that there can be no prescription (as a mode of acquiring title) in favor of a co-owner/ trustee. (3) NO, she had not acquired the property by prescription. Acts which are adverse to strangers may not be sufficiently adverse to the coowners. A mere silent possession by a coowner, his receipt of rents, fruits or profits from the property, the erection of buildings and fences and the planting of trees thereon, and the payment of land taxes, cannot serve as proof of exclusive ownership, if it is not borne out by clear, complete and conclusive evidence that he exercised acts of possession which unequivocally constituted an ouster or deprivation of the rights of the other coowners. MARIA had not complied the requisites for a co-owner to own a common property held in common through prescription. REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY OWNED IN COMMON BY PRESCRIPTION: (1) Co-owner has made known to the other co-owners that he has: repudiated the co-ownership and claimed complete ownership over it. [not complied] In the present case, MARIA disclaimed the coownership by denying that subject properties are the inherited properties. Although MARIA paid land taxes, it did not constitute sufficient repudiation of the coownership, as it was not an act adverse to CRISTINA's rights. Her refusal to share with CRISTINA the yearly profits merely

stemmed from CRISTINA's failure to share in the yearly taxes. Moreover, CRISTINA, being a minor until she claimed her rights, was not even aware thereof. Neither did MARIA made known her repudiation to CRISTINA, because all along, Maria presumed her to be dead. (2) There is evidence of repudiation and knowledge on the part of other co-owners. [not complied] There was no evidence of the repudiation. Other than the tax declarations in MARIAs name, there was no written evidence that the 2 parcels of land were acquired/purchased from Spouses Placido Biduya and Margarita Bose as she insisted on. Payment of land taxes was not sufficient evidence of repudiation. (3) There is an open, continuous, exclusive, adverse and notorious possession of the property. [not complied] Although MARIA was in possession of the property, she merely held the property in trust in favor of CRISTINA. (4) Possession of the property has started from the time of repudiation until the filing of the action in court should be at least 10 years. [not complied] Being that her possession of the property was by reason of a trust relationship, MARIA could not have acquired the property no matter how long she occupied it. DE LIMA vs. CA GR No. 46296 September 24, 1991 A co-owner had registered a property held in common only in his name and possessed it in the concept of an owner. After the lapse of 10 years, without action from the other co-owners, he could then acquire it through acquisitive prescription. FACTS During his lifetime, Lino Delima acquired Lot No. 7758 of the Talisay-Minglanilla Friar Lands Estate in Cebu by sale on installments from the government. He later died in 1921 and was survived by his only heirs, 3 brothers and a sister namely: Eulalio, Juanita, Galileo and Vicente Delima. After his death, in 1953, the title of the property was issued in the name of The Legal Heirs of Lino Delima, deceased, represented by Galileo Delima. Later, Galileo Delima, who was substituted by RESPONDENTS FLAVIANA VDA. DE DELIMA ET AL., executed an affidavit of Extra-judicial Declaration of Heirs. Based on this affidavit, the title over the lot was cancelled and another title was issued in 1954 but only in the name of Galileo Delima to the exclusion of the other heirs. Thereon, Galileo Delima declared the lot for taxation purposes and paid the taxes thereon from 1954 to 1965. In 1968, PETITIONERS EPITACIO DELIMA ET AL. who were the surviving heirs of

Eulalio and Juanita Delima, filed an action for reconveyance and/or partition of property and for the annulment of the title issued only in the name of Galileo Delima. Vicente Delima, who was 1 of the 4 original heirs of Lino Delima was joined as partydefendant by the PETITIONERS for his refusal to join the latter in their action. In 1970, the trial court held that the 4 original heirs of Lino Delima should be entitled to of the property. It also declared null and void the title in the name of Galileo Delima only. Not satisfied with the decision, RESPONDENTS HEIRS appealed to the Court of Appeals, which revered the decision of the trial court and upheld the claim of Galileo Delima that all his 3 other siblings had already relinquished and waived their rights to the property in his favor considering that he (Galileo Delima) alone paid the remaining balance of the purchase price of the lot and the realty taxes thereon. Aggrieved, PETITIONERS filed this instant petition. ISSUE Whether or not PETITIONERS' action for partition was already barred that Galileo Delima had perfected his claim of ownership by acquisitive prescription over the disputed lot. RULING YES, prescription had already set in. As a rule, possession by a co-owner will not be presumed to be adverse to the others, but will be held to benefit all. It is understood that the co-owner or co-heir who is in possession of an inheritance proindiviso for himself and in representation of his co-owners or co-heirs, if, as such owner, he administers or takes care of the rest thereof with the obligation of delivering it to his co-owners or co-heirs, is under the same situation as a depository, a lessee or a trustee. Thus, an action to compel partition may be filed at any time by any of the coowners against the actual possessor. In other words, no prescription shall run in favor of a co-owner against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. However, from the moment one of the co-owners claims that he is the absolute and exclusive owner of the properties and denies the others any share therein, the question involved is no longer one of partition but of ownership. In such case, the imprescriptibility of the action for partition can no longer be invoked or applied when one of the co-owners has adversely possessed the property as exclusive owner for a period sufficient to vest ownership by prescription. It is settled that possession by a coowner or co-heir is that of a trustee. When a co-owner of the property in question executed a deed of partition and on the strength thereof obtained the cancellation

of the title in the name of their predecessor and the issuance of a new one wherein he appears as the new owner of the property, thereby in effect denying or repudiating the ownership of the other co-owners over their shares, the statute of limitations started to run for the purposes of the action instituted by the latter seeking a declaration of the existence of the co-ownership and of their rights thereunder. Since an action for reconveyance of land based on implied or constructive trust prescribes after ten (10) years, it is from the date of the issuance of such title that the effective assertion of adverse title for purposes of the statute of limitations is counted. The requisites for a co-owner to own a common property held in common through prescription had been complied with by RESPONDENTS. REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY OWNED IN COMMON BY PRESCRIPTION: (1) Co-owner has made known to the other co-owners that he has: repudiated the co-ownership and claimed complete ownership over it. [complied] Evidence showed that the title in the name of the legal heirs of Lino Delima, represented by Galileo Delima, was cancelled by virtue of an affidavit executed by Galileo Delima. In 1954, Galileo Delima obtained the issuance of a new title in his name to the exclusion of his co-heirs. As the certificate of title was notice to the whole world of his exclusive title to the land, such rejection was binding on the other heirs and started as against them the period of prescription. (2) There is evidence of repudiation and knowledge on the part of other co-owners. [complied] The issuance of the new title in the name of Galileo Delima only constituted an open and clear repudiation of the trust or co-ownership. Upon registration of the title, it already served as a constructive notice to the other heirs. (3) There is an open, continuous, exclusive, adverse and notorious possession of the property. [complied] Galileo Delima and his heirs had been in possession of the land after Lino Delima died. (4) Possession of the property has started from the time of repudiation until the filing of the action in court should be at least 10 years. [complied] It was in February 4, 1954 that Galileo Delima obtained the issuance of a new title in his name. Hence, when petitioners filed their action for reconveyance and/or to compel partition on February 29, 1963, such action was already barred by prescription. The lapse of ten (10) years of adverse possession by Galileo Delima from February 4, 1954 was sufficient to vest title in him by prescription. Hence, whatever claims the other co-heirs could had validly asserted before could no longer be invoke by them at this time.

TRINIDAD vs. CA GR No. 118904. April 20, 1998 A co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of co-ownership duly communicated to the other coowners. FACTS Patricio Trinidad, married to Anastacia Briones, was the original owner of 4 parcels of land located in Kalibo, Aklan. He later died in 1940 and was succeeded by his 3 children: Inocentes and private respondents LOURDES and FELIX, all surnamed TRININDAD. In 1970, Petitioner ARTURIO TRINIDAD, born in 1943, claimed that he was the son of the late Inocentes Trinidad with his mother Felicidad Molato. He then demanded from private respondents FELIX and LOURDES TRINIDAD to partition the land into 3 equal shares and to give him the 1/3 individual share of his late father but the FELIX and LOURDES TRINIDAD refused. Hence, in 1978, ARTURIO TRINIDAD filed a complaint for partition and damages against FELIX and LOURDES TRINIDAD. The latter however denied that ARTURIO was the son of the late Inocentes Trinidad as he was still single when he died in 1941, before ARTURIO 's birth in 1943. FELIX and LOURDES also denied that ARTURIO had lived with them and claimed that the 4 parcels of land had been in their possession since the death of their father in 1940 and that they had not given ARTURIO a share in the produce of the land. Later, FELIX died without issue and he was survived by his only sister, LOURDES, who claimed exclusive ownership over the 4 parcels of land. In 1989, the trial court rendered a decision in favor of ARTURIO and held that he was a co-owner with FELIX and LOURDES. The Court of Appeals ruled in favor of FELIX and LOURDES, contending that ARTURIO was not a recognized legitimate child of Inocentes. It also states that the 4 parcels of land had already been acquired by FELIX and LOURDES by acquisitive prescription. The 2 had been in possession of the property since 1940 when their father died. Even if possession be counted from 1964, when ARTURIO attained the age of majority, still, FELIX and LOURDES TRINIDAD possessed the land for more than 10 years. ISSUE Whether or not ARTURIOs action for partition had already prescribed that FELIX and LOURDES had acquired the property through acquisitive prescription. RULING

NO, it had not prescribed. FELIX and LOURDES did not acquire the property through acquisitive prescription. The partition of the late Patricio Trinidads real properties required preponderant proof that ARTURIO was a coowner or co-heir of the decedent's estate. His right as a co-owner would, in turn, depend on whether he was born during the existence of a valid and subsisting marriage between his mother Felicidad Molato and his putative father Inocentes Trinidad. In the present case, ARTURIO had proved by preponderant evidence that he was the legitimate son of Felicidad and Inocentes as the two were married. Hence, he had right to claim ownership by inheritance as to the 4 parcels of land. The trial court found out that ARTURIO, after the death of his father and mother, had lived with FELIX nad LOURDES and enjoyed the status of being their nephew. When ARTURIO had gotten married and had a family of his own, he started to demand for the partition of the share of his father, Inocentes. His demand provoked the ire of the FELIX and LOURDES, thus, they disowned him as their nephew. FELIX and LOURDES TRINIDAD did not acquire ownership of the property in question by acquisitive prescription. Under Art. 494 of the Civil Code, in a coownership, the act of one benefits all the other co-owners, unless the former repudiates the co-ownership. Thus, no prescription runs in favor of a co-owner or co-heir against his or her co-owners or coheirs, so long as he or she expressly or impliedly recognizes the co-ownership. A co-owner cannot acquire by prescription the share of the other coowners absent a clear repudiation of coownership duly communicated to the other co-owners. In the case at bar, FELIX and LOURDES had not complied the requisites for a coowner to own a common property held in common through prescription. REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY OWNED IN COMMON BY PRESCRIPTION: (1) Co-owner has made known to the other co-owners that he has: repudiated the co-ownership and claimed complete ownership over it. [not complied] Prior to his demand for partition, ARTURIO, in the concept of a co-owner, was receiving from FELIX and LOURDES his share of the produce of the land in dispute. Until such time, recognition of the co-ownership by FELIX and LOURDES TRINIDAD was beyond question. There was no evidence, either, of their repudiation, if any, of the coownership of petitioner's father Inocentes over the land. Although FELIX and LOURDES had possessed these parcels openly since 1940 and had not shared with petitioner the produce of the land during the pendency of this case, still, they manifested no repudiation of the co-ownership. FELIX nad

LOURDES did not even register the property in their names. (2) There is evidence of repudiation and knowledge on the part of other co-owners. [not complied] There was no evidence of repudiation. In fact, the title over the 4 parcels of land was still in the name of the oririginal owner, Patricio Trinidad. (3) There is an open, continuous, exclusive, adverse and notorious possession of the property. [not complied] Although FELIX and LOURDES had been in possession of the property since 1940, prescription did not run against ARTURIO with respect to the filing of the action for partition because the former had not expressly or impliedly repudiated the coownership. In the other words, prescription of an action for partition does not lie except when the co-ownership is properly repudiated by the co-owner. (4) Possession of the property has started from the time of repudiation until the filing of the action in court should be at least 10 years. [complied] It is undisputed that FELIX and LOURDES had been in possession of the property since 1940 when their father died. Even if possession be counted from 1964, when ARTURIO attained the age of majority, still, FELIX and LOURDES TRINIDAD possessed the land for more than 10 years. However, even so, prescription could not still run in the absence of repudiation. TOMAS CLAUDIO MEMORIAL COLLEGE vs. CA GR No. 124262. October 12, 1999 An action for partition is imprescriptible. It cannot be barred by prescription. FACTS In 1993, private respondents CRISANTA, ELPIDIA, EFRINA, IRENEO DE CASTRO and ARTEMIO DE CASTRO ADRIANO, filed an action for partition against petitioner TOMAS CLAUDIO MEMORIAL COLLEGE, INC. They alleged: 1. that their father and predecessor-in-interest, Juan De Castro owned a parcel of land located at Morong, Rizal with an area of 2,269 sq. m. 2. that Juan De Castro died intestate in 1993 and they are his only surviving and legitimate heirs 3. that in 1979, without their knowledge and consent, said lot was sold by their brother Mariano to TOMAS CLAUDIO MEMORIAL COLLEGE, INC. when Mariano represented himself as the sole heir to the property. 4. that the said sale affected only Marianos undivided share to the lot in question but not the shares of

the other co-owners equivalent to 4/5 of the property. Both the trial court and the Court of Appeals ruled against TOMAS CLAUDIO MEMORIAL COLLEGE, INC. that it filed a petition via certiorari with the Supreme Court. ISSUE Whether or not the right of the DE CASTROs for partition had already prescribed. RULING NO, it had not prescribed. Even if a co-owner sells the whole property as his, the sale will affect only his own share but not those of the other coowners who did not consent to the sale. Since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner/seller are transferred, thereby making the buyer a co-owner of the property. The proper action in a case like this, is not for the nullification of the sale, or for the recovery of possession of the property owned in common from the third person, but for division or partition of the entire property if it continued to remain in the possession of the co-owners who possessed and administered it. Such partition should result in segregating the portion belonging to the seller and its delivery to the buyer. In the light of the foregoing, TOMAS CLAUDIO MEMORIAL COLLEGE, INC.'s defense of prescription against an action for partition is a vain proposition. Pursuant to Article 494 of the Civil Code, "no co-owner shall be obliged to remain in the coownership. Such co-owner may demand at anytime the partition of the thing owned in common, insofar as his share is concerned." In Budlong vs. Bondoc (1977), the Supreme Court had interpreted said provision of law to mean that the action for partition is imprescriptible. It cannot be barred by prescription. SANTOS vs. SANTOS GR No. 139524. October 12, 2000 A co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of co-ownership duly communicated to the other coowners. Exclusive possession of a co-owner of a property owned in common by mere tolerance of the other coowner did not amount to a repudiation. It must be understood that by culture, Filipino family ties

are close and well-knit and that the tolerance was natural. FACTS Bonifacio Santos was the owner of a property located in San Mateo, Rizal. He died intestate and was survived by his 3 children: petitioner LADISLAO, respondent ELISEO and their sister Isidra. In 1964, during a cadastral survey, the said property, with an area of 6,340 square meters was identified as Lot 1522. In 1967, LADISLAO and his wife, Leonila Mateo executed a Deed of Absolute Conveyance with Right of Way over the southwestern portion of Lot 1522, with an area of 3,000 square meters, in favor of his brother, ELISEO for the price of P500.00, with a provision for a right of way. In the same year of 1967, Isidra died intestate and was survived by her 2 brothers: LADISLAO and ELISEO. AFTER THE DEATH OF Isidra, it was Virgilio Santos, son of ELISEO who possessed the property. In 1969, LADISLAO and ELISEO and their respective Spouses executed a Combined Deed of Partition covering the Lot 1522 and the Isidra Property, wherein it was covenanted that the Isidra Property was deeded to ELISEO. In 1969, the Provincial Assessor issued a tax declaration, over the Isidra property, under the name of Virgilio (son of ELISEO) and Virginia Santos, thereby canceling the one under the name of Isidra. In 1972, 1974 and 1980, tax declarations were also issued in the names of the said spouses. In 1980, Virgilio executed Deed of Absolute Sale of Unregistered Residential Land in favor of his brother, PHILIP over the Isidra property in exchange of another property owned by the latter. On the basis of said deed, in 1981, a tax declaration under the name of PHILIP was issued. Since then, PHILIP occupied the Isidra property and had his shop constructed thereon and he had been paying the realty taxes therefor. In 1984, VIRGILIO Santos died intestate and was survived by his wife Virginia. In the meantime, LADISLAO and PHILIP left the Philippines and resided in the USA. Despite the Deed of Absolute Conveyance With Right of Way executed by LADISLAO in favor of ELISEO, the latter and the children of the LADISLAO signed an Application and sought in court for the registration of their title over Lots 1522 and 2433. The application alleged that Lot 1522 was occupied by the heirs of LADSILAO (3,430 sq. m.) and ELISEO (3,000 sq. m.), as a site of cockpit building. In 1986, the court granted the application. Later, a title was issued in their names. Later, the children of LADISLAO and ELISEO executed a Partition Agreement where Lot 1522 was subdivided into 2 lots, Lot A (3,000 sq. m. in favor of Eliseo) and Lot B (3,387 sq. m. in favor of the children of LADILAO).

In 1993, LADISLAO had discovered that the Isidra property he and ELISEO inherited had been declared, for taxation purposes, under the name of PHILIP, on the basis of a Deed of Sale executed by Virgilio Santos. In the same year, LADISLAO filed an action for the judicial partition of the Isidra property against ELISEO and the latters son, PHILIP. The trial court dismissed the petition on the ground of acquisitive prescription. On appeal, the Court of Appeals declared that LADISLAO and ELISEO were co-owners and hence entitled to pro indiviso shares in the Isidra. Hence, this petition. It was alleged by petitioners PHILIP and the HEIRS OF ELISEO the right of action of LADISLAO has already prescribed. ISSUE Whether or not the action for partition was already barred by acquisitive prescription against LADISLAO. RULING NO, it had not prescribed. Considering that ELISEO and PHILIP disputed the status of LADISLAO as coowner on the ground that the brothers entered into a Combined Deed of Partition wherein the entire Isidra property was conveyed to ELISEO, It was then incumbent upon them to present the best evidence obtainable to prove the same. However, the claim of a subsisting co-ownership by LADISLAO over the Isidra property has not been effectively refuted by ELISEO and PHILIP, and that ELISEO and his successorsin-interest (Virgilio and PHILIP) did not acquire exclusive title over the entire Isidra property. Considering that there was no proof that LADISLAO executed any Combined Deed of Partition in tandem with ELISEO, coownership still subsisted between the brothers over the Isidra property. This being the case, Article 494 of the Civil Code should be applied which states that, prescription does not run in favor of a coowner or co-heir against his co-owners or his co-heirs so long as he expressly or impliedly recognizes the co-ownership. Prescription, as a mode of terminating a relation of co-ownership must have been preceded by repudiation of the coownership. There was no showing that ELISEO had complied with the following requisites. REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY OWNED IN COMMON BY PRESCRIPTION: (1) Co-owner has made known to the other co-owners that he has: repudiated the co-ownership and claimed complete ownership over it. [not complied] ELISEO had not repudiated the co-ownership, and even if he did, there is no showing that the same had been clearly made known to LADISLAO. Indeed, Filipino family ties being close and well-knit as they are, and

considering that Virgilio was the ward of Isidra Santos ever since when Virgilio was still an infant, it was but natural that the LADISLAO did not interpose any objection to the continued stay of Virgilio and his family on the property and even acquiesce thereto. LADISLAO must have assumed too, that his brother, ELISEO, allowed his son to occupy the property and use the same for the time being. Hence, such possession by Virgilio Santos and Philip Santos of the property does not constitute a repudiation of the co-ownership by the Appellee Eliseo Santos and of his privies for that matter. It is probable that said conduct was simply tolerated by the plaintiffs on account of his being their uncle, and they never thought that by said conduct the defendant was attempting to oust them forever from the inheritance, nor that the defendant would have so intended in any way, dealing as we do here with the acquisition of a thing by prescription, the evidence must be so clear and conclusive as to establish said prescription without any shadow of doubt. This does not happen in the instant case, for the defendant did not even try to prove that he has expressly or impliedly refused plaintiffs right over an aliquot part of the inheritance. (2) There is evidence of repudiation and knowledge on the part of other co-owners. [not complied] There was no evidence of the repudiation. There was no proof that LADISLAO executed any Combined Deed of Partition in tandem with ELISEO. Also the evidence consisting of the tax declarations in Virgilios name and then in Philips name were not conclusive and indisputable evidence to show that the lot in question was conveyed to Virgilio Santos, Philips predecessor-in-interest. A mere tax declaration does not vest ownership of the property upon the declarant. Neither do tax receipts nor declarations of ownership for taxation purposes constitute adequate evidence of ownership or of the right to possess realty. (3) There is an open, continuous, exclusive, adverse and notorious possession of the property. [complied] It was Virgilio Santos (son of ELISEO) who was in possession of the subject property since after the death of Isidra Santos in 1967. Thereafter, PHILIP took possession of the subject property in 1980 upon its sale even until the action for partition filed by LADISLAO. Despite this, prescription did not commence in the absence of repudiation. (4) Possession of the property has started from the time of repudiation until the filing of the action in court should be at least 10 years. [complied] PHILIP and the HEIRS OF ELISEO reasoned out that more than 13 years had lapsed from 1967 when Isidra died, to 1980 when PHILIP took possession of the property. In fact, they also argued that more than 12 years had lapsed from the time PHILIP took possession of the property in 1980 up to the time

LADISLAO filed the action for partition in 1993. They concluded that the action of LADISLAO was already barred by ordinary acquisitive prescription of 10 years. Further, it is argued that the possession of Virgilio Santos could be tacked with the possession of Philip Santos bringing to a total of 26 years the time that elapsed before the filing of the case in 1993. However, being that there was no repudiation, prescription did not run. ARTICLE 497: The creditors or assignees of the co-owners may take part in the division of the thing owned in common and object to its being effected without their concurrence. But they cannot impugn any partition already executed, unless there has been fraud, or in case it was made notwithstanding a formal opposition presented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity. 2 RIGHTS OF THE CREDITOR 1. To take part in the partition; 2. To object to the partition being affected without their concurrence The creditors cannot impugn the partition that has already been executed, except: 1) if there has been fraud on the part of the co-owners; 2) despite the formal opposition made by them to prevent it, the partition was still made.

interests of the other co-owners should only be ordered after partition because prior to partition, the former has the right to use and enjoy the entire property as a coowner. FACTS Petitioner VIRGILIO AGUILAR and respondent SENEN AGUILAR were brothers. In 1969, they purchased a house and lot in Paraaque where their father, Maximiano Aguilar, could spend and enjoy his remaining years in a peaceful neighborhood. Initially, the brothers agreed that VIRGILIO's share in the co-ownership was 2/3 while that of SENEN was 1/3. In 1970, the brothers executed a Memorandum wherein it was agreed upon that their interests in the house and lot should be equal. It was also stated therein that in exchange for SENENS possession and enjoyment of the house together with their father, he should assume the remaining mortgage obligation of the original owners with the Social Security System (SSS). Also, since VIRGILIO was then disqualified from obtaining a loan from SSS, the brothers agreed that the Deed of Sale would be executed and the title registered in the meantime in the name of SENEN. It was further agreed that Senen would take care of their father and his needs since Virgilio and his family were staying in Cebu. In 1974, their father Maximiano Aguilar died. Afterwards, VIRGILIO demanded from SENEN that the latter should vacate the house and that the property be sold and proceeds thereof be divided among them. However, SENEN refused to do so. Because of the refusal of SENEN to give in to VIRGILIO's demands, in 1979, the latter filed an action to compel the sale of the house and lot so that they could divide the proceeds between them. In his complaint, he prayed that the proceeds be divided in the following manner: 2/3 in his favor and 1/3 in favor of SENEN. He also prayed that SENEN be ordered to pay for monthly rentals for his use of the house after their father died. He claimed that SENEN's continued stay in the property hindered its disposal to his prejudice. SENEN on the other hand alleged that he had no objection to the sale as long as the best selling price could be obtained. He also prayed that should the sale would be effected, the proceeds thereof should be divided equally. He further added that his use and enjoyment of the house was lawful since he was co-owner than he should not be ordered to pay monthly rentals. The trial court ordered that SENEN should vacate the property so that it could be sold to third persons and that the proceeds of the sale be divided equally between him and VIRGILIO. It also ordered that SENEN should pay monthly rentals,

ARTICLE 498: Whenever the thing is essentially indivisible and the co-owners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds distributed. What is the SITUATION in Art. 498? 1. the thing owned in common is essentially indivisible; and 2. the owners cannot agree that it may be allotted to one of them who shall indemnify the others. AGUILAR vs. CA GR No. 76351. October 29, 1993 Art. 498 of the Civil Code states that whenever the thing is essentially indivisible and the co-owners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds accordingly distributed. Rental for the exclusive use and enjoyment of a co- owner which is not necessarily prejudicial to the

which should be counted after the death of their father. The Court of First Instance reversed the decision. However, the Court of Appeals affirmed the decision of the trial court. Hence, this petition by VIRGILIO. ISSUES 1. Whether or not it was proper for SENEN to vacate the property so that it could be sold to third persons. 2. Whether or not SENEN should pay rentals after the time his father died. RULING (1) YES, SENEN should vacate the property so that it could be sold to third persons. Art. 498 of the Civil Code states that whenever the thing is essentially indivisible and the co-owners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds accordingly distributed. This is resorted to when: (1) the right to partition the property is invoked by any of the coowners but because of the nature of the property it cannot be subdivided or its subdivision would prejudice the interests of the co-owners, and (b) the co-owners not in agreement as to who among them shall be allotted or assigned the entire property upon proper reimbursement or the co-owners. In the present case, the right to partition of the property was invoked by VIRGILIO but SENEN refused to vacate it. The only recourse then is to sell the property and the proceeds of the sale be distributed to the both of them in equal shares. (2) NO, SENEN should not start paying rentals after the death of their father but only after the trial court ordered him to vacate the property until he should actually vacate. SENEN was a co-owner. Hence, under Article 486 of the Civil Code, he had the right to use the house and lot without paying any compensation to VIRGILIO, as he may use the property owned in common so long as it is in accordance with the purpose for which it is intended and in a manner not injurious to the interest of the other coowners. However, since VIRGILIO had decided to effect partition of the house and lot in court. After the trial court granted the petition for partition and ordered the ejectment of SENEN, the co-ownership was deemed terminated and the right to use and enjoy the possession jointly ceased. Thereafter, the continued stay of SENEN and his family in the house was prejudicial to the interest of VIRGILIO as the property should have been sold and the proceeds divided equally between them. To this extent and from then on respondent should be held liable for

monthly rentals until he and his family vacate. REYES vs. CONCEPTION GR No. 56650. October 1, 1990 A co-owner has no the preemptive right to purchase the pro indiviso share being offered for sale by another co-owner. What he has is the right of redemption which must be exercised for a span of period after the sale to a 3rd person by the other co-owner involving the latters share was made. Under Art. 498, the sale of the property held in common referred to in the above article is resorted to when: (1) the right to partition the property among the co-owners is invoked by any of them but because of the nature of the property, it cannot be subdivided or its subdivision would prejudice the interests of the co-owners and (2) the co-owners are not in agreement as to who among them shall be allotted or assigned the entire property upon reimbursement of the shares of the other co-owners. FACTS Peitioners MARINA REYES, AUGUSTIN ZABALLERO and SOCORRO FRANCISCO (REYES ET AL.) and private respondents SOCORRO MARQUEZ VDA. DE ZABALLERO, EUGENIA ZUNA, LEONARDO ZABALLERO and ELENA FRONDA ZABALELRO (VDA. DE ZABALLERO ET AL.) were pro indiviso coowners of 8 parcels of land totaling to 9 hectares located in the province of Cavite. In 1980, REYES ET AL. received a written notice from VDA. DE ZABALLERO ET AL. that VOLCANO SECURITIES TRADERS AND AGRIBUSINESS CORP. offered to buy their share in the properties and that they had agreed thereto. The terms stated that VOLCANO SECURITIES was also willing to purchase not only the aliquot shares of VDA. DE ZABALLERO ET AL. but also that of REYES ET AL. for the price of P12.50 per sq. m. In the same year, REYES ET AL. filed a case in court seeking to enjoin VDA. DE ZABALLERO ET AL. from selling their pro indiviso shares as co-owners of the property. They also claimed: 1. that the subject property was incapable of division, 2. that as co-owners, they had a preferential right to purchase the shares of VDA. DE ZABALLERO ET AL. for a reasonable price, and 3. that P12.50 per sq. m. was grossly excessive being that they have a preemptive right to purchase the property, it was unreasonable. VDA. DE ZABALLERO ET AL. refuted said allegations. Later, they alleged that they did

not know any other party who was willing and able to purchase the property under a more favorable condition than offered by VOLCANO SECURITIES. They however, also expressed that they were willing to sell the property to REYES ET AL. at the same rate of P12.50 per sq. m. as offered by VOLCANO SECURITIES. The trial court ruled that REYES ET AL. as co-owners did not have a preemptive right to purchase VDA. DE ZABALLERO ET AL.s property. Pursuant to Art. 498, it also ordered a public sale of the entire property as it was indivisible. Hence, this present action. ISSUES 1. Whether or not a co-owner has the preemptive right to purchase the pro indiviso share being offered for sale by another co-owner. 2. Whether or not the property should be sold to third persons. RULING (1) NO, a co-owner has such no right. The legal provisions on co-ownership do not grant to any of the owners of a property held in common a preemptive right to purchase the pro indiviso shares of his coowners. Art. 1620 of the Civil Code only allows a co-owner to exercise a right of redemption should the other co-owner sell his share in the property to a third person. However, it could not be applied in the present case. This is not present in the case at bar since no sale of VDA. DE ZABALLERO ET AL.s pro indiviso shares had been made yet. It only applies should a sale had been made. Neither did REYES ET AL. had the legal right to enjoin VDA. DE ZABALLERO ET AL. from alienating their pro indiviso shares to a third party. The law does not prohibit a coowner from selling, alienating or mortgaging his ideal share in the property held in common. The law merely provides that the alienation or mortgage shall be limited only to the portion of the property which may be allotted to him upon termination of the co-ownership. The only remedy of the remaining co-owners then is to exercise their right to redeem, within a specified period, the shares which may have been sold to the third party. (2) YES, under Art. 498 of the Civil Code, it should be. Under Art. 498, the sale of the property held in common referred to in the above article is resorted to when: 1. the right to partition the property among the co-owners is invoked by any of them but because of the nature of the property, it cannot be subdivided or its subdivision would prejudice the interests of the coowners and 2. the co-owners are not in agreement as to who among them shall be allotted or assigned the entire

property upon reimbursement of the shares of the other co-owners. In the present case, it was VDA. DE ZABALLERO ET AL. who invoked the partition of the property although the property was indivisible and it was not agreed upon that it should be sold to REYES ET AL. since there was a more favorable offer from VOLCANO SECURITIES. Hence, under the provision, as a last resort, the property must be sold in a public sale and that distribution of the proceeds thereof should be made among the co-owners afterwards. ARTICLE 499: The partition of a thing owned in common shall not prejudice third persons, who shall retain the rights of mortgage, servitude, or any other real rights belonging to them before the division was made. Personal rights pertaining to third persons against co-ownership shall also remain in force, notwithstanding the partition. ARTICLE 500: Upon partition, there shall be mutual accounting for benefits received and reimbursements for expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud. ARTICLE 501: Every co-owner shall, after partition, be liable for defects of title and quality of the portion assigned to each of the other co-owners. THE FOLLOWING ARE THE EFFECTS OF PARTITION: 1. mutual accounting of benefits received; 2. mutual reimbursement; 3. indemnity for damages caused by reason of his negligence or fraud; 4. reciprocal warranty in case of eviction or loss of quality or hidden defects. EXCEPT: 1) when there is contrary stipulation; 2) when the eviction is due to subsequent partition to one evicted 3) the co-owner has exclusive possession of the part allotted to him from the entire period during which possession lasted. o There is retroactive effect. 4) they have exclusive title over their respective share under Art. 1091. EXTINGUISHMENT OF CO-OWNERSHIP: 1. By partition (judicial or extra judicial); 2. If the co-owner acquires ownership of the whole property thru

acquisitive prescription and all the requisites are complied with (Art. 494); 3. When a stranger acquires by prescription of the thing that is owned in common (10 to 30 years, good faith or bad faith respectively) after repudiation; 4. Merger in one co-owner (when on acquires the share of another like by renouncing his share for the expenses incurred for the preservation until theres no more to renounce); 5. loss or destruction of the thing owned in common; 6. Expropriation by the government. POSSESSION ARTICLE 523: Possession is the holding of a thing or the enjoyment of a right. 2 KINDS: 1. the holding of a thing 2. the enjoyment of a right the holding of a thing is possession proper The exercise of a right or enjoyment of a right is quasi-possession Is Possession a Fact or a Right? It is really a fact (since it exists); but from the moment it exists, certain consequences follow, thus making possession also a right. What is the relationship between ownership and possession? As a gen. rule, possession is an element of ownership; however this rule is not absolute because there are circumstances or instances where the owner of the thing does not posses the thing. Right to Possession Right to possession is merely an incident of ownership. This is independent of ownership whereby a person is placed in possession of a thing by virtue of a right but not of ownership. He is not the owner but he has the right to possess. This is an independent right of ownership REQUISITES OF POSSESSION:

3. The possession must be by virtue of

one's own right. CLASSES OF POSSESSION a. possession in ones own name or possession in the name of another (art. 524) b. Possession in the concept on an owner or possession in the concept of a holder (art. 525) c. Possession in good faith or in bad faith (art. 526) DEGREES OF POSSESSION: 1. The mere holding or having, without any right whatsoever. ex: possession of a thief 2. Possession with juridical title but not that of ownership. This is called juridical possession. Examples: that of a lessee, pledgee, usufructuary. 3. Possession with just title but not from the true owner. This is called real possessory right. Example: a vendee who purchases a car from another (vendor) who merely pretended to be the owner of a car. So there is transfer but this is not sufficient to transfer ownership because there is a defect in the title of the vendor in that he is not the owner thereof 4. Possession with title of dominion. This is really ownership or possession that springs from ownership VIEWPOINT OF POSSESSION: 1) jus possidendi the right to possess. This is a right or incident of ownership. Example: I own a house; therefore I am entitled to posses it. 2) jus possessionis this is right of possession. This is an independent right of itself, independent of ownership. Example: the lessee renting an apartment. Although he is not the owner, still by virtue of the lease contract, he is entitled to possess. CLASSES OF POSSESSION: 1. In ones own name or in that of another (Art 524) 2. In the concept of owner (en concepto de duento) and in the concept of holder. (Art 525) 3. In good faith (bona fide) or in bad faith (mala fide) ARTICLE 524: Possession may be exercised

1. There must be a holding or control

(this holding may be actual or constructive; holding here means occupancy or seizure of a thing); There is intent to hold or the animus or desire;

2.

in ones own name or in that of another. Possession may be exercised in ones own name or name of another. Possession in Anothers Name: 1) Voluntary as when the agent possesses for the principal 2) Necessary as when a mother possesses for a child still in maternal womb 3) Unauthorized this will become the principals possession only after there has been a ratification w/o prejudice to the effects of negotiorum gestio) DE LUNA vs. CA GR No. 94490. August 6,1992 Possession of a lessor redounds to the benefit of the owner since possession may be exercised in one's own name or in that of another. The owner then may file an action for forcible entry against a usurper. FACTS Since 1932, petitioner JOSE DE owned an unregistered parcel of land with an area of 30,856 square meters, located in Botolan, Zambales. In 1971, defendants Octavio Daclison, Oscar Crispin, and private respondents JUAN DIMAANO, JR. and GERINO DOBLE entered the land. Despite DE LUNAs objections, they began plowing the land, fenced it with barbed wire and began planting sugar cane thereon. In 1972, DE LUNA LUNA filed a complaint in court for forcible entry. He prayed that DIMAANO, JR. and DOBLE be ordered to vacate the land and pay him the amount of P45 monthly per hectare until possession thereof would be transferred to him. DIMAANO, JR. and DOBLE on the other hand denied the material allegations of the complaint. Crispin and DOBLE alleged that they have not entered nor occupied the disputed property. DIMAANO, JR. stated that DE LUNA was not the owner of the property. He alleged that the owner of it was his uncle Agustin Dequia, Sr., who possessed it from 1945 to 1972, having acquired it from his mother Agustin Dequia, Jr., who originally owned it since 1906. The trial court rendered judgment in favor of DE LUNA. On appeal, the RTC reversed the decision and concluded that Agustin Dequia, Jr. was the owner of the property. The same was affirmed by the Court of Appeals. Aggrieved, DE LUNA elevated the case to the Supreme Court. He contended that the Court of Appeals and the Regional Trial Court erred in determining the ownership of

the disputed property in an action for ejectment and concluded that Agustin Dequia, Jr. was the owner of the property. ISSUES Whether or not DE LUNA had prior possession of the property. RULING YES, he had prior possession of the property. In ejectment cases, the only issue to be resolved therein is who is entitled to the physical or material possession of the premises, or possession de facto, independent of any claim of ownership that either party may set forth in their pleadings. If petitioner can prove prior possession in himself, he may recover such possession from even the owner himself. Whatever may be the character of his prior possession, if he has in his favor priority of time, he has the security that entitles him to stay on the property until he is lawfully ejected by a person having a better right by either accion publiciana or accion reivindicatoria. However, where the question of possession cannot be resolved without deciding the question of ownership, an inferior court has the power to resolve the question of ownership but only insofar as to determine the issue of possession. In the case at bar, the inferior court acted correctly in receiving evidence regarding the ownership of the disputed property, inasmuch as respondent DIMAANO, JR. claimed to possess the property by virtue of a lease agreement with the alleged owner thereof, AGUSTIN DEQUIA, JR. However, the Court of Appeals erred in upholding the Regional Trial Court regarding the conclusion that the subject property was owned by Agustin Dequia, Jr. and therefore respondent DIMAANO, JR. was entitled to possess the same. DE LUNA had shown that he had prior possession of the property. This was established by the testimony of his witnesses, notably that of his tenant Epigenio Dilag and Victor dela Cruz: 1. In 1938, the property was delivered to DE LUNA and his mother Apolonia Dequa by Agustin Dequia, Sr. when they and their brothers and sisters partitioned among themselves the properties of their deceased parents. 2.From 1938 to 1941, DE LUNA and his mother cultivated the land. 3.From 1944 to 1952, the witness, dela Cruz, leased the land from DE LUNA and his mother. 4.From 1953 to 1972 (until DIMAANO, JR. entered the property), the property was leased to Dilag. While petitioner admitted that he declared the property for taxation purposes only in 1957, he had possessed the

property beginning 1953 at the very latest, when he leased the same to Epigenio Dilag. Moreover, there was evidence to the effect that DE LUNA possessed the property even earlier than 1953. The possession of the property by Dilag since 1953 and dela Cruz, redounded to the benefit of DE LUNA, since possession may be exercised in one's own name or in that of another. On the other hand, DIMAANO, JR. had failed to prove that Agustin Dequia, Jr. possessed the property prior to his possession, much less the ownership of the latter over said property. The mere fact that Agustin Dequia, Sr. had declared the subject property for taxation purposes from 1908 up to 1945 did not constitute possession thereof nor was it proof of ownership in the absence of DEQUIA, JR.'s actual possession of said property. However, it goes without saying that this case did not bar DE LUNA and Agustin Dequia, Jr. from resolving the issue of ownership over the disputed property in an appropriate proceeding. ARTICLE 525: The possession of things or rights may be had in one of two concepts: either in the concept of an owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person. The possession of things or rights may be had in one of 2 concepts: 1) either in the concept of an owner; or 2) in that of a holder of the thing or right to keep it or enjoy it, the ownership pertaining to another person Example: A purchased a land from X knowing him not to be the owner. But he exercises acts of ownership over it and his friend believes that he is the owner. In time, thru prescription, A becomes the owner because his possession is in concepto de dueno. If a tenant leases the land from A, he possesses the land in the concept of holder. Possession in the concept of holder. The possession is of the property concerned. Regarding their respective rights (the lease right, the usufruct, the right to safeguard the thing, the right to use the thing), all are possessed by them, respectively, in the concept of owner. Hence, the possession of the THING itself is distinguished from the possession of the RIGHT TO ENJOY the thing ( or benefit from it) GARCIA vs. CA GR No. 133140. August 10, 1999 The records show that GARCIA occupied the property not in the concept of an owner for his stay was

merely tolerated by his parents. An owner's act of allowing another to occupy his house, rent-free does not create a permanent and indefeasible right of possession in the latter's favor. FACTS Atty. Pedro V. Garcia with the consent of his wife Remedios sold their registered lot situated at Bel Air II Village in Makati in favor of private respondents their daughter MA. LUISA MAGPAYO and her husband LUISITO MAGPAYO. In 1981, SPOUSES MAGPAYO mortgaged the land to the Philippine Bank of Communications (PBCom) to secure a loan, P564,000 according to them, P1,200,000according to PBCom. Title in the name of Atty. Pedro V. Garcia was cancelled and a new one was issued in the name of SPOUSES MAGPAYO. In the title, the Deed of Real Estate Mortgage was annotated on it. However, SPOUSES MAGPAYO failed to pay their loan upon its maturity, hence, the mortgage was extrajudicially foreclosed. During the public auction sale, PBCom, which was the highest bidder bought the land. After the 1 year redemption period expired without the SPOUSES MAGPAYO redeeming the same, the latters title was cancelled and title over the land was consolidated in favor of PBCom. 1985, the SPOUSES MAGPAYO filed a complaint seeking the nullification of the extrajudicial foreclosure of mortgage, public auction sale, and PBCom's but it was dismissed. Later, PBCom filed a petition for the issuance of a writ of possession over the land, which was granted. However, petitioner JOSE MA. T. GARCIA, the brother of MA. LUISA MAGPAYO was the one in possession of the land and he refused to honor the writ of possession. Then, GARCIA filed against PBCom, the SPOUSES MAGPAYOS and the RTC Sheriff an action for recovery of realty and damages wherein he alleged that he inherited the land as one of the heirs of his mother Remedios T. Garcia and that PBCom acquired no right thereover. PBCom averred, however that GARCIA's claim over the land was belied by the fact that it was not among the properties owned by his mother listed in the Inventory of Real Estate. The SPOUSES MAGPAYOS, on the other hand, asserted that title over the land was transferred to them by MA. LUISA MAGPAYOS parents, Atty. Pedro and Remedios Garcia, to enable them to borrow money from PBCom. The court held that the mortgage executed by the MAGPAYO SPOUSES in favor of PBCom was void. It found that the mortgage was executed on March 5, 1981 but the new Torrens title was issued to the MAGPAYO SPOUSES was only on March 9, 1981. It held that the MAGPAYO SPOUSES

could not have acquired the said property merely by the execution of the Deed of Sale because the property was in the possession of GARCIA. It then invalidated the foreclosure sale and nullified the title issued to PBCom. Dissatisfied, PBCom appealed. The Court of Appeals reversed the decision of the trial court. Hence, this appeal by GARCIA. ISSUE Whether or not GARCIAs ownership was in the concept of an owner. RULING NO, his ownership was in the concept of a holder. GARCIA's possession as found by the trial court, started only at the time of the filing of the complaint. Assuming that to be true, his possession which started only in 1986 could not ripen into ownership. He had no valid title thereto. His possession in fact was that of an intruder, one done in bad faith (to defeat PBCom's Writ of Possession). His possession was certainly not in the concept of an owner. This is so because as early as 1981, title thereto was registered in the name of the SPOUSES MAGPAYO which title was subsequently cancelled when the property was purchased by PBCom in a public auction sale resulting in the issuance of title in favor of the latter in 1985. Possession and ownership are distinct legal concepts. Ownership exists when a thing pertaining to one person is completely subjected to his will in a manner not prohibited by law and consistent with the rights of others. Ownership confers certain rights to the owner, one of which is the right to dispose of the thing by way of sale. Atty. Pedro Garcia and his wife Remedios exercised their right to dispose of what they owned when they sold the subject property to the SPOUSES MAGPAYO. On the other hand, possession is defined as the holding of a thing or the enjoyment of a right. Literally, to possess means to actually and physically occupy a thing with or without right. Under Art. 542 of the Civil Code, possession may be had in one of two ways: possession in the concept of an owner and possession of a holder. A possessor in the concept of an owner may be the owner himself or one who claims to be so. On the other hand, one who possesses as a mere holder acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong. The records show that GARCIA occupied the property not in the concept of an owner for his stay was merely tolerated by his parents. An owner's act of allowing another to occupy his house, rent-free does not create a permanent and indefeasible right of possession in the latter's favor. Consequently, it was of no moment that GARCIA was in possession of the property at

the time of the sale to the SPOUSES MAGPAYO. It was not a hindrance to a valid transfer of ownership. On the other hand, GARCIA's subsequent claim of ownership as successor to his mother's share in the conjugal asset was belied by the fact that the property was not included in the inventory of the estate submitted by his father to the intestate court. This buttresses the ruling that indeed the property was no longer considered owned by petitioner's parents. The mortgage to PBCom by the SPOUSES MAGPAYO was valid notwithstanding that the transfer certificate of title over the property was issued to them after the mortgage contract was entered into. Registration does not confer ownership, it is merely evidence of such ownership over a particular property. The deed of sale operates as a formal or symbolic delivery of the property sold and authorizes the buyer to use the document as proof of ownership. MANGAHAS vs. CA GR No. 95815. March 10, 1999 Acquisition of ownership under the law on prescription cannot be pleaded in support of MANGAHAS' submission that subject land has ipso jure become his private property. FACTS Since 1955, the spouses Severo and Caridad S. Rodil, occupied and possessed an agricultural land with an area of 15.0871 hectares. Petitioner, SERVANDO MANGAHAS, had been in possession thereof by virtue of the agreement between him and the spouses Rodil, allowing him to occupy and cultivate the said parcel of land. In the Kasulatan ng Pagtanggap ng Salapi, MANGAHAS paid the amount of P7,000 to the spouses Rodils for allowing him to occupy and cultivate the same. 12 hectares of the property were then developed into a fishpond, 2 hectares were planted with rice and 1 hectare was used as "tumana" with a house erected thereon. In 1971, the spouses Rodil decided to sell the said piece of land. MANGAHAS approached private respondent SPOUSES PABLO SIMEON AND LEONORA CAYME to offer to them the property for sale. The SPOUSES CAYME agreed to purchase the property for P7,000 and MANGAHAS was the broker of such sale. An Affidavit of proof to such was executed by the Spouses Rodil in favor of the SPOUSES CAYME in the presence of the herein MANGAHAS. The SPOUSES CAYME, on the same day, filed a free patent application for the land, which was later approved. Later, title in their names was issued. The SPOUSES CAYME permitted MANGAHAS to continue possessing and

working on the same land, even after the sale, upon the request of the former themselves because they were then busy in their palay business. The SPOUSES CAYME did not get any share in the fruits or harvest of the land except on one occasion, when MANGAHAS gave them 1/2 "tiklis" (big basket) of "tilapia". Later, the SPOUSES CAYME had demanded from MANGAHAS the return of the premises in question but the latter refused to vacate the place. In 1985, the SPOUSES CAYME commenced an action for recovery of ownership and the possession of real property. MANGAHAS theorized that he entered into the possession of the land under controversy in 1969 by virtue of a prior sale he inked with the spouses Rodil in 1969. He averred that he had been in continuous occupation and possession in concepto de dueo, enjoying the fruits thereof to the exclusion of all others, his right thereto being evidenced by the Kasulatan ng Pagtangap ng Salapi dated 1969. He also denied that he brokered the sale between the spouses Rodil and SPOUSES CAYME. The trial court ruled against MANGAHAS. It held that the SPOUSES CAYME WERE the absolute and registered owners of the land in question. It also ordered MANGAHAS to remove his house constructed thereon and deliver the possession to the SPOUSES CAYME. The Court of Appeals affirmed the same decision. Hence, this appeal. ISSUE Whether or not MANGAHAS possessed the property in the concept of an owner. RULING NO, MANGAHAS only possessed it in the concept of a holder for the following proofs: 1. the spouses Rodil only allowed him to occupy and cultivate the said parcel of land by lease werein MANGAHAS paid P7,000 as evidenced by the Kasulatan ng Pagtanggap ng Salapi, 2. MANGAHAS was the one who offered the property for sale to the SPOUSES CAYME when the spouses Rodil decided to sell it. In fact, he was the broker of the sale, and 3. on one occasion, MANGAHAS gave the SPOUSES CAYME 1/2 "tiklis" (big basket) of "tilapia". Prescription did not run in favor of Mangahas MANGAHAS's grantor or predecessor in interest spouses RODIL took possession of the property, subject matter of the litigation in 1955. Since the complaint in the case at bar was filed in 1985, the requirement of at least 30 years continuous possession has not been complied with even if we were to tack Rodil's period of possession.

MANGAHAS could not now feign ignorance of such judicial admission which he had resolutely repudiated in his present petition. Acquisition of ownership under the law on prescription cannot be pleaded in support of MANGAHAS' submission that subject land has ipso jure become his private property. MAGLUCOT-AU vs. MAGLUCOT GR No. 132518. March 28, 2000 RESPONDENTS only possessed Lot D in the concept of a holder for the reason that they had been paying rent as lessees thereon. Had they been of the belief that they were coowners of the entire Lot 1639, they would not have paid rent. One who possesses as a mere holder acknowledges in another, a superior right which he believes to be ownership, whether his belief be right or wrong. FACTS Lot No. 1639 was co-owned by 6 persons. In 1927, a title in their names was issued. In 1952, Tomas Maglucot, one of the registered owners and RESPONDENTS' predecessor-in-interest, filed a petition to subdivide Lot No. 1639. Consequently, it was divided into 6 portions. After partition, Lot D was awarded to Roberto Maglucot, predecessor-in-interest of PETITIONERS GAVINA MAGLUCOT-AW ET AL. while Lot F was awarded to Tomas Maglucot, predecessor-in-interest RESPONDENTS LEOPOLDO MAGLUCOT. In 1963, Guillermo Maglucot rented a portion of Lot D. Subsequently, respondents LEOPOLDO and SEVERO MAGLUCOT, rented portions of the same lot in 1964 and 1969, respectively, and each paying rentals therefor. They built houses on their corresponding leased lots and paid the rental amount of P100 per year to Mrs. Ruperta Salma, who represented the heirs of Roberto Maglucot. In 1992, however, said respondents stopped paying rentals claiming ownership over the subject lot. Hence, an action for recovery of possession and damages was filed by PETITIONERS against RESPONDENTS. The latter however contended that no partition was effected and hence, they were coowners of Lot D. After trial, the lower court rendered judgment in favor of PETITIONERS and ordered RESPONDENTS to demolish their respective houses and vacate the premises. Although there was an order for partition but there was no proof that the sketch/subdivision plan was submitted to court for its approval or that a decree or order was registered in the Register of Deeds. It based its decision on the tax declarations by the original co-owners as to

their respective shares after partition. In fact, the tax declarations over the houses of RESPONDENTS, expressly stated that the same are constructed on the lot of Roberto Maglucot. It then constitutes a conclusive admission by them of the ownership of the subject lot by the latter. It also added that RESPONDENTS were estopped by the fact that it was their predecessor-in-interest, Tomas Maglucot, who commenced the action for partition and took active part in the process. On appeal, the Court of Appeals reversed the decision of the RTC. The appellate court ruled that the sketch plan and tax declarations relied upon by PETITIONERS were not conclusive evidence of partition. It thus declared that there was no partition of Lot No. 1639. Hence, this appeal by PETITIONERS. They contended that Lot 1639 was mutually partitioned and physically subdivided among the co-owners and that majority of them participated in the actual execution of the subdivision. They opined that in 1952, it was Tomas Maglucot, predecessor-ininterest of RESPODENTS, who initiated a court proceeding for a formal subdivision of Lot 1639. Further, the co-owners accepted their designated shares in 1946 as averred by Tomas Maglucot in his petition for partition. Thus, RESPONDENTS were estopped from asserting that there was no partition made. PETITIONERS further contend that respondents admitted in their tax declarations covering their respective houses that they are "constructed on the land of Roberto Maglucot." RESPONDENTS rebutted firstly that PETITIONERS failed to show that the interested parties were notified of the tentative subdivision contained in the sketch and that the CFI subsequently confirmed the same. Second, they point to the fact that petitioners were unable to show any court approval of any partition. Third, they maintained that Lot 1639 remained undivided since to date, its title contained no annotation of partition or whatsoever. ISSUE 1. Whether or not there was partition. 2. Whether or not the RESPONDENTS possessed Lot D in the concept of an owner since they argued that they were co-owners of the lot. RULING (1) YES, there was partition. The records of the case show that sometime in 1946 there was a prior oral agreement to tentatively partition Lot 1639. By virtue of this agreement, the original coowners occupied specific portions of Lot 1639. It was only in 1952 when the petition to subdivide Lot 1639 was filed because two of the co-owners, namely Hermogenes Olis and heirs of Pascual Olis, refused to have said lot subdivided and have separate

certificates of title. Significantly, after the 1952 proceedings, the parties in this case by themselves and/or through their predecessors-in-interest occupied specific portions of Lot 1639 in accordance with the sketch plan. Such possession remained so until this case arose, or about 40 years later. Parties to a partition proceeding, who elected to take under partition, and who took possession of the portion allotted to them, are estopped to question title to portion allotted to another party. A person cannot claim both under and against the same instrument. In other words, they accepted the lands awarded them by its provisions, and they cannot accept the decree in part, and repudiate it in part. They must accept all or none. Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it. Here, RESPONDENTS, by themselves and/or through their predecessors-ininterest, already occupied of the lots in accordance with the sketch plan. This occupation continued until this action was filed. They cannot now be heard to question the possession and ownership of the other co-owners who took exclusive possession of Lot D also in accordance with the sketch plan. (2) NO. RESPONDENTS only possessed Lot D in the concept of a holder for the reason that they had been paying rent as lessees thereon. Had they been of the belief that they were co-owners of the entire Lot 1639, they would not have paid rent. The payment of rentals by RESPONDENTS reveal that their possession of over Lot D was that of a holder and not in the concept of an owner. One who possesses as a mere holder acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong. Since the possession of RESPONDENTS were found to be that of lessees of PETITIONERS, it goes without saying that the latter were in possession of Lot No. 1639-D in the concept of an owner from 1952 up to the time the present action was commenced. To bolster the fact that they possessed the land in the concept of a holder, RESPONDENTS Wilfreda Maglucot-Alejo and Constancio Alejo offered to buy the share of Roberto Maglucot. However, this did not prosper as PETITIONERS refused to sell it. Moreover, no evidence was ever presented to show that a tax declaration for the entire Lot 1639 has ever been made. In fact, after partition, tax declarations were made for every specific lot by each owner thereof. In fact, Lot D, where RESPONDENTS houses were built thereon were declared for tax purposes in the name of Roberto Maglucot. 2 phases partition; in an action for

1. an order for partition which determines whether a co-ownership in fact exists, and whether partition is proper, and The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property. This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited. It may end, upon the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. In the latter case, the parties may, if they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon. In either case - i.e., either the action is dismissed or partition and/or accounting is decreed - the order is a final one, and may be appealed by any party aggrieved thereby. 2. a decision confirming the sketch or subdivision submitted by the parties or the commissioners appointed by the court, as the case may be. The second phase commences when it appears that "the parties are unable to agree upon the partition" directed by the court. In that event, partition shall be done for the parties by the court with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question. Such an order is, to be sure, final and appealable. ARTICLE 526: He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith, who possesses in any case contrary to the foregoing. Mistake upon doubtful or difficult question of law may be the basis of good faith

Awareness of any flaw is the question of knowledge. So that if he is not aware, he is in good faith. If he is aware then he is in bad faith SC said where a party's mere refusal to believe that a defect exists or his willful closing of his eyes to the possibility of a vendor's defect to his title will not make him an innocent purchaser for value if it afterwards develop that the title was in fact defective. Hence if circumstances exist that requires a prudent man to investigate, he will be in bf if he does not investigate. (Rep. vs. CA (102 Scra 331 in relation to Wong vs. Carprio 203 Scra 118)

Possessor in Good Faith. One who is not aware that there exists in his TITLE or MODE of acquisition any flaw which invalidates it. While the possessor in good faith is one who BELIEVES he is the owner, the possessor in the concept of owner is one who ACTS as if he is the owner.

Possessor in Bad Faith. One who is not in good faith. (Hence, if circumstances exist that require a prudent man to investigate, he will be in bad faith if he does not investigate. The ff. may be the basis of good faith: 1. Error in the application of the law, in legal solutions that arise from that application ( the error is not gross and therefore excusable) 2. error in the appreciation of the legal consequences of certain acts 3. errors in the interpretation of doubtful provisions or doctrines ARTICLE 527: Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. There is a presumption that where one is in possession of the property, there is a presumption that the possession is in good faith. And upon him who alleges bad faith on the part of a possessor rests the burden of proof. ARTICLE 528: Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully. If one is in possession and his possession is in good faith, he will remain in good faith until such time when bad faith begins.

When Possession in Good Faith is Converted to Possession in Bad Faith: a. From the moment facts exist showing the possessors knowledge of the flaw; from that time should he be considered a possessor in bad faith. b. It does not matter whether the facts were caused by him or by some other person. When Bad Faith Begins: From the moment facts exist which show that the possessor is aware that he possesses the thing improperly or wrongfully. The reckoning period is not the knowledge itself but when the facts would show that the possessor has evident knowledge of the flaw. When would the facts exist? When someone produces evidence.

What is the significance of good faith and bad faith with respect to the owner of the property? No significance because he is already the owner of the property.

EMBRADO vs. CA GR No. 51457. June 27, 1994 The rule is settled that a buyer of real property which is in the possession of persons other than the seller must be wary and should investigate the rights of those in possession. Otherwise, without such inquiry, the buyer can hardly be regarded as a buyer in good faith. FACTS Juan, Pastor and Matias Carpitanos originally owned a 366-square meter lot in Dipolog City.In 1946, a Venta Definitiva, a notarized document written entirely in Spanish, was executed by the Carpitanos whereby they sold said lot to petitioner LUCIA C. EMBRADO, who was referred to as single. The document provided that even though the Deed was prepared and signed in 1946, the effects of the document would retroact to the date the lot and its improvements were actually sold to EMBRADO in 1941. Thereafter, the sale was registered and a title was issued in the name of LUCIA EMBRADO alone. Later, the word single in the title was cancelled and was replaced by married to ORESTE TORREGIANI", the latter, who was LUCIA EMBRADOs husband since 1943. The TORREGIANIs then constructed their conjugal abode on the lot and in 1958 constructed a residential/commercial building thereon.

In 1971, EMBRADO sold the land for P1,000 to her adopted daughter, herein private respondent EDA JIMENEZ, who was married to SANTIAGO JIMENEZ. In the Absolute Deed of Sale, the property was referred to as EMBRADOs "own paraphernal property". In 1972, EDA sold 65 sq. m of the lot to private respondent MARCOS SALIMBAGAT for P6,500, and 301 sq. m. of the same lot to private respondent PACIFICO CIMAFRANCA for P30,000. Both sales were duly annotated on the title. In the same year, the TORREGIANIs instituted an action for declaration of nullity of contract, annulment of sales, reconveyance and damages against the private respondent SPOUSES JIMENEZ, MARCOS SALIMBAGAT and PACIFICO CIMAFRANCA. They alleged that the sale that the sale of the lot by LUCIA to EDA was void not only for lack of consideration but also because ORESTE TORREGIANI did not consent to the sale, which consent was necessary because the lot was conjugal property. They also claimed that that LUCIA was misled into signing the Deed of Sale on the belief that the lot was merely intended as security for a loan that the SPOUSES JIMENEZ spouses were then negotiating. Since the SPOUSES JIMENEZ did not acquire valid title to the land, the subsequent sales in favor of SALIMBAGAT and CIMAFRANCA were without legal effect. The TORREGIANIs were sustained by the trial court, which held that the sale of Lot 564 to EDA and its subsequent transfers to SALIMBAGAT and CIMAFRANCA, who were declared buyers in bad faith, were void and of no effect. The Court of appeals reversed the said judgment. It held that since LUCIA actually agreed with Juan, Pastor and Matias Carpitanos, the original owners, to the purchase of Lot 564 in 1941 when she was not yet married, then the lot was her paraphernal property. In addition, the respondent court declared SALIMBAGAT and CIMAFRANCA were buyers in good faith since the contrary was not proved. ISSUE Whether or not SALIMBAGAT and CIMAFRANCA were buyers in good faith for purposes of protection under the Torrens system of registration. RULING NO, they were not. They were buyers in bad faith. Hence, they were not entitled to protection under the Torrens system of registration. Lot 564 was the conjugal property of the TORREGIANI since LUCIA purchased it from the Capitranos in 1946 when her marriage to ORESTE was already subsisting. The Sale in favor of EDA was void because it was made with fraud and that if indeed it was sold, it was made without the

consent of LUCIAs husband, the property being a conjugal one. SALIMBAGAT and CIMAFRANCA were buyers in bad faith SALIMBAGAT and CIMAFRANCA had not proven that they were purchasers in good faith. The burden of proving the status of a purchaser in good faith and for value lies upon him who asserts that status.* In discharging the burden, it is not enough to invoke the ordinary presumption of good faith, i.e. that everyone is presumed to act in good faith. The good faith that is here essential is integral with the very status which must be proved. We agree with the trial court when it found that SALIMBAGAT and CIMAFRANCA purchased the disputed lot from EDA and SANTIAGO JIMENEZ with knowledge of facts and circumstances which should have put them upon such inquiry and investigation as might be necessary to acquaint them with the defects in the title of their vendor. A purchaser cannot close his eyes to facts which should put a reasonable man on his guard and then claim that he acted in good faith under the belief that there was no defect in the title of the vendor. His mere refusal to believe that such defect exists, or his willful closing of his eyes to the possibility of the existence of a defect in the vendor's title will not make him an innocent purchaser for value if afterwards it develops that the title is in fact defective, and it appears that he had such notice of the defect as would have led to its discovery had he acted with the measure of precaution which may reasonably be required of a prudent man in like situation. CIMAFRANCA was a close relative of SANTIAGO and at the same time godfather to one of his children. It would be impossible for CIMAFRANCA not to know that SANTIAGO was only 22 years old, a working student earning P6 per day with a wife and three children to support. With these facts, there is every reason for him to inquire further as to how EDA came up with the sum of P1,000 to buy the property, when she was unemployed. On the part of SALIMBAGAT, he has a daughter renting a portion of the building with her husband for more than a year prior to the sale by EDA to him. During the time that SALIMBAGAT was already interested in buying the property, it would have been usual and part of ordinary human nature for him to inquire about the property from his daughter who was living very near the supposed owners. SALIMBAGAT had some knowledge of the financial status of the supposed vendors which should have put him on guard before buying the property and would have known that at the time of the sale to him and CIMAFRANCA, the TORREGIANIs had already been in continuous possession of the property for 14 years since 1958. Before buying the property, SALIMBAGAT and CIMAFRANCA allegedly

inquired from the office of the Register of Deeds concerning the genuineness of the certificate of title of EDA, and from the court as to whether the property was involved in any litigation. However, they failed to inquire from petitioners as to why they were the ones in actual possession of the property. The rule is settled that a buyer of real property which is in the possession of persons other than the seller must be wary and should investigate the rights of those in possession. Otherwise, without such inquiry, the buyer can hardly be regarded as a buyer in good faith. When a man proposes to buy or deal with realty, his first duty is to read the public manuscript, i.e., to look and see who is there upon it, and what are his rights. A want of caution and diligence which an honest man of ordinary prudence is accustomed to exercise in making purchases is, in contemplation of law, a want of good faith. The buyer who has failed to know or discover that the land sold to him is in the adverse possession of another, is a buyer in bad faith. * This is in contrast to Art. 527 of the Civil Code which states that upon him who alleges bad faith on the part of the possessor rests the burden of proof. ALVIOLA vs. CA GR No. 117642. April 24, 1998 There was bad faith on the part of the SPOUSES ALVIOLA when they constructed the copra dryer and store on the disputed portions since they were fully aware that the parcels of land belonged to Victoria Tinagan. (refer to Page 17) DBP vs. CA GR No. 111737. October 13, 1999 Good faith of the possessor ceases when an action to recover possession of the property is filed against him and he is served summons therefore. In the present case, DBP was served summons in 1982. By that time, it was no longer in possession of the disputed land as possession thereof was given back to the PIEDAS after the foreclosure of DBP was declared null and void. FACTS Respondent SPOUSES TIMOTEO and SELFIDA S. PIEDA were registered owners of a parcel of land in Dumarao, Capiz containing an area of 238,406 sq. m, which was covered by a homestead patent.

In 1972, the PIEDAS mortgaged said land to petitioner DEVELOPMENT BANK OF THE PHILIPPINES (DBP) to secure their P20,000-agricultural loan. Later, The PIEDAS failed to comply with the terms and conditions of the mortgage that DBP extrajudicially foreclose it in 1977. In the foreclosure sale, DBP was the highest bidder and a Sheriff Certificate of Sale was executed in its favor. In Said Certificate, it was indicated therein that the redemption shall be within 5 years from the date of the registration of the title. This Certificate was later registered in the Registry of Deeds. In 1978, after the expiration of the 1year redemption period under Section 6 of Act 3135, DBP consolidated its title over the foreclosed property by executing an Affidavit of Consolidation of Ownership. Subsequently, a Final Deed of Sale was executed in DBP's favor, which was registered together with the Affidavit of Consolidation of Ownership. A new title was thereafter issued to DBP and it took possession of the foreclosed property and appropriated the produce thereof. 1978, the Ministry of Justice opined that as the mortgage had ceased to exist upon the transfer of title to the tenant by virtue of the promulgation of P.D. No. 27 in 1972, there could be no mortgage to foreclose and therefore no subject for the foreclosure proceedings. In 1981, the PIEDAS offered to redeem the foreclosed property by offering P10,000 as partial redemption payment. This amount was accepted by DBP, which conditionally approved the offer of redemption. However, DBP sent another letter to the PIEDAS informing them that pursuant to P.D. 27, their offer to redeem and/or repurchase the subject property could not be favorably considered for the reason that said property was tenanted. DBP later filed an action in court to to nullify the foreclosure proceedings which was favorably acted upon. Later, the PIEDAS filed an action against DBP for the cancellation of certificate of title and/or specific performance, accounting and damages with a prayer for the issuance of a writ of preliminary injunction. It contended that DBP was in evident bad faith as it caused the consolidation of its title to the parcel of land in question in spite of the fact that the 5-year redemption period expressly stated in the Sheriff's Certificate of Sale had not yet lapsed and that their offer to redeem the foreclosed property was made well within said period of redemption. RTC ruled in favor of the PIEDAS stating that DBP violated the stipulation in the Sheriff's Certificate of Sale which provided that the redemption period is 5 years from the registration. DBP appealed to the Court of Appeals, which affirmed the decision of the RTC. The Court of Appeals stated that being that DBP

was in evident bad faith when it unlawfully took possession of the property and defied what was written on the Sheriff's Certificate of Sale, the PIEDAS should be entitled to recover the fruits produced by the property or its equivalent for the 3-year period. Hence, this appeal by DBP. It alleged that the mere fact that DBP took possession and administration of the property did not warrant a finding that DBP was in bad faith: 1. the PIEDAS consented to and approved the takeover of DBP; 2. that Sec. 717 of Act No. 3135 allows the mortgagee-buyer to take possession of the mortgaged property even during the redemption period; 3. that DBP's act of consolidating the title of the property in its name did not constitute bad faith as there was no law which prohibits the purchaser at public auction from consolidating title in its name after the expiration of the 1 year redemption period reckoned from the time the Certificate of Sale was registered; and neither was there any law or jurisprudence which prohibits the PIEDAS from exercising their right of redemption over said property within 5 years even if title is consolidated in the name of the purchaser; and 4. that when it denied the PIEDAS' offer to redeem the property, it was merely premised on the Opinion of the Minister of Justice which stated that said land was covered under P.D. 27 and could not be the subject of foreclosure proceedings. For this reason, DBP immediately filed a petition to nullify the foreclosure proceedings which was favorably acted upon. If DBP was really in bad faith, it would not have filed said petition for said petition was against its own interests. ISSUE Whether or not DBP was in bad faith. RULING NO, it was not. It was a possessor in good faith. A possessor in good faith is one who is not aware that there exists in his title or mode of acquisition any flaw, which invalidates it. Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. It was therefore incumbent on the PIEDAS to prove that DBP was aware of the flaw in its title i.e. the nullity of the foreclosure. This, they failed to do. The PIEDAS argued that DBP's bad faith stemmed from the fact that DBP consolidated title over the disputed property despite the statement in the Sheriff's Certificate of Sale to the effect that said land was subject to a 5-year redemption period. The period of redemption of extrajudicially foreclosed land is provided under Section 6 of ACT No. 3135 which states that if no redemption is made within

1 year, the purchaser is entitled as a matter of right to consolidate and to possess the property. Accordingly, DBP's act of consolidating its title and taking possession of the subject property after the expiration of the period of redemption was in accordance with law. Moreover, it was in consonance with Section 4 of the mortgage contract between DBP and the PIEDAS where they agreed to the appointment of DBP as receiver to take charge and to hold possession of the mortgage property in case of foreclosure. DBP's acts cannot therefore be tainted with bad faith. The right of DBP to consolidate its title and take possession of the subject property is not affected by the PIEDAS' right to repurchase said property within 5 years from the date of conveyance granted by Section 119 of CA No. 141. In fact, without the act of DBP consolidating title in its name, the PIEDAS would not be able to assert their right to repurchase granted under the aforementioned section. It may be argued that P.D. 27 was already in effect when DBP foreclosed the property. However, the legal propriety of the foreclosure of the land was put into question only after the Opinion of the Ministry of Justice declared that said land was covered by P.D. 27 and could not be subject to foreclosure proceedings. The Opinion was issued almost 2 months after DBP consolidated its title to the property. By law and jurisprudence, a mistake upon a doubtful or difficult question of law may properly be the basis of good faith. Good faith of the possessor ceases when an action to recover possession of the property is filed against him and he is served summons therefore. In the present case, DBP was served summons in 1982. By that time, it was no longer in possession of the disputed land as possession thereof was given back to the PIEDAS after the foreclosure of DBP was declared null and void. Therefore, any income collected by DBP after it consolidated its title and took possession of the property in 1978 up to 1982 belonged to DBP as a possessor in good faith since its possession was never legally interrupted. ARTICLE 529: It is presumed that possession continues to be enjoyed on the same character in which it was acquired, until the contrary is proved. If one is in actual possession of the property under the claim of ownership, there is a disputable presumption of ownership. REQUISITES: a. one is in actual possession; b. and he is claiming ownership

What may be possessed? Only things and rights which are susceptible of being appropriated What may not be possessed? a. property of public domain; b. res communes c. easements ( if discontinuous or non- apparent); d. things specifically prohibited by law

Res Nullius. Res nullius (abandoned or ownerless property) may be possessed, but cannot be acquired by prescription. Reason: prescription presupposes prior ownership in another. However, said res nullius may be acquired by occupation. DBP CASE. Pineda mortgaged the property and then it was foreclosed. Foreclosure normally under the law is 1 yr period (extra judicial). If the mortgagor does not redeem, mortgagee will consolidate the title and after that, title is transferred to the mortgagee (DBP). But what happened here was that the foreclosure was in 1977. In 1978, there was an opinion given by the Ministry of Justice declaring that there are some properties that may not be the object of foreclosure proceeding. And the properties of Pineda were covered by the opinion but DBP did not know or did not have any idea about it. In 1981, Pineda decided to redeem, did DBP refuse? NO, in honor of the agreement with Pineda that the latter can redeem the property within 5 years and DBP already initiated the cancellation of the certificate of its own title. It gave up the possession over the property. In truth and in fact, DBP was merely a possessor in good faith because it was not aware of the flaw inside, that the property was not subject of the foreclosure proceeding. DBP would become in bad faith if it is aware of it and it still has the possession of the property. But before it learned about the opinion, it already initiated the cancellation so that it will be returned the property of Pineda. There was no really interruption to put DBP in bad faith. It was no longer in possession of the lot when it found out the opinion that the property should not be a subject of the foreclosure proceeding. Presumptions that may arise from possession: 1. Ownership. Art. 433: Actual possession with bona fide claim of ownership is presumed ownership. 2. Good Faith. GF is always presumed. This presumption continues to be so until the contrary is proved. There is continuity of presumption of good faith. 3. Presumption of just title. A person who is believed to be the owner by the community has the legal presumption that he possesses

ARTICLE 530: Only things and rights which are susceptible of being appropriated may be the object of possession.

4.

5.

6.

it with just title and he is not required to show proof of ownership or to show support of his claim of ownership. Possession of movables. If you posses a real property, the law presumes that all the accessories therein are also under your possession. Non-interruption of possession. When a person is in possession of a property now and he loses it tomorrow but recovers it the ff. day, the law presumes that he possesses the same continuously without any interruption. Possession during intervening period. You are in possession of a real property now. You have been in possession of the same property 10 years ago. But there is no proof of possession during the intervening period. The law still presumes that you are in possession between or during the intervening period.

o Symbolic o

deliver or by execution or delivery of the public documents; Longa manu meaning pointing by long hand.

ARTICLE 531: Possession is acquired by the material occupation of a thing or the exercise if a right or by the fact that it is a subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right. HOW IS POSSESSION ACQUIRED? 1. By the material occupation (detention) of a thing or the exercise of a right (quasipossession). This includes constitutom possessorium or traditio brevi manu). 2. By the fact that it is subject to the action of our will. This includes tradition longa manu (by mere agreement) or tradition simbolico. Hence, it does not require actual physical detention or seizure. 3. By constructive possession or proper acts and legal formalities MODES OF POSSESSION

C. To be valid there must be concurrence of the ff: o The one delivering must have the actual physical control of the thing; o The thing pointed to must be visible from where the parties are found; o brevi manu Example: 1) Possession by the lessee who acquires ownership of the leased premises. So his actual possession constitutes constructive delivery. 2) When the owner who is in actual possession of the house, sells the house but still has possession of the same, this time as a lessee as when he enters into a contract of lease with the buyer of the house. Now he is still in possession of the house but not as the owner thereof but as the lessee. 2) BY ACTION OF OUR WILL Under this mode there is no actual or physical detention or seizure but the agreement between the parties constitutes the fact of possession. 3) PROPER ACTS AND PRESCRIBED BY LAW FORMALITIES

Under this mode, these are certain documents which ordinarily gives rise to possession because of legal fiction. The moment the document takes effect, automatically the person in whose favor the document is executed is deemed to have acquired possession of that property For example: donation, succession EQUATORIAL REALTY vs. MAYFAIR THEATER GR No. 133879. November 21, 2001 Although there was a constructive delivery of the property through a Deed of Sale in favor of EQUATORIAL, it was not consummated since MAYFAIR, which was in control and actual possession of it, impugned the sale in court. Hence, no back rentals in favor of EQUATORIAL may be granted. FACTS CARMELO & BAUERMANN, INC. owned a registered parcel of land at Claro M. Recto Avenue, Manila on which 2 2-storey buildings were constructed.

1) MATERIAL

OCCUPATION. Holding, apprehension, arrest or occupancy. The word occupation is used in its ordinary sense which means the holding of a thing which necessarily is physical. When it is in the exercise of a right, this is quasi-possession. A. Forms of delivery or tradition that can give rise to possession through material occupation: o Actual or real o Constructive delivery. B. Kinds of constructive delivery that may give rise to possession through material occupation:

CARMELO entered into 2 Contracts of Lease with petitioner MAYFAIR THEATER INC. One was entered into in 1967 for a period of 20 years. MAYFAIR used the leased premises as a movie house known as Maxim theater. The second was entered into in 1969 for another 20 years. The rented premises became the site for the Marimar Theater. Both Contracts had a provision therein, granting MAYFAIR a right of first refusal to purchase the subject properties. However in 1978, within the 20-yearlease term, the subject properties were sold by CARMELO to petitioner EQUATORIAL REALTY DEVELOPMENT, INC. for P11,300,000 without first being offered to MAYFAIR. As a result then, MAYFAIR filed a complaint in court, praying that the Deed of Absolute Sale in favor of EQUATORIAL be annulled and as to CARMELO, he demanded specific performance plus damages. The trial court did not grant the petition of MAYFAIR. On appeal, the Court of Appeals completely reversed and set aside the judgment of the lower court. It ordered that the Deed of Sale be rescinded and ordered CARMELO to allow MAYFAIR to purchase the property. However, Carmelo could no longer be located. Thus, following the order of execution of the trial court, MAYFAIR deposited with the clerk of court a quo its payment to CARMELO in the sum of P11,300,000. The lower court issued a Deed of Reconveyance in favor of CARMELO and a Deed of Sale in favor of MAYFAIR. A title over the land was subsequently issued to MAYFAIR. In 1997, EQUATORIAL filed an action for the collection of a sum of money against MAYFAIR. It claimed that MAYFAIR should pay rentals or reasonable compensation for its use of the subject premises after its lease contracts had expired. It alleged that the Lease Contract covering the premises occupied by Maxim Theater expired in 1987 while the Lease Contract covering the premises occupied by Miramar Theater lapsed in 1989. Representing itself as the owner of the subject premises by reason of the Deed of Sale issued by CARMELO in his favor, he was entitled to the rentals arising from MAYFAIRs occupation thereof. The trial court dismissed the case and so as to the motion for reconsideration. It debunked the claim of EQUATORIAL for unpaid back rentals, holding that the rescission of the 1978 Deed of Absolute Sale in the mother case did not confer on EQUATORIAL any vested or residual proprietary rights, even in expectancy. Hence, this present recourse. ISSUES 1. Whether or not EQUATORIAL had acquired ownership over the property by virtue of the sale made by CARMELO in the formers favor.

2. Whether or not EQUATORIAL was entitled for back rentals from the time MAYFAIRs Lease Contracts expired. RULING (1) NO, it had not. It was because even there was proper a act and legal formalities in the form of a Deed of Absolute Sale in its favor, there was however, no delivery of the property as it was then still MAYFAIR which was in actual possession of it. By a contract of sale, one of the contracting parties obligates himself to transfer ownership of and to deliver a determinate thing and the other to pay therefor a price certain in money or its equivalent. The Deed of Sale as a form of constructive delivery did not transfer ownership Ownership of the thing sold is a real right, which is not transferred by the contract alone but the buyer acquires only upon delivery of the thing to. Delivery may be actual or constructive. Although it could be argued that there was constructive delivery of the property in favor of EQUATORIAL because of the Deed of Sale, the same was not considered. However, it has been held that the execution of a contract of sale as a form of constructive delivery is a legal fiction. It is only a prima facie presumption of delivery. It holds true only when there is no impediment that may prevent the passing of the property from the hands of the vendor into those of the vendee. When there is such impediment, fiction yields to reality - the delivery has not been effected. From the peculiar facts of this case, it is clear that EQUATORIAL never took actual control and possession of the property sold, in view of MAYFAIRs timely objection to the sale and the continued actual possession of the property. The objection took the form of a court action impugning the sale which, as we know, was rescinded by a judgment rendered by this Court in the mother case. Hence, MAYFAIRs opposition to the transfer of the property by way of sale to EQUATORIAL was a legally sufficient impediment that effectively prevented the passing of the property into the latters hands. Because MAYFAIR was in actual possession of the property, the sale could not be considered consummated. The fact that MAYFAIR paid rentals to EQUATORIAL during the litigation should not be interpreted to mean either actual delivery or ipso facto recognition of EQUATORIALs title. EQUATORIAL, as alleged buyer of the disputed properties and as alleged successor-in-interest of CARMELOs rights as lessor - submitted two ejectment suits against MAYFAIR. The first in 1987 and the second in 1990. MAYFAIR eventually won them both. However, to be able to maintain physical possession of the premises while awaiting the outcome of the mother case, it had no choice but to pay the rentals.

The rental payments made by MAYFAIR should not be construed as a recognition of EQUATORIAL as the new owner. They were made merely to avoid imminent eviction. (2) NO, it was not entitled to back rentals not because it did not acquire ownership over the property in the absence of delivery. The sale to EQUATORIAL may have been valid from inception, but it was judicially rescinded before it could be consummated. EQUATORIAL never acquired ownership, not because the sale was void, as erroneously claimed by the trial court, but because the sale was not consummated by a legally effective delivery of the property sold. Furthermore, assuming for the sake of argument that there was valid delivery, EQUATORIAL was not entitled to any benefits from the rescinded Deed of Absolute Sale because of its bad faith. It admitted that its lawyers had studied the Contract of Lease between CARMELO and MAYFAIR prior to the sale and knew of the stipulations therein. It only then proved that the sale was entered into with knowledge that it would be in violation of the rights of and to the prejudice of MAYFAIR. EQUATORIALs claim of reasonable compensation for respondents use and occupation of the subject property from the time the lease expired could not be countenanced. If it suffered any loss, it must bear it in silence, since it had wrought that loss upon itself. Otherwise, bad faith would be rewarded instead of punished. WONG vs. CARPIO GR No. 50264. October 21, 1991 Although a person purchased the land and was in actual possession thereof, the sale could not have been consummated by reason of a prior deed of sale over the property in favor of another. Said prior sale was an impediment for the consummation of the sale since delivery of the property was impossible. FACTS In 1972, Private respondent MANUEL MERCADO acquired a land in Colongan, Sta. Maria, Davao del Sur from William Giger by virtue of a Deed of Sale with right to repurchase for a consideration of P3,500. In 1973, William Giger again asked an additional amount of P2,500 from MERCADO and he acceded so. But he required William Giger to sign a new deed of Pacto de Retro Sale, which the latter executed. Since he purchased the land in 1972, MERCADO began paying the real estate taxes of the land for William Giger and began harvesting only the coconut fruits thereon. He went periodically to the land to make copra but he never placed any person on the land in litigation to watch it. Neither

did he reside on the land as he was a businessman and storekeeper by occupation and resides at Lower Sta. Maria, Davao del Sur while the land in litigation is at Colongan, Sta. Maria. Neither did he put any sign or hut to show that he was in actual possession. As early as 1976, MERCADO knew that IGNACIO WONGs laborers were on his land and that they had a hut there but he did not do anything to stop them. Instead MERCADO was happy that there were people and a hut on the land therein. A month after, WONG went to the land to find out if there were other people residing there or claiming it besides the owner and he found none. So WONG bought the parcel of land in litigation from William Giger and his wife Cecilia Valenzuela. Thenon, WONG declared the land in suit for taxation purposes in his name. However, when he tried to register the pacto de retro sale with the Register of Deeds, it could not be registered. Nevertheless, WONG placed laborers on the land in suit, built a small farm house after made some clearings and fenced the boundaries. He also placed signboards. In 1976, MERCADO again went to the land in suit to make copras. When he learned that WONG occupied the land, he had the latter entered in the police blotter. Despite of this, 2 months after, WONG ordered the hooking of the coconuts from the land in litigation and nobody disturbed him. Later, MERCADO filed a case for forcible entry against WONG. During the pendency of said complaint, spouses William Giger and Cecilia Valenzuela filed a case for reformation of instrument with the court against MERCADO. The MTC held that WONG had prior, actual and continuous physical possession of the disputed property and dismissed both the complaint and the counter-claim by MERCADO. On appeal with the CFI, it reversed said decision. It held that it was MERCADO who had taken possession of the property earlier in point of time and WONG was an intruder and must return, the possession of the land in question to the former. WONG was also ordered to pay rental after from the time his possession was contested until he the time he would return the property to MERCADO. Hence, this appeal. WONG contended that MERCADO had not established prior possession because the latters periodic visit to the lot to gather coconuts may had been consented to and allowed or tolerated by the owner thereof. MERCADO could also had been a hired laborer who entered the premises every harvest season to comply with the contract of labor with the true owner of the property. ISSUE Whether or not WONG acquired the property by reason of the pacto de retro

sale executed by the William Giger in his favor.

original

owner

RULING NO. Although there was a proper act and formality in the form of a pacto de retro sale executed by the original owner William Giger in WONGs favor, there was nevertheless delivery. The execution of a sale thru a public instrument shall be equivalent to the delivery of the thing, unless there is stipulation to the contrary. If, however, notwithstanding the execution of the instrument, the purchaser cannot have the enjoyment and material tenancy of the thing and make use of it herself, because such tenancy and enjoyment are opposed by another, then delivery has not been effected. Possession by William Giger was passed to MERCADO by virtue of the first sale a retro, thus, the sale a retro in favor of WONG failed to pass the possession of the property because there was an impediment the possession exercised by MERCADO. Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of copossession. Under Art. 538, should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessions, the one longer in possession, if the dates of possession are the same, the one who presents a title; and if these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings. In fact, it was MERCADO who had material possession of the land and had subjected it in his will he went there occasionally to make copra. There was also a proper act and formality in his favor, that was the Pacto de Retro Sale executed by William Giger in his favor. Wongs entry to the property was characterized by force, intimidation, threat, strategy, or stealth The court also held that WONGs entry into the property was and excluding MERCADO as the lawful possessor therefrom necessarily implies the exertion of force over the property, and this is all that is necessary to prove forcible entry. Under the rule, entering upon the premises by strategy or stealth is equally as obnoxious as entering by force. The foundation of the action is really the forcible exclusion of the original possessor by a person who has entered without right. The words "by force, intimidation, threat, strategy, or stealth" include every situation or condition under which one person can wrongfully enter upon real property and exclude another who has had prior possession therefrom. The award of rentals was affirmed

It also sustained the award of rentals since WONGs possession in good faith ceases from the moment defects in the title were made known to the him, by extraneous evidence or by suit for recovery of the property by the true owner. Such interruption took place upon service of summons. SOMODIO vs. CA GR No. 82680. August 15, 1994 Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession. It is sufficient that the possesor was able to subject the property to the action of his will i.e. planting trees and constructing a house though was unfinished. FACTS In 1974, Jose Ortigas conveyed to Wilfredo Mabugat the possession of a residential lot situated in Raja Muda, General Santos City. Half of the purchase price thereof, was contributed by petitioner NICANOR SOMODIO. Later, Mabugat caused the partition of the property into 2 portions. SOMODIO took the western part, which was known as Lot 6328-X. After the partition, SOMODIO took possession of his portion and planted thereon ipil-ipil trees, coconut trees and other fruit-bearing trees. In 1976, SOMODIO began construction of a house thereon. However, this structure was left unfinished as his employment took him to Kidapawan, North Cotabato. He then asked his uncle to take care of the structure. Then on he would visit the property every 3 months or on weekends when he had time. In 1977, SOMODIO allowed respondent FELOMINO AYCO to transfer his hut in Lot 6328-X. 6 years later, SOMODIO demanded that AYCO vacate the premises but such demand proved futile. Hence, he filed an action for unlawful detainer with damages against respondent AYCO. In 1983, respondent EBENECER PURISIMA also entered the land and constructed a house thereon. 4 days later, SOMODIO also filed a complaint for forcible entry against PURISIMA. PURISIMA contended that the lot was a portion of the land subject of his application for miscellaneous sales patent with the Bureau of Lands. He added that his father, who was a geodetic engineer, surveyed the parcel of land for the Small Farmers Fishpond Association, Inc. Such survey plan was approved by the Director of Lands in 1960. AYCO, on the other hand, did not present any evidence but merely anchored his right to possess the property on the evidence of PURISIMA.

The trial court held that SOMODIO was the actual possessor of Lot No. 6328-X. It declared that PURISIMA built his house "almost on the spot where SOMODIO's unfinished house" stood "thru stealth and strategy," not knowing that the house was built on Lot No. 6328X and not on Lot No. 6328-Y. It held that being that PURISIMA was a frequent visitor in Rajah Muda and had sometimes stayed with Mrs. Maturan in Judge Purisima's house on the adjoining lots, he could not have remained unaware of the possession of SOMODIO. The court further stated that Lot No. 6328-X was not included in the survey pan made by PURISIMAs father. Hence, the court ordered PURISIMA and AYCO to remove their repective houses and to deliver the land to SOMODIO. The RTC affirmed such decision in toto. However, on appeal with the CA, it reversed the said decision. It held that SOMODIO had not "clearly and conclusively established physical, prior possession over Lot No. 6328-X." A motion for reconsideration with the same court was also denied. Hence, this appeal by SOMODIO. ISSUE Whether or not SOMODIO had enjoyed priority of possession over Lot No. 6328-X. RULING YES. Under Art. 531, SOMODIO had possessed the property through material occupation and having subjected it under his will. SOMODIO took possession of the property sometime in 1974 when he planted the property to coconut trees, ipilipil trees and fruit trees. In 1976, he started the construction of a building on the property. It was immaterial that the building was unfinished and that he left for Kidapawan for employment reasons and visited the property only intermittently. Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession. It was sufficient that SOMODIO was able to subject the property to the action of his will. PURISIMA on the other hand, did not present proof that between 1958, when his father allegedly took possession of the land, and 1983, when said he himself entered the land, his father ever exercised whatever right of possession he should have over the property. Under these circumstances, priority in time should be the pivotal cog in resolving the issue of possession. Besides, it was found by two ocular inspections, that what PURISIMA was claiming was possession over Lot No. 6328-Y. SOMODIOs land on the other hand, was adjacent to it, Lot No. 6328-X. It was also in SOMODIOs area where PURISIMA and AYCO built their houses. The SC also held that although SOMODIOs prior possession over the

property was proven, it was however, not synonymous with his right of ownership over the same. The resolution of the issue of possession is far from the resolution of the issue of ownership. Forcible entry is merely a quieting process and never determines the actual title to an estate. DELA ROSA vs. CARLOS GR No. 147549. October 23, 2003 The law does not require one in possession of a house to reside in the house to maintain his possession. It is enough that the possessor subjects it to the action of his will i.e.,renovating and furnishing the house and, constructing a perimeter fence on the property. FACTS The Petitioner SPOUSES JESUS AND LUCILA DELA ROSA were the owners of a house and lot in Bulacan. They acquired it from Leonardo Carlos under an Absolute Deed of Sale in 1966. Thereafter, they had it registered. Afterwards, they renovated the house, furnished and occupied the same since 1966. They also had a perimeter fence built to separate the Property from the municipal road and to protect it from trespassers. They had been paying taxes on the land (1966-1997) and the house (19661993). Since the SPOUSES DELA ROSA worked and their children studied in Manila, they resided in the Property only during weekends and holidays. However, they padlock the house on the property while they were away and instructed relatives who lived nearby to watch over the property. In 1997, the SPOUSES DELA ROSA discovered that through stealth and without their knowledge and consent, respondent SANTIAGO CARLOS had built a house of strong materials on a vacant lot of the Property. They also found that respondent TEOFILA PACHECO had also been transferring furniture to the house and sleeping there. They then demanded, through their counsel, that CARLOS and PACHECO demolish the house, remove their furniture and vacate the premises within 10 days. However, Santiago CARLOS and PACHECO did not heed the SPOUSES DELA ROSAs demand. So, in 1998, the SPOUSES DELA ROSA filed a complaint for forcible entry against CARLOS and PACHECO. CARLOS and PACHECO on the other hand, alleged that they were the surviving heirs of the Spouses Leonardo and Benita Carlos. Hence, together with LUCILA DELA ROSA, they were co-owners of the property. They also contended that the SPOUSES DELA ROSA obtained the Deed of Sale through fraud and undue influence and that their mother did not consent to the sale of

the property which they claimed as conjugal. They maintained that the SPOUSES DELA ROSA were never in possession of the Property because the latter only went there to visit their parents, and not as owners. Insisting that they had been occupying the Property since birth, SANTIAGO claimed that he constructed the house on the Property in the concept of a co-owner. The MTC declared that the SPOUSES DELA ROSA were entitled to the possession of the property. It ordered CARLOS and PACHECO to vacate the premises. The same decision was affirmed by the RTC. The CA on the other hand, reversed it. Hence, this petition for review by the SPOUSES DELA ROSA. ISSUE Whether or not the SPOUSES DELA ROSA had acquired prior possession over the property. RULING YES. They had prior possession. In a forcible entry case, the principal issue for resolution is mere physical or material possession (possession de facto) and not juridical possession (possession de jure) nor ownership of the property involved. In the present case, both parties claimed prior possession of the Property. The Spouses Dela Rosa claimed that they had been in possession of the Property since 1966 upon the execution of the Deed of Sale by Leonardo in their favor. On the other hand, CARLOS and PACHECO claimed that they had been continuously occupying the Property since birth and the SPOUSES DELA ROSA were never in possession of the Property. While admitting that CARLOS and PACHECO used to reside in the Property since birth, the SPOUSES DELA ROSA contended that the two moved out when they married in 1961 and 1959, respectively. The SPOUSES DELA ROSA had material possession over the property. Their act of visiting the Property on weekends and holidays was evidence of actual or physical possession. Even if the SPOUSES DELA ROSA were already residing in Manila, it did not mean that they could not continue possessing the Bulacan property. The fact of their residence in Manila, by itself, did not result in loss of possession of the Bulacan property. The law does not require one in possession of a house to reside in the house to maintain his possession. The SPOUSES DELA ROSA also subjected the property to the action of their will. They renovated the house, furnished the same and constructed a perimeter fence around the Property. Possession in the eyes of the law does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in

possession. It is sufficient that the SPOUSES DELA ROSA were able to subject the property to the action of their will. The SPOUSES DELA ROSA had a proper act and legal formality in their favor They had an Absolute Deed of Sale dated 1966 in their favor when they acquired the Bulacan property from Leonardo Carlos. The question of the validity of the Deed of Sale could not be questioned in a forcible entry case. CARLOS and PACHECO claimed that the Deed of Sale was executed without the consent of Benita, Leonardos spouse. They also added that the Deed of Sale was executed through fraud and undue influence. However, these issues could not properly be addressed in the present action for forcible entry. These issues could only be resolved in a separate action specifically for the annulment of the Deed of Sale. ARTICLE 532: Possession may be acquired by the same person who is to enjoy it, by his legal representative, by his agent, or by any person without any power whatever; but in the last case, the possession shall not be considered as acquired until the person in whose name the act of possession was executed has ratified the same, without prejudice to the juridical consequences of negotiorum gestio in a proper case.

6. Who may acquire possession? One who

is in full possession of his civil capacity can acquire full possession over a thing or right to any of the three ways of acquiring possession: 1) the person who is to enjoy it; 2) legal representative or an agent of the person 3) any person without any power whatever (negotiorum gestio) 1) REQUISITES: a) for personal acquisition i) intent to possess ii) capacity to possess iii) object must be capable of being possessed b) thru an authorized person i) intent to possess for principal ii) authority or capacity to possess for another iii) principal has intent and capacity to possess c) thru an unauthorized person (as in negotiorum gestio) i) intent to possess for another ii) capacity of principal to possess iii) ratification by principal. 7. The possession although cured only by the express or implied ratification should be regarded as having Retroactive. 8. The possession in negotiorum gestio, under Art. 532, is reckoned from the time of the ratification of the owner of

the thing. There is possession from the time the principal ratifies the acts of the unauthorized agent. 9. May minors and incapacitated persons acquire possession? Minors and incapacitated persons may acquire possession in those matters where they have the capacity to act like the physical seizure of a res nullius or on donation of movable property where the object or subject matter of the donation is simultaneously delivered to the minor children. ARTICLE 533: The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed never to have possessed the same.

ARTICLE 535: Minors and incapacitated persons may acquire the possession of things; but they need the assistance of their legal representatives in order to exercise the rights which from the possession arise in their favor. ARTICLE 536: In no case may possession may be acquired thru force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing, must invoke the aid of the competent court if the holder should refuse to deliver the thing. Circumstances that cannot give rise to possession: a. Force, violence and intimidation. The law shall not consider you as the possessor of the thing if you acquire it through force, violence and intimidation; b. Mere tolerance of the owner. c. Clandestine acts or secret possession cannot give rise to possession, for possession must be open. Possession which is not public.

Time of Acquisition of Possession by the Heir: a. If the heir accepts from the moment of death since there is no interruption. The possession of the deceased should be added to the possession of the heir. b. if heir refuses or incapacitated to inherit he is deemed Never to have possessed.

ARTICLE 534: One who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he was aware of the flaws affecting it; but the effects of possession in good faith shall not benefit him except from the date of death of the decedent.

How to Recover Possession: The SC said possession cannot be acquired through force or intimidation even by the owner of the property. If by force or intimidation he succeeded in evicting the possessor of the property, he can be compelled by the court to restore the possession which he has wrested from the possessor. Thus an action for forcible entry or illegal detainer may be filed even against the owner who took possession of the property from the holder without due process ARTICLE 537: Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession. 1. Force, intimidation, violence or acts merely tolerated do not affect possession. 2. Violence - exertion of force, either actual or threatened. 3. If the property was not forcible taken, can it give rise to possession through force or violence? The SC in the case of Bishop vs. Municipality of San Jose (27 Phil 571), said there is force and violence in the acquisition even if the property was not forcibly taken away from the owner if the intruder occupied it during the absence of the owner and commits acts which repel the return of the owner.

Reason for Art 534: Accdg to the SC in the case of Escritor Jr. vs. Iya (155 s 577), the reason for Art. 534 is that bad faith, which is a state of mind is personal to the person who acted so, hence it is intransmissible. Its effect must be suffered only by the person who has acted as such. The heirs should not be saddled with the consequences of the wrongful possession of the predecessor. If the father or decedent was in BF, it does not necessarily mean that the son was also in BF. The son is still presumed to be in GF. Since the father was in BF, the consequences of the GF of the son should be counted only from the date of decedents death. If the father was in Good Faith, the article is inapplicable. In such case, the possession of the father in GF is added to the possession of the son in GF.

BENEFITS OF A POSSESSOR: a) He has the benefit of prescription whether GF/BF. So in other words, of he is in possession of the whole property in the concept of an owner for 10 or 3- yrs., he may acquire the entire property thru prescription. b) He is entitled to the fruits, if he is the possessor in GF. If violence will be used, the possession previously enjoyed shall not be affected. Meaning also whoever entered this part shall not acquire the property thru prescription. ARTICLE 538: Possession as a fact cannot be recognized at the same time in 2 different personalities except in the cases of co-possession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are 2 possessors, the one longer on possession; if the dates of possession are the same, the one who presents a title, and if all these conditions are equal, the thing shall be placed in judicial deposit pending determination f its possession or ownership thru proper proceedings. GR: Possession as a fact cannot be recognized at the same time in 2 different personalities Exceptions: 1. when there are co-possessors; 2. when the possession are of two different degrees. One is possessing in a concept of an owner and the other is possessing in the concept of a holder. RULES under Art 538, Preferred Possessor: 1. In cases for recovery of possession, it is the present possessor; 2. If there are 2 possessors, the one longer in possession; 3. If both began to possess at the same time, then the one who possesses the title. 4. If both present a title, the court will determine As to MOVABLE PROPERTY preference is given to the person who first possessed the thing in good faith EDCA PUBLISHING VS SANTOS [184 scra 614] Fx: On 10/5/91, a person identifying himself as a professor of De La Salle University. (dela Cruz) ordered several books from EDCA. EDCA prepared the corresponding receipts and delivered the books as ordered for which dela Cruz issued a check in payment of the same. After several days, he ordered again for several books. EDCA became suspicious because the check was not yet cleared and here comes dela Cruz ordering another set of books, so it inquired

from DLSU of the existence of Dela Cruz and found out that he was a bogus person. So EDCA went to the police and set a trap to arrest Dela Cruz. Upon inquiry of the first set of books delivered to Dela Cruz, EDCA found out that the same were already sold to a certain Santos. With the aid of police, EDCA went to Santos and confiscated the books. EDCA contended that Santos did not acquire the books in good faith and did not show receipt to prove that Santos bought them from Dela Cruz. Issue: w/n Santos was in good faith Held: SC said that the contention of EDCA is unacceptable, precisely the first sentence of Art. 559 provides that the possession of movable property acquired in good faith is equivalent to title (rule of reinvindicability), therefore there is no need of showing further proof. Santos acquired the books in good faith, she accepted the ownership of the books from the EDCA invoice saying that it was sold to DC, who said he was selling them for a discounted price as he was in financial need. Surely Santos did not need to go beyond that invoice to satisfy herself that the books sold by DC belonged to him, which she did. Although the title of Dela Cruz was being presumed under Art. 559, these being movable properties, Santos nevertheless demanded proof before deciding to buy them. By contrast, EDCA was less than cautious, in fact too trusting in dealing with the impostor. It would certainly be unfair now to make Santos bear the prejudice sustained by EDCA as a result of its own negligence. We cannot agree that justice is transferring such loss to the Santoses who had acted in good faith and with proper care when they brought the goods from DC. IMMOVABLE

Preference is given to the first who registered his right in good faith with the registrar of deeds. In the absence of registration, then to the person who first possessed it in good faith. If there is no possession, then to the person who presents the oldest title in good faith.

MARCELO V CA 305S800 Where the SC said acquisitive prescription is a mode of acquiring ownership by a processor through the requisite lapse of time. In order to ripen into ownership, possession must be in the concept of an owner. It must be public, peaceful and uninterrupted. CEQUENA vs. BOLANTE GR No. 137944. April 6, 2000

If there are 2 possessors of the land, the preferred possessor shall be the one longer in possession. Possession here shall include not only the actual possession made by the present possessor but also the possession made by her predecessor-in-interest. FACTS Prior to 1954, a land located in the Province of Rizal, having an area of 1,728 sq. m. was originally declared for taxation purposes in the name of Sinforoso Mendoza, father of respondent HONORATA MENDOZA BOLANTE. In 1930, Sinforoso Mendoza died. Margarito Mendoza was the brother of Sinforosao Mendoza and also the father of petitioners FERNANDA MENDOZA CEQUENA and RUPERTA MENDOZA, LIRIO. After Sinforosa Mendoza died, Margarito Mendoza took possession of the land and cultivated it with his son Miguel. On the basis of an affidavit, Margarito Mendoza caused the cancellation of the tax declaration in the name of Sinforoso Mendoza on the contested lot and subsequently declared it in his name. Later, Margarito Mendoza also passed away. The occupant of the land however, since 1985, was BOLANTE, the only daughter of Sinforoso Mendoza. Earlier, in 1979, BOLANTE and Miguel Mendoza, another brother of CEQUENA and LIRIO, during the cadastral survey had a dispute on the ownership of the land. The trial court declared that the land, which was covered by a tax declaration in favor of Margarito Mendoza belonged to him and his heirs, petitioners CEQUENA and LIRIO. BOLANTE was also ordered to vacate the premises. The Court of Appeals however, reversed the trial court decision and ruled that the affidavit allegedly signed by the BOLANTE and her mother had not been sufficiently established. The notary public, nor any witness and expert testimony ever attested to the genuineness of the questioned signatures. It also ruled BOLANTEs mother, never having attended school, could neither read nor write and that BOLANTE was referred to as Leonor in the affidavit, which was a name she had never been called. Hence, it concluded that although tax declarations were presented by CEQUENA and LIRIO, it could not overthrow BOLANTEs proof of ownership of the disputed parcel by actual, physical, exclusive and continuous possession since 1985, which indeed gave her a better title under Article 538 of the Civil Code. Hence, this appeal. CEQUENA and LIRIO contended that BOLANTE could not have been the preferred possessor since she came into possession through force and violence, contrary to Article 536 of the Civil Code. ISSUE

Whether or not BOLANTE was a preferred possessor under Article 538 of the Civil Code because she was in notorious, actual, exclusive and continuous possession of the land since 1985. RULING YES she was the preferred possessor under Article 538. The court held that despite their dispossession in 1985 by BOLANTE, CEQUENA and LIRIO did not lose legal possession because possession cannot be acquired through force or violence. To all intents and purposes, a possessor, even if physically ousted, is still deemed the legal possessor. Indeed, anyone who can prove prior possession, regardless of its character, may recover such possession. However, despite so, the possession by CEQUENA and LIRIO did not prevail over that of the BOLANTE. Possession by the former before 1985 was not exclusive, as the latter also acquired it before 1985. The records show that the CEQUENA and LIRIO's father and brother, as well as the BOLANTE and her mother were simultaneously in adverse possession of the land. Before 1985, the subject land was occupied and cultivated by the Sinforoso, BOLANTE's father. When Sinforoso died in 1930, MARGARITO took possession of the land and cultivated it with his son Miguel. At the same time, BOLANTE and her mother continued residing on the lot. When BOLANTE came of age in 1948, she paid realty taxes for the years 19321948. Margarito declared the lot for taxation in his name in 1953 and paid its realty taxes beginning 1952. When he died, Miguel continued cultivating the land. As found by the CA, BOLANTE and her mother were living on the land, which was being tilled by Miguel until 1985 when he was physically ousted by the respondent. Based on Article 538 of the Civil Code, BOLANTE was the preferred possessor because, benefiting from her father's tax declaration of the subject lot since 1926, she has been in possession thereof for a longer period. On the other hand, petitioners' father acquired joint possession only in 1952. EFFECTS OF POSSESSION ARTICLE 539: Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court. A possessor deprived of his possession through forcible entry may within 10 days from the filling of the complainant present a motion to secure from the competent court, in the action for forcible entry, a write of preliminary mandatory injunction to restore him in his possession. The court shall decide the

motion within 30 days from the filing thereof. EVERY POSSESSOR HAS A RIGHT:

1) To be respected in his possession. 2) 3)

Even if he is not the owner he has the right to be respected; Should he be disturbed therein, he shall be protected in or restored to said possession. To be restored to said possession by the means established by the laws and the rules of court.

declaration, act or omission, be permitted to falsify it: 2) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.(3a) CEQUENA vs. BOLANTE GR No. 137944. April 6, 2000 Possession acquired and enjoyed in the concept of a holder despite 32 years, could not ripen into ownership. FACTS - See facts on this previous page ISSUE Whether or not CEQUENA and LIRIO acquired possession of the land in the concept of an owner so as to acquire it by prescription. RULING NO. It was BOLANTE who had acquired ownership over the land by prescription, prior to the possession of CEQUENA and LIRIO. Under Art. 540 of the Civil Code, "Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion." Although CEQUENA and LIRIO farmed the property for 32 years, they could not have acquired ownership over it through prescription. It is settled that ownership cannot be acquired by mere occupation. Unless coupled with the element of hostility toward the true owner, occupation and use, however long, will not confer title by prescription or adverse possession. Moreover, CEQUENA and LIRIO could not claim that their possession was public, peaceful and uninterrupted. Although their father and brother arguably acquired ownership through extraordinary prescription because of their adverse possession for 32 years (1953-1985), this supposed ownership could extend to the entire disputed lot, but must be limited to the portion that they actually farmed. It was BOLANTE who had acquired the land by prescription. Being the sole heir of her father, BOLANTE showed through his tax receipt that she had been in possession of the land for more than 10 years since 1932. When her father died in 1930, she continued to reside there with her mother. When she got married, she and her husband engaged in kaingin inside the disputed lot for their livelihood. BOLANTE's possession was not disturbed until 1953 when CEQUENA and LIRIOS father claimed the land. But by then, her possession, which was in the concept of owner -- public, peaceful, and uninterrupted -- had already ripened into

RATIONALE: (Yuson vs. Guzman 42 Phil. 22) a. In order to prevent positive against public order; b. In order to avoid disturbance in the community; c. To prevent deprivation of property without due process of law' d. To prevent a person from taking the law in his own hands. REMEDIES in case of disturbance and/or dispossession? Action for forcible entry, unlawful detainer, accion publiciana and accion reinvindicatoria. ARTICLE 540: Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion. REQUISITES FOR ACQUIRING DOMINION OR OWNERSHIP:

1. Possession 2.

must be actual or constructive. It must be in the concept of an owner, in concepto de dueno.

The following cannot acquire ownership thru prescription because they are merely possessors in the concept of a holder: 1. lessees 2. trustee 3. husband and wife if the property is conjugal 4. agents 5. attorneys 6. co-owners The following are instances of conclusive presumptions: 1) Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such

ownership. Furthermore she herself, after her father's demise, declared and paid realty taxes for the disputed land. Tax receipts and declarations of ownership for taxation, when coupled with proof of actual possession of the property, can be the basis of a claim for ownership through prescription. SPOUSES RECTO VS. REPUBLIC GR No. 160421. October 4, 2004 Before one can register his title over a parcel of land, the applicant must show that (a) he, by himself or through his predecessors-in-interest, has been in open, continuous, exclusive and notorious possession and occupation of the subject land under a bona fide claim of ownership since June 12, 1945 or earlier; and (b) the land subject of the application is alienable and disposable land of the public domain. FACTS In 1997, petitioner SPOUSES PHILIP and ESTER RECTO filed an application for registration of title over a 23,209 square meter lot, known as Lot 806 of the Sto. Tomas Cadastre in Batangas under Presidential Decree (P.D.) No. 1529, otherwise known as the Property Registration Decree. They also prayed in the alternative that their petition for registration be granted pursuant to Commonwealth Act (C.A.) No. 141, or the Public Land Act. The SPOUSES RECTO alleged that they purchased said property in 1996 from sisters Rosita Medrana Guevarra and Maria Medrana Torres for the amount of P6,943,534.40. The two, in turn, inherited the lot from their deceased parents, Vicente and Eufemia Medrana. Maria, born in 1917, declared that since 1945, her father was already the owner of Lot 806. She became aware of her fathers possession of the subject lot in the concept of owner in 1930 when she was 13 years of age. The possession of the subject lot by the Medrana family prior to 1945 was corroborated by Rosita, who testified that in 1935 when she was 13 years of age, she first came to know that her father was the owner of Lot 806. The sisters added that during the lifetime of Vicente, he planted rice and corn on the lot with the help of their tenant. After his demise, they continued to plant the same crops through hired farmers. There being no opposition to the petition from any private individual, an Order of General Default was issued by the trial court. In 1998, the court a quo rendered a decision granting the petition for registration.

The Republic, represented by the Solicitor General appealed to the Court of Appeals contending that petitioners failed to (1) offer in evidence the original tracing cloth plan of the land; (2) prove possession of the lot for the period required by law; and (3) overthrow the presumption that subject property forms part of the public domain.[19] In 2003, the Court of Appeals reversed the decision of the trial court on the sole ground of failure to offer in evidence the original tracing cloth plan of the land. Hence, this appeal. ISSUE Whether or not the Medranas possessed the property in the concept of an owner so as to have acquired title over it. RULING YES. The Medranas possessed the property in the concept of an owner so as to have acquired title over it. Hence, their successor-in-interest, the petitioners SPOUSES RECTO had been benefited by such possession. Before one can register his title over a parcel of land, the applicant must show that (a) he, by himself or through his predecessors-in-interest, has been in open, continuous, exclusive and notorious possession and occupation of the subject land under a bona fide claim of ownership since June 12, 1945 or earlier; and (b) the land subject of the application is alienable and disposable land of the public domain. In the instant case, Rosita and Maria the predecessors-in-interest of the SPOUSES RECTO, categorically testified that they, and prior to them their father, had been cultivating and possessing Lot 806 in the concept of owners. Maria, having been born on in 1917, and Rosita in 1922, were 13 years of age when they became aware of their familys possession of Lot 806 in 1930 and 1935, respectively. At 13, they were undoubtedly capable and competent to perceive their fathers possession of Lot 806 in the concept of owner. The fact that the earliest Tax Declaration of the subject lot was for the year 1948 will not militate against petitioners. Note that said 1948 Tax Declaration cancels a previous Tax Declaration, thus substantiating petitioners possession of Lot 806 through their predecessor-in-interest even prior to said date. So also, there is no doubt that Lot 806 is an alienable land of the public domain having been released and certified as such on in 1925. As further certified by the Community Environment and Natural Resources Office of the DENR, the entire area of Lot 806 is an agricultural land; within an alienable and disposable zone; not within a reservation area nor within a forest zone; and does not encroach upon an established watershed, riverbed, and

riverbank protection. The SPOUSES RECTO were thus able to successfully meet the requisite for original registration of title, to wit: open, continuous, exclusive and notorious possession and occupation of an alienable and disposable land under a bona fide claim of ownership since June 12, 1945 or earlier. HEIRS OF GAMOS vs. HEIRS OF FRANDO GR No. 149117. December 16, 2004 The mere application for a patent, coupled with the fact of exclusive, open, continuous and notorious possession for the required period is sufficient to vest in the applicant the grant applied for. FACTS Juliana Frando, predecessor-in-interest of respondents HEIRS OF FRANDO, was in possession of a parcel of agricultural land located in Sta. Magdalena, Sorsogon. Since 1925, Frando had planted several trees and other plants thereon, including coconuts, pili, bananas and cacao. In 1946, the property was traversed by a national road that effectively divided it into 2 portions, Lot Nos. 7 and 1855. In 1952, Frando filed for an Insular Government Property Sales Application for the 2nd lot, Lot No. 1855, which was the subject of a controversy later on. Upon inspection of the area by a representative of the Bureau of Lands, it was found to be inside an agricultural zone, free from private claims and conflicts. In 1955, during the bid of the property, which was apprised at P240, Frando was the only bidder. Frando then deposited P24, which represented 10% of the appraised value. The land was fully paid a year later in 1956, when Frando paid the balance of P216. On the same day, an Order/Award was made in Frandos favor. One of Frandos two children, Paciencia Gallanosa-Fuellas, chose to settle in Manila. The other child, Salvacion Gallanosa who was married to Abdon Gimpes (Gimpes spouses), however, continued possession of the property. Sometime in 1940, The Gimpes spouses constructed their house on the southwestern portion thereof. The couple also helped Frando in the administration of the land. The Gimpes spouses children were also born on the property, where they also grew up. After their parents death, they continued possession of the land; and harvested and received the fruits of the improvements for themselves and on behalf of their grandmother, Juliana Frando, even after her death in 1971. Purportedly unknown to the HEIRS OF FRANDO, in 1958, a cadastral survey of the Municipality of Sta. Magdalena, Sorsogon, was conducted. Lot No. 1855 became the subject of a case and as a result, in 1969, a

free patent was awarded to Cerila Gamos. On the basis of the free patent, an OCT was also issued in her name. It was only in 1981 however that the HEIRS OF GAMOS took possession of the property through entry, gathered its produce and built their houses thereon. In 1988, the HEIRS OF FRANDO filed with the RTC a Complaint against Cerila Gamos and the director of the Bureau of Lands. They challenged the validity of the free patent and OCT issued to Cerila Gamos. They alleged that the Bureau of Lands had no authority to award the patent covering an area it had earlier awarded to Juliana Frando. Cerila Gamos on the other hand, together with the HEIRS OF GAMOS alleged that they had been in actual and open possession of the land as early as 1952. They also averred that the free patent title issued in their favor, which was the basis of the subsequent issuance of the OCT was valid and lawful. The Bureau of Lands however, rebutted that Juliana Frando failed to pay the balance price of P216. Thus, she had not perfected the title over the land that the patent was not issued in her favor. In 1998, the RTC rendered judgment in favor of the HEIRS OF FRANDO. The HEIRS OF GAMOS then, appealed to the CA, which also affirmed the RTC decision.

ISSUE Whether or not the HEIRS OF FRANDO possessed the property in the concept of an owner. RULING YES. The HEIRS OF FRANDO had possessed the property in the concept of an owner. Juliana Frando had acquired the land through purchase from the government The allegation of the Bureau of Lands that Juliana Frando Clearly failed to pay the P216 balance of the sale price was disproved by the Order/Award issued in her favor in 1956, which stated that she had completed payment of the land. Given the full payment of the purchase price as well as the compliance with all the requirements for the grant of a sales patent, the Bureau had no reason to deny the issuance of such patent to Juliana Frando. Her compliance with all the requirements effectively vested in her and her successors-in-interest an equitable title to the property applied for. Even without a patent, a perfected homestead is a property right in the fullest sense, unaffected by the fact that the paramount title to the land is still in the Government. Thus, when the cadastral survey was subsequently conducted in Sta. Magdalena in 1958, the disputed property -already held in private ownership -- was no

longer part of the public domain. The director of lands had no more authority to grant to a third person a patent covering the same tract that had already passed to private ownership. Thus, the issuance of the free patent to Cerila Gamos, insofar as it encroached the portion already granted to Frando, had no legal basis at all. Notwithstanding the denial of the sales patent in favor of Juliana Frando, she had nevertheless acquired the property by prescription The denial of the sales patent notwithstanding, Juliana Frando is deemed to have acquired equitable title to the property through open, continuous, exclusive and notorious possession of the property, which was a disposable land of the public domain. In 1906, a Declaration of Real Property covering the property was issued to Basilio Frando, father of Juliana Frando. Witness accounts of long time residents of the adjoining properties confirmed her possession for a period not later than 1925; and her introduction thereon of various trees and other plants, including bananas, cacao, pili and coconuts. They also attested to the continued possession of the property by Frandos daughter, Salvacion Gimpes; and subsequently by her children, herein private respondents HEIRS OF FRANDO. Aside from showing the Order/Award, the children bolstered their claim by introducing in evidence several Tax Declarations, sketch plans, survey returns and the reports of the court-appointed commissioner. While asserting possession of the property as early as 1952, petitioners had not presented any document or witness to prove their bare claim. Moreover, Ambrosio Guatno -- one of herein petitioners -testified that he had entered the property upon the permission of Ricardo Galag, an heir of Gamos; later, he admitted that its true owner was Juliana Frando. Clearly, the mere application for a patent, coupled with the fact of exclusive, open, continuous and notorious possession for the required period is sufficient to vest in the applicant the grant applied for. In sum, the application by Juliana Frando for a sales patent, coupled with her open, exclusive, uninterrupted and notorious possession of the land applied for is, for all purposes, equivalent to a patent already perfected and granted. The subsequent entry of petitioners and their occupation of the property in question was in bad faith, given the prior possession thereof by private respondents. ARTICLE 541: A possessor in the concept of owner has in his favor the legal presumption that he possessed with a just title and he cannot be obliged to show or prove it.

a)

Possession is presumed ownership. This is a disputable presumption. What is the reason for the presumption? Because every possessor is presumed to be in good fatih. More importantly, because of the inconvenience of carrying proof of ownership. KINDS OF TITLES: True and valid title title which by itself is sufficient to transfer ownership without the necessity of letting the prescriptive period elapse.

b) Colourable title that title where, although there was a mode of transferring ownership, still something is wrong, because the grantor is NOT the owner; this is the kind of title that the possessor in the concept of an owner has. He can acquire property thru acquisitive prescription title. c) Putative title that title where although a person believes himself to be the owner, he nonetheless is not, because there was no mode of acquiring ownership. IN POSSESSION (ART. 541) a. just title is presumed if he is possessing in the concept of an owner; b. just title is sufficient to transfer ownership if nobody questions. IN PRESCRIPTION a. the person possessing in the concept of an owner must prove that he has just title; b. just title here is not sufficient to transfer ownership right there and then because he still has to go thru the period. The period has to lapse before one can acquire ownership on prescription.

CEQUENA vs. BOLANTE GR No. 137944. April 6, 2000 The prohibition against burdening a possessor in the concept of an owner to show or prove his possession with just title only does not apply if he is also claiming ownership over the land through acquisistive prescription. FACTS

- See facts on previous page BOLANTE argued that she was legally presumed to possess the subject land with a just title since she possessed it in the concept of owner. Under Article 541 of the Code, she could not be obliged to show or prove such title. ISSUE

Whether of not BOLANTE could obliged to show or prove such title.

be

RULING YES. She should be obliged to show or prove such title because she was also claiming to have acquired the property through prescription. The prohibition against burdening a possessor in the concept of an owner to show or prove his possession with just title only applies when there is an adverse claim over the property. In the present case however, both parties claimed possession in the concept of an owner. After CEQUENA and LIRIO had proved their claim over the property, it was up to BOLANTE to controvert their contentions through adducing evidence in her favor. TITONG vs. CA GR No. 137944. April 6, 2000 Titong did not acquire just title over the property because he was in bad faith. His acts of converting the boundary line (Bugsayon River) into a ricefield and thereafter claiming ownership thereof were acts constituting deprivation of the rights of others and therefore "tantamount to bad faith." FACTS In 1960, petitioner MARIO TITONG sold a 5.5-hectare parcel of land to Conception Verano vda. de Cabug. He was able to purchase the said land though in 1962. After 4 days, he sold it to Pablo Espinosa, who had it declared under his name for taxation purposes. When Espinosa died, it became a part of the estate of Segundia Liao, Espinosas late wife. In 1981, her heirs sold the property to private respondent VICTORICO LAURIO for P5,000. Thereafter, a tax declaration was issued in the name of LAURIO. In all these conveyances, the area and boundaries of the property remained exactly the same. Later, TITONG filed an action for quieting of title against private respondents VICTORICO and ANGELES LAURIO. He alleged that he was the owner of a 3.2800hectare parcel of unregistered, which he declared for taxation purposes in his name. He claimed that on 3 separate occasions in 1983, the LAURIOs, with their hired laborers, forcibly entered a portion of the land containing an area of approximately 2 hectares, and began plowing the same under pretext of ownership. TITONG identified Espinosa as his adjoining owner. He asserted that no controversy had sprouted between them for 20 years until the latter sold said lot to VICTORICO LAURIO. The boundary between the land sold to Espinosa and what remained of TITONG's property was the old Bugsayon river. When TITONG employed

Bienvenido Lerit as his tenant in 1962, he instructed Lerit to change the course of the old river and direct the flow of water to the lowland at the southern portion of TITONG's property, thus converting the old river into a riceland. The LAURIOs denied this allegation and averred that the disputed property formed part of the 5.5-hectare agricultural land which they had purchased in 1981 from their predecessor-in-interest, Pablo Espinosa. It was proved at the proceedings in the court a quo that two (2) surveys were made of the disputed property. The first survey was made for TITONG, while the second was the relocation survey ordered by the lower court. As anticipated, certain discrepancies between the two surveys surfaced. Thus, contrary to TITONG's allegation in his complaint that he was the owner of only 3.2800 hectares, he was actually claiming 5.9789 hectares. On the other hand, the lot pertaining to Espinosa, was left with only an area of 4.1841 hectares instead of the 5.5 hectares sold by TITONG to him. LAURIO testified that TITONG was one of the four heirs of his mother, Leonida Zaragoza. In the Extrajudicial Settlement with Sale of Estate of the deceased Leonida Zaragoza, the heirs adjudicated unto themselves the 3.6-hectare property of the deceased. However, instead of reflecting only .9000 hectare as his rightful share in the extrajudicial settlement TITONG's share was bloated to 2.4 hectares. It was therefore appeared to LAURIO that TITONG encroached upon his property and declared it a part of his inheritance. LAURIO LAURIO accordingly denied that TITONG had diverted the course of the Bugsayon River after he had repurchased the land from Conception Verano vda. de Cabug because the land was immediately sold to Espinosa shortly thereafter. In short, TITONG, in bad faith, surreptitiously, maliciously and fraudulently had the land in question included in the survey of his land which extends to the south only as far as the Bugsayon River which is the visible and natural and common boundary between the properties. Moreover, during the hearing of the case, TITONG proved that it was actually a boundary dispute by evidence showing what he considered as the boundary of his property which LAURIO perceived as actually encroaching on their property. The lower court rendered a decision in favor of LAURIO, declaring him as the true and absolute owner of the litigated property and ordering TITONG to respect private LAURIOs' title and ownership over the property and to pay attorney's fees, litigation expenses, costs and moral damages. The same was affirmed by the CA. Hence, this appeal. ISSUE

Whether of not TITONG possessed the property with a just title in his favor. RULING NO. He had no just title in his favor. Ordinary acquisitive prescription of things requires possession in good faith and with just title for the time fixed by law. Hence, a prescriptive title to real estate is not acquired by mere possession thereof under claim of ownership for a period of ten years unless such possession was acquired with color of title and good faith. The good faith of the possessor consists in the reasonable belief that the person from whom he received the thing was the owner thereof, and could transmit his ownership. For purposes of prescription, there is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights but the grantor was not the owner or could not transmit any right. TITONGs had not satisfactorily met the requirements of good faith and just title. As aptly observed by the trial court, the plaintiff's admitted acts of converting the boundary line (Bugsayon River) into a ricefield and thereafter claiming ownership thereof were acts constituting deprivation of the rights of others and therefore "tantamount to bad faith." To allow TITONG to benefit from his own wrong would run counter to the maxim no man can be allowed to found a claim upon his own wrongdoing. MARCELO vs. CA GR No. 131803. April 14, 1999 There is, upon the other hand, just title when the adverse claimant comes into possession of the property through any of the modes recognized by law for the acquisition of ownership or other real rights, but that the grantor is neither the owner nor in a position to transmit the right. The possessor only had to prove colorable title. FACTS A parcel of land located in Sta. Lucia, Angat, Bulacan was originally owned by spouses Jose Marcelo and Sotera Paulino and they had been in continuous possession of said property since 1939. Following the death of Jose Marcelo in 1965, his heirs, petitioners SOTERA PAULINO MARCELO ET AL. discovered in 1967 that a portion of said property had been encroached by respondent FERNANDO CRUZ. Earlier in 1960, CRUZ purchased a 6,000-sq. m. property from Engracia dela Cruz and Vicente Marta and Florentino all surnamed Sarmiento, pursuant to a Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patulayan . As soon

as the said property was sold to Fernando Cruz, the adjoining property described and classified as parang with an area of 7,856 sq. m. was declared by said CRUZ in his name which circumstance, increased his landholding to 13,856 sq. m. In 1968, he sold this 13,856 sq. m.-property to respondent SERVANDO FLORES pursuant to a deed of sale (Kasulatan ng Bilihan). The said sale included the encroached portion of 7,540 sq.m. of MARCELO ET AL.s property. In 1968, MARCELO ET AL. attempted to cultivate the disputed portion but were barred from doing so by respondent FLORES who claimed that the area was part of the land he bought from co-respondent CRUZ. Hence, in 1982, MAR CELO ET AL filed an action for the recovery of a portion of unregistered land. CRUZ and FLORES, on the other hand, contended that the portion sought to be recovered by MARCELO ET AL. was part of the land which CRUZ acquired in 1960 from the Sarmientos. They also averred that the land sold to CRUZ contained 6,000 sq. m. of palayero or riceland and 7,856 sq. m. of parang or pasture land. It was added that in 1967, CRUZ caused the survey of the property and had it declared for taxation in 1968. It was further alleged that CRUZ sold the same property to FLORES in 1968. The trial court found that the issue revolved on the so-called pasture land or parang. It concluded that the parang belonged to MARCELO ET AL. and that it was merely encroached upon by CRUZ. It was proven that the tax declaration of the Sarmientos, from whom CRUZ purchased the property, did not include the parang and it was only began to be declared for taxation purposes in the name of CRUZ in 1961. On the other hand, the said parang was a part and parcel of MARCELO ET AL. property to which they had been in possession thereof prior to World War II. Because of such encroachment, the landholding of CRUZ of 6,000 sq. m. was increased to 13,856 square meters. The court then ordered CRUZ and FLORES to return the ownership and possession of the parang to MARCELO ET AL. On appeal to the CA, the decision of the lower court was reversed. Hence, this appeal. ISSUE Whether of not FLORES had in his favor just title. RULING YES. FLORES had just title in his favor because he acquired the property in good faith. The bad faith of CRU The Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang Patuluyan. executed in 1960 by the Sarmientos, pertained not only to the palayero but also to the parang as well. Shortly after the execution of the deed of sale in his favor, CRUZ declared both parcels, i.e., the

palayero and the parang, for taxation purposes in 1960 in the Office of the Provincial Assessor and forthwith a new tax declaration was issued in his name for the entire 13,856 sq. m. property. In turn, respondent CRUZ sold in 1968, the 13,856 square meters of land to respondent Flores under a Kasulatan ng Bilihan. FLORES immediately took possession of the property to the exclusion of all others and promptly paid the realty taxes thereon. From that time on, FLORES had been in possession of the entire area in the concept of an owner and holding it in that capacity for almost 14 years before petitioners initiated their complaint in 1982. Acquisitive prescription is a mode of acquiring ownership by a possessor through the requisite lapse of time. In order to ripen into ownership, possession must be in the concept of an owner, public peaceful and uninterrupted. Possession, to constitute the foundation of a prescriptive right, must be en concepto de dueno, or, to use the common law equivalent of the term, that possession should be adverse; if not, such possessory acts, no matter how long, do not start the running of the period of prescription. Ordinary acquisitive prescription demands, as aforesaid, that the possession be in good faith and with just title. The good faith of the possessor consists in the reasonable belief that the person from whom the thing is received has been the owner thereof and could thereby transmit that ownership. There is, upon the other hand, just title when the adverse claimant comes into possession of the property through any of the modes recognized by law for the acquisition of ownership or other real rights, but that the grantor is neither the owner nor in a position to transmit the right. In the instant case, FLORES took possession of the controverted portion in good faith and with just title. This is so because the said portion of 7,540 sq. m. was an integral part of that bigger tract of land which he bought from CRUZ under public document. As explicitly mentioned in the document of sale executed in 1968, the disputed portion referred to as parang was included in the sale to FLORES. Parenthetically, at the time of the sale, the whole area consisting of the riceland and pasture land was already covered by a tax declaration in the name of CRUZ and further surveyed in his favor. Hence, FLORES possession of the entire parcel which included the portion sought to be recovered by MARCELO ET AL. was not only in the concept of an owner but also public, peaceful and uninterrupted. While it is true that the possession of the entire area by his predecessor-in-interest CRUZ may not have been peaceful as it was indeed characterized with violence which resulted in the death of Jose Marcelo, this could not be said of FLORES possession of the

property, in respect of which no evidence to the contrary appears on record. ARTICLE 542: The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded. ARTICLE 543: Each one of the participants of a thing possessed in common shall be deemed to have exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period during which the co-possession lasted. Interruption in the possession of the whole or a part of a thing possessed in common shall be to the prejudice of all the possessors. However, in case of civil interruption, the Rules of Court shall apply. ARTICLE 544: A possessor in good faith is entitled to the fruits received before the possession is legally interrupted. Naturally and industrial fruits are considered received form the time they are gathered or severed. Civil fruits are deemed to accrue daily and belong to the possessor in good faith on that proportion. The possessor in good faith (PGF) is entitled to the fruits received before the possession is legally interrupted. Right of PBF with respect to the gathered fruits: Entitled to payment for production, gathering and preservation expenses of the crops. (If the fruits have not been gathered, he loses everything with respect to the fruits. But he can get the payment of expenses for the preservation of the land.)

ARTICLE 545: If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession. The charges shall be divided on the same basis by the two possessors. The owner of the ting may, should he so desire, give the possessor in good faith the right to finis the cultivation and gathering if the growing fruits, as an indemnity for his part of the expenses of cultivation and the net proceeds; the possessor in good faith who for any reason whatever should refuse to accept this concession, shall loss the right to be indemnified in any other manner.

The situation is, X possesses in GF the land of B. The possession of X has been legally interrupted, and therefore his possession in GF ceases. What are the rights of X?

1. right to part of the expenses of cultivation; 2. right to a part of the net harvest (both in proportion to the time of the possession, 1st par. of 545. POSSESSOR GOOD FAITH BAD FAITH Owns them - Return the value of (Art. 544) fruits which owner could have received (Art. 549) - Liable for damages EXCEPT articles 443 and 546 Pro-rating of - No rights at all (Art. net harvest 449) (Art. 545) - Liable for damages (Art. 452) Pro-rating, how determined: The possessor was already in possession for two months before his possession in good faith was legally interrupted through the serving of judicial summons. The crops are pending and it would take about 4 months before it could be harvested. So before interruption, possession is in good faith, after interruption, possession is in bad faith. 4

Rights of a Possessor (in the concept of owner) as to the Useful Expenses: If in good faith 1) Right to REIMBURSEMENT (of either the amount spent or the increase in value; 2) Right of RETENTION (till paid) While waiting to be reimbursed, he is not obliged to pay rental to the owner. The right of retention is an absolute right, thus, he can occupy or possess the premises for free until he is reimbursed. But during his retention of the premises, he introduces improvements; he has no right of removal if the improvements are introduced during the retention period. During the time of retention, he is already in bad faith. PBF under useful expenses has no right whatsoever.

3) Right of REMOVAL (provided

no substantial damage or injury is caused to the principal, reducing its value. Unless the winner (lawful owner or possessor) exercises the option in Art 547, 1

Judicial summons 2 months months = 2:4 pro-rata good faith

If in bad faith 1. Not entitled to any right regarding

the useful expenses or reimbursements for expenses incurred; 2. he may REMOVE the objects (repairs on building) provided the things suffer NO INJURY thereby; 3. If the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession. PADA- KILARIO V CA They are PBF and the kind of expenses they incurred here is useful. Improvements are considered as useful expenses. So what are they entitled to? They are entitled to nothing. CHUA V CA Under Art 547 on useful expenses only apply to PGF, and since Chua, who is a lessee, he is not entitled to the benefits of 546 and 547. There is no provision which grants a lessee a right of retention until reimbursed.

bad faith

1. Necessary Expenses are those

without which the thing would physically deteriorate or be lost, expenses for the preservation of the thing. They do not increase the things value; they merely prevent the thing from being useless. Rights of a Possessor (in the concept of owner) as to the necessary expenses a. If in good faith entitled to: 1. refund 2. retain premises until paid b. If in bad faith entitled ONLY to a refund (no right of retention, as penalty)

2. Useful Expenses they are those

that: i. add value to the property ii. or increase the objects productivity iii. or useful for the satisfaction of spiritual and religious yearnings or give rise to all kinds of fruits

3. Luxurious Expenses, Art 548 are

those which add value to the thing only for certain determinate persons in view of their particular whims. They are neither essential for preservation nor useful to everybody in general

ARTICLE 546: PADA-KILARIO vs. CA G.R. No. 134329. Jan. 19, 2000. If a possessor were in possession of the property without paying any rental as they only relied on the liberality and tolerance of the landowner are not possessors nor builders in good faith because they know that their occupation of the premises may be terminated any time. Hence, they are not entitled to reimbursement of useful expenses. FACTS Jacinto Pada owned a parcel of land of residential and coconut land in Leyte denominated as Cadastral Lot No. 5581. During his lifetime, his half-brother, Feliciano Pada, obtained permission from him to build a house on the northern portion of Cadastral Lot No. 5581. When Feliciano died, his son, Pastor, continued living in said house. Petitioner Verona Pada-Kilario, one of Pastor's children, had been living in that house since 1960. Later, Jacinto Pada died intestate. His 6 children, 1 personally and others through their children, entered into an extra-judicial partition of his estate, which included Cadastral Lot No. 5881. One of the sons of Jacinto Pada was Marciano Pada. The latters daughter, Maria Pada, sold the co-ownership right of his father to respondent SILVERIO PADA, who was also a first cousin. Thereafter, SILVERIO demanded that spouses VERONA PADA-KILARIO and RICARDO KILARIO vacate the northern portion of Cadastral Lot No. 5581 so his family can utilize the said area. Unable to settle for an amicable settlement, SILVERIO instituted a complaint for ejectment with prayer for damages against spouses KILARIO. Later, heirs of Amador Pada, also a son of Jacinto Pada, executed a Deed of Donation, transferring to petitioner Verona Pada-Kilario, their respective shares as coowners of Cadastral Lot No. 5581. Hence, the SPOUSES KILARIO averred that the northern portion of Cadastral Lot No. 5581 had already been donated to them by the heirs of Amador Pada. Hence, they were virtually converted as standing co-owners of the land under controversy and became the undivided owners of the whole estate. Their possession then in the northern portion was being lawful. They also contended that they had been occupying the subject property since 1960 without ever paying any rental. The RTC ordered the SPOUSES KILARIO to vacate the premises in issue and return peaceful possession to SILVERIO being the lawful possessor in concept of owner. When the SPOUSES KILARIO appealed with the CA, the same was denied. Hence, this petition

ISSUE Whether or not the SPOUSES KILARIO were entitled to full reimbursement of useful improvements and retention of the premises until reimbursement is made. RULING NO, they were not because they were builders in good faith. Considering that SPOUSES KILARIO were in possession of the subject property by sheer tolerance of its owners, they knew that their occupation of the premises may be terminated any time. Persons who occupy the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that they will vacate the same upon demand, failing in which a summary action for ejectment is the proper remedy against them. Thus, they could be considered possessors nor builders in good faith. It is well-settled that both Article 448 and Article 546 of the New Civil Code which allow full reimbursement of useful improvements and retention of the premises until reimbursement is made, apply only to a possessor in good faith, i.e., one who builds on land with the belief that he is the owner thereof. Verily, persons whose occupation of a realty is by sheer tolerance of its owners are not possessors in good faith. Neither did the donation by some of the heirs, convert SPOUSES KILARIO into builders in good faith for at the time the improvements were built on the premises, such promise was not yet fulfilled, i.e., it was a mere expectancy of ownership that may or may not be realized. More importantly, even as that promise was fulfilled, the donation was void for the donors were not the owners of Cadastral Lot No. 5581. As such, petitioners could not be said to be entitled to the value of the improvements that they built on the said lot. CHUA vs. CA GR No. 109840. January 21, 1999 Reimbursement applies only to a possessor in good faith, i.e., one who builds on a land in the belief that he is the owner thereof. This right does not apply to a mere lessee, otherwise, it would always be in his power to "improve" his landlord out of the latter's property. FACTS Petitioners JOSE L. CHUA and CO SIO ENG were lessees of a commercial unit in Baclaran, Paraaque, Metro Manila, which was owned by respondent RAMON MARRA. The lease was for a period of 5 years, from 1985 to 1989. The contract expressly provided for the renewal of the lease at the

option of CHUA and ENG in accordance with the terms of agreement and conditions set by the MARRA. Prior to the expiration of the lease, the parties discussed the possibility of renewing it. They exchanged proposal and counterproposal, but they failed to reach agreement. The dispute was referred to the barangay captain for conciliation but still no settlement was reached by the parties. Hence, in 1990, MARRA filed a complaint for unlawful detainer against CHUA and ENG with the MTC. The court extended the lease for another 2 years. CHUA and ENG were also ordered to pay MARRA back rentals until they vacate the premises. The RTC however, modified said decision. It ruled that after the expiration of the 5-year lease period, CHUA and ENGs continued stay were already illegal. It also held that the period fixed by the MTC was not proper as the power of the courts to fix the period of lease is limited only to cases where the period has not been fixed by the parties themselves. CHUA and ENG were also ordered then, to vacate the premises and pay back rentals until they vacate the same. The CA affirmed the RC decision. The appellate court found petitioners guilty of bad faith in refusing to leave the premises. Hence, this petition for review on certiorari. UY and ENG contended that they acted in good faith under the belief that they were entitled to an extension of the lease because they had made repairs and improvements on the premises. ISSUE Whether or not the useful improvements made by UY and ENG on the leased premises entitled them to reimbursement from MARRA. RULING NO. They should not be entitled to reimbursement. The fact that, UY and ENG allegedly made repairs on the premises in question is not a reason for them to retain the possession of the premises. There is no provision of law which grants the lessee a right of retention over the leased premises on that ground. Art. 448 of the Civil Code, in relation to Art. 546, which provides for full reimbursement of useful improvements and retention of the premises until reimbursement is made, applies only to a possessor in good faith, i.e., one who builds on a land in the belief that he is the owner thereof. In a number of cases, the Court has held that this right does not apply to a mere lessee, like the petitioners, otherwise, it would always be in his power to "improve" his landlord out of the latter's property. Art. 1678 merely grants to such a lessee making in good faith useful improvements the right to be reimbursed one-half of the value of the improvements upon the

termination of the lease or in the alternative, to remove the impovements if the lessor refuses to make reimbursement. ARTICLE 547: ARTICLE 548: ARTICLE 549: The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor should have received, and shall have a right only to the expenses mentioned in par. 1 of article 546 and in article 443. the expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith; but he may remove the objects for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession. ARTICLE 550: The costs of litigation over the property shall be borne by every possessor. ARTICLE 551: Improvements caused by Nature or time shall always inure to the benefit of the person who has succeeded in revering possession. ARTICLE 552: A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons. A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event. ARTICLE 553: One who recovers possession shall not be obliged to pay for the improvements which have ceased to exist at the time he takes possession of the thing. ARTICLE 554: A present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence of proof to the contrary. ARTICLE 555: A possessor may lose his possession: 1. By the abandonment of the thing; 2. By an assignment made to another either by onerous pr gratuitous title; 3. By the destruction or total loss of the thing, or because it goes out of commerce; 4. By the possession of another, subject to the provisions of Article 537, if the new possession has lasted longer that one year. But the real right of possession is not the lost till after the lapse of 10 years.

Instances when a possessor may lose possession: 1) By the abandonment of the thing

o Abandonment
o

is the voluntary renunciation of a thing or right. The abandonment must be true abandonment in the sense that both possession de facto and possession de jure are lost. This is the abandonment that converts the thing into res nullius, meaning ownership of which may be ordinarily acquired through occupation. But this does not apply to land. Because under Art. 714, which provides that the ownership of a piece of land cannot be acquired by occupation. So, ordinarily it refers to movables.

in such a way that its existence is unknown and there is no recovery at all. 3. Accdg to Mr. Paras, the possession of movables is not deemed lost as long as they remain under the control of the possessor even though for the time being he does not know their whereabouts. - Possession that is lost for one year is possession de facto, but not legal right of possession because it is lost after the lapse of 10 years. Possession as a fact, if you lose it for more than 1 year, then you may file a case for recovery for possession. - By the possession of another, subject to the provisions of Article 537, if the new possession has lasted longer that one year. But the real right of possession is not the lost till after the lapse of 10 years. U.S. vs. REY G.R. No. 3326. September 7, 1907 Property can not be considered abandoned under the law if the possessor did not know that the thing was lost until the spes recuperand (hope of recovery)i is gone and the animus revertendi (intention to return) is finally given up. FACTS On September 19, 1905, the steamer Cantabria sailed from the port of Manila, destined for the pueblo of Tabaco, Albay. The ship had on board, as a part of her cargo, 3 boxes containing silver and paper money amounting to P25,000. This money was shipped by the firms of Urrutia & Co. (P20,000) and Muoz & Co. (P5,000) After the Cantabria remained in quarantine at the quarantine station of Mariveles, she continued the journey September 24. On September 26, said ship was totally wrecked off the small Island of Mababuy and all its officers and passengers were drowned, the cargo including the money were lost as it sunk with the ship. On September 28, the defendant LAURENTE REY with several others, after having discovered the existence and location of the wrecked steamer Cantabria, took two boxes , which contained P15,000, one containing P10,000 and the other P5,000. Being that the sum was packed in boxes, which were reinforced with iron straps and nails, said boxes were broken by the accused in order to take possession of the said sum of money. A part of which was distributed among his companions, the largest portion of which was retained by REY. The trial court convicted REY for the crime of robbery. On appeal, REY alleged that the said property which was sunk with the wrecked steamer Cantabria, was

REQUISITES:

1. That the abandoner must have been 2. 3. 4.

a possessor in the concept of an owner; The capacity to renounce; there must be physical relinquishment of the thing; No expectancy of recovery or no intent to return; and The abandoner must have knowledge of the loss of his possession or the thing. (US vs. Ray 8 Phil 500)

Effect of temporary ignorance: 4. There is no abandonment of movables even if there is temporary ignorance so long as they remain under the control of the possessor. Effect of tolerance 5. There is no abandonment if the owner merely tolerated another's possession, nor if that possessor acquired it through stealth, or effected the same through force or intimidation 1. Assignment, either by onerous (in case of sale) or gratuitous title (in case of donation). - Assignment here is the complete transmission of ownership rights to another person onerously or gratuitously. 2. By the destruction or total loss of the thing, or because it goes out of commerce. - A thing is lost when it perishes, or goes out of commerce, or disappears

abandoned property and therefore, granting that he had taken possession of said property and appropriated it to his own use, he was not guilty of the crime of robbery. ISSUE Whether or not the boxes containing the money were abandoned property. RULING NO. Said boxes were not abandoned property because of the absence of knowledge of the possessor that the thing was lost and there was still intent on the part of the possessor to recover it. Art. 555 (then Art. 460) provides that one of the ways in which a possessor may lose possession of a property is through abandonment of a thing. There was absence of knowledge of the possessor that the thing was lost The sinking of the Cantabria was relayed to the firms only after more than 6 weeks after the cyclone. Certainly the owner of property can not be held to have abandoned the same until at least lie has some knowledge of the loss of its possession or of the loss of the thing. There was still intent on the part of the firms to recover the money. Property can not be considered abandoned under the law and the possession left vacant for the finder until the spes recuperandi (hope of recovery) is gone and the animus revertendi (intention to return) is finally given up. The theory of abandonment on the part of the owners of the money stolen was fully refuted by the fact that some weeks after the wreck of the said ship they sent men to the place of the wreck for the purpose of recovering the property which belonged to them, which was on board the ship at the time of her sinking. The mere fact that cargo was sunk with a ship wrecked at sea by no means deprives the owner of said cargo of his property therein. The owner certainly still has the right to reclaim such property and to recover the same if possible. If it should be recovered by others, the real owner would be entitled to recover its value less the necessary expense of recovering the same and carrying it ashore by the most approved appliances for that purpose by others.

Subsequently, it was acquired by the Philippine Realty Corporation. In 1945, several persons settled on the property and constructed houses thereon without permission from the Philippine Realty Corporation. On various dates thereafter, between 1947 and 1952, respondents MAXIMO DE LARA, JUAN PANLILIO, LUCIA RIVERO, FLORENTINO ROQUE and DOMINGO SAMSON bought the houses of those settlers and continued in occupancy thereof without paying any rents to the owner of the land. Later in 1956, Philippine Realty Corporation sold said property to petitioner JOHN O. YU, who later obtained a TCT in his name. In 1957, YU advised DE LARA ET AL. to vacate the property within 30 days. Because of the latters refusal, UY filed a complaint of unlawful detainer. The lower court ordered DE LARA ET AL. to vacate the premises and to pay monthly rentals from the time the action was filed until they vacate the premises. On appeal, DE LARA ET AL. contended that Philippine Realty Corporation had lost possession of the property by abandonment, in failing to take action against them and showing lack of interest in said property since they started their occupancy. ISSUE Whether or not the property was abandoned by Philippine Realty Corporation. RULING NO. It was not abandoned. The circumstances adverted to are insufficient to constitute abandonment, which requires not only physical relinquishment of the thing but also a clear intention not to reclaim or reassume ownership or enjoyment thereof. Indeed, abandonment which according to converts the thing into res nullius, ownership of which may be acquired by occupation, can hardly apply to land, as to which said mode of acquisition is not available, let alone to registered land, to which "no title in derogation to that of the registered owner shall be acquired by prescription or adverse possession". No possessory rights whatsoever can be recognized in favor of appellants, because they are in fact nothing but squatters, who settled on the land without any agreement with the owner, paying neither rents to him nor land taxes to the government, and who impliedly recognized their squatters' status by purchasing only the houses built by the original settlers. Their occupancy of the land was at the owner's sufferance, and their acts were merely tolerated which could not affect the owner's possession. ARTICLE 556: The possession of movables is not deemed lost as long as they remain under the control of the possessor, even

YU vs. DE LARA G.R. No. L-16084 November 30, 1962 Land can never be an abandoned thing, especially registered land. FACTS Lot No. 14, block No. 51-C of the Gram Park subdivision, which was a 682.5-meter property, was originally registered in 1916.

though for the time being hew may not know their whereabouts.

possessor had acquired the thing in good faith at a public auction. SUMMARY: 1. 2. Owner may recover without reimbursement: From possessor in bad faith; From possessor in good faith (if owner had lost the property or been unlawfully deprived of it) (the acquisition being from a private person) Owner may recover but should reimburse if possessor acquired the object in good faith at a public sale or auction. Owner cannot recover even if he offers to reimburse (WON the owner had lost or been unlawfully deprived): If possessor had acquired it in good faith by purchase from a merchants store or in fairs, or markets in accordance with the Code of Commerce and special laws. If owner is by his conduct precluded from denying the sellers authority to sell. If possessor had obtained the goods because he was innocent purchaser for value and holder of a negotiable document of title to the goods. When acquisitive prescription has set in except if possessor is a criminal.

RULE WHEN POSSESSION DEEMED LOST: (Movable): 1. under the control of another; 2. no idea of the whereabouts

NOT

ARTICLE 557: The possession of immovables and of real rights is not in deemed lost, or transferred for purposes of prescription to the prejudice of 3rd persons, except in accordance with the provisions of the Mortgage Law and the Land Registration laws. ARTICLE 558: Acts relating to possession executed or agreed to by one who possesses a thing belonging to another as a mere holder to enjoy or kept it, in any character, do not bind or prejudice the owner unless he gave said holder express authority to do such acts, or ratifies them subsequently. ARTICLE 559: The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same. If the possessor of a movable lost or which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefore. Art. 559 is known as the rule on irreinvindicability. "Aquired in good faith" here means that the possessor is of the belief that the person from whom he received the thing was the owner and who could transfer valid title thereto. Requisites for title: 1. That the possession is in good faith; 2. That the owner has voluntarily parted with the possession of the thing; 3. And the possession is in the concept of an owner. GR: Possession in good faith in the concept of an owner is equivalent to title. If the owner wants to get the thing back, he must REIMBURSE the possessor Exceptions NO REIMBURSEMENT by the owner is required when: a. when the owner has lost the thing; b. when the owner has been unlawfully deprived of the thing; Exception to the exception the owner shall REIMBURSE the price paid when the

1)

2) 3)

4)

DEL ROSARIO vs. LUCENA G.R. No. 3546. September 13, 1907 A jewelry owner whose jewelries were pawned without her consent cannot be compelled to reimburse the person to whom it is pawned in order to acquire possession of the jewelries. FACTS Petitioner PIA DEL ROSARIO owned certain jewelries. She delivered said jewelries to respondent PRAXEDES FLORES for sale on commission for the term of 2 months, after which, if not sold, they should be returned to her. Without her consent, the respondent JUAN LUCENA and his wife, PRAXEDES FLORES pawned them to corespondent TERESA VERCHES for P500. DEL ROSARIO filed a complaint against the SPOUSES LUCENA and VERCHES. The principal object of the complaint was to obtain from the court a declaration that the jewels were the property of DEL ROSARIO. The court rendered judgment in favor of the DEL ROSARIO and against VERCHES for the possession of the jewels. However, DEL ROSARIO could only possess the jewelries after she pays P500 to VERCHES with interest. Should the jewels could not be returned, the SPOUSES LUCENA shall jointly

and severally pay DEL ROSARIO P500 and VERCHES P1,555 less P500. DEL ROSARIO appealed this decision. ISSUE Whether or not DEL ROSARIO was under obligation to reimburse VERCHES in order to repossess the jewelries. RULING NO. DEL ROSARIO should not be obliged to reimburse VERCHES. VERCHES accepted the jewels as a pledge constituted by FLORES in the name' of DEL ROSARIO, without ascertaining whether the latter had given the former any order or authority for the pledging of her jewelries. VERCHES must stand the risk arising from her acceptance of the pledge, even if when relying upon her judgment she was improperly or falsely informed; and it would not be just nor logical that the consequences of her deception, due to her own mistake, or to deceit employed by a stranger, should fall on the owner of the jewelries who, without having taken any part in the transaction, became the victim of a crime. The conflict between the right of the owner of movable property who has either lost it or been illegally deprived thereof and that of the creditor who has loaned money thereon and holds it in pledge can not be decided against the owner, to whom the Civil Code grants a right of action to recover the property from whoever may be in possession. The exceptions to Art. 559 (then Art. 464) are therein contained, namely: (1) If the possessor of personal property, lost or stolen, has acquired it at a public sale; (2) in favor of Montes de Piedad established under authorization of the Government; and (3) with regard to things acquired on exchange, or at fairs or markets, or from a merchant lawfully engaged in similar business. The defendant was not within any of the exceptions under which she could refuse to make restitution of the property without reimbursement of the amount advanced upon the pledge. Therefore the decision which provides for such reimbursement before the return of the jewels is not based on any law whatever. On the contrary, it is in violation of Art. 559 of the Civil Code. It was improper to compel DEL ROSARIO to reimburse VERCHES in the sum P500, which PRAXEDES FLORES obtained through the commission of an unlawful act, but that it is proper and in accordance with the law to compel VERCHES to return to the DEL ROSARIO, absolutely and unconditionally, the jewels in question. VARELA vs. FINNICK

G.R. No. 3890. January 2, 1908 A pawnshop does not enjoy the privilege established by Art. 559.The owner of a pawnshop, notwithstanding the fact that he acted in good faith, did not acquire the Jewels at a public sale. Neither does, a pawnshop enjoy the privilege granted to a Monte de Piedad. The owner of the jewels who was deprived of the same in consequence of a crime is entitled to the recovery thereof. FACTS In 1905, Nicolasa Pascual received from petitioner JOSEFA VARELA several jewels, some of which were owned by ARELA herself and some belonged to strangers. The jewelries were delivered to Pascual to be sold on commission, with the obligation on the part of the latter to pay to the former the proceeds of the sale of said jewels, or to return them if unsold. Pascual, however, pawned the said jewels at various dates with H. J. Finnick's pawnshop, where the jewels had been pledged. The jewels were thus misappropriated and the amount of the loan granted thereon embezzled, to the prejudice of Josefa VARELA. In 1906, VARELA claimed, in writing, the return of the jewels from H. J. Finnick's pawnshop. It also filed a case against said pawnshop and its manager, respondent JOSEPHINE FINNICK. FINNICK alleged that the jewels pledged at the pawnshop were not the subject of any other crime committed by Pascual. It was further alleged that the pawnshop accepted the said jewels in good faith. Hence, the pawnshop was entitled to their possession. ISSUE Whether or not VARELA should be entitled to the possession of the jewelries. RULING YES, she should be entitled to the possession the jewelries. Nicolasa Pascual was convicted of estafa of the jewels in question, and as the sentence became final, so much so that she was now undergoing or term of imprisonment, the balance of the judgment must be complied with that is, the restitution of the jewels misappropriated because they are at hand and have not disappeared. This restitution must be made even if the jewels are in the possession of a third party, such as a pawnshop, and notwithstanding the fact that they were lawfully acquired by it, its right to institute proceedings against whoever may be liable therefor being reserved as provided by article 120 of the Penal Code. The exception contained in paragraph 3 of said article is not applicable to the present case because a pawnshop does not enjoy the privilege established by Art. 559

(then Art. 464), of the Civil Code. The owner of the pawnshop of Finnick Brothers, notwithstanding the fact that he acted in good faith, did not acquire the Jewels at a public he sale. Neither does, a pawnshop enjoy the privilege granted to a Monte de Piedad therefore, VARELA, who lost said jewels and was deprived of the same in consequence of a crime is entitled to the recovery thereof from the pawnshop of Finnnick Brothers, where they were pledged. The provisions of Art. 559 (then Art. 464) shall be observed with regard to the rights of the owner to recover the personal property lost or of which he may have been illegally deprived, and also with regard to those acquired at an auction, on exchanges, at fairs or markets, or from a merchant legally established or customarily engaged in the traffic of similar objects. In the present case not only has the ownership and the origin of the jewels misappropriated been unquestionably proven also that the accused, acting frandulently and in bad faith, disposed of them and pledged them contrary agreement, with no right of ownership, and to the prejudice of the injured party, who was thereby illegally deprived of said jewels. Therefore, in accordance with the provisions of Art. 559 (then Art. 464), the owner an absolute right to recover the jewels from the possession of whosoever holds them in accordance with the judgment entered in the aforesaid cause for estafa wherein, the accused having been found guilty the right of Josefa Varela to recover jewels in question is expressly acknowledged. ARENAS vs. RAYMUNDO G.R. No. 5741. March 13, 1911 Because of the fact that Perello was not the legitimate owner of the jewelry which she pledged to the Raymundo, the contract of pledge entered into by both is, of course, null and void. hence, the jewelry so pawned could not serve as security for the payment of the sum loaned, nor can the latter be collected out of the value of the said jewelry. FACTS In 1908, petitioner ESTANISLAUA ARENAS delivered to Elena de Vega to sell on commission several pieces of jewelry. De Vega, in turn, delivered it to Concepcion Perello, likewise to sell on commission. However, Perello, instead of fulfilling her trust, pledged the jewelry in the pawnshop of defendant FAUSTO O. RAYMUNDO. Perello appropriated to her own use the money thereby obtained. Later, Perello was prosecuted for estafa, convicted, and the judgment became final. The jewelries however were still under the

control and in the possession of RAYMUNDO. The latter refused to deliver the jewelries to ARENAS, the owner thereof. Hence, ARENAS filed an action against RAYMUNDO to recover possession of said jewelries. Later, after a writ of seizure was issued for the said jewelry the sheriff took it out of the RAYMUNDDO's control and held it in his possession during the 5 days prescribed by law. After 5 days without the delivery of bond by RAYMUNDO, the sheriff delivered it to the counsel for ARENAS. RAYMUNDO on the other hand, contended that the jewelry was pledged to the pawnshop by Perello as a security for a P1,524 loan with the knowledge, consent, and mediation of Gabriel La O, a son of the ARENAS. Hence, it was alleged that the latter were estopped from disavowing the action of Perello. RAYMUNDO then prayed that the complaint be dismissed and that the jewelry seized be returned to the pawnshops possession. The lower court ordered RAYMUNDO to restore to ARENAS. the jewelry. Hence, this appeal by RAYMUNDO. ISSUE Whether or not RAYMUNDO should be entitled to possession of the jewelry. RULING NO. Instead of Raymundo, the rightful possessor of the jewelry was ARENAS, who was the owner thereof. Article 1857 of the Civil Code prescribes as one of the essential requisites of the contracts of pledge and of mortgage, that the thing pledged or mortgaged must belong to the person who pledges or mortgages it. Because of the fact that Perello was not the legitimate owner of the jewelry which she pledged to the RAYMUNDO, the contract of pledge entered into by both is, of course, null and void. Hence, the jewelry so pawned could not serve as security for the payment of the sum loaned, nor can the latter be collected out of the value of the said jewelry. In the case at bar, it was not proven that ARENAS authorized Perello to pawn the jewelry given to her by Arenas to sell on commission. Because of the mere fact of Perello's having been convicted and sentenced for estafa, the rest of the dispositive part of the said sentence must be complied with, that is, the jewelry misappropriated must be restored to its owner, which was in possession of the pawnshop of RAYMUNDO, who acquired it by legal means. Even supposing that RAYMUNDO had acted in good faith in accepting the pledge of the jewelry in litigation, even then he would not be entitled to retain it until the owner thereof reimburse him for the amount loaned to the embezzler.

Between the supposed good faith of RAYMUNDO and the undisputed good faith of the ARENAS, the owner of the jewelry, neither law nor justice permit that the latter, after being the victim of embezzlement, should have to choose one of the two extremes of a dilemma. Both of which, without legal ground or reason, are injurious and prejudicial to her interests and rights, that is, she must either lose her jewelry or pay a large sum received by the embezzler as a loan from the defendant, when ARENAS is not related to the latter by any legal or contractual bond out of which legal obligations arise. AZNAR vs. YAPDIANGCO G.R. No. L-18536. March 31, 1965 If the owner has lost a thing, or if he has been unlawfully deprived of it, he has a right to recover it, not only from the finder, thief or robber, but also from third persons who may have acquired it in good faith from such finder, thief or robber. FACTS In 1959, intervenor TEODORO SANTOS advertised the sale of his FORD FAIRLANE 500. A certain L. De Dios, claiming to be a nephew of Vicente Marella, went to the Santos residence to answer the ad. During the transaction, Marella agreed to buy the car for P14,700 on the understanding that the price would be paid only after the car had been registered in his name. After a Deed of Sale was executed by the parties, they then proceeded to the Motor Vehicles where the registration of the car in Marella's name was effected. Up to this stage of the transaction, the purchased price had not been paid. TEODORO SANTOS gave the registration papers and a copy of the deed of sale to his son, Irineo Santos, and instructed him not to part with them until Marella shall have given the full payment for the car. When Irineo demanded the payment from Marella, the latter said that the amount he had on hand then was short by some P2,000 and begged off to be allowed to secure the shortage from a sister. Thereafter, he ordered L. De Dios to go to the said sister and suggested that Irineo go with him. At the same time, he requested the registration papers and the deed of sale from Irineo Santos on the pretext that he would like to show them to his lawyer. Trusting the good faith of Marella, Irineo handed over the same to the latter and thereupon, proceeded to the alleged house of Marella's sister. When they reached the alleged house of Marellas sister, Irineo and L. De Dios entered the house while their unidentified companion remained in the car. Once inside, L. De Dios asked Irineo to wait at the sala while he went inside a room. However, time passed but L. De Dios did not return.

Irineo then found out that L. De Dios and his unidentified companion were no longer there anymore and that nobody in the house knew L. De Dios. When Irineo went to the house of Marella, he found it closed and Marella was gone. Finally, he reported the matter to his father who promptly advised the police authorities. On the very same day, Marella was able to sell the car for P15,000 to petitioner JOSE B. AZNAR, who acquired the said car in good faith, for a valuable consideration and without notice of the defect appertaining to the vendor's title. While AZNAR was attending to the cars registration, agents of the Philippine Constabulary headed by respondent CAPT. RAFAEL YAPDIANGCO, seized and confiscated the same in consequence of the report to them by TEODORO SANTOS that the said car was unlawfully taken from him. AZNAR then filed a complain for replevin YAPDIANGCO. Claiming ownership of the vehicle, he prayed for its delivery to him. In the course of the litigation, however, TEODORO SANTOS was allowed to intervene by the lower court. The lower court awarded the car to SANTOS, as it found that he had been unlawfully deprived of his personal property by Marella, from whom the AZNAR traced his right. Hence, SANTOS was entitled to its recovery on the mandate of Article 559 of the Civil Code. From this decision, Aznar appealed. He contended that the applicable provision of the Civil Code is Article 1506 and not Article 559. Article 1506 provides: ART. 1506. Where the seller of goods has a voidable title thereto, but his, title has not been voided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title. ISSUE Whether or not AZNAR had a better right to acquire possession of the car. RULING NO. The reliance of AZNAR on Art. 1506 was unmeritorious. The car should be warded to TEODORO SANTOS instead. Under the aforequoted provision, it is essential that the seller should have a voidable title at least. It is very clearly inapplicable where, as in this case, the seller had no title at all. Vicente Marella did not have any title to the property under litigation because the same was never delivered to him. He sought ownership or acquisition of it by virtue of the contract. Vicente Marella could have acquired ownership or title to the subject matter thereof only by the delivery or tradition of the car to him. For the legal acquisition and transfer of ownership and other property rights, the

thing transferred must be delivered, inasmuch as, according to settled jurisprudence, the tradition of the thing is a necessary and indispensable requisite in the acquisition of said ownership by virtue of contract. The lower court was correct in applying Article 559 of the Civil Code to the case at bar, for under it, the rule is to the effect that if the owner has lost a thing, or if he has been unlawfully deprived of it, he has a right to recover it, not only from the finder, thief or robber, but also from third persons who may have acquired it in good faith from such finder, thief or robber. The said article establishes two exceptions to the general rule of irrevindicability, to wit, when the owner (1) has lost the thing, or (2) has been unlawfully deprived thereof. In these cases, the possessor cannot retain the thing as against the owner, who may recover it without paying any indemnity, except when the possessor acquired it in a public sale. Under Article 559 of the new Civil Code, a person illegally deprived of any movable may recover it from the person in possession of the same and the only defense the latter may have is if he has acquired it in good faith at a public sale, in which case, the owner cannot obtain its return without reimbursing the price paid therefor. In the present case, TEODORO SANTOS had been illegally deprived of his car through the ingenious scheme of Marella to enable the latter to dispose of it to AZNAR, as if he were the owner thereof. TEODORO SANTOS, therefore, could still recover possession of the car even if it is in the possession of AZNAR who had acquired it in good faith from Marella. The maxim that "no man can transfer to another a better title than he had himself" obtains in the civil as well as in the common law. EDCA vs. SANTOS G.R. No. 80298. April 26, 1990 EDCA was not unlawfully deprived of the books because it was the one which made the delivery to the impostor Cruz. The latter then acquired ownership over it, which was subsequently transferred to the buyers, the SPOUSES SANTOS, who purchased said books in good faith and diligence as to ascertain the invoice issued by EDCA to Cruz. FACTS In 1981, a person identifying himself as Professor Jose Cruz as dean of De La Salle Collge, placed an order by telephone with EDCA PUBLISHING & DISTRIBUTING CORP. for 406 books, payable on delivery. EDCA prepared the corresponding invoice and delivered the books as ordered, for which Cruz issued a personal check covering the purchase price of P8,995.65.

Later, Cruz sold 120 of the books to private respondent LEONOR SANTOS who, after verifying the seller's ownership from the invoice he showed her, paid him P1,700.00. Meanwhile, EDCA having become suspicious over a second order placed by Cruz even before clearing of his first check, made inquiries with the De la Salle College but it was informed that there was no such person in its employ. Further verification revealed that Cruz had no more account or deposit with the Philippine Amanah Bank, against which he had drawn the payment check. EDCA then went to the police, which set a trap and arrested Cruz, whose real name was Tomas de la Pena. On the night of the same date, EDCA sought the assistance of the police, which forced their way into the store of the SPOUSES LEONOR and GERARDO SANTOS and threatened them with prosecution for buying stolen property. They seized the 120 books without warrant, loading them in a van belonging to EDCA, and thereafter turned them over to the EDCA. The SPOUSES SANTOS demanded for the return of said books but it was rejected. Hence, the SPOUSES SANTOS sued EDCA for the recovery of the books. A writ of preliminary attachment was issued and the EDCA finally surrendered the books to the SPOUSES SANTOS. The MTC recognized the ownership of the books in the SPOUSES SANTOS. The same was sustained by both the RTC and CA. Hence, this appeal. EDCA contended that because the impostor Cruz acquired no title to the books, the latter then could not have validly transferred it to the SPOUSES SANTOS. Its reason is that as the payment check bounced for lack of funds, there was a failure of consideration that nullified the contract of sale between it and Cruz. ISSUE Whether or not EDCA was entitled to possession of the property. RULING NO. The SPOUSES SANTOS had a better right to possess said books. The impostor Cruz acquired ownership over the books because they were delivered to him The contract of sale is consensual and is perfected once agreement is reached between the parties on the subject matter and the consideration. Ownership in the thing sold shall not pass to the buyer until full payment of the purchase price only if there is a stipulation to that effect. Otherwise, the rule is that such ownership shall pass from the vendor to the vendee upon the actual or constructive delivery of the thing sold even if the purchase price has not yet been paid.

Non-payment only creates a right to demand payment or to rescind the contract, or to criminal prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery of the thing sold will effectively transfer ownership to the buyer who can in turn transfer it to another. Actual delivery of the books having been made, CRUZ acquired ownership over the books which he could then validly transfer to the private respondents. The fact that he had not yet paid for them to EDCA was a matter between him and EDCA and did not impair the title acquired by the private respondents to the books. Unlawfully deprived One may well imagine the adverse consequences if the phrase "unlawfully deprived" were to be interpreted in the manner suggested by EDCA. A person relying on the seller's title who buys a movable property from him would have to surrender it to another person claiming to be the original owner who had not yet been paid the purchase price therefor. The buyer in the second sale would be left holding the bag, so to speak, and would be compelled to return the thing bought by him in good faith without even the right to reimbursement of the amount he had paid for it. LEONOR SANTOS took care to ascertain first that the books belonged to CRUZ before she agreed to purchase them. The EDCA invoice CRUZ showed her assured her that the books had been paid for on delivery. By contrast, EDCA was less than cautious-in fact, too trusting-in dealing with the impostor. Although it had never transacted with him before, it readily delivered the books he had ordered (by telephone) and as readily accepted his personal check in payment. It did not verify his identity although it was easy enough to do this. It did not wait to clear the check of this unknown drawer. Worse, it indicated in the sales invoice issued to him, by the printed terms thereon, that the books had been paid for on delivery, thereby vesting ownership in the buyer. Surely, the SPOUSES SANTOS did not have to go beyond that invoice to satisfy herself that the books being offered for sale by Cruz belonged to him; yet she did. Although the title of Cruz was presumed under Article 559 by his mere possession of the books, these being movable property, LEONOR SANTOS nevertheless demanded more proof before deciding to buy them. It would certainly be unfair now to make the the SPOUSES SANTOS bear the prejudice sustained by EDCA as a result of its own negligence. There could be no the justice in transferring EDCA's loss to the Santoses who had acted in good faith, and with proper care, when they bought the books from Cruz. LEDESMA vs. CA

G.R. No. 86051. September 1, 1992 The sale entered by CITIWIDE and the impostor was valid. CITIWIDE was not illegally deprived of the car simply because the check in payment therefor was subsequently dishonored. Hence, the transfer of ownership from the impostor to LEDESMA was valid as well. LEDESMA had a better right to possess the vehicle because he was a purchaser in good faith and for value. FACTS In 1977, a person representing himself to be Jojo Consunji, purchased purportedly for his father, a certain Rustico T. Consunji, 2 brand new motor vehicles from respondent CITIWIDE MOTORS, INC. Thereafter, CITIWIDE delivered said vehicles to the person representing himself to be Jojo Consunji. The latter issued a managers check worth P101,000 was full payment of the value of the vehicles. However, when CITIWIDE deposited the said check, it was dishonored by the bank on the ground that it was tampered with, the correct amount of P101.00 having been raised to P101,000. Hence, CITIWIDE reported said criminal act to the Philippine Constabulary, which found out that the real identity of the impostor was Armando Suarez who had a long line of criminal cases against him for estafa using his similar modus operandi. Later, CITIWIDE was able to recover one of the vehicles, which was found abandoned. It also found out that the possession of the other vehicle was transferred to petitioner JAIME LEDESMA. LEDESMA, however claimed that he purchased said vehicle and paid for it in good faith from its registered owner, one Pedro Neyra. After posting the necessary bond, CITIWIDE was able to recover possession of the vehicle in possession of LEDESMA. The lower court ruled in favor of LEDESMA. It ruled that LEDESMA was a buyer in good faith and for valuable consideration. On appeal with the CA, said decision was reversed. LEDESMA was ordered to return the possession of said vehicle to CITIWIDE. It held that where the owner has lost the thing or has been unlawfully deprived thereof, the good faith of the possessor is not a bar to recovery of the movable unless the possessor acquired it in a public sale of which there is no pretense in this case. Contrary to the court's assumption, the issues not primarily the good faith of LEDESMA, for even if this were true, this may not be invoked as a valid defense if it be shown that CITIWIDE was unlawfully deprived of the vehicle. Hence, this appeal by LEDESMA.

ISSUE Whether or not CITIWIDE was entitled to repossess the vehicle. RULING NO. LEDESMA had a better right to possess said vehicle. It was therefore erroneous for the CA to declare that CITIWIDE was illegally deprived of the car simply because the check in payment therefor was subsequently dishonored. It also erred when it divested the LEDESMA, a buyer in good fait,h who paid valuable consideration therefor, of his possession thereof. It is quite clear that a party who (a) has lost any movable or (b) has been unlawfully deprived thereof can recover the same from the present possessor even if the latter acquired it in good faith and has, therefore, title thereto for under the first sentence of Article 559, such manner of acquisition is equivalent to a title. There are three (3) requisites to make possession of movable property equivalent to title, namely: (a) the possession should be in good faith; (b) the owner voluntarily parted with the possession of the thing; and (c) the possession is in the concept of owner. Undoubtedly, one who has lost a movable or who has been unlawfully deprived of it cannot be said to have voluntarily parted with the possession thereof. This is the justification for the exceptions found under the second sentence of Article 559 of the Civil Code. In the present case, there was a perfected unconditional contract of sale between CITIWIDE and the original vendee impostor. The former voluntarily caused the transfer of the certificate of registration of the vehicle in the name of the first vendee even if the said vendee was represented by someone who used a fictitious name--and likewise voluntarily delivered the cars and the certificate of registration to the vendee's alleged representative. Title thereto was forthwith transferred to the vendee. The subsequent dishonor of the check because of the alteration merely amounted to a failure of consideration which does not render the contract of sale void, but merely allows the prejudiced party to sue for specific performance or rescission of the contract, and to prosecute the impostor for estafa under Article 315 of the Revised Penal Code. The contract of sale is consensual and is perfected once agreement is reached between the parties on the subject matter and the consideration. From that moment, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts. Ownership in the thing sold shall not pass to the buyer until full payment of the purchase price only if there is a stipulation to that effect. Otherwise, the rule is that such ownership shall pass from the vendor to the vendee upon the actual or constructive

delivery of the thing sold even if the purchase price has not yet been paid. Non-payment only creates a right to demand payment or to rescind the contract, or to criminal prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery of the thing sold will effectively transfer ownership to the buyer who can in turn transfer it to another. The failure of the buyer to make good the price does not, in law, cause the ownership to revest in the seller until and unless the bilateral contract of sale is first rescinded or resolved pursuant to Article 1191 of the new Civil Code. ARTICLE 560: Wild animals are possessed only while they are under ones control; domesticated or tamed animals are considered domestic or tame, if they retain the habit of returning to the premises of the possessor. ARTICLE 561: One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have enjoyed it without interruption. When is a person deemed to have been unlawfully deprived of a thing:

EDCA PUBLISHING V SANTOS Facts: A person identifying himself as Prof. Cruz of DE la Salle College placed an order via telephone for 406 books with EDCA Publishing payable on delivery (COD). EDCA prepared the corresponding invoice and delivered the books as ordered, for which Cruz issued a personal check covering the purchase price of P8, 995.65. Cruz sold 120 books to Leonor Santos who, after verifying the sellers ownership from the invoice Cruz showed her, paid him P1, 700. Meanwhile, EDCA having became suspicious over a second order placed by Cruz even before clearing of his first check, made inquiries with Della Sale College where he had claimed to be dean and was informed that there was no such person in its employ. Further verification revealed that Cruz had no more account or deposit with the Philippine Amanah Bank, against which he had drawn the payment check. EDCA then went to the police, whch set a trap and arrested Cruz. That night, EDCA sought the assistance of the police which forced their way into the store of Santos and threatened her with prosecution for buying stolen property. They seized the 120 books without warrant, loading them in a van belonging to EDCA, and thereafter, turned them over to EDCA. Santos sued for the recovery of the books. EDCA contended that it can recover the books from Santos considering that

EDCA was unlawfully deprived thereof since the check issued by Cruz was dishonored thus, nullifying the contract of sale between EDCA and Cruz. Issue: W/N Santos was a possessor in good faith. Held: Yes. The contention of EDCA is unacceptable. The first sentence of Art. 559 provides that the possession of movable property acquired in good faith is equivalent to title, thus dispensing with further proof. Leonor Santos acquired the books. She ascertained the ownership of the books from EDCA invoice showing that they had been sold to Cruz, who said he was selling them for discount because he was in financial need. Surely, Santos did not have to go beyond the invoice to satisfy herself that the books being offered for sale by Cruz belonged to him; yet she did. Although the title of Cruz was presumed under Art 559 by his mere possession of the books, these being movable property, Santos nevertheless demanded proof before deciding to buy them. By contrast, EDCA was less than cautious in fact, too trusting. It would certainly be unfair now to make Santos bear the prejudice sustained by EDCA as a result of its own negligence. We cannot agree the justice in transferring EDCAs loss to the Santoses who had acted in good faith, and with proper care, when they bought the books from Cruz. Issue: W/N EDCA was unlawfully deprived of the books Held: No. Art 1477 provides that the ownership of the thing sold shall be transferred to the vendee upon the actual or constructive delivery thereof. Art 1478 also provides that ownership in the thing sold shall not pass to the buyer until full payment of the purchase price ONLY if there is a stipulation to that effect. Otherwise, the rule is that such ownership shall pass from the vendor to the vendee upon the actual or constructive delivery of the thing sold even if the purchase price has not yet been paid. Non-payment creates a right to demand payment or to rescind the contract, or to criminal prosecution in the case of bouncing checks. But absent any stipulation, delivery of the thing sold will effectively transfer ownership to the buyer who can in turn transfer it to another. USUFRUCTUARY ARTICLE 562: Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. The usufruct gives the usufructuary a certain right and obligation. A usufruct is a real right. A real right of temporary nature which

authorizes its holder to enjoy all the benefits which result from the normal enjoyment or exploitation of anothers property, with the obligation to return, at the designated time, either of the same thing or in special cases, its equivalent Characters in the usufruct: o naked owner o usufructuary contract of

In the contract of usufruct, the right to the fruits and the right to use are given to the usufructuary but the right to dispose will remain with the owner. The right to recover, however, may belong either to the usufructuary or to the naked owner.

Formula here when there is usufruct full ownership = naked ownership + usufruct naked ownership = full ownership usufruct usufruct = full ownership naked ownership ESSENTIAL CHARACTERISTICS 1) it is a real right 2) It is of temporary nature or duration. Even if it is constituted for the whole lifetime of the usufructuary, it is still temporary because everybody dies. So it cannot be perpetual. Its purpose is to enjoy the benefits and derive all advantages from the object as consequences of normal use of exploitation Natural characteristic or element is ordinarily present, but contrary stipulation can eliminate it because it is not essential) Accidental characteristics or elements are those which may be present or absent depending upon the stipulation of the parties) Examples: 1. whether it be pure or conditional 2. the number of years it will exist 3. whether it is in favor of one person or several etc. Objects of the usufruct: 1. may be real or personal property 2. may be sterile or productive 3. may be created over a ------. It is not necessary a thing. But there is a requirement that such right is not strictly personal and intransmissible and as long as it has an independent existence. ARTICLE 563: Usufruct may be constituted by law, by the will of private persons expressed in acts inter How usufruct is created:

1) by law o Art. 225-226 in relation to Art. 321 of the CC. by 225 and 226 of the Family Code, wherein the parental usufruct is limited only to the fruits of the property owned by the minor child. So that the minor child shall own exclusively his property, only that the fruits derived, the parents may have usufruct over them. But then this parental usufruct is limited only to the child's support and the collective daily needs of the family. 2) by the will of the private person 3) by prescription ARTICLE 564: Usufruct is constituted on the whole or a part of the fruits of the thing, in favor of one or more persons, simultaneously or successively, and in every case from or to a certain day, pure or conditionally. It may also be constituted on a right, provided it is not strictly personal or intransmissible. 10.Classification of usufruct according to quantity or extent (of fruits or object): 1) as to fruits total or partial (depending on whether all the fruits are given or not) 2) as to object universal (if over the entire patrimony); singular or particular (if only an individual thing is included) 11.Classification of Usufruct as to number of persons enjoying the right: 1) simple if only one usufruct 2) multiple if several usufructuaries enjoy multiple usufruct could be: simultaneous which means at the same time successive one after another 12.Classification of usufruct as to the quality or kind of objects involved: 1) usufruct over rights. Remember, that the right must not be strictly personal or intransmissible. A usufruct over a real right is also by itself a real right. 2) usufruct over things: o normal usufruct this involves non-consumable things where the form and substance are preserved. o Abnormal this involves consumable things. 13.Classification of Usufruct according to terms and conditions: 1) pure usufruct here there is no term or condition 2) with term or period: o ex die from a certain day

o o

in diem up to a certain day ex die in diem from a certain day up to a certain day with a condition

ARTICLE 565: The rights and obligations of the usufructuary shall be those provided in the title constituting the usufruct; in default of such title, or in case it is deficient, the provisions contained in the two following chapters shall be observed. 14.Rules governing a usufruct: 1) agreement by the parties 2) civil code 15.Rule in case of conflict: In case of conflict between the rights granted, a usufructuary by virtue of a will, and codal provisions, the former, unless repugnant to the mandatory provisions of the civil code, should prevail. ELEIZEGUI vs. MANILA LAWN TENNIS CLUB GR No. 967. May 19, 1903. Usufruct is a right of superior degree to that which arises from a lease. It is a real right and includes all the jus utendi and jus fruendi. Nevertheless, the utmost period for which a usufruct can endure, if constituted in favor of a natural person, is the lifetime of the usufructuary; and if in favor of a juridical person, it can not be created for more than thirty years. FACTS On January 25, 1980 petitioners DARIO and GAUDENCIO ELEIZEGUI entered into a contract of lease of its land with the respondent MANILA LAWN TENNIS CLUB through its secretary Mr. Williamson. By the contract of lease the lessee is expressly authorized to make improvements upon the land, by erecting buildings of both permanent and temporary character, by making fills, laying pipes, and making such other improvements as might be considered desirable for the comfort and amusement of the members. It was also stipulated that the lease for all the time and that the members of the said club may desire to use it. Also, Mr. Williamson or whoever may succeed him as secretary of said club may terminate the lease whenever desired without other formality than that of giving a month's notice. It was also specified that the ELEZEGUIs as owners of the land would undertake to maintain the club as long as the tenant, the MANILA LAWN TENNIS CLUB should see fit without altering in the slightest degree the conditions of this contract, even though the estate be sold. The rent of the said land is fixed at P25 per month. On August 8, 1980, the ELEZEGUIs terminated the contract of lease by the

notice given to the MANILA LAWN TENNIS CLUB. The latter however, refused to accede and vacate the leased land. On the ground that the lease was already terminated, the ELEZEGUIs filed an action for unlawful detainer. With respect to the term of the lease the present question has arisen. In its discussion 3 theories have been presented: 1. the duration depends upon the will of the lessor, who, upon one month's notice given to the lessee, may terminate the lease so stipulated; 2. the duration makes it dependent upon the will of the lessee, as stipulated in the contract; and 3. the right is reserved to the courts to fix the duration of the term. The first theory is that which has prevailed in the judgment below. Hence, this appeal. ISSUE Whether or not the contract of lease was perpetual since in the contract, the duration thereof as left to the will of the lessee alone. RULING NO, it was not perpetual. Although the contract left to the will of the lessee the duration of the lease, it could not be understood to be a life tenancy nor a perpetual lease. If the lease could last during such time as the lessee might see fit, because it has been so stipulated by the lessor, it would last, first, as long as the will of the lessee that is, all his life; second, during all the time that he may have succession, inasmuch as he who contracts does so for himself and his heirs. Being a lease, it then it must be for a determinate period. By its very nature it must be temporary just as by reason of its nature a emphyteusis must be perpetual or for an unlimited period. If the lease was intended to be perpetual, they should have not merely entered into a contract of lease but either contract for a usufruct or an emphyteusis. Why should the lessee have a greater right than the usufructuary, as great as that of an empbyteuta, with respect to the duration of the enjoyment of the property of another? Usufruct is a right of superior degree to that which arises from a lease. It is a real right and includes all the jus utendi and jus fruendi. Nevertheless, the utmost period for which a usufruct can endure, if constituted in favor of a natural person, is the lifetime of the usufructuary; and if in favor of a juridical person, it can not be created for more than thirty years. Hence, the term of the lease could not be left to the will of the lessor, the MANILA LAWN TENNIS CLUB alone. The proper remedy was the ask the court to fic the duration of the lease and not the action for unlawful detainer.

ALUNAN vs. VELOSO GR No. 29158. December 29, 1928 It is incorrect to say that there can be no usufruct of money, because it is a fungible thing. FACTS Petitioner RAFAEL ALUNAN was the judicial administrator of the estate of the deceased Rosendo Alunan. The settlement of deceaseds estate was approved by the court below. Jose Hernaez, one of the heirs interested in this proceeding, assigned the whole of his portion to respondent ELEUTERIA CH. VELOSO and the latter objects to some of the items of the account filed. VELOSO alleged that the lower court erred in admitting the partition proposed by the administrator in his account. According to this account, the total amount to be partitioned among the heirs is P88,979.08, which the administrator distributed equally among all the heirs, including the widow, each one receiving P11,122.38. This partitionwas objected to with respect to the widow. It was alleged that the distributable amount is in money, and since the widow's right is only a usufruct, and as there can be no usufruct of money, since it is a fungible thing, the adjudication made to the widow was erroneous. ISSUE Whether or not there could be a usufruct of money. RULING YES, there could be. It is incorrect to say that there can be no usufruct of money, because it is a fungible thing. The widow, according to the law, only has a right to a portion of the estate equal to that of the legitime of each of the children without betterment. In the instant case none of the children received a betterment. Consequently, the widow should receive a portion equal to the share of each in the two-thirds of the distributable amount making up the legitime, to be taken from the one-third forming the betterment. Then, the other free third, which the decedent failed to dispose of, must be partitioned among the heirs to the exclusion of the widow, as an addition to their legitime. Working out the computations on this basis, the widow should receive only P8,474.19. ARTICLE 566: The usufructuary shall be entitled to all natural, industrial, and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger.

The usufructuary is entitled to all the natural, industrial and civil fruits of the property in usufruct, but with respect to hidden treasure, the usufructuary is considered a stranger.. unless of course he is the finder. If he is the finder, then he is entitled to 50%. BACHRACH vs. SEIFERT GR No. L-2659. October 12, 1950

Whether or not the 54,000 shares of stock dividends belong to the the usufructuary MARY MCDONALD BACHRACH. RULING YES, the shares belong to the usufructuary. There are two rules applicable in the present case: the Massachussetts rule and the Pensylvannia rule. The Massachusetts supports SEIFERT and ELIANOFF 's contention. The Pennsylvania rule on the other hand, supports the contention of BACHRACH. The Massachusetts rule regards cash dividends, however large, as income, and stock dividends, however made, as capital. It holds that a stock dividend is not in any true sense any dividend at all since it involves no division or severance from the corporate assets of the subject of the dividend; that it does not distribute property but simply dilutes the shares as they existed before; and that it takes nothing from the property of the corporation, and adds nothing to the interests of the shareholders. The Pennsylvania rule declares that all earnings of the corporation made prior to the death of the testator stockholder belong to the corpus of the estate, mid that all earnings, when declared as dividends ill whatever form, made during the lifetime of the usufructuary or life tenant are income and belong to the usufructuary or life tenant. The Supreme Court thought that the Pennsylvania rule was more in accord with our statutory laws than the Massachusetts rule. Under section 16 of our Corporation Law, no corporation may make or declare any dividend except from the surplus profits arising from its business. Any dividend, therefore, whether cash or stock, represents surplus profits. Article 566 (then Article 471) of the Civil Code provides that the usufructuary shall be entitled to receive all the natural, industrial, and civil fruits of the property in usufruct. The 108,000 shares of stock were part of the property in usufruct. The 54,000 shares of stock dividend were civil fruits of the original investment. They represented profits, and the delivery of the certificate of stock covering said dividend is equivalent to the payment of said profits. Said shares may be sold independently of the original shares, just as the offspring of a domestic animal may be sold independently of its mother. OROZCO vs. ALCANTARA GR No. L-3691. November 21, 1951 A dividend, whether in the form of cash or stock, is income and, consequently, should go to the usufructuary, taking into consideration that a stock dividend as well as a cash dividend can be

Shares of stocks dividends are civil fruits. The usufructuray then, being entitled to civil fruits other than natural and industrial fruits shall be entitled to shares of stocks dividends as well. FACTS The deceased E. M. Bachrach, left no forced heir except his widow, petitioner MARY MCDONALD BACHRACH. In his last will and testament, the deceased bequeath and devised to his wife BACHRACH for life all the fruits and usufruct of the remainder of his estate after payment of the legacies, bequests, and gifts; and she may enjoy said usufruct and use or spend such fruits as she may in any manner wish. The will further provided that upon the death of BACHRACH, one-half of all his estate shall be divided share and share alike by and between his legal heirs respondents SOPHIE SIEFERT and ELISA ELIANOFF, to the exclusion of his brothers. The estate of E. M. Bachrach, as owner of 108,000 shares of stock of the Atok-Big Wedge Mining Co., Inc., received from the latter 54,000 shares representing 50% stock dividend on the said 108,000 shares. On July 10, 1948, BACHRACH, as usufructuary or life tenant of the estate, petitioned the lower court to authorize the Peoples Bank and Trust Company, as administrator of the estate of E. M. Bachrach, to transfer to her the said 54,000 shares of stock dividend by indorsing and delivering to her the corresponding certificate of stock, claiming that said dividend, although paid out in the form of stock, is fruit or income and therefore belonged to her as usufructuary or life tenant. Respondents SIEFERT and ELIANOFF, as legal heirs of the deceased, opposed said petition on the ground that the stock dividend in question was not income but formed part of the capital and therefore belonged not to the usufructuary but to the remainderman. The lower court granted the petition of BACHRACH. HENCE, this appeal. While appellants admitted that a cash dividend is an income, they contend that a stock dividend is not, but merely represents an addition to the invested capital. ISSUE

declared only out of profits of the corporation, for if it were declared out of the capital it would be a serious violation of the law. FACTS In 1922, Eugenio del Saz Orozco died, leaving a will which he had executed in 1921. It was afterwards duly admitted to probate. The pertinent clause of that will provided that certain properties should be given in life usufruct to his son petitioner JACINTO DEL SAZ OROZCO Y MORTERA, with the obligation on his part to preserve said properties in favor of the other heirs who were declared the naked owners thereof. Among these properties were 5,714 shares of stock of the Benguet Consolidated Mining Company and 94 shares of stock of the Manila Electric Company, according to the project of partition executed pursuant to said will and duly approved by the court. In 1934, the Benguet Consolidated Mining Company declared and distributed stock dividends out of its surplus profits, the petitioner OROZCO received his proportionate portion of 11,428 shares. In 1939, said Mining Company again declared stock dividends out of its surplus profits, of which the OROZCO received 17,142 shares, making a total of 28,570 shares. ISSUE Whether the stock dividends should be preserved in favor of the owners or an income or fruits of the capital which should be given to and enjoyed by the life usufructuary as his own exclusive property. RULING The stock dividends were income or fruits of the capital which should be given to and enjoyed by the life usufructuary, OROZCO as his own exclusive property. Citing the case of Bachrach vs. Seifert, a dividend, whether in the form of cash or stock, is income and, consequently, should go to the usufructuary, taking into consideration that a stock dividend as well as a cash dividend can be declared only out of profits of the corporation, for if it were declared out of the capital it would be a serious violation of the law. Respondents SALVADOR ARANETA ET AL. attempted to differentiate the present case from the Bachrach case, contending that, while the doctrine in that case effected a just and equitable distribution, the application of it in the present case would cause an injustice, for, quoting Justice Holmes, "abstract propositions do not decide concrete cases." One of the differences pointed out is that by the declaration of stock dividends the voting power of the original shares of stock is considerably diminished, and, if the stock dividends are not given to the remaindermen, the voting power of the latter would be greatly impaired. Bearing in mind that the number of shares of stock of

the Benguet Consolidated Mining Company is so large, the diminution of the voting power of the original shares of stock in this case cannot possibly affect or influence the control of the policies of the corporation which is vested in the owners of the great block of shares. This would not be a sufficient reason for modifying the doctrine of the Bachrach case. These remarks were made in answer to the argument of the appellees in this particular case, but they do not imply that if the diminution of the voting power were considerable the doctrine should be modified. ARTICLE 567: Natural or industrial fruits growing at the time the usufruct begins, belong to the usufructuary. Those growing at the time the usufruct terminates, belong to the owner. In the proceeding cases, the usufructuary at the beginning of the usufruct, has no obligation to refund to the owner any expenses incurred; but the owner shall be obliged to reimburse at the termination of the usufruct, from the proceeds of the growing fruits, the ordinary expenses of cultivation, for seed, and other similar expenses incurred by the usufructuary. The provisions of this article shall not prejudice the rights of 3rd persons, acquired either at the beginning or at the termination of the usufruct.

16. Rules to pending natural and industrial

fruits: 1. Those pending at the time usufruct begins-- belong to usufructuary, with no obligation to refund. 2. Those pending at the end of the usufruct--belong to the naked owner but with obligation to make refunds for obligations incurred for the growing and other similar expenses which must be taken from the proceeds of the fruits. ARTICLE 568: If the usufructuary has leased the lands or tenements given in usufruct, and the usufruct should expire before the termination of the lease, he or his heirs and successors shall receive only the proportionate share of the rent that must be paid by the lessee. [Civil Fruits] covered by Art. 470: The rule is that they are deemed to accrue PROPORTIONATELY to the naked owner and the usufructuary for the time the usufruct lasts. So they shall divide the proceeds proportionately for the time the usufruct lasts.

Illustration: There is a contract between A and B wherein A gave B in usufruct the profits of a certain building for 5 years. YR 1- 10,000 ratio is 3:2, thus:

YR 2- 20,000 P72,000 - B YR 3- 30,000 P48,000 - A YR 4- 20,000 YR 5- 40,000 -----------P120,000.

(P120,00)/5

= =

2(P120,000)/5

contracts he may enter into as such usufructuary shall terminate upon the expiration of the usufruct, saving leases of rural lands which shall be considered as subsisting during he agricultural year. SUMMARY: 17.What the usufructuary may do with respect to the thing subject of usufruct? 1) may personally enjoy the thing himself or thru another; 2) lease the thing to another even without the consent of the naked owner. It does not need consent. It is his right to lease it to another. The lease should not extend longer than the period of usufruct. But if there is a rural lease it shall be subsisting during the agricultural year. Until the harvest. GR: There is no necessity for getting the consent of the naked owner. EXCEPTIONS: 1) caucion juratoria because the very essence of the grant of usufructuary is the very [need of the] person or usufructuary; 2) Legal usufruct [parental usufruct]; and 3) A usufruct made in consideration of the existence of that person, because to do so would defeat the very intention of the parties. ARTICLE 573: Whenever the usufruct includes things which, without being consumed, gradually deteriorate thru wear and tear, the usufructuary shall have the right to make use thereof in accordance with the purpose for which they are intended, and shall not be obliged to return them at the termination of the usufruct except in their condition at that time, but he shall be obliged to indemnify the owner for any deterioration they may have suffered by reason of his fraud or negligence. 18.Effect of deterioration: 1. If due to normal use, usufructuary is not liable; he can return them in the condition that they may be at the termination of the usufruct. There is no necessity for him to make the necessary reparations to restore them to their former condition. 2. If due to fortuitous event: usufructuary is obliged to make the necessary and ordinary repairs. 3. If due to fraud: responsible for the damages caused by reason of his fraudulent action, but the damages may be offsetted against improvements under Art. 580. Effect of failure to return the thing constituted in usufruct: Accdg. to

ARTICLE 569: Civil fruits are deemed to accrue daily, and belong to the usufructuary in proportion to the time the usufruct may last. ARTICLE 570: Whenever a usufruct is constituted on the right to receive a rent or periodical pension. Whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds or fruits of such right. Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character. In either case they shall be distributed as civil fruits and shall be applied in the manner prescribed in the preceding article. The object of the usufruct here is the right. o The right to receive a rent or periodical pension, whether in money or in fruits, or in the interest on bonds or securities payable to bearer. o The right to x x x enjoy benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed. RULES under 570: a) Each payment shall be considered as the proceeds or fruits of such right; b) They shall be distributed as civil fruits; c) It shall be applied in the manner prescribe in 569. What do we mean by that? They are deemed to accrue daily. d) They shall belong to the usufructuary at the time the usufructuary may last. ARTICLE 571: The usufructuary shall have the right to enjoy any increase which the thing in usufruct may acquire thru accession, the servitudes established in its favor, and, in general, all the benefits inherent therein. ARTICLE 572: The usufructuary may personally enjoy the thing in usufruct, lease it to another, or alienate his right of usufruct, even by gratuitous title, but all the

Paras, usufructuary must pay for their value. Value at the time the usufruct is terminated. ARTICLE 574: Whenever the usufruct includes things which cannot be used without being consumed, the usufructuary shall have the right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, if they were appraised when delivered. In case they were not appraised, he shall have the right to return the same quantity and quality, or pay their current price at the time the usufruct ceases.

This is called abnormal usufruct on consumable things. What are the rules? The usufruct can use them as if he is the owner. Ex. rice, one can eat rice But at the end of the usufruct, he must: 1. pay the appraised value (appraised when the 1st delivered); 2. if there was no appraisal, return the same kind, quality, and quantity or pay the price current at the termination of the usufruct. ARTICLE 575: The usufructuary of fruitbearing trees and shrubs may make use if the dead trunks, and even if those cut off or uprooted by accident, under the obligation to replace them with new plants. ARTICLE 576: If in consequence of a calamity or extraordinary event, the trees or shrubs shall have disappeared in such considerable number that it would not be possible or it would be too burdensome to replace them, the usufructuary may leave the dead, fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove them and clear the land. ARTICLE 577: The usufructuary of woodland may enjoy all the benefits which it may produce according to its nature. If the woodland is a corpse or consists of timber for building, the usufructuary may do such ordinary cutting or felling as the owner was in the habit of doing, and in default of this, he may do so in accordance with the custom of the place, as to the manner, amount and season. In any case the felling or cutting of trees shall be made in such manner as not to prejudice the preservation of the land. In nurseries, the usufructuary may make the necessary thinnings in order that the remaining trees may properly grow. With exception of the provisions of the preceding paragraphs, the usufructuary cannot cut down trees, unless it be to restore or improve some of the things in usufruct, and in such case he shall first inform the owner of the necessity for the work.

Special usufructuary in woodland General right: may enjoy all the benefits which it may produce according to its nature. Specific rights: 1. If the woodland is a corpse (in the thicket of small trees) or consists of timber for building he may do such ordinary cutting or felling as the owner was in the habit of doing. He does not have generally the right to cut timber, but if the owner did it he can do what the owner did. Thats it. In default of this, he may do so in accordance with the custom of the place, as to the manner, amount and season. 2. If there is nursery, the usufructuary may make the necessary thinnings in order that the remaining trees may properly grow. 577 provides for the prohibition: 1. With the exception of the specific rights, he cannot cut down trees unless it be to restore or improve some of the things in usufruct, and in such case he shall first inform the owner of the necessity for the work; 2. He cannot alienate the trees. Remember in the usufruct of woodland the trees are not considered the fruit.

ARTICLE 578: The usufructuary of an action to recover real property or a real right, or movable property, has the right to bring the action and to oblige the owner thereof to give him the authority for this purpose and to furnish him whatever proof he may have. If in consequence of the enforcement of the action he acquires the thing claimed, the usufruct shall be limited to the fruits, the dominion remaining with the owner.

This is a special usufruct of an action to recover thru the courts or legal processes. What is supposed to be recovered here? 1. recovery of real property 2. recovery of movable property The right to file a case for accion publiciana, forcible entry, replevin. What are the rights of the usufructuary if the right is given to him to recover? The right to bring the action. Meaning he will be the one to file the action

1.

2. To oblige the owner thereof to give 3.

him the authority for this purpose. (so you need an SPA); To furnish him whatever proof needed for the action (any evidence or proof should be passed on to the usufructuary).

usufruct over the part allotted to the co-owner concerned. His rights as a usufructuary are not affected. OBLIGATIONS USUFRUCTUARY OF THE

19.Lets go to procedure here. How is the action instituted, under whose name? In the name of the usufructuary. What does the authority require? 1. If it is for the recovery of property, he is still required of SPA under 578; 2. If it is only to object or prevent disturbance over the property, no need. 20. What happen if there is judgement? Narecover na nila ang propertynaked ownership will belong to the owner; the usufruct to recover will be transformed over the thing recovered. The usufruct will now be over the thing acquired. ARTICLE 579: The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere pleasure as he may deem proper, provided he does not alter its form or substance; but he shall have no right to be indemnified therefore. He may, however, remove such improvements, should it be possible to do so without damage to the property. ARTICLE 580: The usufructuary may set off the improvements he may have made on the property against any damage to the same. Requisites before set off can be made: 1. damage must caused by the usufructuary; 2. The improvements must have augmented the value of the property. ARTICLE 581: The owner of the property the usufruct of which is held by another, may alienate it, but he cannot alter its form and substance or do anything thereon which may be prejudicial to the usufructuary. ARTICLE 582: The usufructuary of a part of a thing held in common shall exercise all the rights pertaining to the owner thereof with respect to the administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing held in common, the usufruct of the part allotted to the co-owner shall belong to the usufructuary.

ARTICLE 583: The usufructuary, before entering upon the enjoyment of the property is obliged: To make, after notice to the owner or his legitimate representative, an inventory of all the property, which shall contain an appraisal of the movables and a description of the condition of the immovables; To give security, binding himself to fulfill the obligations imposed upon him in accordance with this Chapter.

When is the inventory required? 1. When no one will be injured thereby (ex: to collect periodic pension); 2. when there is stipulation to the usufruct agreement 3. if it is not in the will

ARTICLE 584: The provisions of No.2 of the preceding article shall not apply to the donor who has reserved the usufruct of the property donated, or to the parents who are usufructuaries of their childrens property, except when the parents contract a second marriage. ARTICLE 585: The usufructuary, whatever may be the titled of the usufruct, may be exercised from the obligation of making an inventory or of giving security, when no one will be injured thereby. Exceptions to the giving of security:

1. shall not apply to the donor

who has reserved the usufruct of the property donated. Ex. A will donate the ownership of a building to his son, but he will reserve the usufruct to himself so he still can collect rent.

2. To the parents who are

usufructuaries of their childrens property except when the parent contracts 2nd marriage 3. When there is caucion juratoria. ARTICLE 586: Should the usufructuary fail to give security in the cases in which he is bound to give it, the owner may demand that the immovables be placed under administration, that the movables be sold, that the public bonds, instruments of credit payable to order or to bearer be converted into registered certificates or deposited in a bank or public institution, and that the capital or sums in cash and the proceeds of

Effect of partition: The usufructuary shall continue to have

the sale of the movable property be invested in safe securities. The interest on the proceeds of the sale of the movables and that in public securities and bonds, and the proceeds of the property placed under administration, shall belong to the usufructuary. Furthermore, the owner may, if he so prefers, until the usufructuary gives security or is excused from so doing, retain in his possession the property in usufruct as administrator, subject to the obligation to deliver to the usufructuary the net proceeds thereof, after deducting the sums which may be agreed upon or judicially allowed him for such administration. Effect of failing to give security unless exempted: On the part of the naked owner, he may still opt: a. to transfer the property to the usufructuary despite failure to give required security; b. but even if delivery is made, the naked owner may still later demand the required security, unless he has waived his right. c. He may also demand that the immovable be placed under administration in favor of another person. d. He may demand that all the movables be sold. e. He may opt to retain the property until after the security required is posted. On the part of the usufructuary: a. He cannot enter into the enjoyment of the property. 2. He cannot posses, he cannot enjoy, until he gives the security. b. He cannot compel the naked owner that he be appointed as administrator in the meantime he cannot post the security. c. He cannot collect maturing credits or make investments per securities or credits without the consent of the naked owner.

1. furniture necessary for the 2. 3.

use of the usufructuary; the house which his family may live; tools and implements and other movables necessary for an industry or vocation which the usufructuary is engaged.

ARTICLE 588: After the security has been given by the usufructuary, he shall have right to all the proceeds and benefits from the day on which in accordance with the title constituting the usufruct, he should have commenced to receive them. ARTICLE 589: The usufructuary shall take case of the things given in usufruct as a good father of a family. ARTICLE 590: A usufructuary who alienates or leases his right if usufruct shall answer for any damage which the things in usufruct may suffer thru the fault or negligence of the person who substitutes him. ARTICLE 591: If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall be obliged to replace with the young thereof the animals that die each year from natural causes or lost due to the rapacity of beasts of prey. If the animals on which the usufruct is constituted should all perish, without the fault if the usufructuary, on account of some contagious disease or any other uncommon event, the usufructuary shall fulfill his obligation by delivering to the owner the remains which may have been saved from the misfortune. Should the usufruct be on sterile animals, it shall be considered, with respect to its effects, as though constituted in fungible things. ARTICLE 592: The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. By ordinary repairs are understood such as are required by the wear and tear due to the natural use if the thing and are indispensable for its preservation. Should the usufructuary fail to make them after demand by the owner, the latter may make them at the expense of the usufructuary. Repairs must be ordinary.

Caucion juratoria. This is a special usufruct, a promise under oath, a sworn duty to take good care of the property and return the same at the end of the usufruct. This promise will take the place of the security. It is based on necessity and humanity. Caution Juratoria A sworn duty to: - take good care of the property and - return the same at the end of the usufruct

Caucion Juratoria only applies to:

REQUISITES FOR REPAIR: 1. must be required by wear and tear due to the natural use of the thing; 2. must be indispensable for its preservation; 3. must have occurred during the usufruct 593: Extraordinary repairs shall be at the expense of the owner. The usufructuary is

obliged to notify the owner when the need for such repairs is urgent. ARTICLE 594: If the owner should make the extraordinary repairs, he shall have a right to demand of the usufructuary the legal interest on the amount expended for the time that the usufruct lasts. Should he not make them when they are indispensable for the preservation of the thing, the usufructuary may make them; but he shall have a right to demand of the owner, at the termination of the usufruct, the increase in value which the immovable may have acquired by reason of the repairs. ARTICLE 595: The owner may construct any works and make any improvements of which the immovable in usufruct is susceptible, or make new plantings thereon if it be rural, provided that such acts do not cause a diminution in the value of the usufruct or prejudice the right of the usufructuary. 21.KINDS OF EXTRAORDINARY REPAIRS: 1) Those caused by NATURAL use but NOT NEEDED for preservation by implication. 2) Those caused by ABNORMAL or EXCEPTIONAL CIRCUMSTANCES and NEEDED for preservation (as when as earthquake renders the stairs of a house unsafe). 3) Those caused by ABNORMAL or EXCEPTIONAL but are NOT NEEDED for preservation. 22.REQUISITES BEFORE USUFRUCTUARY IS ALLOWED TO MAKE EXTRAORDINARY REPAIRS: 1) There must be due notification to naked owner of urgency. 2) The naked owner failed to make them. 3) The repair is needed for preservation. 23.RIGHTS OF USUFRUCTUARY WHO HAS MADE EXTRAORDINARY REPAIRS 1) Get increase in value or reimbursement of expenses 2) Right of retention until paid; reimbursement is to be made only at the end of the usufruct.

2. Abnormal/exceptional circumstances
but needed for preservation-- borne by the naked owner. abnormal/exceptional circumstances but is not needed for preservation: again it is borne by the naked owner, and he may not be compelled to make them. ARTICLE 596: The payment of annual charges and taxes and those considered as a lien on the fruits shall be at the expense of the usufructuary for all the time that the usufruct lasts. Although the property is in the possession of the usufructuary, the naked owner may still 1. construct works 2. make improvements 3. make new plantings

PROVIDED: The value of the usufruct is not diminished; or The right of the usufructuary is not prejudiced

1. 2.

EFFECT OF INCREASE IN THE VALUE OF THE USUFRUCT: The usufructuary profits be said increase (for he will still be entitled to the use and fruits thereof). The usufructuary does not have to pay legal interest on the improvement. Reason: this was a voluntary act of the naked owner.

ARTICLE 597: The taxes which, during the usufruct may be imposed directly on the capital, shall be at the expense of the owner. If the latter has paid them, the usufructuary shall pay him the proper interest on the sums which may have been paid in that character, and if the said sums have been advanced by the usufructuary, he shall recover the amount thereof at the termination of the usufruct. WHAT CHARGES OR TAXES USUFRUCTUARY MUST PAY: THE

RULES: 1. If caused by ordinary repairs but not

needed for preservation, the naked owner shall bear the expenses, but then the usufructuary may not compel the naked owner to make them.

The usufructuary should pay for: 1. the annual charges on the fruits 2. the annual taxes on the fruits 3. annual taxes on the land. The SC had ruled that taxes and charges should be paid by the usufructuary only when they can be considered as liens on the fruits. It is a well-settled rule that real property tax, being a burden upon the capital, should be paid by the owner of the land, and not by a usufructuary.

ARTICLE 598: If the usufruct be constituted on the whole patrimony, and if at the time of its constitution the owner has debts, the provisions of Art. 758 and 759 relating to donations shall be applied, both with respect to the maintenance of the usufruct and to the obligation of the usufructuary to pay such debts. The same rule shall be applied in case the owner is obliged at the time the usufruct is constituted to make periodical payments, even if there should be no known capital. This article usufruct. deals with universal

done without the approval of the court or of the naked owner. If usufructuary has not given security, or when he is exempted, or when there is only caucion juratoria, a collection and investment can be done only with the approval of the court or the naked owner.

SITUATION: The usufruct is constituted on the whole patrimony; The naked owner has debts or is required to make periodic payments If there is a stipulation, the usufructuary shall pay the debts but only those debts incurred prior to the constitution of usufruct and up to the value of the property. If there being no stipulation regarding the payment of debts, the usufructuary shall be responsible only when the usufruct has been made in fraud of the creditors. When the usufruct imposes upon the usufructuary the obligation to pay the debts of the usufruct, if the clause does not contain any declaration to the contrary, the former is understood to be liable to pay only the debts which appear to have been previously contracted. In no case shall the usufructuary be responsible fro debts exceeding the value of the property, unless the contrary intention appears. ARTICLE 599: The usufructuary may claim any matured credits which from part of the usufruct if he has given or gives the proper security. If he has been excused from giving security or has not been able to give it, or if that given is not sufficient, he shall need the authorization of the owner, or of the court in default thereof, to collect such credits. The usufructuary who has given security may use the capital he has collected in any manner he may deem proper. The usufructuary who has not given security shall invest the said capital at interest upon agreement with the owner; in default of such agreement, with judicial authorization; and, in every case, with security sufficient to preserve the integrity of the capital in usufruct. RULES ON USUFRUCT OF A MATURED CREDIT: If usufruct has given security, collection and investment can be

ARTICLE 600: The usufructuary of a mortgaged immovable shall not be obliged to pay the debt for the security of which the mortgage was constituted. Should the immovable be attached or sold judicially for the payment of debt, the owner shall be liable to the usufructuary for whatever the latter may lose by reason thereof. ARTICLE 601: The usufructuary shall be obliged to notify the owner of any act of a 3rd person, of which he may have knowledge, that may be prejudicial to the rights of ownership, and he shall be liable should he not do so, for damages, as if they had been caused thru his own fault. NOTIFICATION. The usufructuary should notify the owner of any acts of 3rd person which is prejudicial to ownership if he has knowledge. Failure to do so, he shall be liable for damages as if it is his fault. WHEN NOTIFICATION BY THE USUFRUCTUARY IS REQUIRED: If a 3rd party commits acts prejudicial to the rights of ownership; If urgent repairs are needed; If an inventory at the beginning of the usufruct is to be made.

1. 2. 3.

ARTICLE 602: The expenses, costs, liabilities is suits brought with regard to the usufruct shall be borne by the usufructuary. ARTICLE 603: Usufruct is extinguished: 1. By the death if the usufructuary, unless a contrary intention clearly appears; 2. By the expiration of the period for which it was constituted or by the fulfilment of any resolutory condition provided in the title creating the usufruct; 3. By merger if the usufruct and ownership in the same person; 4. By renunciation of the usufructuary; 5. By the total loss of the thing in usufruct; 6. By the termination of the right of the person constituting the usufruct; 7. By prescription.

Instances Extinguishment: the

of

a. Death of except:

usufructuary

1. Art.

2.

611 A usufruct constituted in favor of several persons living at the time of its constitution shall not be extinguished until the death of the last survivor. ARTICLE 606: A usufruct granted for the time that may elapse before a 3rd person attains a certain age, shall subsist for the number of years specified, even if the 3rd person shou;d die before the period expires, unless such usufruct has been expressly granted only in consideration of the existence of such person.

in immovable property of which a building forms part, and the latter should be destroyed in any manner whatsoever, the usufructuary shall have a right to make use of the land and the materials. The same rule shall be applied if the usufruct is constituted on a building only and the same should be destroyed. But in such case, if the owner should wish to construct another building, he shall have a right to occupy the land and to make use of the materials, being obliged to pay to the usufructuary, during the continuance of the usufruct, the interest upon the sum equivalent to the value of the land and of the materials.

b. Expiration c. d. e. f. g. h.

i.
j.

of the period or fulfilment of any resolutory condition; Merger of the usufruct and ownership in the same person. (Chinguen case); renunciation of the usufructuary; merger of the usufruct and the naked owner in one person; renunciation or waiver by the usufructuary; total loss of the thing in usufruct; prescription; acquisition by a stranger [through acquisitive prescription, the rights either of the usufruct or the naked ownership; annulment, rescission, mutual waiver/withdrawal; in cases of parental usufruct ends when the minor child reaches the age of majority. Automatically the parents cease to become the usufructuary of the minor child's properties.

Usufruct constituted over the land and the building and usufruct constituted over the building alone. Usufruct constituted over both the building and the land, and the building is destroyed before the usufruct end, With respect to the building, the usufruct is extinguished [total loss] but with respect to the land, the usufruct continues over the same, and the usufructuary is even entitled to the use of whatever materials is left of the building. In case of rebuilding, the naked owner wants to construct, to rebuild, but the usufructuary refuses, The usufructuary's decision prevails because he has still the right to make use of the land and the enjoyment thereof for the remainder of the period If a new building is constructed with the consent of the usufructuary, In the absence of any agreement, the reconstruction alone of the building does not gives rise to a continued usufruct over the new building since the former usufruct has been extinguished, and the same cannot be revived by mere reconstruction. But then the usufructuary is entitled to legal interest for the use of the land, because the usufruct still continues with respect to the land, for the remainder of the period.

ARTICLE 604: If the thing given in usufruct should be lost only in part, the right shall continue on the remaining part. ARTICLE 605: Usufruct cannot be constituted in favor of a town, corporation, or association for more than fifty years. If it has been constituted, and before the expiration of such period the town is abandoned, or the corporation or association is dissolved, the usufruct shall be extinguished by reason thereof. ARTICLE 606: A usufruct granted for the time that may elapse before a 3rd person attains a certain age, shall subsist for the number of years specified, even if the 3rd person shou;d die before the period expires, unless such usufruct has been expressly granted only in consideration of the existence of such person. ARTICLE 607: If the usufruct is constituted

If the usufruct is constituted on

the building alone, and the building is destroyed, the usufruct over the building is extinguished but the usufruct may still continue with respect to the land. Although there is no

usufruct over the land, you cannot erase the fact that when the usufruct was constituted over the building, automatically he is entitled to the use and enjoyment of the land on which the building has been constructed. So he [usufructuary] has the right to continue with the enjoyment of the land. The difference is that the naked owner may construct a new building on the land with or without the consent of the usufructuary. But the naked owner is obliged to pay the usufructuary interest upon the sum equivalent to the value of the land and the materials. ARTICLE 608: If the usufructuary shares with the owner the insurance if the tenement given in the usufruct, the former shall, in case of loss, continue in the enjoyment of the new building, should one be constructed, or shall receive the interest on the insurance indemnity if the owner does nit wish to rebuild. Should the usufructuary have refused to contribute to the insurance, the owner insuring the tenement alone, the latter shall receive the full amount of the insurance indemnity in case of loss, saving always the right granted to the usufructuary in the preceding article. ABSENCE OF SHARING OF INSURANCE PREMIUM: Building alone: 1. Naked owner is entitled to the full proceeds of the insurance indemnity. 2. Naked owner may rebuild w/ or w/o consent of usufructuary. 3. No usufruct over the new building, but usufructuary is entitled to interest on the value of the land and materials. Building and land: 1. usufruct continues with respect to the land and materials; 2. Naked owner cannot rebuild over the objection of the usufructuary. 3. if naked owner rebuilds w/ or w/o consent of usufructuary, there is no usufruct over the new building but he is liable to pay the usufructuary over the land and materials.

SHARING PREMIUM

OF

INSURANCE

[in case of REBUILDING]: Building alone: 1. usufruct as to the new building continues; 2. if the naked owner wants to rebuild and the usufructuary objects, the naked owner prevails bec. there is no usufruct over the land; Building and land: 1. usufruct as to the new building continues; 2. if the naked owner wants to rebuild and the usufructuary objects, the naked owner prevails bec. there is no usufruct over the land;

[in case of NO REBUILDING]: Building alone: 1. Naked owner receives the proceeds of the insurance but should pay the usufructuary interest for the remainder of the period. Building and land: 1. Naked owner receives the proceeds of the insurance but usufruct continues over the land and the materials left. 2. Naked owner gets the proceeds of the insurance, but should pay the usufructuary interest.

ARTICLE 609: Should the thing in usufruct be expropriated for public use, the owner shall be obliged either to replace it with another thing of the same value and if similar conditions, or to pay the usufructuary the legal interest on the amount if the indemnity fir the whole period of the usufruct. If the owner chooses the latter alternative, he shall give security for the payment of the interest. Rules in Cases of Expropriation 1. if the naked owner ALONE was given the indemnity, he has the option to: a. replace the expropriated thing w/ an equivalent thing b. pay the usufructuary legal interest on the indemnity. But this option requires that the naked owner give security for the payment of the interest

2. If BOTH the naked owner and

the usufructuary were separately given indemnity: each owns the indemnity given to him the usufruct being extinguished If the usufructuary ALONE was given indemnity: a. he must give it to the naked owner and compel the naked owner to pay him interest or replace the property b. he may even deduct the interest himself if the naked owner fails to object.

the right of retention pertaining to the usufructuary or his heirs for taxes and extraordinary expenses which should be reimbursed. After the delivery had been made, the security or mortgage shall be cancelled. Rights and Obligations at Termination of the USUFRUCT the

3.

ARTICLE 610: A usufruct is not extinguished by bad use if the thing in usufruct; but if the abuse should cause considerable injury to the owner, the latter may demand that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration. -

1. Usufructuary a. must return the property to the naked owner b. but he has rights: a. To retain the property until he has been reimbursed for the taxes on capital advanced by him and/or for the extraordinary repairs and expenses insofar as there has been an increase in the value. b. To remove improvements or to set-off against the damage. 2. Naked Owner Must: a. cancel the security or mortgage provided the usufructuary has complied with his obligations; b. in case of rural leases, respect the leases made by the usufructuary until the end of the agricultural year; c. make reimbursements to the usufructuary in the proper cases. EASEMENTS There are two (2) general kinds of easements under the first 2 provisions. Easement and servitude under the civil codethey are one and the same. There is a difference with respect to common law civil law but thats not our concern. DIFFERENT KINDS OF EASEMENT ARTICLE 613: An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.

1. If

2.

Effects of Bad Use: it does Not cause considerable injury to naked owner: a. the usufruct continues b. the naked owner cannot demand administration by himself If it causes considerable injury to the naked owner: a. the usufruct continues; b. the naked owner can demand deliver to him or administration by him; c. but naked owner is obliged to pay the net proceeds to usufructuary; d. naked owner gets the administration fee and expenses.

ARTICLE 611: A usufruct constituted in favor of several persons living at the time of its constitution shall not be extinguished until the death of the last survivor. Rules in Case of Multiple Usufruct a. If constituted simultaneously the death of the last survivor terminates the usufruct; b. If constituted successively the death of the last survivor terminates the usufruct. ARTICLE 612: Upon the termination of the usufruct, the thing in usufruct shall be delivered to the owner, without prejudice to

It is an encumbrance imposed on an immovable. There is no easement imposed upon immovables belonging to the same person. The dominant estate and the servient estate are owned by different persons.

The term immovables must be construed in its common and not legal sense. Two estates involved: o The servient estate, which is burdened by the easement; o The dominant estate, which is the one benefited as a result of an easement. If the beneficiary is a community or one or more persons, the easement is called personal easement, if the beneficiary is another immovable it is called a real easement. CHARACTERISTICS

1. Real right; 2. Imposable only in another's property 3. It

and never in one own's property; is a form of limitation of ownership. [Why: because it imposes a restriction in the enjoyment of one's property.. if you are the owner of a property, a land for example and it is burdened by a road right of way, it is in effect a limitation on the enjoyment of your property because you will be allowing somebody else to be passing on your property. It is a form of limitation because your enjoyment of your property is no longer exclusive.] It is inseparable and indivisible, meaning it cannot be separated from the immovable on which it is attached. It cannot be sold separately from the property; It is intransmissible as a general rule, unless the tenement affected is also transmitted or alienated; It is perpetual until extinguished. ARTICLE 613 BORBAJO vs. HIDDEN VIEW HOMEOWNERS INC. ET AL. GR No. 152440. January 31, 2005 The dominant estate cannot be the servient estate at the same time. One of the characteristics of an easement is that it can be imposed only on the property of another, never on ones own property. An easement can exist only when the servient and the dominant estates belong to different owners. FACTS Jose C. BONTUYAN together with Lucy, Georgina, Helen and Vicente Solon, Jr. (the SOLONs) were the registered owners of a parcel of agricultural land, covering an area of 13,910 sq. m. situated at Barangay Bacayan, Cebu City. In 1991, at the instance of BONTUYAN, the property was surveyed to convert it into a subdivision.

4.

5. 6.

Later, the corresponding subdivision plan, which showed 3 road lots was submitted to the Cebu Office of the DENR. The DENR thereafter, approved the subdivision plan. Meanwhile, BONTUYAN, in his own behalf and as attorney-in-fact of the SOLONs and following the subdivision scheme in the plan, sold the resulting lots to different individuals, as evidenced by the Deed of Absolute Sale. Among the lots sold are the ones which later became the subject of this case, the three (3) road lots. The road lots were sold to petitioner FELICITACION B. BORBAJO and Prescillana B. Bongo (Bongo). However, they obtained the titles to the lots more than a month later on 30 July 1991. Using the advance payments of his lot purchasers, BONTUYAN proceeded to develop a subdivision which was later named Hidden View Subdivision I by its residents and homeowners. Later, he applied for and secured from the Housing and Land Use Regulatory Board (HLURB) a License to Sell. BORBAJO also decided to develop into a subdivision the other properties adjacent to Hidden View Subdivision I which she acquired. Thus, she applied for and received SSA 674-5-94 issued by the Cebu City Planning and Development Department covering the adjacent land to be subdivided into 23 lots. She named this new subdivision ST Ville Properties. In 1994, she secured Certificate of Registration for the ST Ville Properties project and a License to Sell the same from the HLURB. She also secured a Certificate of Registration dated for another subdivision project called Hidden View Subdivision II from the HLURB, with the corresponding License to Sell issued for it. The two new subdivision projects were located at the back of Hidden View Subdivision I. The residents and homeowners of Hidden View Subdivision I heard reports to the effect that BORBAJO had purchased the entire subdivision from BONTUYAN through an oral agreement. They also heard that they have no right to use the road lots, since the lots have already been registered in BORBAJOs name. As a consequence, the Hidden View Homeowners, Inc. invited BORBAJO to a meeting. When confronted by the homeowners about her claim that she had bought the subdivision from BONTUYAN, BORBAJO confirmed her claim of ownership over the subdivision and the road lots. She also told them that they have no right regarding the road right-ofway. In 1997, the homeowners caused the construction of a guardhouse at the entrance of Hidden View Subdivision I and hired the services of a security guard to prevent unauthorized persons and construction vehicles from passing through their subdivision. The measures adversely affected the residents of the subdivisions at the back, as well as BORBAJO herself since

her delivery trucks and heavy equipment used in the construction of her housing projects then on-going had been effectively prevented from passing through the road lots. Then, BORBAJO filed before the RTC of Cebu City an action for damages and injunction against respondents HIDDEN VIEW HOMEOWNERS, INC. ET AL for the latters acts of preventing her delivery trucks and other construction vehicles, and her construction workers, from passing through the road lots. The trial court ruled in favor of BORBAJO. On appeal however by HIDDEN VIEW HOMEOWNERS INC. ET AL with the Court of Appeals, the decision of the RC was reversed for lack of legal and factual bases. It held that BORBAJO had not complied with the requisites of a compulsory easement of right-of-way and pointed out the general rule that mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. Hence, this appeal by BORBAJO. BORBAJO contended that she was entitled to the injunctive relief considering that she was the registered owner of the road lots in question and hence, she had a right in esse which deserves legal protection. On the other hand, HIDDEN VIEW HOMEOWNERS INC. ET AL. contended that BORBAJO fraudulently obtained her titles to the road lots through a falsified deed of sale which was the document presented to the Office of the Register of Deeds. They also averred that notwithstanding the registration of the subject road in BORBAJOs name, her title thereto was tainted by the discovery of fraud she allegedly perpetrated in securing the questioned titles. ISSUE Whether or not HIDDEN VIEW HOMEOWNERS INC. ET AL. had the right to close the road. RULING NO, they did not have the right to do so. As a registered co-owner of the road lots, BORBAJO is entitled to avail of all the attributes of ownership under the Civil Codejus utendi, fruendi, abutendi, disponendi et vindicandi. Article 428 of the New Civil Code is explicit that the owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. A co-owner, such as BORBAJO, is entitled to use the property owned in common under Article 486 of the Civil Code. Therefore, respondents cannot close the road lots to prevent BORBAJO from using the same. As to the alleged perpetration of BORBAJO in securing the questioned titles, the court upheld the efficiency value of said

titles for purposes of the present petition, without prejudice to any future determination by appropriate forum on the legality of BORBAJOs titles over the road lots. Verily, a separate case for annulment of titles over the road lots was then pending before the court. There were serious allegations that the issuance of the TCTs over the road lots was tainted with fraud as evidenced by alterations made on the face of the certificates and discrepancies in the records of the contract of absolute sale filed before the Office of the Register of Deeds and the Notarial Division of the RTC of Cebu City. If the court finds that the titles of BORBAJO were obtained fraudulently, her right to the road lots ceases as well as her right-of-way by virtue of said titles. In the meantime, however, we are bound by the value in law and the evidentiary weight of the titles in the name of BORBAJO. As long as the titles are not annulled, BORBAJO remains registered a coowner and therefore her right to use the road lots subsists. Likewise, with BORBAJO as a registered co-owner of the road lots, it is utterly pointless to discuss whether she is entitled to the easement of right of way. Both from the text of Article 649 of the Civil Code and the perspective of elementary common sense, the dominant estate cannot be the servient estate at the same time. One of the characteristics of an easement is that it can be imposed only on the property of another, never on ones own property. An easement can exist only when the servient and the dominant estates belong to different owners. BORBAJO, being a registered co-owner of the 3 road lots, is entitled to the injunctive relief. ARTICLE 614: Servitudes may also established for the benefit of a community, or of one or more persons to whom encumbered estate does not belong. Personal easement only the servient estate is involved ARTICLE 615: Easements may be continuous or discontinuous, apparent or non-apparent. Continuous easements are those the use of which are or may be incessant, without the intervention of any act of man. Discontinuous easements are those which are used at intervals and depend upon the acts of man. Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same. Non-apparent easements are those which show no external indication of their existence. CLASSIFICATION OF EASEMENT

I. Accdg. to the Manner by which

they are exercised: a. Continuous: the use or exercise of the easment is or may be incessant [Incessant meaning unceasing or without any interruption], or without the intervention of any act of man. EXAMPLE: Easement of drainage OR Easement of aqueduct. The fact that water flows into the drainage system signifies usage of the drainage. But it does not mean that if there is no water that flows into the drainage system it is not continuous.

property or to do something himself on his property. Ex: the duty to cut of the branches of his tree that extend to another's property. Under the law, he has the duty to cut off the branches in so far as they extend to another's property. That is a positive easement because the law obliges you to cut them off. 2. NEGATIVE: The owner of a servient estate is prohibited from doing something which he could lawfully do where it not for the existence of the easement. Example: Easements of light and view or openings made in one's own wall. How to acquire a negative easement? BY notarial prohibition.

b. Discontinuous: those that

are used at intervals and depend upon the acts of man. Example: Easement of right of way because it can be exercised only when a man passes or puts his feet on somebody else's property. II. According to EXISTENCE (according to whether or not their existence is indicated) 1. APPARENT: are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same. There are signs that indicate the use and enjoyment of the easements. Examples: a dam, a window in a party wall, a road right of way if there is an alley or a permanent path. 2. NON APPARENT: opposite of apparent easements. They show no indication or apparent sign or indication of their existence. Example: negative easements like easement of not building more than a certain height, it may be a right of way if there is no visible path or alley. ARTICLE 616: Easements are also positive or negative. A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself, and a negative easement, that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. III. According to PURPOSE nature of the limitation: or the

The easement is acquired 10 years from the date of notarial prohibition.

IV. ACCORDING TO SOURCE OR ORIGIN

1. voluntary when the parties agree

to create an easement; mixed when partly by agreement and partly by law; 3. legal when constituted by law

2.

ARTICLE 617: Easements are inseparable from the estate to which they actively or passively belong. Consequences easements of inseparability of

1. Easement cannot be sold or donated or mortgaged independently of the real property. 2. Registration of the dominant estate under the Torrens system without the registration of the voluntary easement in its favor, does not extinguish the easement; but registration of the servient estate w/o the registration of the easements burdening it extinguishes said voluntary easements CASE OF PURGANAN V PAREDES Purganan owns the servient estate; Paredes owns the dominant estate. There was an annotation in the title of the servient estate that Paredes has an easement of drainage. Since there was an annotation, the buyer has to recognize the easement SOLID MANILA CORP. vs. BIO HONG TRAD. GR No. 90596. April 8, 1991. The sale of the property in favor of BIO HONG did include the alley

1. POSITIVE: this is also known as servitude of sufferance. In positive easements, the owner of the servient estate allows something to be done on his

because it cannot be separated from the tenement and maintain an independent existence. Servitudes are merely accessories to the tenements of which they form part. Although they are possessed of a separate juridical existence, as mere accessories, they cannot, however, be alienated from the tenement, or mortgaged separately. FACTS Petitioner MANILA SOLID MANILA CORP. was the registered owner of a parcel of land located in Ermita, Manila. The same lies near another parcel of land, registered in the name of private respondent BIO HONG TRADING CO., INC. BIO HONG's title came from a prior owner and in their deed of sale, the parties thereto reserved as an easement of way the following: (1) 914 sq. m. of which was converted into a private alley for the benefit of neighboring estates and (2) 179 sq. m. had actually been expropriate, and developed by the City Government pursuant to the beautification drive of the Metro Manila Governor. As a consequence, an annotation was entered in BIO HONG's title concerning the construction of a private alley from Concepcion Street to the interior of the aforesaid property with the plan and specification duly approved by the City Engineer subject to several conditions. One of the conditions was that the owner of the lot on which the alley has been constructed shall allow the public to use the same. SOLID MANILA claimed that ever since, it and as well as other residents of neighboring estates, had made use of the above private alley and maintained and contributed to its upkeep, until sometime in 1983, when, and over its protests, BIO HONG constructed steel gates that precluded unhampered use. Hence, in 1984, SOLID MANILA commenced suit for injunction against BIO HONG, to have the gates removed and to allow full access to the easement. The court a quo shortly issued ex parte an order directing BIO HONG to open the gates. Later, the trial court rendered judgment against BIO HONG. Thereafter, BIO HONG appealed to the respondent COURT OF APPEALS, which reversed the trial court decision. In favoring BIO HONG, it held that an easement is a mere limitation on ownership and that it does not impair BIO HONG's title, and that since BIO HONG had acquired title to the property, "merger" brought about an extinguishment of the easement. Hence, this appeal by SOLID MANILA. The corporation submitted that the very deed of sale executed between BIO HONG and the previous owner of the property "excluded" the alley in question, and that in any event, the intent of the parties was to

retain the "alley" as notwithstanding the sale.

an

easement

ISSUES (1) Whether or not the alley in question was excluded from the sale of the property to BIO HONG. (2) Whether or not there was a merger in the person of BIO HONG. [applicable to Articles 614 and 631] RULING (1) No, it was not excluded. The sale of the property in favor of BIO HONG did include the alley because it cannot be separated from the tenement and maintain an independent existence. Article 617 states that Easements are inseparable from the estate to which they actively or passively belong. Servitudes are merely accessories to the tenements of which they form part. Although they are possessed of a separate juridical existence, as mere accessories, they cannot, however, be alienated from the tenement, or mortgaged separately. The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no argument to defeat SOLID MANILA's claims, because as an easement precisely, it operates as a limitation on the title of the owner of the servient estate, specifically, his right to use (jus utendi). As SOLID MANILA indeed hastens to point out, the deed itself stipulated that a portion thereof of the tenement measuring 914 sq. m. had been converted into a private alley for the benefit of the neighboring estates. Precisely because of this, the former owner, in conveying the property, gave the BIO HONG a discount on account of the easement, that the purchase price was lowered from P3,790,440 to P3,503,240. Hence, and so we reiterate, albeit BIO HONG did acquire ownership over the property-including the disputed alley-as a result of the conveyance, it did not acquire the right to close that alley or otherwise put up obstructions thereon and thus prevent the public from using it, because as a servitude, the alley is supposed to be open to the public. (2) NO, there was no genuine merger that took place as a consequence of the sale in favor of BIO HONG. Under Article 631 of the Civil Code, a merger exists when ownership of the dominant and servient estates is consolidated in the same person. Merger then, as can be seen, requires full ownership of both estates. One thing ought to be noted here, however. The servitude in question is a personal servitude, that is to say, one constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of the general public. Personal servitudes are referred to in Article 614 of the Civil Code, which states

that Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the easement pertains to persons without a dominant estate, in this case, the public at large. Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and the termination of that relation leaves the easement of no use. Unless the owner conveys the property in favor of the public if that is possible no genuine merger can take place that would terminate a personal easement. ARTICLE 618: Easements are indivisible. If the servient estate is divided between two or more persons, the easement is not modified, and each of them must bear it on the part which corresponds to him. If it is the dominant estate that is divided between two or more persons, each of the may use the easement in its entirety, without changing the place of its use, or making it more burdensome in any other way. How are easement established? ARTICLE 619: Easements are established either by or by the will of the owners. The former are called legal and the latter voluntary easement. SPOUSES DE LA CRUZ vs. RAMISCAL GR No. 137882. February 04, 2005 Voluntary easements are established by the will of the owners. In the present case, it was not proven that RAMISCAL, the owner, voluntarily granted a right of way in favor of the SPOUSES DE LA CRUZ. FACTS Respondent OLGA RAMISCAL was the registered owner of a parcel of land located at the corner of 18th Avenue and Boni Serrano Avenue, Murphy, Quezon City. Petitioner SPOUSES ELIZABETH and ALFREDO DE LA CRUZ were occupants of a parcel of land, with an area of 85 sq. m., located at the back of RAMISCALs property, which was registered in the name of Concepcion de la Pea, mother of petitioner ALFREDO DE LA CRUZ. RAMISCAL owned a 1.10-meter wide by 12.60-meter long strip of land, which was being used by the SPOUSES DE LA CRUZ as their pathway to and from 18th Avenue, the nearest public highway from their property. SPOUSES DE LA CRUZ had enclosed the same with a gate, fence, and roof. In 1976, RAMISCAL leased her property, including the building thereon, to Phil. Orient Motors, which also owned a property adjacent to that of RAMISCALs. In 1995,

Phil. Orient Motors sold its property to San Benito Realty. After the sale, Engr. Rafael Madrid prepared a relocation survey and location plan for both contiguous properties of RAMISCAL and San Benito Realty. It was only then that RAMISCAL discovered that the aforementioned pathway being occupied by SPOUSES DE LA CRUZ was part of her property. Immediately, RAMISCAL through a letter, demanded that SPOUSES DE LA CRUZ demolish the structure constructed by them on said pathway without her knowledge and consent. However, the letter was unheeded by the SPOUSES DE LA CRUZ. RAMISCAL the former referred the matter to the Barangay for conciliation proceedings, but the parties arrived at no settlement. Hence, RAMISCAL filed a complaint with the RTC for the demolition of the structure allegedly illegally constructed by SPOUSES DE LA CRUZ on her property. RAMISCAL asserted that SPOUSES DE LA CRUZ had an existing right of way to a public highway other than the current one they were using, which she owns. On the other hand, SPOUSES DE LA CRUZ admitted having used a 1.10-meter wide by 12.60-meter long strip of land on the northern side of RAMISCALs property as their pathway to and from 18th Avenue, the nearest public highway from their property, but claimed that such use was with the knowledge of RAMISCAL. The SPOUSES DE LA CRUZ averred that they were made to sign a document stating that they waived their right to ask for an easement along the eastern side of RAMISCALs property towards Boni Serrano Avenue, which document was among those submitted in the application for a building permit by a certain Mang Puling, the person in charge of the construction of the motor shop. That was why, according to SPOUSES DE LA CRUZ, the perimeter wall on RAMISCALs property was constructed at a distance of 1.10-meters offset and away from RAMISCALs property line to provide a passageway for them to and from 18th Avenue. They maintained in that RAMISCAL knew all along of the 1.10-meter pathway and had, in fact, tolerated their use thereof. In 1997, the RTC ruled in favor of RAMISCAL. The appeal of the SPOUSES DE LA CRUZ with the Court of Appeals was also dismissed. Hence, this petition for review. ISSUE Whether or not RAMISCAL voluntarily accorded SPOUSES DE LA CRUZ to an easement of right of way. RULING NO, RAMISCAL did not accord SPOUSES DE LA CRUZ a right of way. Under Article 619 of the Civil Code, Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements. RAMISCAL

did not make a voluntary easement in favor of SPOUSES DE LA CRUZ. The SPOUSES DE LA CRUZ failed to show by competent evidence other than their bare claim that they and their tenants, spouses Manuel and Cecilia Bondoc and Carmelino Masangkay, entered into an agreement with RAMISCAL, through her foreman, Mang Puling, to use the pathway to 18th Avenue, which would be reciprocated with an equivalent 1.50-meter wide easement by the owner of another adjacent estate. The Court did not give credence to such self-serving claim that such right of way was voluntarily given them by RAMISCAL for the following reasons: First, SPOUSES DE LA CRUZ were unable to produce any shred of document evidencing such agreement. The Civil Code is clear that any transaction involving the sale or disposition of real property must be in writing. Thus, the dearth of corroborative evidence opens doubts on the veracity of the naked assertion of SPOUSES DE LA CRUZ that indeed the subject easement of right of way was a voluntary grant from RAMISCAL. Second, as admitted by the SPOUSES DE LA CRUZ, it was only the foreman, Mang Puling, who talked with them regarding said pathway on the northern side of RAMISCALs property. Thus, petitioner Elizabeth de la Cruz testified that she did not talk to RAMISCAL regarding the arrangement proposed to them by Mang Puling despite the fact that she often saw RAMISCAL. It is, therefore, foolhardy for SPOUSES DE LA CRUZ to believe that the alleged foreman of RAMISCAL had the authority to bind the RAMISCAL relating to the easement of right of way. Third, their explanation that said Mang Puling submitted said agreement to the Quezon City Engineers Office, in connection with the application for a building permit but said office could no longer produce a copy thereof, does not inspire belief. As correctly pointed out by the trial court, SPOUSES DE LA CRUZ should have requested a subpoena duces tecum from said court to compel the Quezon City Engineers Office to produce said document or to prove that such document is indeed not available. The fact that the perimeter wall of the building on RAMISCALs property was constructed at a distance of 1.10 meters away from the property line, does not by itself bolster the veracity of SPOUSES DE LA CRUZ story that there was indeed such an agreement. Further, as noted by the trial court, it was Atty. Federico R. Onandia, counsel of Phil. Orient Motors, who wrote SPOUSES DE LA CRUZ on 25 August 1994 advising them that his client would close the pathway along 18th Avenue, thereby implying that it was Phil. Orient Motors, RAMISCALs lessee, which tolerated SPOUSES DE LA CRUZ use of said pathway.

MODES OF ACQUIRING EASEMENT ARTICLE 620: Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. Modes of acquiring easements: 1. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. Good faith or bad faith is insignificant

2. Title here means any kind of

juridical act or law sufficient to create the encumbrance. Example: contract, donation, testamentary succession RONQUILLO vs. ROCO GR No. L-10619. February 28, 1958 The easement of right of way may not be acquired through prescription. (NOTE: under Art. 620 of the Civil Code, continuous and apparent easements may be already acquired by virtue of prescription of 10 years) FACTS Petitioners LHOGARIO RONQUILLO, ET AL., had been in the continuous and uninterrupted use of a road or passage way in going to Igualdad Street and the market place of Naga City, from their residential land and back, for more than 20 years. Said road or passage way traversed the land of VICENTE ROCO Y DOMINGUEZ, ET AL. The DEFENDANTS, who were the successors-in-interest of the late VICENTE ROCO, together with the latters tenants had long recognized and respected the private legal easement of road right of way of RONQUILLO, ET AL. However, in 1953, respondent JOSE ROCO thru his corespondent RAYMUNDO MARTINEZ and their men with malice and with a view to obstructing the RONQUILLO, ET AL.'s private legal easement over the property of the late VICENTE ROCO, started constructing a chapel in the middle of the said right of way construction. The construction actually impeded, obstructed and disturbed the continuous exercise of the rights of the RONQUILLO, ET AL. over said right of way In 1954, respondent NATIVIDAD ROCO and GREGORIO MIRAS, JR. with the approval of JOSE ROCO and with the help of their men and laborers, by means of force, intimidation, and threats, illegally and violently planted wooden posts, fenced with barbed wire and closed hermitically the road passage way and their right of way in question against their protests and opposition of RONQUILLO, ET AL. The latter were thereby prevented from going to or

coming from their homes Igualdad Street and the public market of the City of Naga. RONQUILLO, ET AL. then filed a complaint with the CFI. But the said complaint was dismissed. Hence, this appeal. RONQUILLO, ET AL. alleged that they had acquired the easement of right of way over the land of the DEFENDANTS and the latter's predecessors in interest, the late VICENTE ROCO, through prescription by their continuous and uninterrupted use of a narrow strip of land of the ROCO as passage way or road in going to Igualdad Street and the public market of Naga City, from their residential land or houses, and return for a period of 20 years. ISSUE Whether RONQUILLO, ET. AL. had acquired the easement of right of way through prescription. RULING NO, they have not acquired the easement of right of way through prescription. An easement of right of way though it may be apparent is, nevertheless, discontinuous or intermittent and, therefore, cannot be acquired through prescription, but only by virtue of a title. Under the Old as well as the New Civil Code, easements may be continuous or discontinuous (intermittent),apparent or non-apparent, discontinuous being those used at more or less long intervals and which depend upon acts of man (then Articles 532 and 615 of the Old and New Civil Codes, respectively). Continuous and apparent easements are acquired either by title or prescription, continuous nonapparent easements and discontinuous ones whether apparent or not, may be acquired only by virtue of a title (then Articles 537 and 539, and 620 and 622 of the Old and New Civil Codes, respectively). Both Manresa and Sanchez Roman are of the opinion that the easement of right of way is a discontinuous one. Under the provisions of the Civil Code, old and new, particularly the articles thereof aforecited, it would therefore appear that the easement of right of way may not be acquired through prescription. Even Article 1959 of the Old Civil Code providing for prescription of ownership and other real rights in real property, excludes therefrom the exception established by Article 622 (then Article 539), referring to discontinuous, easements, such as, easement of right of way. It is evident, therefore, that no vested right by user from time immemorial had been acquired by RONQUILLO, ET AL. at the time the Civil Code took effect. Under Article 622 of the Code, (then Article 539) no discontinuous easement could be acquired by prescription in any event. However, in the case of Municipality of Dumangas vs. Bishop of Jaro, this same

Tribunal held that the continued use by the public of a path over land adjoining the Catholic church in going to and from said ,Church through its side door, has given the church the right to such use by prescription, and that because of said use by the public, an easement of right of way over said land has been acquired by prescription, not only by the church, but also by the public, which without objection or protest on the part of the owner of said land, had continually availed itself of the easement. The minority of which the writer of this opinion is a part, believes that the easement of right of way may now be acquired through prescription, at least since the introduction into this jurisdiction of the special law on prescription through the Old Code of Civil Procedure, Act No. 190. Said law, Particularly, Section' 41 thereof, makes no distinction as to the real rights which are subject to Prescription, and there would appear to be no valid reason, at least to the writer of this opinion, why the continued use of a path or a road or right of way by the party, specially by the public, for 10 or more, not by mere tolerance of the owner of the land, but through adverse use of it, cannot give said party a vested right to such right of way through prescription. However, the opinion of the majority must prevail, and it is held that under the present law, particularly, the provisions of the Civil Code, old and new, unless and until the same is changed or clarified, the easement of right of way may not be acquired through prescription. Note: Today, under Art. 620 of the Civil Code, continuous and apparent easements may be already acquired by virtue of prescription of 10 years. ARTICLE 621: In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. Only continuous and apparent can be acquired by prescription. A continuous and apparent easement may be negative or positive. - Rules: 1. If the easement is positive begin counting the period from the day the dominant estate began to exercise it. Example: -

A window in a partywall, from the day the opening or window was built. 2. If negative, from the time NOTARIAL PROHIBITION was made on the SERVIENT ESTATE. 3. Who makes the notarial prohibition or who should commence the exercise of the easement? The dominant estate, thru its owner or usufructuary or possessor or legal representative Example: A and B are neighbors. On his bldgs wall, A opened a window beneath the ceiling joists to admit light in 2002. Even after 10 years (2012), B may still obstruct the light by constructing on his own lot a building higher that As unless A makes a Notarial Prohibition prohibiting B from making the obstruction. If in 2002, A makes the prohibition, may B still make the obstruction in 2009? Ans: Yes, because it is only in 2012 (10 yrs after the notarial prohibition) when A may be said to have acquired this NEGATIVE easement of light and view. If after 2012, B may no longer obstruct. Bar Questions: - Is the easement of light and view positive or negative? Ans. It depends: - If made on ones own wall and the wall does not extend over the neighbors land, easement is negative. To create an easement, a prohibition is required. - If made on ones own which extends over the neighboring land or if made on a partywall, the easement is created because of an act of SUFFERANCE or ALLOWANCE, thus the easement is positive. - May the Easement of Right of Way be acquired by Prescription? No, because it is discontinuous or intermittent. CID vs. JAVIER, ET AL. GR No. L-14116. June 30, 1960 Negative easements can not be acquired by less formal means. Hence, the requirement that the prohibition (the equivalent of the act of invasion) should be by "a formal act", "an instrument acknowledged before a notary public." FACTS Respondents IRENE P. JAVIER, ET AL., were registered owners of a building standing on their lot with windows overlooking the adjacent lot owned and registered in the name of petitioner LAUREANA A. CID. In a case between the two parties, JAVIER, ET AL. contended that they had acquired by prescription an

enforceable easement the view and light arising from a verbal prohibition made by CIDs predecessor-in-interest to obstruct such view and light, as owner of the adjoining lot. The windows in question were admittedly in JAVIER, ET AL.s own building erected on their own lot. The easement, if there was any, was therefore a negative one. Under the then Article 538 (now Art. 621), In order to acquire by prescription the easements..., the time of the possession shall be computed, in negative easements, from the day on which the owner of the dominant estate has, by a formal act, forbidden the owner of the servient estate to perform any act which would be lawful without the easement." As may be seen, the only question hinges on the interpretation of the phrase "a formal act". The lower court and the Court of Appeals considered any prohibition made by the owner of the dominant estate, be it oral or written, sufficient compliance with the law. Both courts so declared that JAVIER, ET AL. did acquire such easement. Hence, this appeal by CID. ISSUE Whether or not a formal act contemplated by law may be either written or verbal. RULING Neither. The formal act contemplated by law is not one that is merely written but that which is notarized. The law is explicit. It requires not any form of prohibition, but exacts, in a parenthetical expression, for emphasis, the doing not only of a specific, particular act, but a formal act. "Formal or pertaining to form, characterized by one due form or order, done in due form or with a solemnity regular; relating to matters of form." "Act In civil law, a writing which states in legal form that a thing has been done, said or agreed. From these definitions, it would appear that the phrase "formal act" would require not merely any writing, but one executed in due form and/or with solemnity. That this is the intendment of the law although not expressed in exact language is the reason for the clarification made in Article 621 of the New Civil Code, which specifically requires the prohibition to be in "an instrument acknowledged before a notary public". This is as it should be. Easements are in the nature of an encumbrance on the servient estate. They constitute a limitation of the dominical right of the owner of the subjected property. Hence, they can be acquired only by title and by prescription, in the case of positive easement, only as a result of some sort of invasion, apparent and continuous, of the servient estate. By the same token, negative easements can not be acquired by

less formal means. Hence, the requirement that the prohibition (the equivalent of the act of invasion) should be by "a formal act", "an instrument acknowledged before a notary public." The Court of Appeals found as undisputed the fact CID' lot (dominant) as well as JAVIER, ET AL.'s lot (servient) were covered by OCTs respectively, both issued by the Register of Deeds of Ilocos Norte, in pursuance of the decrees of registration issued in 1937, in Cadastral Case No. 51 of Laoag, Ilocos Norte. In the certified copies of these certificates of title, no annotation appeared with respect to the easement supposedly acquired by prescription which, counting the 20 years from 1913 or 1914, would have already ripened by 1937, date of the decrees of registration. Consequently, even conceding arguendo that such an easement had been acquired, it had been cut off or extinguished by the registration of the servient estate under the Torrens System without the easement being annotated on the corresponding certificate of title, pursuant to Section 39 of the Land Registration Act. ARTICLE 622: Continuous and nonapparent easements, and discontinuous ones, whether apparent or not may be acquired only by virtue of title. Example: A RRW is a discontinuous easement although it may be said to be apparent if there is a path or alley or any sign that would indicate its existence. But since it is discontinuous, it cannot be acquired by prescription. VELASCO vs. HON. CUSI GR No. L-33507. July 20, 1981 Whether the mode of acquisition of the easement that Bolton Street is, would be only by virtue of title was not material. It remained as such legal encumbrance, as effectively as if it had been duly noted on the certificate of title, by virtue of the clear and express provision of Section 39 of Act 496, it being admitted that at the time of the registration of Lot 77, the public highway was already in existence or subsisting. FACTS Petitioner FE VELASCO alleged when she bought Lot 77-B2 from the original owner in 1956. Then, Bolton Street was already existing. Without ascertaining the monuments along Bolton Street, she had her house constructed on her said lot and built a fence along said Bolton Street which she believed to be the boundary between her lot and said street and in line with other fences already existing when she bought said lot.

In 1970, after a relocation of the monuments of her lot, VELASCO discovered that the Bolton Street of the respondent CITY OF DAVAO had encroached at least 25 sq. m. with dimension of 2.5 meters by 10 meters, making her actual occupation of her lot 10 meters by 47.5 meters. She also had just discovered that the width of the Bolton Street is only 9 meters and since the CITY OF DAVAO was then asphalting the said street, VELASCO had filed a complaint with the CFI of Davao in order to quiet her title to the said portion of 2.5 meters by 10 meters. She alleged that because the continued illegal occupation of said portion by the CITY OF DAVAO, it had cast a cloud of doubt on the title over the portion of her lot being occupied by Bolton Street, which was valued at P400 per square meters. THE CITY OF DAVAO filed a motion to dismiss on the ground that the complaint stated no cause of action. The CFI, presided over by public respondent JUDGE HON. VICENTE CUSI JR., dismissed the case in 1970. The court held that the allegations in the complaint that the Bolton Street encroached on the lot of VELACO and that the CITY OF DAVAO had continuously occupied the portion so encroached upon do not, contrary to the conclusion of VELASCO, cast a cloud of doubt on her title, which would justify this action. Hence, this petition for certiorari seeking a review of the order of dismissal. VELASCO contended that the CFI erred in declaring that Bolton Street was an easement and must remain a burden on Lot 77-b2 (lot in question) pursuant to section 39 of act 496 on the ground that it was subject to easement of public highway. VELASCO also stated that Bolton Street could not be a discontinuous easement as she claimed it to be, which may not be acquired by prescription. She contended that the mode of acquisition of the easement that Bolton Street is, would be only by virtue of title. ISSUE (1) Whether or not Bolton Street was subject of an easement of public highway. (2) Whether or not the mode of acquisition of the easement that Bolton Street is, would be only by virtue of title. RULING (1) YES, it was subject of an easement of public highway. It appears on the face of the complaint that Bolton Street has been where it is from time immemorial. When the mother title of petitioner's TCT, which was an OCT issued in 1911, it was issued subject to the provisions of Section 39 of Act 496 which reads: Section 39. Every person receiving a certificate of title in pursuance of a decree or registration, and every subsequent purchasers of registered land who takes a certificate of title for

value in good faith shall hold the same free of all encumbrances, except those noted on said certificate, and any of the following encumbrances which may be subsisting namely: "Third. Any public highway, way, private way, or any government irrigation, canal, or lateral thereof . . . ." From the foregoing provision, Bolton Street which is a public highway, was already subsisting when said OCT was issued in 1911. This fact was deemed to have attached as a legal encumbrance to the lot originally registered, Lot No. 77-b2, notwithstanding the lack of an annotation thereof in the OCT. VELASCO, therefore, could not rely, as she almost entirely did for the relief she sought, on the aforequoted provision, which she had repeatedly cited but without making mention, perhaps conveniently, of the exception as expressly provided in the later part of the legal provision invoked (Sec. 39, Act 496). If from the undisputed fact when Lot 77 was registered, Bolton Street had already been a legal encumbrance on said lot, pursuant to Section 39 of Act 496, contrary to VELASCO's theory based on the same legal provision, but omitting the portion pertinent to the instant case, there can be no gainsaying the fact that petitioner's lot, Lot No. 77-B-2, which admittedly was originally a part of Lot No. 77, must have to remain subject to the same legal encumbrance of a public highway. (2) Whether the mode of acquisition of the easement that Bolton Street is, would be only by virtue of title, as VELASCO contended, this is not material or of any consequence, in the present proceedings. Once it indubitably appears as it does, from the allegations of the complaint itself, that Bolton Street constituted an easement of public highway on Lot No. 77, from which VELASCO's lot was taken, when the said bigger lot was originally registered. It remained as such legal encumbrance, as effectively as if it had been duly noted on the certificate of title, by virtue of the clear and express provision of Section 39 of Act 496, it being admitted that at the time of the registration of Lot 77, the public highway was already in existence or subsisting. This fact erases whatever cause of action petitioner may have to bring the complaint she filed in the court a quo for quieting of title on a portion of the street which she claimed to be part of her lot, free from encumbrance of any kind. The Order complained of has only this legal postulate as its basis. Nothing had been mentioned therein on the acquisition by the CITY OF DAVAO of the lot in question by prescription, and a discussion of this matter as is found in petitioner's brief would be entirely irrelevant.

BOGO-MEDELLIN MILLING vs. CA, ET AL. GR No. 124699. July 31, 2003 The presence of railroad tracks for the passage of petitioners trains denotes the existence of an apparent but discontinuous easement of right of way. And under Article 622 of the Civil Code, discontinuous easements, whether apparent or not, may be acquired only by title and not by prescription. FACTS Magdaleno Valdez, Sr., father of herein private respondents, Sergio Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (HEIRS OF VALDEZ), purchased from Feliciana Santillan in 1935, a parcel of unregistered land covered by a tax declaration with an area of 1 hectare, 34 ares and 16 centares, located in Barrio Dayhagon, Medellin, Cebu. He took possession of the property and declared it for tax purposes in his name. Prior to the sale, however, the entire length of the land from north to south was already traversed in the middle by railroad tracks owned by petitioner BOGO-MEDELLIN MILLING CO., INC. (BOMEDCO). The tracks were used for hauling sugar cane from the fields to BOMEDCOs sugar mill. When Magdaleno Valdez, Sr. passed away in 1948, private respondents HEIRS OF VALDEZ inherited the land. However, unknown to them, BOMEDCO was able to have the disputed middle lot which was occupied by the railroad tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965. The entire subject land was divided into 3, namely, Cadastral Lot Nos. 953, 954 and 955. The 1st and 3rd lots remained in the name of the HEIRS OF VALDEZ while the 2nd however, the narrow lot where the railroad tracks lay, was claimed by BOMEDCO as its own and was declared for tax purposes in its name. It was not until 1989 when the HEIRS OF VALDEZ discovered the aforementioned claim of BOMEDCO on inquiry with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basis for BOMEDCO's claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitioner went unheeded, as was their subsequent demand for payment of compensation for the use of the land. Hence, the HEIRS OF VALDEZ filed a Complaint for Payment of Compensation and/or Recovery of Possession of Real Property and Damages with Application for Restraining Order/Preliminary Injunction against BOMEDCO before the RTC of Cebu. They alleged that, before Santillan sold the land to VALDEZ, SR. in 1935, Santillan granted BOMEDCO, in 1929, a railroad right of way for a period of 30 years. When Valdez, Sr. acquired the land, he respected

the grant. The right of way expired sometime in 1959 but respondent heirs allowed BOMEDCO to continue using the land because one of them was then an employee of the company. On the other hand, BOMEDCOs principal defense was that it was the owner and possessor of Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior to the sale of the property by the latter to MAGDALENO VALDEZ, SR. in 1935. It also contended that the HEIRS OF VALDEZs claim was already barred by prescription and laches because of BOMEDCOs open and continuous possession of the property for more than 50 years. The trial court rejected BOMEDCO's defense of ownership on the basis of a prior sale citing that its evidence a xerox copy of the Deed of Sale dated 1929 was inadmissible and had no probative value. Nonetheless, the trial court held that BOMEDCO had been in possession of Cadastral Lot No. 954 in good faith for more than 10 years, thus, it had already acquired ownership of the property through acquisitive prescription under Article 620 of the Civil Code. It declared that in view of the BOMEDCOs uninterrupted possession of the strip of land for more than 50 years, there was clear continuity of defendants possession of the strip of land it had been using as railway tracks. Thus, BOMEDCOs apparent and continuous possession of said strip of land in good faith for more than ten (10) years had made defendant owner of said strip of land traversed by its railway tracks. The HEIRS OF VALDEZ elevated the case to the Court of Appeals which found that BOMEDCO did not acquire ownership over the lot. It consequently reversed the trial court. In its decision dated 1995, the appellate court held that BOMEDCO only acquired an easement of right of way by unopposed and continuous use of the land, but not ownership, under Article 620 of the Civil Code. Hence, this appeal. BOMEDCO contended that, even if it failed to acquire ownership of the subject land, it nevertheless became legally entitled to the easement of right of way over said land by virtue of prescription under Article 620 of the Civil Code: Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. ISSUES (1) Whether or not BOMEDCO acquired the easement of right of way by prescription under Article 620 of the Civil Code. [also applicable to Article 622] (2) Whether or not BOMEDCO was entitled to a conferment of a legal easement of right of way. [applicable to Article 649]

RULING (1)NO, it had not because it was a discontinuous easement and under Article 622 of the Civil Code, discontinuous easements, whether apparent or not, may be acquired only by title and not by prescription. The trial court and the Court of Appeals both upheld this view for the reason that the railroad right of way was, according to them, continuous and apparent in nature. The more or less permanent railroad tracks were visually apparent and they continuously occupied the subject strip of land from 1959 (the year the easement granted by Feliciana Santillan to petitioner expired). Thus, with the lapse of the 10year prescriptive period in 1969, BOMEDCO supposedly acquired the easement of right of way over the subject land. Following the logic of the courts a quo, if a road for the use of vehicles or the passage of persons is permanently cemented or asphalted, then the right of way over it becomes continuous in nature. The reasoning is erroneous. Under civil law and its jurisprudence, easements are either continuous or discontinuous according to the manner they are exercised, not according to the presence of apparent signs or physical indications of the existence of such easements. Thus, an easement is continuous if its use is, or may be, incessant without the intervention of any act of man, like the easement of drainage; and it is discontinuous if it is used at intervals and depends on the act of man, like the easement of right of way. The easement of right of way is considered discontinuous because it is exercised only if a person passes or sets foot on somebody elses land. Like a road for the passage of vehicles or persons, an easement of right of way of railroad tracks is discontinuous because the right is exercised only if and when a train operated by a person passes over another's property. In other words, the very exercise of the servitude depends upon the act or intervention of man which is the very essence of discontinuous easements. The presence of more or less permanent railroad tracks does not in any way convert the nature of an easement of right of way to one that is continuous. It is not the presence of apparent signs or physical indications showing the existence of an easement, but rather the manner of exercise thereof, that categorizes such easement into continuous or discontinuous. The presence of physical or visual signs only classifies an easement into apparent or non-apparent. Thus, a road (which reveals a right of way) and a window (which evidences a right to light and view) are apparent easements, while an easement of not building beyond a certain height is nonapparent.

In Cuba, it has been held that the existence of a permanent railway does not make the right of way a continuous one; it is only apparent. Therefore, it cannot be acquired by prescription. In Louisiana, it has also been held that a right of passage over another's land cannot be claimed by prescription because this easement is discontinuous and can be established only by title. In this case, the presence of railroad tracks for the passage of petitioners trains denotes the existence of an apparent but discontinuous easement of right of way. And under Article 622 of the Civil Code, discontinuous easements, whether apparent or not, may be acquired only by title. Unfortunately, BOMEDCO never acquired any title over the use of the railroad right of way whether by law, donation, testamentary succession or contract. Its use of the right of way, however long, never resulted in its acquisition of the easement because, under Article 622, the discontinuous easement of a railroad right of way can only be acquired by title and not by prescription. To be sure, beginning 1959 when the original 30-year grant of right of way given to petitioner BOMEDCO expired, its occupation and use of Cadastral Lot No. 954 came to be by mere tolerance of the HEIR OF VALDEZ. Thus, upon demand by said heirs in 1989 for the return of the subject land and the removal of the railroad tracks, or, in the alternative, payment of compensation for the use thereof, petitioner BOMEDCO which had no title to the land should have returned the possession thereof or should have begun paying compensation for its use. (2) NO, it was not entitled for a conferment of a legal easement. But when is a party deemed to acquire title over the use of such land (that is, title over the easement of right of way)? In at least two cases, we held that if: (a) it had subsequently entered into a contractual right of way with the heirs for the continued use of the land under the principles of voluntary easements or (b) it had filed a case against the heirs for conferment on it of a legal easement of right of way under Article 629 of the Civil Code, then title over the use of the land is deemed to exist. The conferment of a legal easement of right of way under Article 629 is subject to proof of the following: (1) it is surrounded by other immovables and has no adequate outlet to a public highway; (2) payment of proper indemnity; (3) the isolation is not the result of its own acts; and (4) the right of way claimed is at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, the distance from the dominant

estate to the highway is the shortest. None of the above options to acquire title over the railroad right of way was ever pursued by petitioner despite the fact that simple resourcefulness demanded such initiative, considering the importance of the railway tracks to its business. No doubt, it is unlawfully occupying and using the subject strip of land as a railroad right of way without valid title yet it refuses to vacate it even after demand of the heirs. Furthermore, it tenaciously insists on ownership thereof despite a clear showing to the contrary. ARTICLE 623: The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment ARTICLE 624: The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons.

Apparent sign of easement, NOT EXISTING SIGN, but a sign of an existing easement. What exists here is not a sign but an easement. Sign that an easement is being exercised. Apparent Signs of an Easement that Apparently Exists: a. Originally (before alienation) no true easement exists here because there is only one owner; b. The article speaks of apparent visible easements; c. Sign of the easement means an outward indication that the easement exists. Examples: a road, the existence of windows

Rules:

1. before the alienation, there is no 2.

true easement; after alienation: a. There arises an easement IF the sign continues to remain there UNLESS there is a contrary agreement. b. There is no easement if the sign is REMOVED or if there is an agreement to that effect.

Example: A owns Estate 1 and Estate 2 and there exists a road or passageway allowing passage from Estate 1 thru Estate 2. If estate 1 is sold to B and estate 2 is sold to C, the easement exists if the road still exists, unless the contrary has been provided in the deed of conveyance of either of them. If the deed be silent, the easement exists unless the sign be removed. Juan Gargantos vs. Tan Yanon Facts: Francisco Sanz owned a parcel of land with some buildings. He subdivided the property into 3 portions each of which was sold to a different person. One of the house with door and windows overlooking another portion. In 1955, the buyer of the latter portion, Gargantos, applied for a permit to construct a building on his lot. The buyer of the 1st portion opposed approval of the application unless Gargantos would respect the easement of light and view, and would observe the 3-meter requirement under art 673 of the NCC. Gargantos alleged however, that no easement had ever been acquired in view of the lack of a notarial prohibition. Held: Garagantos should not construct, unless he observed the 3meter rule. No notarial prohibition was required, fro the proper Article to apply is Art 624 regarding the existence of the apparent sign of an easement: the existence of doors and windows.

Inapplicability of the article In case either estates or both portions are alienated to the SAME owner, for then there would be no true easement unless there Is a further alienation, this time, to Different owners. GARGANTOS vs. TAN YANON GR No. L-14652. June 30, 1960

The existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be considered, if one of them is alienated, as a title(i.e. doors and windows) so that the easement will continue actively and passively unless at the time the ownership of the two estates is divided, the contrary is stated in the deed of alienation of either of them, or the sign is made to disappear before the instrument is executed. FACTS The late Francisco Sanz was the former owner of a parcel of land containing 888 square meters, with the buildings and improvements thereon, situated in the poblacion of Romblon. He subdivided the lot into 2 and then sold each portion to different persons. One portion was

purchased by Guillermo Tengtio, who subsequently sold it to Vicente Uy Veza. Another portion, with the house of strong materials thereon, was sold in 1927 to respondent TAN YANON. This house has on its northeastern side, doors and windows overlooking the third portion, which, together with the camarin and small building thereon, after passing through several hands, was finally acquired by petitioner JUAN GARGANTOS. In 1955, GARGANTOS applied to the Municipal Mayor of Romblon for a permit to demolish the roofing of the old camarin. The permit having been granted, GARGANTOS tore down the roof of the camarin. Later, GARGANTOS asked the Municipal Council of Romblon for another permit, this time in order to construct a combined residential house and warehouse on his lot. TAN YANON opposed approval of this application. Later, the permit to build by GARGANTOS was granted. TAN YANON then filed an action with the CFI to restrain GARGANTOS from constructing a building as should the construction proceed, the building would prevent TAN YANON from receiving light and enjoying the view through the windows of his house, unless such building was erected at a distance of not less than 3 meters from the boundary line between the 2 lots. The case as against the members of the Municipal Council was subsequently dismissed with concurrence of plaintiff's council. The CFI dismissed the complaint. On appeal, the Court of Appeals set aside the decision of the Court of First Instance of Romblon and enjoined defendant from constructing his building unless he erects the same at a distance of not less than three meters from the boundary line of his property, in conformity with Article 673 of the New Civil Code. So, GARGANTOS filed this petition for review of the appellate Court's decision. GARGANTOS argued that TAN YANON has not acquired an easement by prescription because he has never formally forbidden TAN YANON from performing any act which would be lawful without the easement, hence the prescriptive period never started. ISSUE Whether or not the property of TAN YANON has an easement of light and view against the property of GARGANTOS. RULING YES, the property of TAN YANON had acquired an easement of light and view against the property of GARGANTOS. The two estates, now owned by GARGANTOS and TANYANON, were formerly owned by just one person, Francisco Sanz. It was Sanz who introduced improvements on both properties. On that portion presently belonging to respondent, he constructed a house in such a way that the

northeastern side thereof extends to the wall of the camarin on the portion now belonging to GARGANTOS. On said northeastern side of the house, there are windows and doors which serve as passages for light and view. These windows and doors were in existence when TAN YANON purchased the house and lot from Sanz. The deed of sale did not provide that the easement of light and view would not be established. This then is precisely the case covered by 624, which provides that the existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be considered, if one of them is alienated, as a title so that the easement will continue actively and passively unless at the time the ownership of the two estates is divided, the contrary is stated in the deed of alienation of either of them, or the sign is made to disappear before the instrument is executed. The existence of the doors and windows on the northeastern side of the aforementioned house, is equivalent to a title, for the visible and permanent sign of an easement is the title that characterizes its existence. It should be noted, however, that while the law declares that the easement is to "continue" the easement actually arises for the first time only upon alienation of either estate, inasmuch as before that time there is no easement to speak of, there being but one owner of both estates (Article 613). TAN YANON's property has an easement of light and view against GARGANTOS's property. By reason of this easement, GARGANTOS cannot construct on his land any building unless he erects it at a distance of not less than 3 meters from the boundary line separating the two estates. TAEDO vs. HON. BERNAD, ET AL. GR No. L-66520. August 30, 1988 In the instant case, no statement abolishing or extinguishing the easement of drainage was mentioned in the deed of sale of Lot A to Taedo. Nor did Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot A before he sold said lot to Taedo. Hence, the use of the septic tank was continued by operation of law. FACTS Private respondent ANTONIO CARDENAS was the owner of 2 contiguous parcels of land, Lot A (140 sq. m.) and Lot B (612 sq. m.) situated in Cebu City which he had inherited from Lourdes Cardenas. On Lot A, an apartment building was constructed. On the other hand, the improvements on Lot B consisted of (1) a 4door apartment of concrete and strong materials, (2) a 2-storey house of strong

materials, (3) a bodega of strong materials and (4) a septic tank for the common use of the occupants of Lots A and B. A small portion of the apartment building on Lot A also stands on Lot B. In 1982, CARDENAS sold Lot A to herein petitioner EDUARDO C. TAEDO. CARDENAS, on that same day, also mortgaged Lot B to TAEDO as a security for the payment of a loan in the amount of P10,000.00. CARDENAS further agreed that he would sell Lot B only to TAEDO in case he should decide to sell it, as the septic tank in Lot B services Lot A and the apartment building on Lot A has a part standing on Lot B. CARDENAS, however, sold Lot B to the coprivate respondent SPOUSES ROMEO AND PACITA SIM. Upon learning of the sale, TAEDO offered to redeem the property from ROMEO SIM but the latter refused. Instead, ROMEO SIM blocked the sewage pipe connecting the building of TAEDO built on Lot A, to the septic tank in Lot B. He also asked TAEDO to remove that portion of his building encroaching on Lot B. As a result, TAEDO, invoking the provisions of Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with a prayer for the issuance of a writ of preliminary injunction, before the RTC of Cebu against the SPOUSES ROMEO and PACITA SIM, ANTONIO CARDENAS and his wife MAE LINDA CARDENAS, the REGISTER OF DEEDS OF CEBU CITY, and BANCO CEBUANO, CEBU CITY DEVELOPMENT BANK. Answering, the SPOUSES ROMEO and PACITA SIM claimed that they are the absolute owners of Lot B and that TAEDO had no right to redeem the land under Art. 1622 of the Civil Code as the land sought to be redeemed is much bigger than the land owned by Taedo. CARDENAS, upon the other hand, admitted that he had agreed to sell Lot B to Eduardo TAEDO and claimed by way of cross-claim against the SPOUSES ROMEO and PACITA SIM, that the Deed of Sale he had executed in favor of said spouses was only intended as an equitable mortgage, to secure the payment of amounts received by him from said spouses as petty loans. In answer to the cross-claim, the SPOUSES ROMEO and PACITA SIM insisted that the sale executed by CARDENAS of Lot -B in their favor was an absolute one. In 1983, the SPOUSES ROMEO and PACITA SIM filed motions to dismiss the complaint and the cross-claim, for lack of cause of action. Acting upon these motions and other incidental motions, the respondent judge HON. JUANITO BERNAD dismissed both the complaint and cross-claim. Hence, the present recourse by TAEDO. ISSUE

Whether or not easement in favor of TAEDO ceased. RULING NO, it did. The use of the easement was continued by operation of law. Article 624 of the Civil Code provides: The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. In the instant case, no statement abolishing or extinguishing the easement of drainage was mentioned in the deed of sale of Lot A to TAEDO. Nor did CARDENAS stop the use of the drain pipe and septic tank by the occupants of Lot A before he sold said lot to TAEDO. Hence, the use of the septic tank was continued by operation of law. Accordingly, the SPOUSES ROMEO and PACITA SIM, the new owners of the servient estate (Lot B), cannot impair, in any manner whatsoever, the use of the servitude." ARTICLE 625: Upon the establishment of an easement, all the rights necessary for its use are considered granted. ARTICLE 626: The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established. Easements Appurtenant Easements in Gross and

but without altering it or rendering it more burdensome. For this purpose he shall notify the owner of the servient estate, and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate. - The rights of dominant estate: the easement and all necessary rights for its use including accessory easements. So the principal easement carries with it the accessory easements. The right to exercise accessory easements under Art. 625. So if the easement is for drawing water it carries with it the accessory of easement of right of way. 2. To make on the servient estate all works necessary for the use and preservation of the servitude, including repair and maintenance. However, these must be at his own expense, he must notify the servient owner, select convenient time and place, and he must not alter easment or render it more burdensome. 3. To ask for mandatory injunction to prevent impairment or obstruction in the exercise of the easement. Leading case of Resolme vs. Lazo 27 Phil 416; 4. To renounce totally, if he desires exemption from contribution to expenses under Art. 628. If he does not wish to contribute [if there are several dominant estates] for the maintenance and repair of the easement, then he may renounce his rights totally. Obligations of the dominant estate: 1. He cannot alter the easement; 2. He cannot make it more burdensome. (Art. 627) 3. He cannot use the easement except for the immovable originally contemplated. 4. In the easement of right of way, he cannot increase the agreed width of path or deposit soil or materials outside the boundaries agreed upon, for doing so would increase the burden of the easement. . Valderama vs. North Negros Sugar Co. Wherein the dominant estate is allowed to pass the property of the servient estate through a path or alley. Accdg to the SC, if the dominant estate is allowed to pass over another's property, he may also allow neighbors to pass over the same property. But accdg. to some authors, Capistrano of

1. Exercise

Art 626 presuposes the existence of course of a dominant estate, otherwise the Article cannot apply. Easements with a dominant estate are called easement appurtenant, without the dominant estate, they are purely personal, and may thus be referred to as easements in gross.

RIGHTS AND OBLIGATIONS OF THE OWNERS OF THE DOMINANT AND SERVIENT ESTATE ARTICLE 627: The owner of the dominant estate may make, at his own expense, on the servient estate any works necessary for the use and preservation of the servitude,

the Code Commission, said that this decision is erroneous. To correct the said injustice of this decision, the Code commission included Art. 626. So he cannot use the easement except for immovable originally contemplated. Because allowing somebody else to pass through another's property would increase the burden (of the easement). VALDERRAMA vs. NORTH NEGROS SUGAR GR Nos. L-23810, L-23811 & L-23812. December 18, 1925 Under Article 627 of the Civil Code, the owner of the dominant estate, in making on the servient estate the necessary works for the use and preservation of the easement, cannot alter it, nor make it more burdensome but this does not mean that NORTH NEGROS could not transport in the wagons passing upon the railroad other cane that of VALDERRAMA, RODRIGUEZ and URRA, ET AL because the railroad continued to occupy the same area on the servient estates and the encumbrance resulting from the easement continued to be the same, whether the tractors traverse the line 10, 20 or 30 times a day transporting cane for the central. FACTS In 1916, several hacienda owners in Manapla, Occidental Negros entered into a contract with Miguel J. Osorio, known as milling contract, wherein Osorio agreed to install in Manapla a sugar central of a minimum capacity of 300 tons, for grinding and milling all the sugar cane to be grown by the hacienda owners, who in turn bound themselves to furnish the central with all the cane they might produce in their estates for 30 years from the execution of the contract, all in accordance with the conditions specified therein. Later on, respondent NORTH NEGROS SUGAR CO., INC., acquired the rights and interest of Miguel J. Osorio in the milling contract aforesaid. In 1919 petitioners CATALINO VALDERRAMA (case No. 23810) and EMILIO RODRIGUEZ (case No. 23811) and SANTOS URRA, IGNACIO BENITO HUARTE, ADOLFO HUARTE AND PEDRO AUZMENDI (case No. 23812) made with NORTH NEGROS other milling contracts identical with the first one dated 1916 with some new conditions. URRA thereafter transferred to one Pedro Auzmendi, and the latter to Lorenzo Echarri, their interest in the milling contract executed by them. In view of the fact that the hacienda owners, who were up to that time customers of the central, could not furnish sufficient cane for milling, as required by the capacity of said central, NORTH

NEGROS made other milling contracts with various hacienda owners of Cadiz, Occidental Negros, in order to obtain sufficient cane to sustain the central. This gave rise to VALDERRAMA, RODRIGUEZ and URRA, ET AL.s filing of their respective complaints with the CFI, alleging that the easement of way, which each of them had established in his respective hacienda, was only for the transportation through each hacienda of the sugar cane of the owner thereof. Also, while NORTH NEGROS maintained that it had the right to transport to its central upon the railroad passing through the haciendas of VALDERRAMA, RODRIGUEZ and URRA, ET AL., not only the sugar cane harvested in said haciendas, but also that of the hacienda owners of Cadiz, Occidental Negros. VALDERRAMA, RODRIGUEZ and URRA, ET AL.prayed that it be held that NORTH NEGROS had no right, under the easement or otherwise, to cause its locomotives and wagons to run across the estates of the plaintiffs for the purpose of transporting sugar cane of any agriculturist of Cadiz, Occidental Negros. On the other hand, NORTH NEGROS alleged that VALDERRAMA, RODRIGUEZ and URRA, ET AL. respectively granted it for the period of 50 years from the date of the aforesaid contracts, an easement of way 7 meters wide upon the lands of the plaintiffs for the construction and operation of a railroad for the transportation of sugar cane. It added that said easement of way was established without any restriction whatsoever, as regards the ownership of the cane to be transported over the said railroad. After hearing the 3 cases, the trial court entered held that NORTH NEGROS had no right to pass through the lands of VALDERRAMA, RODRIGUEZ and URRA, ET AL. for the transportation of sugar cane not grown from any of the latters haciendas. From this judgment NORTH NEGROS appealed. Another reason advanced by VALDERRAMA, RODRIGUEZ and URRA, ET AL. in support of their theory is that by transporting upon the road, through the servient estates, the cane of the planters of Cadiz, it would alter the easement, making it more burdensome. ISSUE Whether or not NORTH NEGROS could transport on its railroad passing through the haciendas of VALDERRAMA, RODRIGUEZ and URRA, ET AL. where it had an easement of way established in its favor, the cane not grown in the haciendas of the latter, to be milled in the central of the NORTH NEGROS because it made the easement more burdensome. RULING YES, NORTH transport so. NEGROS could still

It is true that Under Article 627 (then Article 543) of the Civil Code that the owner of the dominant estate, in making on the servient estate the necessary works for the use and preservation of the easement, cannot alter it, nor make it more burdensome. But this does not mean that NORTH NEGROS could not transport in the wagons passing upon the railroad other cane that of VALDERRAMA, RODRIGUEZ and URRA, ET AL. What is prohibited by the legal provision above cited is that NORTH NEGROS in excavations or building materials outside of the area of 7 meters, because in the first case, the easement will be altered, and in the second it would become more burdensome. But nothing of the kind happened when NORTH NEGROS transported on the railroad, crossing the servient estates, the cane of the planters of Cadiz. The railroad continues to occupy the same area on the servient estates and the encumbrance resulting from the easement continues to be the same, whether the tractors traverse the line 10, 20 or 30 times a day transporting cane for the central. Furthermore, the record showed a circumstance indicating that at the time of the execution of the milling contracts above referred to, there was no intention of the part of the contracting parties to limit the use of the railroad to the transportation of cane grown by the plaintiffs in their respective haciendas, and that is because, while the duration of the milling contracts is fixed at 30 years that of the easement was at 50. So that if at the end of 30 years VALDERRAMA, RODRIFUEZ and URRA, ET AL. or their successors should no longer desire to furnish canes for milling in the central of NORTH NEGROS, the latter shall still have the right to the easement for the remaining period, but without transporting on the railroad any cane for the central. An interpretation of the clause in question leading to such a result is untenable. In the respective contracts VALDERRAMA, RODRIGUEZ and URRA, ET AL. with NORTH NEGROS in 1919, there appeared: "6th. That in order to have the obligations herein entered into by Mr. Valderrama duly registered, in regard to the rural estates belonging to him and which are described hereinafter, an easement of way 7 meter wide and for the period of 50 years from the date hereof is hereby created in favor of the 'North Negros Sugar Co., Inc., ' upon his property hereinafter described, at such place as said corporation may see fit for the construction of a railroad." Had the clause mentioned only an "easement of way," there might be a doubt as to whether or not the easement of way was for pedestrians, horsemen or carriages. But when the clause says: "easement of way 7 meters wide for the period of 50 years for the construction of the railroad," there could be no doubt about what the

contracting parties have agreed upon, to wit, that VALDERRAMA, RODRIGUEZ and URRA, ET AL. had created upon their respective haciendas at a suitable place an easement of way 7 meters wide and for a period of fifty years, in order to enable NORTH NEGROS to build and maintain a railroad for the transportation of sugar cane to the central. It was clear that the cane of VALDERRAMA, RODRIGUEZ and URRA, ET AL. was to be transported upon the railroad to the central. But to limit the use of the road exclusively to the cane of the plaintiffs and within their respective haciendas would make the contract in question ineffective, except as to the hacienda which is contiguous or nearest to the central. If VALDERRAMA, RODRIGUEZ and URRA, ET AL. do not produce sufficient cane to cover the capacity of the central, it would be unjust to impose upon the NORTH NEGROS the burden of maintaining a central, prohibiting it to obtain from another source sufficient cane with which to maintain its business. Besides, in the milling contract, there was nothing to prohibit NORTN NEGROS from making milling contracts with other planters, and obtain in that way all cane necessary to cover the capacity of the central. It is against the nature of the easement to pretend that it was established in favor of the servient estates, because it is a wellsettled rule that things serve their owner by reason of ownership and not by reason of easement. This was a case of an easement for the benefit of a corporation, voluntarily created by VALDERRAMA, RODRIGUEZ and URRA, ET AL. upon their respective estates for the construction of a railroad connecting said estates with the central of the defendant. But as the easement was created for the benefit of the corporation, owner of the central, it may cause its wagons to pass upon the road as many times as it may deem fit, according to the needs of the central. ARTICLE 628: Should there be several dominant estates, the owners of all of them shall be obliged to contribute to the expenses referred to in the preceding article, in proportion to the benefits which each may derive from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others. If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary. ARTICLE 629: The owner if the servient estate cannot impair, in any manner whatsoever, the use of the servitude. Nevertheless, if by reason of the place originally assigned, or of the manner

established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be changed at his expense, provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to use of the easement. RIGHTS OF THE SERVIENT ESTATE: 1. To retain possession and ownership of the portion of his land affected by the easement. So would the owner of the servient estate lose possession or ownership of his property? No, he retains possession or ownership, except that it is burdened by an encumbrance. 2. To make use of the easement.. Generally, unless deprived under the terms and conditions of the contract. Now, if he makes use of the easement, he has to contribute for the expenses for the maintenance thereof. 3. Has the right to change the location of a very inconvenient easement, provided that an equally convenient substitute is made without injury on the part of the dominant estate. (the change in location would not result to injury on the part of the dominant estate) OBLIGATIONS OF THE SERVIENT ESTATE 1. He cannot impair the use of the easement. For example, he blocks the flow of water; 2. He must contribute to the expenses in case he uses the easement; 3. In case of impairment, he has the obligation to restore the easement to its original location; 4. If he wishes to change the location of the easement, the change must be done at his own expense. (Art. 629). ARTICLE 630: The owner of the servient estate retains ownership of the portion in which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement. MODES OF EXTINGUISHMENT OF EASEMENTS ARTICLE 631: Easements are extinguished: 1. By merger in the same person of the ownership of the dominant and servient estates; 2. By non-use for ten years; with

3.

4.

5. 6.

respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient tome for prescription has elapsed, in accordance with the provisions of the preceeding number; By the expiration of the term or the fulfilment of the condition, if the easement is temporary or conditional; By the renunciation of the owner of the dominant estate; By the redemption agreed upon between the owners of the dominant and servient estates.

Modes of extinguishment of easement 1. merger of the dominant and the servient estate into one. A merger must be absolute complete. If there are conditions or merely partial, then there is no extinguishment. Ex: Sale a retro 2. non user for 10 years. This presupposes that an easement has been used before and later it is no longer used for 10 years. Non user here is voluntary abstention and not due to some kind of fortuitous event. The 10 year period is counted from the time the easement is no longer used If it is a continuous easement like a canal, then the period is counted from the time an act contrary to the use of easement is occurred 3. by impossibility of use or bad condition by the tenement. But some authors would say that this does not really extinguish the easement but merely suspends the use until after the situation improves, Except if has been non used for 10 years. 4. By expiration of the term or fulfillment of the condition. For example the easement was created to last upon until the owner of the servient estate becomes a lawyer. If he becomes a lawyer, the condition is fulfilled and the easement extinguished. 5. waiver or renunciation of the owner of the dominant estate. As a general rule, the renunciation must be express, clear and specific. Otherwise it will be confused with non user. Nonetheless, it may be tacit for as

long as there are acts that clearly reveal the renunciation beyond doubt. 6. Other causes: Expropriation, annulment, rescission, cancellation, abandonment of the servient estate, and resolution of the right of the grantor to create the easement. CABACUNGAN vs. CORRALES GR N. L-6629. September 30, 1954 Under Article 631 of the Civil Code, the easement is not extinguished by the acquisition of a share in property held in common. FACTS Petitioners EUFROCINA HIDALGO CABACUNGAN, AURELIA HIDALGO ROLDAN, and TERESA HIDALGO IGLESIAS, together with 3 other sisters were co-heirs and coowners of a parcel of land. In 1952, 2 of their sisters, as co-heirs and co-owners, Sofia Hidalgo Soria and Carmen Soria Abad had sold their undivided shares in said land to respondent QUINTIN CORRALES, an outsider. CABACUNGAN, ET AL. wished to redeem said property in accordance with Article 1088 of the Civil Code. Hence, they approached QUINTIN CORRALES and his wife and co-respondent CATALINA V. CORRALES and tendered them P600 for that purpose, but the tender was refused. CABACUNGAN, ET AL. then filed an action with the CFI of Ilocos Sur, praying that CORRALES be ordered to allow them to exercise their right of legal redemption. The complaint set up three causes of action. CABACUNGAN, ET AL. alleged that in 1950, CORRALES, being owners of a lot contiguous to the land here in question, constructed a building on said lot with balcony and windows less than 3 meters distant from said land and with roof that drains rain water into it in violation of Article 670 and 674, respectively, of the New Civil Code. They therefore prayed that the said balcony and windows be ordered closed and the roofs constructed in such a way that rain water would not fall on CABACUNGAN, ET AL.'s land. Taking the view that, with the acquisition by CORRALES of a share in the land in question, the easement of light, view and drainage was extinguished "by merger in the same person of the ownership of dominant and servient estates" pursuant to Article 631 of the New Civil Code, the lower court ruled out this cause of action. Hence, this appeal. ISSUE Whether or not with the acquisition by CORRALES of a share in the land in question, the easement of light, view and drainage was extinguished "by merger in the same person of the ownership of

dominant and servient estates" pursuant to Article 631 of the New Civil Code. RULING NO, there was no merger. As CORRALES had not become sole owners of the servient estate, for they have acquired only a part interest therein, it could not be said that in this case ownership of the dominant and servient estates has been merged in the same person for the purposes of Article 631 of the Civil Code. Thus, commenting on the corresponding article of the Spanish Civil Code (Art. 546), Manresa observed that under that article the easement is not extinguished by the acquisition of a share in property held in common. And as to the matter of drainage, Article 674 of the New Civil Code specifically provides "that the owner of a building shall be obliged to construct its roof or covering in such a manner that the rain water shall fall on his own land or on a street or public place, and not on the land of his neighbor, even though the adjacent land may belong to two or more persons, one of whom is the owner of the proof." BENEDICTO vs. CA GR N. L-22733. September 25, 1968 In the present case, there was no indubitable proof of non-user. BENEDICTO merely assumed that the passageway in question had not been in use since 1941 because the property of Heras has since gained direct access to San Marcelino street with the demolition of his house. FACTS Miriam R. Hedrick owned several parcels of land. In 1917, Hedrick sold a portion of such property to Claro M. Recto as proven by a Deed of Sale in the latters favor. At the time of the sale, some buildings were located on the respective properties of Clara M. Recto and Miriam R. Hedrick. Later, by virtue of the Deed of Sale in favor of Recto, a separate TCT was issued in his name. In line with this, Hedrick also asked for a separate new title based on the new survey in the cadastral survey of 1917. In 1924, a new TCT was issued in her name. The property purchased by Recto from Hedrick became the subject of a series of transfers. It was sold by Recto to one Emmanuel Ty (TCT issued in 1924), who later sold in petitioner SALVADOR BENEDICTO. BENEDICTO was issued a TCT in 1934. On the other hand, the remaining property of Hedrick also became the subject of a series of transfers. Hedrick sold it to one Chow Kwo Hsien (TCT issued in 1924), who sold it to General Security and Investment Co. (TCT issued in 1936), who eventually sold it to respondent VICENTE A.

HERAS. A TCT in favor of HERAS was issued in 1941. The properties of BENEDICTO and HERAS were adjoining each other as it formerly belonged to one property owned by Hedrick. In 1941, HERAS demolished the entire building situated on his property. IN 1955, HERAS filed an action in court seeking to recover a portion of land enclosed and waited by the BENEDICTO, and to demand the reopening of an easement of way between his real property and that of the petitioner. The trial court found that after selling potions of his lot, Hedrick obtained a separate title for the remaining 2 lots, with an area of only 540.4 square meters. But in the new TCT issued to Hedrick, their total area was made to appear to be 681.30 square meters. The increase in area was due to the fact that the technical description used in the new title was based on a cadastral survey. Since HERAS, as successor-in-interest of Hedrick, owned no more than 540.4 square meter, the court held that no portion of his property had been encroached upon by the BENEDICTO. The trial court likewise found that the easement of way was found entirely within the property of BENEDICTO, contrary to the stipulation in the deed of sale between Miriam R. Hedrick and Claro M. Recto that it should be between their properties, with each contributing an equal portion of his property. According to the court, this was the reason why Recto, BENEDICTO's predecessor-in-interest, who had earlier asked for a resurvey in accordance with the deed of sale, subsequently withdrew his motion, after finding that the passageway was located entirely within his property. Accordingly, the court directed both parties to contribute equally to the maintenance of a three to four-meter-wide passageway between their properties, with the property line running at the middle of the passageway. It rejected BENEDICTO's claim that the easement had been extinguished by nonuser and by the cessation of the necessity for a passageway. Both parties appealed to the Court of Appeals. SALVADOR BENEDICTO, who in the meantime died, was substituted by the judicial administrator of his estate, ROBERTO S. BENEDICTO. In 1964, the Court of Appeals rendered affirned in toto the decision of the trial court. Hence, this appeal by BENEDICTO. According to him, the easement was originally constituted because the buildings then erected on the respective properties of Miriam R. Hedrick and Claro M. Recto so adjoined each other that the only way the back portions of the properties could be reached by their owners from San Marcelino street was through the passageway. He claimed that when the HERAS had his building demolished in 1941 the property

gained direct access to San Marcelino street with the result that since then there has been no need for the passageway. He argued further that it could be assumed that since 1941 the passageway ceased to be used for certainly BENEDICTO could not be expected to be making 'detours' to reach San Marcelino Street when the very frontage of his property was now open in its entirety to San Marcelino Street. ISSUE Whether or not the easement already extinguished by nonuser. was

RULING NO, it was not extinguished by nonuser. Article 631 of the Civil Code provides in part: Art. 631. Easements are extinguished: (2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; (3) When either or both of the estates fall into such condition that the casement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use; unless when the use become possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; ... This provision was taken from article 546 of the Civil Code of 1889, with the modification that the period of nonuser was reduced from 20 to 10 years. BENEDICTO argued at length that this case is governed by the present Code, and that since 14 years had elapsed from the time the building on HERAS' property was demolished in 1941 to 1955 when this action was begun (during which period he assumes that the passageway ceased to be used because HERAs' property had direct access to the street), the easement must be deemed to have been extinguished. The court did not find it necessary to determine whether the appropriate period of nonuser in this case is 20 or 10 years. For one thing, there is no indubitable proof of non-user. BENEDICTO merely assumed that the passageway in question had not been in use since 1941 because the property of HERAS has since gained direct access to San Marcelino Street with the demolition of his house. For another, even if it be assumed that the period of prescription based on nonuser is 10 years, the very testimony of the BENEDICTO showed that it was only in 1946

that he had the passageway walled in by constructing a fence, and since the present action was filed in 1955, granting that article 631 of the Civil Code is applicable, the prescriptive period has not yet elapsed. Nor can presumptive renunciation by HERAS of the use of the said passageway be inferred. It would appear from the record that HERAS started the construction of an apartment building on his parcel of land after the demolition of his house in 1941, and that although interrupted by World War II, construction was continued in 1955. Since it was patent from the stipulation of facts that the easement in question is mainly a vehicular passageway, the obvious need for such passageway to the rear portion of the projected apartment building negates any presumptive renunciation on the part of HERAS. Moreover, the easement in this case is perpetual in character and was annotated on all the TCTs issued in the series of transfers from Hedrick through to the HERAS, and in the TCTs issued in the series of transfers from Recto to BENEDICTO. Since there was nothing in the record that would point to a mutual agreement between any of the predecessors-in-interest of the petitioner and any of the predecessors-in-interest of the respondent nor between the petitioner and the respondent themselves with respect to the discontinuance or obliteration of the easement annotated on the titles, the continued existence of the easement must be upheld and respected. The fact that the easement here was one of necessity did not detract from the conclusion reached. For even assuming that with the demolition of the house on HERAS' property the necessity for the passageway ceased (a point traversed by HERAS who claims that he demolished his house precisely in order to build an apartment building in its place), still, as held in one case, the fact that an easement [by grant] may have also qualified as an easement of necessity does not detract from its permanency as a property right, which survives the termination of the necessity." Indeed, when the easement in this case was established, the parties unequivocally made provisions for its observance by all who in the future might succeed them in dominion, and this was the reason the permanent character of the easement was annotated on each and all of the TCTs. TAEDO vs. HON. BERNAD, ET AL. GR No. L-66520. August 30, 1988 The alienation of the dominant and servient estates to different persons is not one of the grounds for the extinguishment of an easement. FACTS

Private respondent ANTONIO CARDENAS was the owner of 2 contiguous parcels of land, Lot A (140 sq. m.) and Lot B (612 sq. m.) situated in Cebu City which he had inherited from Lourdes Cardenas. On Lot A, an apartment building was constructed. On the other hand, the improvements on Lot B consisted of (1) a 4door apartment of concrete and strong materials, (2) a 2-storey house of strong materials, (3) a bodega of strong materials and (4) a septic tank for the common use of the occupants of Lots A and B. A small portion of the apartment building on Lot A also stands on Lot B. In 1982, CARDENAS sold Lot A to herein petitioner EDUARDO C. TAEDO. CARDENAS, on that same day, also mortgaged Lot B to TAEDO as a security for the payment of a loan in the amount of P10,000.00. CARDENAS further agreed that he would sell Lot B only to TAEDO in case he should decide to sell it, as the septic tank in Lot B services Lot A and the apartment building on Lot A has a part standing on Lot B. CARDENAS, however, sold Lot B to the coprivate respondent SPOUSES ROMEO AND PACITA SIM. Upon learning of the sale, TAEDO offered to redeem the property from ROMEO SIM but the latter refused. Instead, ROMEO SIM blocked the sewage pipe connecting the building of TAEDO built on Lot A, to the septic tank in Lot B. He also asked TAEDO to remove that portion of his building encroaching on Lot B. As a result, TAEDO, invoking the provisions of Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with a prayer for the issuance of a writ of preliminary injunction, before the RTC of Cebu against the SPOUSES ROMEO and PACITA SIM, ANTONIO CARDENAS and his wife MAE LINDA CARDENAS, the REGISTER OF DEEDS OF CEBU CITY, and BANCO CEBUANO, CEBU CITY DEVELOPMENT BANK. Answering, the SPOUSES ROMEO and PACITA SIM claimed that they are the absolute owners of Lot B and that TAEDO had no right to redeem the land under Art. 1622 of the Civil Code as the land sought to be redeemed is much bigger than the land owned by Taedo. CARDENAS, upon the other hand, admitted that he had agreed to sell Lot B to Eduardo TAEDO and claimed by way of cross-claim against the SPOUSES ROMEO and PACITA SIM, that the Deed of Sale he had executed in favor of said spouses was only intended as an equitable mortgage, to secure the payment of amounts received by him from said spouses as petty loans. In answer to the cross-claim, the SPOUSES ROMEO and PACITA SIM insisted that the sale executed by CARDENAS of Lot -B in their favor was an absolute one. In 1983, the SPOUSES ROMEO and PACITA SIM

filed motions to dismiss the complaint and the cross-claim, for lack of cause of action. Acting upon these motions and other incidental motions, the respondent judge HON. JUANITO BERNAD dismissed both the complaint and cross-claim. Hence, the present recourse by TAEDO. ISSUE Whether or not easement in favor of TAEDO was extinguished. RULING NO, it was not extinguished. The finding of the trial court that TAEDO's right to continue to use the septic tank, erected on Lot B, ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest," also appears to be contrary to law. Article 631 of the Civil Code enumerates the grounds for the extinguishment of an easement. Said article provides: Art. 631. Easements are extinguished: (1) By merger in the same person of the ownership of the dominant and servient estates; (2) By non-user for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they period to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; (3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; (4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional; (5) By the renunciation of the owner of the dominant estate; (6) By the redemption agreed upon between the owners of the dominant and servient estates." As can be seen from the above provisions, the alienation of the dominant and servient estates to different persons is not one of the grounds for the extinguishment of an easement. ARTICLE 632: The form or manner of using the easement may prescribe as the

easement itself, and in the same way. Easement may be extinguished thru prescription. It may be 10 years after nonuse or 10 yrs after impossibility of use ARTICLE 633: If the dominant estate belongs to several persons in common, the use of the easement by any one of them prevents prescription with respect to the others. LEGAL EASEMENTS ARTICLE 634: Easements imposed by law have for their object either public use or the interest of private persons. Legal easements are those imposed by law and which have for their object public use or the interest of private persons. With respect to public use, they are governed by special laws like law on waters, irrigation laws and more particularly now, the water code. With respect to the interest of private persons, they are governed by the provisions of the Civil Code, the agreement of the parties, or general or local laws. Under 636, easements for private interest are governed by: the agreement of the parties provided not prohibited by law nor prejudicial to 3rd person; in default of general or local laws and ordinances for general welfare may govern; In default, the civil code. ARTICLE 635: All matters concerning easements established for public or communal use shall be governed by the special laws and regulations relating thereto, and, in the absence thereof, by the provisions of this Title. ARTICLE 636: Easements established by law in the interest of private persons or for private use shall be governed by the provisions of this Title, without prejudice to the provisions of general or local laws and ordinances for the general welfare. These easements may be modified be agreement of the interested parties, whenever the law does not prohibit it or no injury is suffered by a 3rd person Kinds of legal easements

1) EASEMENTS PERTAINING TO WATERS: a) easement of natural drainage (Art.

637); b) natural drainage of buildings (Art. 674) C) EASEMENTS ON RIPARIAN BANKS FOR NAVIGATION, FLOATAGE AND SALVAGE (638) D) EASEMENT OF A DAM (639, 647)

E)

2)

3) 4) 5) 6) 7) 8)

EASEMENT FOR DRAWING WATER OR FOR WATERING ANIMALS (640, 641) F) EASEMENT OF AQUEDUCT (643, 646) G) EASEMENT FOR THE CONSTRUCTION OF STOP LOCK OR SLUICE GATE EASEMENT OF RIGHT OF WAY. Now for purposes of your bar exam, the easement of right of way is a perennial source of bar questions. EASEMENT OF PARTY WALL EASEMENT OF LIGHT AND VIEW EASEMENT OF DRAINAGE EASEMENT OF INTERMEDIATE DISTANCE EASEMENT AGAINST NUISANCE EASEMENT OF LITORAL OR SUBJACENT SUPPORT. EASEMENTS RELATING TO WATERS

Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to the easement of towpath for the exclusive service of river navigation and floatage. The width between the high water level and the low water level is called the shore line or litoral line If the land is public ownership, there is no indemnity. If the land is private ownership, there is indemnity

ARTICLE 637: Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stones or earth which they carry with them. The owner of the lower estate cannot construct works which will impede this easement; neither can the owner of the higher estate works which will increase the burden. The owner of the lower estate cannot prevent the flow of water by erecting a wall at the boundary line to prevent the flow of water. He cannot enclose his lands with ditches and fences which would impede the flow of water. But then he can make some kind of constructions in order to control the descent of the water. He cannot also construct works that would impede the easements such as blocking dams which would divert the flow of water to another tenement or estate. On the other hand, the dominant estate cannot also make works or constructions that would increase the velocity of the waters, or make the grounds more impervious. That's the duty on the part of the dominant estate.

ARTICLE 639: Whenever for the diversion or taking of water from a river or brook, or for the use of any other continuous or discontinuous stream, it should be necessary to build a dam, and the person who is to construct it is not the owner of the banks, or lands which must support it, he may establish the easement of abutment of a dam, after payment of the proper indemnity. Abutment of a dam simply means to support a dam. If you want to draw water from a river and there is a need to construct a dam but you are not the owner of that land where the support of the dam will be constructed, you may petition for an easement of abutment of a dam ARTICLE 640: Compulsory easements for drawing water or for watering animals can be imposed only for reasons of public use in favor of a town or village, after payment of the proper indemnity. ARTICLE 641: Easements for drawing water and for watering animals carry with them the obligation of the owners of the servient estates to allow passage to persons and animals to the place where such easements are to be used, and the indemnity shall include this service. 2 easements under 640 and 641: drawing water and for watering animals; accessory easement - easement of a road right of way

1. Principal easement - easement for 2.

ARTICLE 638: The banks of the rivers and streams, even in case they are of private ownership, are subject throughout their entire length and within a zone of three meters along their margins, to the easement of public use in the general interest of navigation, floatage, fishing and salvage. Estates adjoining the banks of navigable of floatable rivers are, furthermore, subject to the easement of towpath for the exclusive service of river navigation and floatage. If it be necessary for such purpose to occupy lands of private ownership, the proper indemnity shall first be paid.

REQUISITES for the principal easement 1. It must be for public use. Here it must be for public use and not for private interest. 2. It must be in favor of a town or village. 3. Proper indemnity shall be paid to the servient owner.

What are the REQUISITES for the accessory easement? a. for public use b. in favor of a town or village

c. the right must be sought not by one individual but by the town d. payment of the proper indemnity

The right of way should have a maximum width of 10m which cannot be altered by the owners of the servient estates although the direction of the path may indeed be changed, provided the use of the easement is not prejudiced. VIP: An easement of a road right of way does not carry with it the easement of aqueduct. The right granted is merely that of ingress and egress, not the right to draw water from a water source. EASEMENT OF AQUEDUCT

ARTICLE 642: Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow thru the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend. ARTICLE 643: One desiring to make use of the right granted in the preceding article is obliged: To prove that he can dispose of the water and that it is sufficient for the use for which it is intended. To show that the proposed right of way is the most convenient and the least onerous to 3rd persons. To indemnify the owner of the servient estate in the manner determined by the laws and regulations.

REQUISITES how one can acquire an easement of aqueduct: 1. He must prove that he can dispose of the water. So it means that he really needs the water; 2. The water is sufficient to which it is intended; 3. To show that the proposed right of way is the most convenient and the least onerous to 3rd persons; 4. To indemnify the owner of the servient estate. BANZON vs. BANZON GR No. 27296. October 8, 1927 Mariano undoubtedly had a right to a compulsory easement of aqueduct, upon payment of indemnity, since, although he was not the owner of the waters of the Talisay River, he could dispose of 50 liters of the same per second, by virtue of the grant from the Director of Public Works.

FACTS Petitioner TRINIDAD GONZALEZ was the judicial administratrix of the INTESTATE ESTATE OF JOSE B. BANZON. In 2 occasions, respondents B. BANZON, URSULA BANZON and the latter's husband, ALBERTO AQUINO, without the knowledge or consent of TRINIDAD, opened 2 irrigation canals crossing the land belonging to the INTESTATE ESTATE OF JOSE B. BANZON. The first was in 1919, when MARIANO, ET AL. opened a canal 1,000 meters long, 2 meters wide, and 2 meters deep across said land, from east to west, for the purpose of drawing water from the Talisay River to irrigate their lands. The second was in 1988, when MARIANO, ET AL. opened another canal almost parallel to the former, 1,000 meters long, 3 meters wide, and 2 meters deep, on the same land on the north side of the former one, to irrigate their lands with water from the aforesaid Talisay River. As a consequence of the opening of said canals, TRINIDAD filed an action against MARIANO, ET AL. She claimed that she had suffered damages from loss of crops, disintegration and unleveling of land and therefore prayed that MARIANO, ET AL. be ordered to close and refill skid canals and to indemnify her for damages. On the other hand, MARIANO, ET AL. denied TRINIDADs allegations. They claimed that JOSE B. BANZON had aided in the construction of the first canal in the year 1905, as well as in the maintenance of the same, as an integral part of an irrigation system connected with his land and that he benefited therefrom during his life and after his death, by his children, including TRINIDAD. They also averred that the second canal was built by respondent MARIANO B. BANZON, brother of JOSE B. BANZON, with the knowledge and consent of the latter and his wife. MARIANO then prayed that he be awarded the right to maintain and preserve the aforesaid second canal, upon paying the proper indemnity. The trial court ruled in favor of MARIANO, ET AL. Hence, this petition by TRINIDAD. TRINIDAD argued that inasmuch as the two canals in question did not appear in the OCT of the land belonging to the INTESTATE ESTATE OF JOSE B. BANZON, said lot was free of said easements and the defendants hd no right to continue using them As to the second canal, however, MARIANO filed a counterclaim alleging that he has obtained from the Director of Public Works a grant to use 50 liters of water per second from the Talisay River to irrigate his lands, and, in accordance with the provision, of Article 642 (the Article 557) in connection with Article 643 (then Article 558) of the Civil Code, he asked that he be authorized to open, maintain and preserve a canal similar to the second one mentioned on TRINIDADs land upon payment of the proper indemnity, alleging

that the place where said canal passed was the most convenient and least onerous to third parties, and that there was no other place more appropriate and less prejudicial. ISSUES (1) Whether or not the right of voluntary easement of aqueduct in the property belonging to the INTESTATE ESTATE OF JOSE BANZON in favor of the MARIANO, E TAL. before its registration under the Torrens system had been extinguished by such registration. (2) Whether or not MARIANO had the right, after paying the proper indemnity, to conduct water from the Talisay River through the land belonging to the INTESTATE ESTATE OF JOSE B. BANZON, by opening up a canal similar to the second one here in question. RULING (1) YES, it had already been extinguished. According to Sec. 39 of Act No. 496, as amended by Act No. 2011, the registration of a servient estate under the Torrens system extinguishes all easements to which it is subject and which have not been noted on the certificate of title issued in accordance with the proper decree of registration. It will be noted that the law mades no distinction as to the kind of easement and it is well known that there are two kinds of easements-legal and voluntary. The two canals in question were opened by the defendants across JOSE BANZON's and with his knowledge and consent, and are therefore voluntary easements. And as their existence didnot appear in the OCT of the property belonging to the INTESTATE ESTATE OF JOSE BANZON, these easements were extinguished and MARIANO, ET AL. had lost their right to the use of said canals. (2) YES, MARIANO had such right. The text of Article 642 (then Article 557) of the Civil Code is as follows: ART. 642. Any person who wishes to use upon his own land any water of which he may have the control is entitled to take it through the intervening estates, subject to the obligation of indemnifying the owners thereof, as well as the owners of any lower estates upon which the water may filter or descend. MARIANO undoubtedly had a right to a compulsory easement of aqueduct, upon payment of indemnity, since, although he was not the owner of the waters of the Talisay River, he could dispose of 50 liters of the same per second, by virtue of the grant from the Director of Public Works. This may be inferred from the provision of article 125 of the Law of Waters of August 3, 1866, which authorizes the owner, of the land on which it is sought to impose the

compulsory easement of aqueduct, to object when the applicant is not the owner or grantee of the water. To enjoy the right granted by the above quoted Article 642 (then Article 557) of the Civil Code, the requisites established in Article 643 (then Article 558) of the same Code must be complied with, which are as follows: Any person desiring to make use of the right granted in the foregoing article shall be obliged 1. To prove that he has a right to dispose of the water, and that it is sufficient for the use to which it is destined; 2. To show that the right of way he requests is the most convenient and least onerous to third persons; 3. To indemnify the owner of the servient estate in the manner prescribed by the laws and regulations. MARIANO had complied with these requirements. It had been proved that he was granted the use of 50 liters of water per second from the Talisay River, a sufficient amount to irrigate his land. He also had proved that the passage opened by him was the most convenient and least onerous to third parties, and that he wais willing to indemnify the INTESTATE ESTATE OF JOSE B. BANZON, owner of the servient estate, as the courts may determine. The trial court had fixed the sum of P36.72 as the indemnity to be paid by the MARIANO to the INTESTATE ESTATE OF JOSE B. BANZON. GONZALES vs. DE DIOS GR No. L-3099. May 21, 1951 Under Article 642, he phrase "of which he may have the control" should be interpreted in connection with article 643(l) which means that he has a right to dispose of the water. This was interpreted to mean one who has obtained from the government a grant to use water from a river. FACTS Petitioner CIPRIANA GONZALES was the owner of a fishpond situated in the barrio of Bambang in Bulacan. Said fishpond was also adjacent to the fishpond of respondents PURIFICACION, GUITTERMO, EUSTACIO and FAUSTINA DE DIOS. The only source of water of GONZALES fishpond was the Kay Pateng River, to which it had neither ingress nor egress, because it had been completely cut off from it by the fishpond of the DE DIOS. After the several attempts made by her to obtain from the DE DIOS a right of way to and from said river to furnish a source of water to her fishpond proved futile, she filed the present action in the CFI of Bulacan.

Upon agreement of the parties, the court designated one Felipe Asuncion, a surveyor, to investigate the premises and study the most convenient place through which an aqueduct may be constructed for the supply of water needed by the fishpond of GONZALES, who accordingly investigated the property and submitted his report. The CFI rendered judgment in favor of GONZALES. It declared that GONZALES had a right of passage for water from the river Kay Pateng to her fishpond, on the northwest side of the dyke by constructing a canal 8t meters wide and about 100 hundred meters long alongside the old dike at her expense and upon payment of P798.16 as just compensation including consequential damages. Aggrieved, DE DIOS appealed to the Court of Appeals which also affirmed the CFI decision. It held that the claim of GONZALES found support in the provisions of articles 118 to 125 of the Law of Waters of 1966 and Article 642 (then Article 557) and Article 643 (then Article 558) of the Civil Code, which were also relied upon by the court a quo. There was nothing in the Law of Waters and the Civil Code, which prohibited the use of water for purposes other than those mentioned in said laws. GONZALES had proven that she had the right to draw water from Kay Pateng River to make her fishpond as productive as the other surrounding fishponds. Hence, this appeal by DE DIOS. ISSUE Whether or not GONZALES was entitled to a right of voluntary easement of aqueduct. RULING YES, she was. The Court of Appeals was correct in stating that Articles 642 and 643 of the Civil Code could be invoked in support of the claim of GONZALES. Article 642 provides that "any person who wishes to use upon his own land any water of which he may have the control is entitled to take it through the intervening estates, subject to the obligation of indemnifying the owners thereof." The phrase "of which he may have the control" should be interpreted in connection with article 643(l) which means that he has a right to dispose of the water. This was interpreted to mean one who has obtained from the government a grant to use water from a river. The use to which the water may be applied must also be interpreted in the same way: that the water be sufficient for the use intended (643[l]). To enjoy the right granted by article 642 of the Civil Code, the requisites established in article 643 of the same code must be complied with. If a person who has obtained from the Government a grant to use water from a river for irrigation was given the right to construct a canal over the intervening

lands of other private owners upon payment of indemnity, no valid reason is seen for not granting the same privilege to the GONZALES who desired to draw water from a river for the use of her fishpond. A fishpond comes within the classification of agricultural land and is regarded as an important source of revenue. It is generally constructed in low lands or swampy places and draw its breadth of life from brooks and rivers. It is just as rich and valuable as any piece of agricultural land and in some regions it is regarded as the main source of wealth. It is an undertaking to be encouraged and promoted, for it contributes to the economic development of the people. Our law should be interpreted in a sense that may give it life if it can be done without doing violence to reason or to any rule of statutory construction. There can, therefore, be no doubt with regard to the right of GONZALES to draw the water she needed for her fishpond through the land of DE DIOS if she has obtained the necessary permit to use the water from the Government. The law requires that this permit be obtained from the Director of Public Works. While there was no proof to this effect, at least this matter was not an issue in this case. This point was not disputed. ARTICLE 644: The easement of aqueduct of private interest cannot be imposed in buildings, courtyards, annexes, or outhouses, or on orchards or gardens already existing. ARTICLE 645: The easement of aqueduct does not prevent the owner of the servient estate from closing or fencing it, or from building over the aqueduct in such manner as not to cause the latter any damage, or render necessary repairs and cleanings impossible. ARTICLE 646: For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though the flow of the water may not be continuous, or its use depends upon the needs of the dominant estate or upon a schedule of alternate days of hours. 1. Easement of aqueduct the right to make water flow thru intervening estates in order that one may make use of said waters. 2. The existence of Right of Way does not necessarily include the easement of aqueduct. SUMMARY: AQUEDUCT 1. Indemnity in aqueduct It must be paid to the owners of intervening estates and to the owners of lower estates; 2. If for private interest, the easement cannot be imposed on existing

3. 4. 5. 6. 7. 8.

bldgs., courtyards, annexes, outhouses, orchards, or gardens. There must be proof that: He can dispose of the water; That the water intended is sufficient; That the proposed course is the most convenient and least onerous; Permission from proper administrative agencies Payment of indemnity.

ARTICLE 647: One who for the purpose if irrigating or improving his estate, has to construct a stop lock or sluice gate in the bed of the stream from which the water is to be taken, may demand that the owners of the banks permit its construction, after payment of damages, including those caused by the new easement to such owners and to the other irrigators. CONSTRUCTION OF A STOP LOCK OR SLUICE GATE:

1. 2. 3. 4.

REQUISITES: purpose must be for irrigation or improvement; the construction must be on the estate of another; damages must be paid; 3rd persons should not be prejudiced.

ARTICLE 648: The establishment, extent, form and conditions of the servitudes of waters, to which this section refers, shall be governed by the special laws relating thereto, insofar as no provisions therefore is made in this Code. VASLINO vs. ADRIANO GR No. L-37409 May 23, 1988. Water rights, such as the right to use a drainage ditch for irrigation purposes, which are appurtenant to a parcel of land, pass with the conveyance of the land, although not specifically mentioned in the conveyance. FACTS In 1960, the petitioner NICOLAS VALISNO-appellant file against the ADRIANO-appellee an action for damages docketed as Civil Case No. 3472 in the Court of First Instance of Nueva Ecija. The complaint alleged that the Petitioner NICOLAS VALISNO was the registered owner and actual possessor of a 557,949-square-meter parcel of land in La Fuente, Santa Rosa, Nueva Ecija. VALISNO bought the land from the respondent FELIPE ADRIANOs sister, Honorata ADRIANO Francisco in 1959. The land sold to VALISNO, which was planted with watermelon, peanuts, corn, tobacco, and other vegetables, adjoined the land of ADRIANO on the bank of the Pampanga River. Both parcels of land had been

inherited by Honorata and ADRIANO from their father, Eladio Adriano. At the time of the sale of the land to VALISNO, the land was irrigated by water from the Pampanga River through a canal about seventy (70) meters long, traversing the appellee's land. In 1959, ADRIANO leveled a portion of the irrigation canal so that VALISNO was deprived of the irrigation water and was prevented from cultivating his 57-hectare land. VALISNO then filed in the Bureau of Public Works and Communications a complaint for deprivation of water rights. A decision was rendered in 1960, ordering ADRIANO to reconstruct the irrigation canal. However, Instead of restoring the irrigation canal, the ADRIANO asked for a reinvestigation of the case by the Bureau of Public Works and Communications. A reinvestigation was granted. In the meantime, VALISNO rebuilt the irrigation canal at his own expense because his need for water to irrigate his watermelon fields was urgent. Thereafter, VALISNO filed a complaint for damages in the CFI claiming that he suffered damages when he failed to plant his fields that year (1960) for lack of irrigation water and for the expenses he made to reconstruct the canal on ADRIANO's land. ADRIANO, in his answer to the damage suit, admitted that he leveled the irrigation canal on his land, but he averred: that neither his late father nor his sister Honorata possessed water rights for the land which she sold to the VALISNO. He averred that he applied for water rights for his land in 1956 and obtained the same in 1958; and that he had a perfect right to level his land for his own use because he merely allowed his sister to use his water rights when she still owned the adjacent land. He set up a counterclaim damages. In 1961, the Secretary of Public Works and Communications reversed the Bureau's decision by issuing a final resolution dismissing VALISNO's complaint. The Secretary held that Eladio Adriano's water rights, which had been granted in 1923 ceased to be enjoyed by him in 1936 or 1937, when his irrigation canal collapsed. His non-use of the water right since then for a period of more than 5 years extinguished the grant by operation of law, hence the water rights did not form part of his hereditary estate which his heirs partitioned among themselves. VALISNO, as vendee of the land which Honorata received from her father's estate did not acquire any water rights with the land purchased. In 1966, as to the case for damages filed by VALISNO, the claim for damages and counterclaim was dismissed. The CFI held that the VALISNO had no right to pass through the ADRIANO's land to draw water from the Pampanga River. Under Section 4 of the Irrigation Law, controversies between persons claiming a right to water from a

stream are within the jurisdiction of the Secretary of Public Works and his decision on the matter is final, unless an appeal is taken to the proper court within 30 days. The court may not pass upon the validity of the decision of the Public Works Secretary collaterally. Furthermore, there was nothing in the VALISNOs evidence to show that the resolution was not valid. Hence, this appeal. VALSINO argued that while the trial court correctly held that the Secretary of Public Works may legally decide who between the parties is entitled to apply for water rights under the Irrigation Act, it erred in ruling that the Secretary has authority to hear and decide the VALISNOs claim for damages for the ADRIANO's violation of his right to continue to enjoy the easement of aqueduct or water through the ADRIANO's land under Articles 642, 643, and 646 of the Civil Code. ISSUE Whether or not ADRIANO should grant VALISNO the continued and unimpeded use of the irrigation ditch traversing his land in order to obtain water from the Pampanga River to irrigate VALISNO's land. RULING YES, VALISNO was entitled to said right. Under Article 648 of the new Civil Code, the establishment, extent and consitions of the servitudes of waters, shall be governed by the special laws relating thereto (the irrigation law and the Spanish Law of Waters of August 3, 1866, specifically Article 122 thereof) insofar as no provision is made in the Civil Code. The existence of the irrigation canal on ADRIANO's land for the passage of water from the Pampanga River to Honorata's land prior to and at the time of the sale of Honorata's land to the VALISNO was equivalent to a title for the vendee of the land to continue using it under Article 624, which provides that: Article 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless at the time the ownership of the two estates is divided, the contrary should he provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. This provision was lifted from Article 122 of the Spanish Law of Waters which provided: Article 122. Whenever a tract of irrigated land which previously received its waters from a single point is divided through inheritance, sale or by virtue of

some other title, between two or more owners, the owners of the higher estates are under obligation to give free passage to the water as an easement of conduit for the irrigation of the lower estates, and without right to any compensation therefore unless otherwise stipulated in the deed of conveyance." (Art. 122, Spanish Law of Waters of August 3, 1866.) No enlightened concept of ownership can shut out the idea of restrictions thereon, such as easements. Absolute and unlimited dominion is unthinkable, inasmuch as the proper enjoyment of property requires mutual service and forbearance among adjoining estates. The deed of sale in favor of VALISNO included the "conveyance and transfer of the water rights and improvements" appurtenant to Honorata's property. By the terms of the Deed of Absolute Sale, the vendor Honorata sold, ceded, conveyed and transferred to Dr. Nicolas VALISNO all "rights, title, interest and participations over the parcel of land above-described, together with one Berkely Model 6 YRF Centrifugal Pump G" suction, 6" discharge 500-1500 GPM, with Serial No. 5415812 and 1 set of suction pipe and discharge of pipe with elbow, nipples, flanges and foot valves," and the water rights and such other improvements appertaining to the property subject of this sale. According to VALISNO, the water right was the primary consideration for his purchase of Honorata's property, for without it the property would be unproductive. Water rights, such as the right to use a drainage ditch for irrigation purposes, which are appurtenant to a parcel of land, pass with the conveyance of the land, although not specifically mentioned in the conveyance. The purchaser's easement of necessity in a water ditch running across the grantor's land cannot be defeated even if the water is supplied by a third person. The fact that an easement by grant may also have qualified as an easement of necessity does not detract from its permanency as property right, which survives the determination of the necessity. As an easement of waters in favor of VALISNO has been established, he is entitled to enjoy it free from obstruction, disturbance or wrongful interference, such as the ADRIANO's act of levelling the irrigation canal to deprive him of the us of water from the Pampanga River. EASEMENT OF RIGHT OF WAY ARTICLE 649: The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand d a right if way thru the neighboring estate, after payment of the proper indemnity.

Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate. In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops thru the servient estate without permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance. This easement is not compulsory if the isolation of the immovable is due to the proprietors own acts. Easement of right way is an easement or privilege by which one person or a particular class of persons is allowed to pass over anothers land, usually thru one particular path or line. REQUISITES:

ARTICLE 652: Whenever a piece of land acquired by sale, exchange or partition, is surrounded by other states of the vendor, exchanger, or co-owner, he shall be obliged to grant a right of way without indemnity. In case of a simple donation, the donor shall be indemnified by the donee for the establishment of the right of way. ARTICLE 653: In the case of the preceding article, if it is the land of the grantor that becomes isolated, he may demand a right of way after paying an indemnity. However, the donor shall not be liable for indemnity. RULES IF GRANTORS OR GRANTEES LAND IS ENCLOSED

1. If the ENCLOSING estate is that of

the grantor (seller or co-owner but not donor), the grantee does nor pay indemnity for the easement. 2. If the ENCLOSED estate is that of the grantor (seller, co-owner but not donor), the grantor must indemnify. Problems: A sold to B a parcel of land surrounded by other estates owned by A (Estate 1, 2, and 3). A gave B an outlet thru Estate 1 without indemnity since the purchase price presumably already included in the right to the easement. Later, the outlet thru Estate 1 became useless because the highway to which it led was closed. If B demands another outlet, is he allowed to get one? If so, must he pay indemnity? Yes, he can demand another outlet under 649 and must therefore pay. He cannot take advantage of Art 652 because after all, the outlet had already been granted once, that is, when the sale was made. This time, the necessity arises not because of the sale but because of necessity itself. A owns 2 estates. He sold the first (having access to the highway) to B. later, he sold the 2nd (without access) to C. So that C can again access, he must pass thru Bs land. Does C have to pay indemnity to B? Yes because after all, B did not sell the land to C, and clearly Art. 652 cannot apply. COSTABELLA vs. CA GR No. 80511. January 25,1991 Hence, when there is already an existing adequate outlet from the dominant estate to a public highway, even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. For to justify the imposition of an easement or right of way, "there must be a real, not a fictitious or artificial necessity for it."

1. property is surrounded by the estates of others; 2. there is no adequate outlet to a public highway; 3. there must be payment of proper indemnity; 4. it must be established at a point least prejudicial for the servient estate; 5. the isolation must not be due to the proprietor's own acts (Dionisio case) 6. demandable by the owner or one with a real right like a usufructuary.

If these requirements; if these are not present, there could be no establishment of easement of right of way. Remedy of the owner of an estate which is isolated to a public highway. To file a petition for an easement of right of way. If none of the circumstances are present, easement may be created through a contract between the parties for the establishment of a RRW.

ARTICLE 650: The easement of right of way shall be established at the point least prejudicial to the servient estate, and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. ARTICLE 651: The width of the easement of right of was shall be that which is sufficient for the needs of the dominant estate and may accordingly be changed from time to time.

FACTS Petitioner COSTABELLA CORP. owned real estate properties in Lapu-Lapu City, on which it had constructed a resort and hotel. Adjoining to this land, were the lots of private respondent KATIPUNAN LUMBER CO., INC., ET AL. Before COSTABELLA CORP. began the construction of its beach hotel, KATIPUNAN LUMBER, ET AL., in going to and from their respective properties and the provincial road, passed through a passageway which traversed COSTABELLA CORP.'s property. In 1981, the COSTABELLA CORP. closed the passageway when it began the construction of its hotel but nonetheless opened another route across its property through which the KATIPUNAN LUMBER, ET AL., as in the past, were allowed to pass. In 1982, when COSTABELLA CORP. undertook the construction of the second phase of its beach hotel, it fenced its property thus closing even the alternative passageway and prevented KATIPUNAN LUMBER, ET AL. from traversing any part of its lot. Hence, KATIPUNAN LUMBER, ET AL filed an action for injunction with damages was filed against the COSTABELLA CORP. before the CFI of Cebu for the latters deprivation of the former of the road right of way. They alleged that the passage way was an "ancient road right of way" that had been existing before World War II and since then had been used by them, the community, and the general public, either as pedestrians or by means of vehicles, in going to and coming from LapuLapu City and other parts of the country. KATIPUNAN LUMBER, ET AL. likewise alleged that the COSTABELLA CORP. had constructed a dike on the beach fronting the latter's property without the necessary permit, obstructing the passage of the residents and local fishermen, and trapping debris and flotsam on the beach. They also claimed that the debris and flotsam that had accumulated prevented them from using their properties for the purpose for which they had acquired them. The complaint this prayed for the trial court to order the re-opening of the original passageway across the COSTABELLA CORP.'s property as well as the destruction of the dike. On the other hand, COSTABELLA CORP. denied the existence of an ancient road through its property and counter-averred, among others, that it and its predecessorsin-interest had permitted the temporary, intermittent, and gratuitous use of, or passage through, its property by KATIPUNAN LUMBER CO., INC., ET AL. and others by mere tolerance and purely as an act of neighborliness. At any rate, COSTABELLA CORP. alleged that KATIPUNAN LUMBER, ET AL. were not entirely dependent on the subject passageway as they had another existing and adequate access to the public road

through other properties. With respect to the dike it allegedly constructed, the COSTABELLA CORP. stated that what it built was a breakwater on the foreshore land fronting its property and not a dike as claimed by the KATIPUNAN LUMBER, ET AL. Moreover, contrary to the KATIPUNAN LUMBER, ET AL.' accusation, the said construction had benefitted the community especially the fishermen who used the same as mooring for their boats during low tide. The quantity of flotsam and debris which had formed on the KATIPUNAN LUMBER, ET AL.'s beach front on the other hand were but the natural and unavoidable accumulations on beaches by the action of the tides and movement of the waves of the sea. In 1984, the CFI ruled in favor of KATIPUNAN LUMBER, ET AL. It held that KATIPUNAN LUMBER, ET AL. had acquired a vested right over the passageway in controversy based on its long existence and its continued use and enjoyment not only by the KATIPUNAN LUMBER, ET AL., but also by the community at large. The COSTABELLA CORP. in so closing the said passageway, had accordingly violated the private respondent's vested right. Thus, the trial court ordered the COSTABELLA CORP. to open the disputed passage way and make it available to KATIPUNAN LUMBER, ET AL. and the general public at all times free of any obstacle thereof, unless the it shall provide another road equally accessible and convenient. Both parties elevated the trial court's decision to the Court of Appeals, with COSTABELLA CORP. questioning the alleged "vested right" of the KATIPUNAN LUMBER, ET AL. over the subject passageway, and KATIPUNAN LUMBER, ET AL. assailing the dismissal of their complaint insofar as their prayer for the demolition of the COSTABELLA CORP.'s "dike" is concerned. The Court of Appeals found that the trial courts decision finding KATIPUNAN LUMBER, ET AL. to had acquired a vested right over the passageway in question by virtue of prescription was without legal basis. It pointed out that an easement of right of way is a discontinuous one which, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not by prescription. Nevertheless, the court ruled that in the interest of justice and in its exercise of its equity jurisdiction, it found no reason for not to treat the easement sought by KATIPUNAN LUMBER, ET AL. , as one that is not dependent upon the claims of the parties but a compulsory one that is legally demandable by the owner of the dominant estate from the owner of the servient estate. Thus, it granted KATIPUNAN LUMBER, ET AL. the right to an easement of way on the COSTABELLA CORP.'s property,using the passageway in question, unless the COSTABELLA CORP. should provide another

passageway equally accessible and convenient as the one it closed. Hence, COSTABELLA CORP. filed a petition for review with the Supreme Court. It argued that the appellate courts decision was contrary to the provisions of Articles 649 and 650 of the Civil Code on easements and the prevailing jurisprudence on the matter. ISSUES Whether or not the right of voluntary easement of aqueduct in the property belonging to the INTESTATE ESTATE OF JOSE BANZON in favor of the MARIANO, E TAL. before its registration under the Torrens system had been extinguished by such registration. RULING It is already well-established that an easement of right of way, as is involved here, is discontinuous and as such can not be acquired by prescription. Insofar therefore as the appellate court adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correct pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision and the dismissal of the complaint after holding that no easement had been validly constituted over the COSTABELLA CORP.'s property. Instead, the Appellate Court went on to commit a reversible error by considering the passageway in issue as a compulsory easement which the KATIPUNAN LUMBER, ET AL., as owners of the "dominant" estate, may demand from the COSTABELLA CORP. the latter being the owner of the "servient" estate. Under Articles 649 and 650 of the Civil Code that, the owner of the dominant estate may validly claim a compulsory right of way only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment of the proper indemnity, (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the servient estate. Additionally, the burden of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. Here, there was absent any showing that KATIPUNAN LUMBER, ET AL. had established the existence of the 4 requisites mandated by law. For one, they failed to prove that there is no adequate outlet from their respective properties to a public highway highway. On the contrary, as alleged by the COSTABELLA CORP. in its answer to the complaint, and confirmed by the appellate court, there was another

outlet for KATIPUNAN LUMBER, ET AL. to the main road."18 Thus, the respondent Court of Appeals likewise admitted that "legally the old road could be closed." Yet, it ordered the reopening of the old passageway on the ground that "the existing outlet (the other outlet) was inconvenient to the plaintiff." On this score, it is apparent that the Court of Appeals lost sight of the fact that the convenience of the dominant estate has never been the gauge for the grant of compulsory right of way. To be sure, the true standard for the grant of the legal right is "adequacy." Hence, when there is already an existing adequate outlet from the dominant estate to a public highway, even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. For to justify the imposition of an easement or right of way, "there must be a real, not a fictitious or artificial necessity for it." Further, the KATIPUNAN LUMBER, ET AL. failed to indicate in their complaint or even to manifest during the trial of the case that they were willing to indemnify fully the COSTABELLA CORP. for the right of way to be established over its property. Neither have the KATIPUNAN LUMBER, ET AL. been able to show that the isolation of their property was not due to their personal or their predecessors-ininterest's own acts. Finally, the KATIPUNAN LUMBER, ET AL. failed to allege, much more introduce any evidence, that the passageway they sought to be reopened was at a point least prejudicial to the COSTABELLA CORP. Considering that the COSTABELLA CORP. operates a hotel and beach resort in its property, it must undeniably maintain a strict standard of security within its promises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be compromised. That indubitably will doom the COSTABELLA CORP.'s business. It is therefore of great importance that the claimed right of way over the COSTABELLA CORP.'s property be located at a point least prejudicial to its business. Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the Romans. They are demanded by necessity, that is, to enable owners of isolated estates to make full use of their properties, which lack of access to public roads has denied them. Under Article 649 of the Civil Code, they are compulsory and hence, legally demandable, subject to indemnity and the concurrence of the other conditions above-referred to. As also earlier indicated, there must be a real necessity therefor, and not mere convenience for the dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the "dominant" estate can not demand a right of way, although the same may not be convenient. Of course, the question of when a particular passage may be said to be

"adequate" depends on the circumstances of each case. The isolation of the dominant estate is also dependent on the particular need of the dominant owner, and the estate itself need not be totally landlocked. What is important to consider is whether or not a right of way is necessary to fill a reasonable need therefor by the owner. But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to impose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon two criteria: (1) at the point least prejudical to the servient state; and (2) where the distance to a public highway may be the shortest. According, however, to one commentator, "least prejudice" prevails over "shortest distance."29 Yet, each case must be weighed according to its individual merits, and judged according to the sound discretion of the court. "The court," says Tolentino, "is not bound to establish what is the shortest; a longer way may be established to avoid injury to the servient tenement, such as when there are constructions or walls which can be avoided by a roundabout way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline. ENCARNACIO vs. CA GR No. 77628. March 11, 1991 Under the Art. 651, it is the needs of the dominant property which ultimately determine the width of the passage and these need, may vary from time to time. Since the easement to be established in favor of ENCARNACION is of a continuous and permanent nature, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate pursuant to Article 649 of the Civil Code. FACTS Petitioner TOMAS ENCARNACION and private respondent HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN were the owners of 2 adjacent estates situated in Buco, Talisay, Batangas ENCARNACION owned the dominant estate which has an area of 2,690 square meters. HEIRS OF VIUDA DE SAGUN coowned the 405-square meter servient. In other words, the servient estate stood between the dominant estate and the national road. Prior to 1960, when the servient estate was not yet enclosed with a concrete fence,

persons going to the national highway just crossed the servient estate at no particular point. However, in 1960 when HEIRS OF VIUDA DE SAGUN constructed a fence around the servient estate, a road path measuring 25 meters long and about a meter wide was constituted to provide access to the highway. One-half meter width of the path was taken from the servient estate and the other one-half met" portion was taken from another lot owned by one Mamerto Magsino. No compensation was asked and none was given for the portions constituting the pathway. It wan also about that time that ENCARNACION started his plant nursery business on his land where he also had his abode. He would use said pathway as passage to the highway for his family and for his customers. ENCARNACION's plant nursery business through sheer hard work flourished and with that, it became more and more difficult for ENCARNACION to haul the plants and garden soil to and from the nursery and the highway with the use of pushcarts In January, 1984, ENCARNACION was able to buy an owner-type jeep which he could use for transporting his plants However, that jeep could not pass through the road path and an he approached the servient estate owners (Aniceta Vda. de Sagun and Elena Romero Vda de Sagun) and requested that they sell to him one and onehalf (1 1/2) meters of their property to be added to the existing pathway an as to allow passage for his jeepney. To his utter consternation, his request was turned down by the two widows and further attempts at negotiation proved futile. Thhereafter, ENCARNACION then instituted an action with the RTC of Batangas to seek the issuance of a writ of easement of a right of way over an additional width of at least 2 meters over the DE SAGUNA's 406-square-meter parcel of land. In 1985, the lower court dismissed the complaint of ENCARNACION. It held that it was clear that ENCARNACION had 2 outlets to the highway one through DE SEGUNAs land on a one meter wide passageway, which was bounded an both sides by concrete walls and second, through the dried river bed eighty meters away. It ruled that ENCARNACION had an adequate outlet to the highway through the dried river bed where his jeep could pass. ISSUE Whether or nor ENCARNACION was entitled to an additional easement of right of way. RULING YES, he was entitled to an additional easement of right of way of twenty five (25) meters long by one and one-half (1) meters ande over the servient estate or a total area of 62.5 square meters after payment of the proper indemnity.

While there was a dried river bed less than 100 meters from the dominant tenement, that access is grossly inadequate. Generally, the right of way may he demanded when: (1) when there is absolutely no access to a public highway, and (2) when, even if there is one, it is difficult or dangerous to use or is grossly insufficient. In the present case, the river bad route is traversed by a semi-concrete bridge and there was no ingress nor egress from the highway. For the jeep to reach the level of the high-way, it must literally jump 4 to 5 meters up. Moreover, during the rainy season, the river bed was impassable due to the floods. Thus, it can only he used at certain times of the year. With the inherent disadvantages of the river bed which make passage difficult, if not impossible, it in if there were no outlet at all. Where a private property has no access to a public road, it has the right of easement over adjacent servient estates as a matter of law. With the non-availability of the dried river bed as an alternative route to the highway, we transfer our attention to the existing pathway which straddles the adjoining properties of the DE SAGUN HEIRS and Mamerto Magsino. The courts below have taken against ENCARNACION his candid admission in open court that he needed a wider pathway for the convenience of his business and family. We cannot begrudge ENCARNACION for wanting that which is convenient but certainly that should not detract from the more pressing consideration that there in a real and compelling need for such servitude in his favor Article 651 of the Civil Code provides that "(t)he width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time." This is taken to mean that under the law, it is the needs of the dominant property which ultimately determine the width of the passage and these need, may vary from time to time. When ENCARNACION started out as a plant nursery operator, he and his family could easily make do with a few pushcarts to tow the plants to the national highway but the business grew and with it, the need for the use of modern meant of conveyance or transport. Manual hauling of plants and garden mail and use of pushcarts have become extremely cumbersome and physically taxing. To force ENCARNACION to leave his jeepney in the highway, exposed to the elements and to the risk of theft simply because it could not pass through the improvised pathway, is sheer pigheadedness on the part of the servient estate and can only be counter productive for all the people concerned. ENCARNACION should not be denied a passageway wide

enough to accomodate his jeepney since that is a reasonable and necessary aspect of the plant nursery business. We are well aware that an additional one and me-half (1 ) meters in the width of the pathway will reduce the servient estate to only about 342.5 square meters But ENCARNACION has expressed willingness to exchange an equivalent portion of his land to compensate HEIRS OF VIUDA DE SAGUN for their loss. Since the easement to be established in favor of ENCARNACION is of a continuous and permanent nature, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate pursuant to Article 649 of the Civil Code. FRANCISCO vs. IAC GR No. 63996. September 15, 1989 But the law makes it amply clear that an owner cannot, as RAMOS has done, by his own act isolate his property from a public highway and then claim an easement of way through an adjacent estate. FACTS Private respondent CRESENCIO RAMOS Lot 860-A used to be a part of Lot 860 of the Malinta Estate, which was owned by Cornelia and Frisca Dila and had a frontage along Parada Road measuring 51.90 meters. Adjoining Lot 860 was Lot 226, owned by petitioner EUSEBIO FRANCISCO, which also had a frontage along Parada Road of 62.10 meters. In 1947, Cornelia and Frisca Dila executed a deed by which each of the 3 undivided 1/3 portion of the land was given to: 1. Epifania Dila, a niece 2. children of a deceased sister, Anacleta Dila, 3. Cornelia Dila. Then, the parties agreed to partition the property, as follows: 1.to Epifania Dila Lot 860-B (5,291 sq. m.) 2.to the heirs of Anacleta Dila Lot 860-D (5,291 sq. m.) 3.to Cornelia Dila Lot 860-A (2,204 sq. m.) and Lot 860-C (3,086 sq. m.) The former co-owners evidently overlooked the fact that, by reason of the subdivision, Lot 860-B of Epifania Dila came to include the entire frontage of what used to be Lot 860 along Parada Road, and thus effectively isolated from said road the other lots, i.e., Lots 860-A and 860-C of Cornelia Dila, and Lot 860-D of the children of Anacleta Dila. Later, Cornelia sold Lot 860-A to the sisters Marcosa, Margarita, and Irinea Eugenio and in 1971, the Eugenio Sisters sold the land to private respondent CRESENCIO J. RAMOS.

In 1972, after having set up a piggery on his newly acquired property, RAMOS had his lawyer write to FRANCISCO, owner of the adjoining lot, Lot 266-to ask for a right of way through the latter's land. Negotiations thereafter had however failed to bring about a satisfactory arrangement. FRANCISCO's proposal for an exchange of land at the rate of one (1) square meter from him to three (3) square meters from RAMOS, as was supposedly the custom in the locality, was unacceptable to RAMOS. Later that year, RAMOS succeeded through the intercession of Councilor Tongco of Valenzuela in obtaining a three meter wide passageway through Lot 860-B of Epifania Dila. Yet in August, 1973, he inexplicably put up a ten-foot high concrete wall on his lot and thereby closed the very right of way granted to him across Lot 860B. It seemed that what he wished was to have a right of passage precisely through FRANCISCO's land, considering this to be more convenient to him, and he did not bother to keep quiet about his determination to bring suit, if necessary, to get what he wanted.FRANCISCO learned of RAMOS' intention and reacted by replacing the barbedwire fence on his lot along Parada Road with a stone wall. As a result, RAMOS filed a complaint against FRANCISCO with the CFI of Bataan, praying that the latter be ordered to remove his stone fence and keep his lot open for RAMOS' use. The court appointed a commissioner who conducted an ocular inspection of the lots in question. On the basis of the commissioner's report, the Court granted RAMOS a temporary right of way over FRANCISCOs property, ordering the latter to immediately remove all obstructions existing in order that RAMOS may have a free access to his property. Later, the Court rendered a decision adversely against FRANCISCO. It granted RAMOS the right of way he prayed over FRANCISCOs property upon the payment of indemnity. The same decision was affirmed by the Court of Appeals. Hence, this appeal. FRANCISCO argues that under Art. 649 of the Civil Code, RAMOS was not entitled for the easement of right of way because 1. FRANCISCO's Lot 266 may not be considered a servient estate subject to a compulsory easement of right of way in favor of Ramos' Lot 860-A; and 2. Courts are not empowered to establish judicial easements. ISSUE Whether or not RAMOS was entitled to a legal easement of a right of way under Article 649. RULING NO, he was not entitled to a legal easement.

In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision Inc., the Supreme Court held that a compulsory easement of way cannot be obtained without the presence of four (4) requisite provided for in Articles 649 and 650 of the Civil Code, which the owner of the dominant tenement must establish, to wit: 1.That the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1) 2.After payment of proper indemnity (Art. 649, par. 1, end); 3.That the isolation was not due to acts of the proprietor of the dominant estate; and 4.That the right of way claimed is at the point least prejudicial to the servient estate; and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. (Art. 650) In the present case, RAMOS had already been granted access to the public road (Parada Road) through the other adjoining Lot 860-B owned by Epifania Dila and this, at the time he was negotiating with petitioner for the similar easement over the latter's Lot 266 that he now claimsinexplicably gave up that right of access by walling off his property from the passageway thus established. That there was such a passageway was also confirmed by another witness, Parada Barrio Captain Fausto Francisco, one of those who had earlier tried to bring FRANCISCO and RAMOS to an agreement about the proposed right of way through the property of the former. This witness declared, as already stated, that after the negotiations had been stalled by the failure of the parties to agree on the terms of a proposed land exchange that would have given Ramos access to Parada Road, RAMOS had been able to obtain right of passage to the same public road over a 3meter wide portion of Lot 860-B owned by Epifania Dila through the intercession of Councilor Tongco of Valenzuela. The presence of the tire marks indicating that the portion of Lot 860-B where they were found had been used as a passageway was also brought to the attention of the Trial Court at the ocular inspection conducted, with the parties present or duly represented. The evidence, also uncontradicted, is that said passageway was 2.76 meters wide, or wide enough to accommodate a truck. The surveyor who at the instance of petitioner made a survey of the premises, shortly after RAMOS had filed his complaint, verified the existence of said passageway from the presence of tire marks found on the scene and indicated on the sketch plan he prepared the path that it took from said RAMOSt's Lot 860-A through Lot 860-B to Parada Road.2

The evidence is, therefore, persuasively to the effect that the RAMOS had been granted an adequate access to the public highway (Parada Road) through the adjacent estate of Epifania Dila even as he was trying to negotiate a satisfactory agreement with FRANCISCO for another passageway through the latter's property. If at the time he filed suit against the FRANCISCO, such access (through the property of Epifania Dila) could no longer be used, it was because he himself had closed it off by erecting a stone wall on his lot at the point where the passageway began for no reason to which the record can attest except to demonstrate the isolation of his property alleged in his complaint. But the law makes it amply clear that an owner cannot, as RAMOS has done, by his own act isolate his property from a public highway and then claim an easement of way through an adjacent estate. The third of the cited requisites: that the claimant of a right of way has not himself procured the isolation of his property had not been metindeed the respondent had actually brought about the contrary condition and thereby vitiated his claim to such an easement. It will not do to assert that use of the passageway through Lot 860-B was difficult or inconvenient, the evidence being to the contrary and that it was wide enough to be traversable by even a truck, and also because it has been held that mere inconvenience attending the use of an existing right of way does not justify a claim for a similar easement in an alternative location.

FLORO vs. LLENADO GR No. 75723. June 2, 1995 Failing to establish the existence of the prerequisites under Articles 649 and 650 of the Civil Code, private respondent Llenado's bid for a compulsory easement of right of way over Road Lots 4 and 5 of the Floro Park Subdivision must fail. FACTS Petitioner SIMEON FLORO was the owner of a piece of land known as the Floro Park Subdivision situated in Meycauayan, Bulacan. The subdivision has its own egress and ingress to and from the MacArthur Highway by means of its Road Lot 4 and the PNR level crossing. Private respondent ORLANDO A. LLENADO, on the other hand, was the registered owner of 2 parcels of land, known as the Llenado Homes Subdivision. Prior to its purchase by LLENADO from the owner Francisco de Castro, the land was known as the Emmanuel Homes Subdivision, a duly licensed and registered

housing subdivision in the name of Soledad Ortega. It was bounded on the South by the 5 to 6 meter-wide Palanas Creek, which separated it from the Floro Park Subdivision, and on the west by ricelands belonging to Marcial Ipapo, Montaos and Guevarra LLENADO HOMES did not have any existing road or passage to the MacArthur Highway. However, a proposed access road traversing the idle riceland of Marcial Ipapo had been specifically provided in the subdivision plan of the Emmanuel Homes Subdivision, which was duly approved by the defunct Human Settlement Regulatory Commission (now Housing and Land Use Regulatory Board). In 1983, the LLENADO sought and were granted permission by the FLORO to use Road Lots 4 and 5 of the Floro Park Subdivision as passageway to and from MacArthur Highway. Later, however, FLORO barricaded Road Lot 5 with a pile of rocks, wooden posts and adobe stones, thereby preventing its use by LLENADO. Their request for the reopening of Road Lot 5 having been denied, LLENADO instituted in 1983 a complaint before the RTC of Malolos, Bulacan, against FLORO for Easement of Right of Way. After hearing and ocular inspection, the trial court granted a writ of preliminary mandatory injunction in favor of LLENADO. The court also ordered FLORO to open the road by removing the rocks and wooden posts and/or to remove the barricade on the subject road of the Floro Park Subdivision. He was also prohibited from doing or performing any act or acts which would prevent LLENADO from passing through the subject subdivision road. In the meantime, LLENADO died and was substituted by his wife Wenifreda T. Llenado as administratrix of his estate and as legal guardian of their 4 minor children. In 1984, the trial court dismissed the case and lifted the writ of preliminary mandatory injunction previously issued. It held that LLENADO was not entitled to an easement of right of way. On appeal to the Court of Appeals, the appellate court reversed the decision of the lower court. It granted the easement for a right of way in favor of LLENADO. Hence, this appeal by FLORO. ISSUES (1) Whether or not FLORO granted LLENADO a voluntary easement of right of way when the former granted the latter passage through his property for a limited time, without compensation. (2) Whether or not LLENADO can demand a compulsory easement of right of way over the existing roads of the adjacent subdivision instead of developing his subdivision's proposed access road as provided in his duly approved subdivision plan.

RULING (1) NO, LLENADO was not granted a voluntary easement for a right of way. It is not disputed that sometime in March 1983, FLORO granted the LLENADOS verbal permission to pass through the Floro Park Subdivision in going to and from the MacArthur Highway. Whether such permission, as claimed by Floro, was for the month of March only, without compensation and as a neighborly gesture for the purpose merely of enabling the Llenados to install stone monuments (mojones) on their land, or was in relation to the easement of right of way granted in their favor, as insisted by the Llenados, the fact remains that no such contract of easement of right of way was actually perfected between FLORO and LLENADO. Both ORLANDO and WENIFREDA LLENADO testified that the conditions of the easement of right of way were still to be drawn up by FLORO's lawyer. Thus, no compensation was agreed upon, and none was paid, for the passage through Floro's property during the month of March. However, when WENIFREDA saw FLORO in the evening of April 1983 to negotiate for the reopening of Road Lot 5 and FLORO laid down his conditions for the requested reopening and presumably for the requested easement of right of way, ORLANDO rejected said conditions for being onerous. The use of Road Lots 4 and 5 by the LLENADOS during the month of March was by mere tolerance of FLORO pending the negotiation of the terms and conditions of the right of way. This is evident from the testimony of WENIFREDA that "they said to us to go on while they are preparing for the papers" and that "We can use that for a while, while they were making for the papers." Although such use was in anticipation of a voluntary easement of right of way, no such contract was validly entered into by reason of the failure of the parties to agree on its terms and conditions. Thus, LLENADOS cannot claim entitlement to a right of way through the Floro Park Subdivision on the basis of a voluntary easement. (2) NO, LLENADO was not entitled to a compulsory easement. For the Llenados to be entitled to a compulsory servitude of right of way under the Civil Code, the preconditions provided under Articles 649 and 650 thereof must be established. These preconditions are: 1.that the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1); 2.after payment of proper indemnity (Art. 649, par. 1); 3.that the isolation was not due to acts of the proprietor of the dominant estate (Art. 649, last par.); and, 4.that the right of way claimed is at the point least prejudicial to the

servient estate; and insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest (Art. 650). The burden of proving the existence of the prerequisites to validly claim a compulsory right of way lies on the owner of the dominant estate. We find that the LLENADOS have failed in this regard. Failing to establish the existence of the prerequisites under Articles 649 and 650 of the Civil Code, private respondent Llenado's bid for a compulsory easement of right of way over Road Lots 4 and 5 of the Floro Park Subdivision must fail. Requisite #1 was absent: that it is surrounded by other immovables and has no adequate outlet to a public highway. Significantly, when Orlando Llenado filed the complaint for legal easement under Articles 649 and 650 of the Civil Code, he focused his argument on the absence of any road, other than the closed road of the Floro Park Subdivision, as his means of ingress and egress to and from his property. However, he omitted to state that there is a proposed access road through the lpapo property. There being an existing right of way over the lpapo property, the first requirement for a grant of a compulsory easement of right of way over the Floro Park Subdivision has not been met. Requisite #2 was absent: that there must be payment of proper indemnity Prepayment, as we used the term means the delivery of the proper indemnity required by law for the damage that might be incurred by the servient estate in the event the legal easement is constituted. The fact that a voluntary agreement upon the extent of compensation cannot be reached by the parties involved, is not an impediment to the establishment of such easement. Precisely, the action of the dominant estate against the servient estate should include a prayer for the fixing of the amount which may be due from the former to the latter." In the case at bench, no proof was presented by private respondent LLENADO that he complied with this requirement. The complaint for easement of right of way filed by him in the lower court did not contain a prayer for the fixing of the amount that he must pay FLORO in the event that the easement of right of way be constituted. Thus, the existence of the second requisite has likewise not been established. Requisite #3 was absent: that the isolation is not the result of its own acts; There can be no denying that the isolation of the Llenado Homes Subdivision is the doing of its owner/developer/applicant. It appears that the access road indicated in the Plan of the

Emmanuel Homes Subdivision and the Llenado Homes Subdivision for which a right of way over the Ipapo property was procured, was merely for the sake of securing an approval of the proposed development plan. There were no proofs of actual work having been done to construct a road, even just a dirt road, over the right of way that would connect Road Lot 3 of the Llenado Homes Subdivision to the MacArthur Highway. LLENADo admitted that the Ipapo riceland was no longer being cultivated and there was already a fence made of adobe wall constructed on it. Indications are that it has already been abandoned as a ricefield. There was no reason for private respondent's failure to develop the right of way except the inconvenience and expenses it would cost him. Hence, the third requisite has not been met. Requisite #4 was absent: that the right of way claimed is at the point least prejudicial to the servient estate The Court takes cognizance of the fact that, instead of developing the proposed access road, LLENADO applied for the conversion of Lot 14 of Block 6 into a road lot to connect it with Road Lot 5 of the Floro Park Subdivision, citing as reason therefor, that the amendment sought would create a "more adequate and practical passage" from the Llenado Homes Subdivision to the MacArthur National Highway and vice-versa. The "convenience" of using Road Lots 4 and 5 of the Floro Park Subdivision will not suffice, however, to justify the easement in favor of private respondent. In order to justify the imposition of the servitude of right of way, there must be a real, not a fictitious or artificial necessity for it. Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. Even in the face of a necessity, if it can be satisfied without imposing the servitude, the same should not be imposed. This easement can also be established for the benefit of a tenement with an inadequate outlet, but not when the outlet is merely inconvenient. Thus, when a person has already established an easement of this nature in favor of his tenement, he cannot demand another, even if the first passage has defects which make passage impossible, if those defects can be eliminated by proper repairs. QUIEMEN vs. CA GR No. 112331. May 29, 1996 IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejudice shall be chosen. However, if the two circumstances do not concur in a single tenement, the way where damage will be least shall be used

even if not the shortest route. This is so because least prejudice prevails over shortest distance. This means that the court is not bound to establish what is the shortest distance; a longer way may be adopted to avoid injury to the servient estate, such as when there are constructions or walls which can be avoided by a round about way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline. FACTS Petitioner ANASTACIA QUIMEN together with her brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of property situated in Pandi, Bulacan. They agreed to subdivide the property equally among themselves, as they did, with the shares of Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road. The share of ANASTACIA, located at the extreme left. Behind ANASTACIAs lot was the lot of her brother Antonio. In 1982, private respondent YOLANDA OLIVEROS purchased Lot No. 1448-B-6-A from her uncle Antonio through her aunt ANASTACIA who was then acting as his administratrix. According to YOLANDA, when ANASTACIA offered her the property for sale she was hesitant to buy as it had no access to a public road. But ANASTACIA prevailed upon her to buy the lot with the assurance that she would give her a right of way on her adjoining property for P200.00 per square meter. Thereafter, YOLANDA constructed a house on the lot she bought using as her passageway to the public highway a portion of ANASTACIA's property. But when YOLANDA finally offered to pay for the use of the pathway ANASTACIA refused to accept the payment. In fact she was thereafter barred by ANASTACIA from passing through her property. In 1986, YOLANDA purchased the other lot of Antonio, located directly behind the property of her parents who provided her a pathway gratis et amore between their house, extending about nineteen (19) meters from the lot of YOLANDA behind the sari-sari store of Sotero, and ANASTACIA's perimeter fence. The store is made of strong materials and occupies the entire frontage of the lot measuring four (4) meters wide and nine meters (9) long. Although the pathway leads to the municipal road it is not adequate for ingress and egress. The municipal road cannot be reached with facility because the store itself obstructs the path so that one has to pass through the back entrance and the facade of the store to reach the road. In 1987, YOLANDA filed an action against ANASTACIA, praying that she be given a right of way. In 1991, the court dismissed the complaint for lack of cause of

action, explaining that the right of way through Sotero's property was a straight path and to allow a detour by cutting through ANASTACIA's property would no longer make the path straight. Hence the trial court concluded that it was more practical to extend the existing pathway to the public road by removing that portion of the store blocking the path as that was the shortest route to the public road and the least prejudicial to the parties concerned than passing through ANASTACIA's property. On appeal by YOLANDA, the Court of Appeals granted her a right of way over ANASTACIAs property because it would cause the least damage and detriment to the servient estate. Hennce, this appeal by ANASTACIA. Incidentally, ANASTACIA denied having promised private respondent a right of way She alleged that in holding that the onemeter by five-meter passage way proposed by private respondent is the least prejudicial and the shortest distance to the public road was wrong. She insisted that passing through the property of YOLANDA's parents was more accessible to the public road than to make a detour to her property and cut down the avocado tree standing thereon. She strongly maintained that the proposed right of way was not the shortest access to the public road because of the detour and that moreover, she wass likely to suffer the most damage as she derives a net income of P600.00 per year from the sale of the fruits of her avocado tree, and considering that an avocado has an average life span of seventy (70) years, she expects a substantial earning from it. ISSUE Whether or not YOLANDA was entitled to a right of way through ANASTACIAs property. RULING YES, she was. The voluntary easement in favor of YOLANDA, which petitioner now denies but which the court is inclined to believe, has in fact become a legal easement or an easement by necessity constituted by law. As defined, an easement is a real right on another's property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his property, for the benefit of another person or tenement. It is jus in re aliena, inseparable, indivisible and perpetual, unless extinguished by causes provided by law. A right of way in particular is a privilege constituted by covenant or granted by law to a person or class of persons to pass over another's property when his tenement is surrounded by realties belonging to others without an adequate outlet to the public highway. The owner of the dominant estate can demand

a right of way through the servient estate provided he indemnifies the owner thereof for the beneficial use of his property. The conditions sine qua non for a valid grant of an easement of right of way are: 1.the dominant estate is surrounded by other immovables without an adequate outlet to a public highway; 2.the dominant estate is willing to pay the proper indemnity; 3.the isolation was not due to the acts of the dominant estate; and, 4.the right of way being claimed is at a point least prejudicial to the servient estate. A cursory examination of the complaint of respondent Yolanda for a right of way13 readily shows that-[E]ven before the purchase of the said parcels of land the plaintiff was reluctant to purchase the same for they are enclosed with permanent improvements like a concrete fence and store and have (sic) no egress leading to the road but because of the assurance of the defendant that plaintiff will be provided one (1) meter wide and five (5) meters long right of way in the sum of P200.00 per square meter to be taken from Anastacia's lot at the side of a concrete store until plaintiff reach(es) her father's land, plaintiff was induced to buy the aforesaid parcels of land x x x. That the aforesaid right of way is the shortest, most convenient and the least onerous leading to the road and being used by the plaintiff's predecessors- in- interest from the very inception x x x. The evidence clearly shows that the property of private respondent is hemmed in by the estates of other persons including that of petitionerthat she offered to pay P200.00 per square meter for her right of way as agreed between her and petitioner: that she did not cause the isolation of her property; that the right of way is the least prejudicial to the servient estate.14 These facts are confirmed in the ocular inspection report of the clerk of court, more so that the trial court itself declared that "[t]he said properties of Antonio Quimen which were purchased by plaintiff Yolanda Quimen Oliveros were totally isolated from the public highway and there appears an imperative need fior an easement of right of way to the public highway." Petitioner finally insists that respondent court erroneously concluded that the right of way proposed by private respondent is the least onerous to the parties. We cannot agree. Article 650 of the New Civil Code explicitly states that the casement of right of way shall be established at the point least prejudicial to the servient estate and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is 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. In other words, where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest.16 This is the test. The trial court found that Yolanda's property was situated at the back of her father's property and held that there existed an available space of about nineteen (19) meters long which could conveniently serve as a right of way between the boundary line and the house of Yolanda's father; that the vacant space ended at the left back of Sotero's store which was made of strong materials; that this explained why Yolanda requested a detour to the lot of Anastacia and cut an opening of one (1) meter wide and five (5) meters long to serve as her right of way to the public highway. But notwithstanding its factual observations, the trial court concluded, although erroneously, that Yolanda was not entitled to a right of way on petitioner's property since a detour through it would not make the line straight and would not be the route shortest to the public highway. In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed right of way of Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of petitioner's property, will cause the least prejudice and/or damage as compared to the suggested passage through the property of Yolanda's father which would mean destroying the sari-sari store made of strong materials. Absent any showing that these findings and conclusion are devoid of factual support in the records, or are so glaringly erroneous, this Court accepts and adopts them. As between a right of way that would demolish a store of strong materials to provide egress to a public highway, and another right of way which although longer will only require an avocado tree to be cut down, the second alternative should be preferred. After all, it is not the main function of this Court to analyze or weigh the evidence presented all over again where the petition would necessarily invite calibration of the whole evidence considering primarily the credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other, and the probabilities of the situation. In

sum, this Court finds that the decision of respondent appellate court is thoroughly backed up by law and the evidence. SPOUSES DE LA CRUZ vs. RAMISCAL GR No. 137882. February 04, 2005 Voluntary easements are established by the will of the owners. Additionally, the burden of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. In the present case, it was not proven that RAMISCAL, the owner, voluntarily granted a right of way in favor of the SPOUSES DE LA CRUZ. FACTS Respondent OLGA RAMISCAL was the registered owner of a parcel of land located at the corner of 18th Avenue and Boni Serrano Avenue, Murphy, Quezon City. Petitioner SPOUSES ELIZABETH and ALFREDO DE LA CRUZ were occupants of a parcel of land, with an area of 85 sq. m., located at the back of RAMISCALs property, which was registered in the name of Concepcion de la Pea, mother of petitioner ALFREDO DE LA CRUZ. RAMISCAL owned a 1.10-meter wide by 12.60-meter long strip of land, which was being used by the SPOUSES DE LA CRUZ as their pathway to and from 18th Avenue, the nearest public highway from their property. SPOUSES DE LA CRUZ had enclosed the same with a gate, fence, and roof. In 1976, RAMISCAL leased her property, including the building thereon, to Phil. Orient Motors, which also owned a property adjacent to that of RAMISCALs. In 1995, Phil. Orient Motors sold its property to San Benito Realty. After the sale, Engr. Rafael Madrid prepared a relocation survey and location plan for both contiguous properties of RAMISCAL and San Benito Realty. It was only then that RAMISCAL discovered that the aforementioned pathway being occupied by SPOUSES DE LA CRUZ was part of her property. Immediately, RAMISCAL through a letter, demanded that SPOUSES DE LA CRUZ demolish the structure constructed by them on said pathway without her knowledge and consent. However, the letter was unheeded by the SPOUSES DE LA CRUZ. RAMISCAL the former referred the matter to the Barangay for conciliation proceedings, but the parties arrived at no settlement. Hence, RAMISCAL filed a complaint with the RTC for the demolition of the structure allegedly illegally constructed by SPOUSES DE LA CRUZ on her property. RAMISCAL asserted that SPOUSES DE LA CRUZ had an existing right of way to a public highway other than the current one they were using, which she owns.

On the other hand, SPOUSES DE LA CRUZ admitted having used a 1.10-meter wide by 12.60-meter long strip of land on the northern side of RAMISCALs property as their pathway to and from 18th Avenue, the nearest public highway from their property, but claimed that such use was with the knowledge of RAMISCAL. The SPOUSES DE LA CRUZ averred that they were made to sign a document stating that they waived their right to ask for an easement along the eastern side of RAMISCALs property towards Boni Serrano Avenue, which document was among those submitted in the application for a building permit by a certain Mang Puling, the person in charge of the construction of the motor shop. That was why, according to SPOUSES DE LA CRUZ, the perimeter wall on RAMISCALs property was constructed at a distance of 1.10-meters offset and away from RAMISCALs property line to provide a passageway for them to and from 18th Avenue. They maintained in that RAMISCAL knew all along of the 1.10-meter pathway and had, in fact, tolerated their use thereof. In 1997, the RTC ruled in favor of RAMISCAL. The appeal of the SPOUSES DE LA CRUZ with the Court of Appeals was also dismissed. Hence, this petition for review. ISSUE Whether or not SPOUSES DE LA CRUZ was entitled to a legal easement of a right of way under Article 649. RULING NO, they were not entitled to a legal easement. Under Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons, and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. The conferment of a legal easement of right of way under Article 649 is subject to proof of the following requisites: 1.it is surrounded by other immovables and has no adequate outlet to a public highway; 2. payment of proper indemnity; 3.the isolation is not the result of its own acts; 4.the right of way claimed is at the point least prejudicial to the servient estate; and 5.to the extent consistent with the foregoing rule, where the distance from the dominant estate to a public highway may be the shortest. The first 3 requisites were not obtaining in the instant case. Requisite #1 was absent: that it is surrounded by other immovables and has no adequate outlet to a public highway.

The trial court found from the records that Concepcion de la Pea had provided SPOUSES DE LA CRUZ with an adequate ingress and egress towards Boni Serrano Avenue. During trial, RAMISCAL presented a TCT covering the property denominated as Lot 1-B in the name of Concepcion de la Pea, mother of petitioner herein ALFREDO DE LA CRUZ. The TCT revealed that a portion of Lot 1-B, consisting of 85 sq. m. and denominated as Lot 1-B-2, is being occupied by SPOUSES DE LA CRUZ. To prove that SPOUSES DE LA CRUZ had an existing right of way to a public highway other than the pathway which RAMISCAL owns, the latter adduced in evidence a copy of the plan of a subdivision survey for Concepcion de la Pea and Felicidad Manalo prepared in 1965 and subdivision plan for Concepcion de la Pea prepared in 1990. These documents establish an existing 1.50-meter wide alley, identified as Lot 1-B1, on the lot of Concepcion de la Pea, which serves as passageway from the lot being occupied by SPOUSES DE LA CRUZ (Lot 1-B-2), to Boni Serrano Avenue. In fact, petitioner ELIZABETH DE LA CRUZ herself admitted knowledge of the existence of the subdivision plan of Lot 1-B prepared for Concepcion de la Pea by Engr. Julio Cudiamat in 1990. The Subdivision Plan subdivided Lot 1-B into three portions, namely: (1) Lot 1-B-1, which is an existing alley, consisting of 59.60 square meters, towards Boni Serrano Avenue; (2) Lot 1-B-2, consisting of 85.20 square meters, which is being occupied by SPOUSES DE LA CRUZ; and (3) Lot 1-B-3, consisting also of 85.20 square meters, which is being occupied by the sister of petitioner Alfredo dela Cruz. From petitioner Elizabeth de la Cruzs own admission, Lot 1-B-1 was intended by the owner, Concepcion de la Pea, to serve as an access to a public highway for the occupants of the interior portion of her property. Requisite #2 was absent: that there must be payment of proper indemnity Inasmuch as SPOUSES DE LA CRUZ have an adequate outlet to a public highway (Boni Serrano Avenue), they have no right to insist on using a portion of RAMISCALs property as pathway towards 18th Avenue and for which no indemnity was being paid by them. Requisite #3 was absent: that the isolation is not the result of its own acts; Petitioner Elizabeth de la Cruz claimed before the trial court that although there was indeed a portion of land allotted by Concepcion de la Pea to serve as their ingress and egress to Boni Serrano Avenue.

However, they stated that they can no longer use the same because de la Pea had constructed houses on it. As found by the trial court, the isolation of SPOUSES DE LA CRUZ property was due to the acts of Concepcion de la Pea, who is required by law to grant a right of way to the occupants of her property. Article 649 of the Civil Code provides that the easement of right of way is not compulsory if the isolation of the immovable is due to the proprietors own acts. To allow defendants access to plaintiffs property towards 18th Avenue simply because it is a shorter route to a public highway, despite the fact that a road right of way, which is even wider, although longer, was in fact provided for them by Concepcion de la Pea towards Boni Serrano Avenue would ignore what jurisprudence has consistently maintained through the years regarding an easement of right of way, that mere convenience for the dominant estate is not enough to serve as its basis. To justify the imposition of this servitude, there must be a real, not a fictitious or artificial necessity for it. In Francisco vs. Intermediate Appellate Court, 177 SCRA 527, it was likewise held that a person who had been granted an access to the public highway through an adjacent estate cannot claim a similar easement in an alternative location if such existing easement was rendered unusable by the owners own act of isolating his property from a public highway, such as what Concepcion de la Pea allegedly did to her property by constructing houses on the 1.50 meter wide alley leading to Boni Serrano Avenue. And, if it were true that defendants had already bought Lot 1-B-2, the portion occupied by them, from Concepcion de la Pea, then the latter is obliged to grant defendants a right of way without indemnity. We hasten to add that under the abovequoted Article 649 of the Civil Code, it is the owner, or any person who by virtue of a real right may cultivate or use any immovable surrounded by other immovable pertaining to other persons, who is entitled to demand a right of way through the neighboring estates. In this case, SPOUSES DE LA CRUZ fell short of proving that they are the owners of the supposed dominant estate. Nor were they able to prove that they possess a real right to use such property. The SPOUSES DE LA CRUZ claim to have acquired their property, denominated as Lot 1-B-2, from Concepcion de la Pea, mother of defendant Alfredo de la Cruz, who owns Lot 1-B-3, an adjacent lot. However, as earlier noted, the trial court found that the title to both lots is still registered in the name of Concepcion de la Pea under TCT No. RT-56958 (100547). Neither were SPOUSES DE LA CRUZ able to produce the Deed of Sale evidencing their alleged purchase of the property from de la

Pea. Hence, by the bulk of evidence, de la Pea, not SPOUSES DE LA CRUZ, is the real party-in-interest to claim a right of way although, as explained earlier, any action to demand a right of way from de la Peas part will not lie inasmuch as by her own acts of building houses in the area allotted for a pathway in her property, she had caused the isolation of her property from any access to a public highway. ARTICLE 654: If the right of way is permanent, the necessary repairs shall be made by the owner of the dominant estate. A proportionate share of the taxes shall be reimbursed by the said owner to the proprietor of the servient estate. 1. Eventhough permanent, the path belongs to the servient estate, and he pays all the taxes. 2. But the dominant estate: a. Should pay for the repairs; b. Should pay proportionate share of the taxes to the servient estate. ARTICLE 655: If the right of way is granted to a surrounded estate ceases to be necessary because its owner has joined it to another abutting on a public road, the owner of the servient estate may demand that the easement be extinguished, returning what he may have received by way of indemnity. The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement. The same rule shall be applied in case a new road is opened giving access to the isolated estate. In both cases, the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished. . CAUSES FOR EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY: 1. opening of a new road; 2. joining the dominant estate to another (that is the latter becomes also the property of the dominant owner) which abuts, and therefore has access to the public highway. But the new access must be adequate and convenient. 3. The extinguishment is not automatic because the law says that the servient owner may demand. It follows that if he chooses not to demand, the easement remains and he has no duty to refund the indemnity. 4. This rule applies only to the legal or compulsory easement of right of way, NOT to a voluntary one. ARTICLE 656: If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to

carry materials thru the estate of another, or to raise thereon scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. TEMPORARY EASEMENT OF RIGHT OF WAY: - The easement here is necessarily only temporary; nonetheless proper indemnity must be given. - Indispensable is not to be construed literally. The causing of great inconvenience is sufficient. - The owner or the usufructuary can make use of Art. 656. ARTICLE 657: Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usage and customs of the place. Without prejudice to rights legally acquired, the animal path shall not exceed in any case the width of 75 m, and the animal trail that of 37m and 50cm. Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this section and those of Articles 640 and 641 shall be observed. In this case, the width shall not exceed 10m. Cross references to Art. 640 and 641 relate to: a.) indemnity payment; b) the fact that the easement for drawing water or for watering animals can be imposed only for reasons of public use in favor of a town or village. EASEMENT OF A PARTY WALL ARTICLE 658: The easement of a party wall shall be governed by the provisions of this Title, by the local ordinances and customs insofar as they do not conflict the same, and by the rules of co-ownership. PARTY WALL. This is a wall at the dividing line of the estates. Co-ownership shall govern the wall hence, the party wall is necessarily a common wall. However, not all common walls are party walls. The easement of a party wall is a compulsory kind of co-ownership (FORGED INDIVISION) where the shares of each owner cannot be separated physically (otherwise the wall would be destroyed), although said shares may in a sense be materially pointed out. ARTICLE 659: The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary:

In dividing walls of adjoining building up to the point of common elevation; In dividing walls of gardens or yards situated in cities, towns, or in rural communities. In fences, walls and live hedges dividing rural lands.

The presumption that a wall is a party wall may be rebutted by: 1. title to the contrary; 2. exterior signs to the contrary; 3. proof to the contrary. A title conferring (expressly) ownership in one co-owner prevails over a mere exterior sign (from which, there is merely an inference). ARTICLE 660: It is understood that there is an exterior sign, contrary to the easement of party wall: 1. Whenever in the dividing wall of buildings there is a window or opening; 2. Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the other, it has similar conditions on the upper part, but the lower part slants or projects onward; 3. Whenever the entire wall is built within the boundaries of one of the estates; 4. Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of the buildings, but not those of the others; 5. Whenever the dividing wall between the courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only one of the estates; 6. Whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals project from the surface on one side only, but not on the other; 7. Whenever lands enclosed by fences or live hedges adjoin other which are not enclosed. In all these cases, the ownership of the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement which has in its favor the presumption based on any one of these signs. This article enumerates, by way of illustration, exterior signs rebutting the presumption of there being an easement of party wall (thus, instead of a party wall, we have a wall exclusively owned by a single owner). If one owner has signs in his favor, and some against him, they generally cancel each other, unless

it can be shown from the purpose of the wall that it had been made for the exclusive benefit of one. ARTICLE 661: Ditches or drains opened between two estate are also presumed as common to both, if there is no title or sign showing to the contrary. There is a sign to the contrary to the part-ownership whenever the earth or dirt removed to open the ditch or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior sign in its favor. There is a sign contrary to the partownership whenever the earth or dirt removed to open the ditch or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior sign in its favor.

4. Is made with the implied condition that the other owner should make or pay for the repairs. (Thus, if repairs are not made, it is as if no renunciation had been done, and the co-ownership remains. Thus, also if neglect to make the repairs makes the wall fall, coownership remains with the felled or destroyed wall, each owner being entitled to his share of the materials). 5. Must be both the share in the wall and the share in the land, for the wall cannot be used without the land. (If however the wall is to be removed to some other place, there need not be a renunciation of the land originally used). ARTICLE 663: If the owner of a building supported by a party wall desires to demolish the building, he may also renounce his part-ownership of the wall, but the cost of all repairs and work necessary to prevent any damage which the demolition may cause to the party wall, on this occasion only, shall be borne by him. ARTICLE 664: Every co-owner may increase the height of the party wall, doing so at his own expense and paying got any damage which may be caused by the work, even though such damage be temporary. The expenses of maintaining the wall in the part newly raised or depend at its foundation shall also be paid for by him; and in addition, the indemnity for the increased expense which may be necessary for the preservation of the party wall by reason of the greater height or depth which has been given it. If the party wall cannot bear the increased height, the owner desiring to raise it shall be obliged to reconstruct it at his own expense and of for this purpose it be necessary to make it thicker, he shall give the space required from his own land. 1. 2. 3. 4. 5. 6. This deals with the right to increase the height of the party wall. He who desires this: Must do so at his own expense. Must pay the necessary damages caused, even if the damage be temporary. Must bear the costs of maintenance of the portion added. Must pay for the increased cost of preservation. Must reconstruct if original wall cannot bear the increased height. Must give the additional space (land) necessary, if wall is to be thickened.

ARTICLE 662: The cost of repairs and construction of party walls and maintenance of fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements having the party wall in their favor, in proportion to the right of each. Nevertheless, any owner may exempt himself from contributing to this charge by renouncing his part-ownership, except when the party wall supports a building belonging to him. Proportionate contribution to repairs and construction. Renunciation of share of one owner in the party wall may be made, in order to free himself from the above mentioned contribution unless o The repair had already been contracted for and made (for here, he would still be liable for the repairer). o He still used the wall (as when it supports his building). If the building is demolished renunciation can be made.

REQUISITES FOR THE RENUNCIATION OF SHARE: 1. Must be total or complete. Thus, if a person owns of the wall, he must renounce all his share. He cannot insist on paying of his share for expenses by renouncing of his share in the wall. 2. Must be made voluntarily and with full knowledge of the facts. 3. Must be made before the expenses incurred;

ARTICLE 665: The other owners who have not contributed in giving increased height,

depth, or thickness to the wall may, nevertheless, acquire the right of partownership therein, by paying proportionally the value of the work at the time of the acquisition and of the land used for its increased thickness. ARTICLE 666: Every part-owner of a party wall may use it in proportion to the right he may have in the co-ownership, without interfering with the common and respective uses by the other co-owners. EASEMENT OF LIGHT AND VIEW This section deals with 2 kinds of easements: the easement of LIGHT jus luminum ( as in the case of small windows, not more than 30cm square, at the height of the ceiling joist, the purpose of which is to admit light and a little air, but not VIEW). 2. The easement of VIEW servidumbre prospectus (as in the case of full or regular windows overlooking the adjoining estate. Although the purpose here is view, the easement of light is necessarily included, as well as the easement of not to build higher for the purpose of obstruction).

a. Positive if the window is

thru a party wall. The period for prescription commences from the time the window is opened. The mere opening of the window does not create the easement; it is only when after a sufficient lapse of time, the window still remains open that the easement of light and view is created. Negative if the window id thru ones own wall, that is thru a wall of the dominant estate. Therefore, the time for the period of prescription should begin from the time of notarial prohibition upon the adjoining owner. Formal or notarial prohibition means not merely any writing, but one executed in due form and/or with solemnity a public instrument.

b.

1.

ARTICLE 667: No part owner may, without the consent of others open thru the party wall any window or aperture of any kind. Example: A and B are co-owners of a party wall. A can not make an opening on the wall without the permission of B. If A were allowed to do this without Bs consent, there is a distinct possibility that A will later claim the whole wall as his in view of the exterior sign. It is as if A is allowed to use the whole thickness of the wall. Suppose in the preceding example, A makes the opening without Bs consent, what will Bs right? B can order that the opening be closed unless of course a sufficient time for prescription has elapsed 10 yrs from the opening of the window. ARTICLE 668: The period of prescription for the acquisition of an easement of light and view shall be counted: From the time of the opening of the window, if it is thru a party wall; or From the time of the formal prohibition upon the proprietor of the adjoining land or tenement, if the window is thru a wall on the dominant estate. 1. The easement for light and view is either positive or negative:

ARTICLE 669: When the distances in Article 670 are not observed, the owner of a wall which is not a party wall, adjoining a tenement or piece of land belonging to another, can make in it openings to admit light at the height of the ceiling joints or immediately under the ceiling, and of the size of 30 cm square, and, in every case, with an iron imbedded in the wall and with a wire screen. Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are made can close them should he acquire part ownership thereof, if there be no stipulation to the contrary. He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having some openings, unless an easement of light has been acquired. a. The opening of the window referred to in this article is for the light and NOT for view. There restrictions themselves are: 1. maximum size- 30cm/sq; 2. here must be iron grating imbedded in the wall; 3. wire screen; 4. the opening must be at the height of the ceiling joists or immediately under the ceiling. b. Unless the easement of light has been acquired, the light of such restricted windows may still be obstructed. Example: A has made restricted window on his own wall for light. What can the adjoining or abutting owner do?

He can obstruct the light:

o o

By constructing a higher building on his own land. Or by raising a blocking wall (in both cases he cannot make the obstruction if the easement of light has been acquired 10 yrs. after notarial prohibition. If the wall becomes a party wall, he can close the window, unless there is a stipulation to the contrary.

views, balconies or belvederes overlooking an adjoining property, the owner of the servient estate cannot build therein at less than a distance of 3m to be measured in the manner provided in Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void. ARTICLE 674: The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land or on street of a public place, and not on the land of his neighbour, even though the adjacent land may belong to two or more persons, one of whom is the owner of the roof. Even if it should fall on his own land, the owner shall be obliged to collect the water in such a way as not to cause damage to the adjacent or tenement. The article speaks that: 1. A person should let rain water FALL on his own land, and not on the adjacent land, even if he be a co-owner of the latter. 2. Rain water must be COLLECTED instead of just being allowed to drift to the adjacent or lower land. 3. Art. 674 does not really create an easement, for it merely regulates the use of a persons property insofar as rain water is concerned. ARTICLE 675: The owner of a tenement or a piece of land, subject to the easement of receiving water falling from roofs, may build in such manner as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs, and in such a way as not to cause any nuisance or damage whatever to the dominant estate. ARTICLE 676: Whenever the yard or court of a house is surrounded by other houses, and it is not possible to give an outlet thru the house itself to the rain water collected thereon, the establishment of an easement of drainage can be demanded, giving an outlet to the water at the point of the contiguous lands or tenements where its egress may be the easiest, and establishing a conduit for the drainage in such manner as to cause the least damage to the servient estate, after payment of the proper indemnity. CONDITIONS:

ARTICLE 670: No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an adjoining land or tenement can be made, without leaving a distance of 2m between the wall in which they are made and such contiguous property. Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of 60m. The non-observance of these distances does not give rise to prescription. ARTICLE 671: The distances referred to in the preceding article shall be measured in cases of direct views from the outer line of the wall when the openings do not project, from the outer line of the latter when they do, and in cases of oblique views from the dividing line between the 2 properties. RULES FOR REGULAR WINDOWS: Arts. 670 and 671 deal with regular full windows (as distinguished from the restricted windows referred to in 669). Regular windows can be opened provided that the proper distances are followed. THE PROPER DISTANCES:

1) For windows having direct views,

observe at least 2m distance between the wall having the windows and the boundary line. 2) For windows having side or oblique views (that is one must turn his head to the right or to the left to view the adjoining land), observe a distance of at least 60cms between the boundary line and nearest edge of the window. 3) If these distances are not observed, the owner cannot acquire the same by prescription. ARTICLE 672: The provisions of Article 670 are not applicable to buildings separated by a public way or alley, which is not less than 3 m wide, subject to special regulations and local ordinances. ARTICLE 673: Whenever by any title a right has been acquired to have direct

1. Because of enclosure, there is no 2. 3. 4.

adequate outlet for the rainwater (or similar things). The outlet must be at the point of easiest egress (going out). Least possible damage. Payment of proper indemnity.

INTERMEDIATE DISTANCES AND WORKS FOR CERTAIN CONSTRUCTIONS AND PLANTINGS

ARTICLE 677: No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto. ARTICLE 678: No person shall build any adequate, well, sewer, furnace, forge, chimney, stable, deposit of corrosive substances, machinery, or factory which by reason of its nature of products is dangerous or noxious, without observing the distances prescribed by the regulations and customs of the place, and without making the necessary protective works, subject, in regard to the manner thereof, to the conditions prescribed by such alterations. These prohibitions cannot be altered or renounced by stipulation on the part of the adjoining proprietors. In the absence of regulations, such precautions shall be taken as may be considered necessary, in order to avoid any damage to the neighboring lands or tenements. ARTICLE 679: No trees shall be planted near a tenement or piece of land belonging to another except at the distance authorized by the ordinances or customs of the place, and in the absence thereof, at a distance of at least 2m from the dividing line of the estate if tall trees are planted and at a distance of at least 50cm if shrubs or small trees are planted. Every landowner shall have the right to demand that trees hereafter planted at a shorter distance from his land or tenement be uprooted. The provisions of this article also apply to trees which have grown spontaneously. At least 2 meters - to be observed with respect to tall trees 50cm or half meter distance - with respect to small trees or shrubs

2. Roots he may cut them off himself (because by ACCESSION or INCORPORATION) he has acquired ownership over them. 3. Prescription: 1) Of the right to demand the cutting off of the branches this does not prescribe of tolerated by invaded owner; if demand is made, prescription runs from the date of said demand. 2) Of the right to cut off the roots this is imprescriptible unless a notarial prohibition is made. o A notarial prohibition can be made even of the intruding roots are already owned by the invaded owner, precisely because an easement (easement of restraint) is made on somebody else or his property. ARTICLE 681: Fruits naturally falling upon adjacent land belong to the owner of said land. RULES AS TO FRUITS:

1. If the fruits still hang on to the tree, they are still owned by the tree owner. 2. It is only after they have NATURALLY fallen (not taken down by poles or shaken) that they belong to the owner of the invaded land. 3. The rule is based not on accession for they were not grown or produced by the land nor added to it (naturally or artificially); nor on occupation (for they are not res nullius) but to avoid disputes and arguments between the neighbours. The mode of acquisition may be said to be the LAW. VOLUNTARY EASEMENTS ARTICLE 688: Every owner of a tenement or piece of land may establish thereon the easements which he may deem suitable and in the manner and form which he may deem best, provided he does not contravene the laws, public policy or public order.

ARTICLE 680: If the branches of any trees should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall have the right demand that they be cut off insofar as they may spread over hi property, and, if it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within his property. Q: Is the right limited to demand the cutting of branches only? A: Yes. He cannot cut the branches himself because doing it would be putting the law into his own hands. 1. Branches adjacent owner has the right to DEMAND that they be cut off (in so far as they spread over his property).

The easement established may be predial (for the benefit of an estate) or personal. Only the owner or someone else inn the name of and with the authority of the owner, may establish a voluntary predial servitude on his estate, for this is an act of ownership. (However, so as not prejudice the usufructuary, the usufructuarys consent is needed to create a perpetual, voluntary easement. If a person is an owner with a resolutory title or an annullable one, he can create an easement over the property. But it is deemed

extinguished upon resolution or annulment of the right. A voluntary easement is not contractual in nature because it may be imposed unilaterally. If fee is imposed, anybody can make use of the easement upon payment of the said fee. In this sense, and only in this, may the easement be said to partake of the nature of a contract.

1. If created by title (contract, will, etc) the title governs. The Civil Code is suppletory. 2. If created by prescription, the form and manner in which it had been acquired. 3. If created by prescription in a proper case (that is, may have been a contract initially, but the form and manner may have been extended or decreased by prescription), the way the easement has been possessed, that is, the manner and form of possession. ARTICLE 693: If the owner of the servient estate should have bound himself, upon the establishment of the easement, to bear the cost of the work required for the use and preservation thereof, he may free himself from this obligation by renouncing his property to the owner of the dominant estate. NUISANCE ARTICLE 694: A nuisance is any act, omission, establishment, condition of property, anything else which: 1. Injures or endangers the health or safety of others; or 2. Annoys or offends the senses; or 3. Shocks, defies, or disregards decency or morality; or 4. Obstructs or interferes with the free passage of any public highway or street, or any body of water; or 5. Hinders or impairs the use of property. 1. injures or endangers the health or safety of others; ex. a house in danger of falling; fireworks or explosives factory 2. annoys or offends the senses; ex videoke, chimney or too much horn blowing 3. shocks or defies decency or morality; or disregards

ARTICLE 689: The owner of a tenement or piece of land, the usufruct of which belongs to another, may impose thereon, without the consent of the usufructuary, any servitude which will not injure the right of usufruct. ARTICLE 690: Whenever the naked ownership of a tenement or piece of land belongs to one person and the beneficial ownership to another, no perpetual voluntary easement may be established thereon without consent of both owners. RULES WHEN USUFRUCT EXIST: The beneficial owner (as distinguished from the naked owner) may by himself create a temporary easement compatible with the extent of his beneficial dominion. If the easement is perpetual (like the permanent easement of right of way) both the naked and the beneficial owners must be consent.

ARTICLE 691: In order to impose an easement on an undivided tenement, or piece of land, the consent of all the coowners shall be required. The consent given by some only, must be held in abeyance until the last one of all the co-owners shall have expressed his conformity. But the consent given by one of the co-owners separately form the others shall bind the grantor and his successors not to prevent the exercise of the right granted. Reason for requiring unanimous consent on the part of all co-owners: The creation of the voluntary easement is an act of ownership (the alienation not of any aliquot part but of a qualitative part of the enjoyment of the whole premises).

4. Obstructs or interferes with the free passage of any public highway or street, or any body of water, ex. Houses constructed on public streets. 5. Hinders or impairs the use of property; ex. squatting because they hinder or impairs the use of property by the owner. ARTICLE 695: Nuisance is either public or private. A public nuisance affects a community or neighbourhood or any considerable number or persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition Public nuisance: The doing of or the failure to do something that injuriously affects the health, safety or morals of the

ARTICLE 692: The title and, in a proper case, the possession of an easement acquired by prescription shall determine the rights of the dominant estate and the obligations of the servient estate. In default thereof, the easement shall be governed by such provision of this title as are applicable thereto. GOVERNING RULES FOR VOLUNTARY EASEMENTS:

public or works such substantial annoyance, inconvenience or injury to the public. It affects a community or neighborhood or any considerable number of persons, although the extent of damage or annoyance upon the people may be unequal. Private nuisance when it violates only private rights and produces damage to but one or few persons and cannot be said to be public The yardstick in determining whether the nuisance is private or public is the extent of those affected by such injury or inconvenience. Old classifications of nuisance 1 .nuisance per se- a nuisance at all times under all circumstances 2. nuisance per accidence- nuisance only under certain circumstances or condition Attractive nuisance. It is any contrivance which is very attractive to children but very dangerous to them. An attractive nuisance is a dangerous instrumentality or appliance which is LIKELY TO ATTRACT CHILDREN AT PLAY. An attractive nuisance is NOT illegal per se but because of its nature, it can easily injure children. So that if you are the owner of an attractive nuisance, the law requires that you take extra care of the said contrivance or tool to prevent injury to the children. The best example here is a firearm. He is required to exercise the highest degree of diligence. HIDALGO ENTERPRISES vs. BALANDAN (91 Phil 488) F: 8-yr old boy drowned in a tank maintained by an ice-plant factory; parents of the boy filed an action for damages against the factory alleging that the tank full of water was an attractive nuisance and yet the factory did not provide any precaution. H: tank was not an attractive nuisance. Water in any form is not an attractive nuisance. Nature in itself created streams, lakes, and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger, children are to know the danger. The tanks filled with water are not an attractive nuisance. Any imitation of nature, like a swimming pool, is not an attractive nuisance. So, if the owner of a private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, he is not liable.

The factory owner need not exercise the highest degree of diligence since it is not an attractive nuisance. ARTICLE 696: Every successive owner or possessor of property who fails or refuses to abate nuisance in that property started by a former owner or possessor is liable therefore in the same manner as the one who created it. Now who should be liable?

a. the one who creates the nuisance; b. the one who participates in the c. d. e.
f. creation of the nuisance; the one who adopts the nuisance; the one who continues the nuisance; the one who refuses to abate the nuisance; the successor of the property shall be held liable if he knowingly fail or refuse to abate the nuisance.

ARTICLE 697: The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. If a property which has already caused nuisance is removed, is it a defense? Ans: (Art 697) No, the abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence.

ARTICLE 698: Lapse of time cannot legalize any nuisance, whether public or private.

May an action for abatement of a nuisance prescribe? No, an action for abatement of a nuisance is one which is imprescriptible. A nuisance can be abated anytime.

ARTICLE 699: The remedies against a public nuisance are: a. A prosecution under the Penal Code or any local ordinance; or b. A civil action; or c. Abatement, without judicial proceedings. If it is a PRIVATE NUISANCE, there are 2 possible remedies: 1) a civil action, or 2) abatement, without judicial proceedings (Article 705) Article 703 and 704 on the requisites for extra judicial abatement of nuisance

REQUISITES:

1. There must be showing that the nuisance is specially injurious to the person seeking the abatement of nuisance (Article 703), [injury sustained] 2. That demand be first made upon the owner or possessor of the property to abate the nuisance; [prior demand] 3. That such demand has been rejected or ignored; 4. That the abatement must be approved by the City Engineer in Manila and other chartered cities, and in the provinces, by the Provincial Health Officer and executed with the assistance of or attended by a member of the local police force; [approval by the proper government officers]; 5. That the abatement must be done in such a way that it does not breach public peace, or do unnecessary injury; and 6. That the value of the thing to be abated does not exceed P3,000. (The amount is not realistic noh because the amount is only 3K). Criminal prosecution is not mentioned, nonetheless if there is a crime committed, then that would be an added liability. ARTICLE 707: A private person or a public official extrajudicially abating a nuisance shall be liable for damages: a. If he causes unnecessary injury; or b. If an alleged nuisance is later declared by the courts to be not a real nuisance. Note that the person liable for damages in case of extrajudicial abatement may be: (1.) a private person (2.) a public official DONATION GENERAL CHARACTERISTICS OF DONATION: (1) It is essentially gratuitous because it is an act of liberality. The consideration here is an act of liberality. (2) It is by itself a mode of acquiring ownership. Tradition is not required. The moment the donation is perfected the donee is deemed the owner of the property. - NOTE: Do not confuse yourself with succession because the latter takes effect from the moment of death. ESSENTIAL CHARACTERISTICS OF DONATION. 1. consent, subject matter, consideration; 2. There is a required form to some particular donation; 3. Donations are generally irrevocable.

4. There is intent to benefit the donee,

animus donandi. 5. There is a resultant decrease of the assets or patrimony of the donor. 6. There is a necessity of acceptance by the donee. - Upon acceptance, the donee becomes the absolute owner of the property donated. This is an ideal donation inter vivos. CLASSIFICATIONS: a. from the viewpoint of motive, purpose or cause: (Art 726) 1. simple 2. remuneratory 3. modal or conditional 4. onerous b. from the viewpoint of time of taking effect (Art 728-729) a) inter vivos b) mortis causa c. from the viewpoint of occasion 1. ordinary donation 2. donation propter nuptias d. from the viewpoint of object donated 1. corporeal property real property or personal property 2. incorporeal property a right that is not purely personal. It should be alienable rights. KINDS: 1. Simple donation Art. 725 2. Remuneratory donation Art. 726 (1st part) 3. Modal or conditional Art. 726 (2nd part) 4. Onerous

ARTICLE 725: Donation is an act of liberality whereby a person disposes gratuitously of a thong or right in favor of another, who accepts it. SIMPLE DONATION. Art. 725 pertains to simple donation. REQUISITES: (1) an act of liberality on the part of the donor (2) increase in the patrimony of the donee (3) corresponding decrease in the patrimony of the donor Example: - A bought an insurance policy. He paid the premium for the insurance. Then he named B as the beneficiary. When A died B got P10M. Is there a donation? Based on the provision, there is no donation with respect to the entire P10M. There is no decrease of P10M from the patrimony of the donor. However the premium paid, which for example was worth P50T is a form of donation because there was a decrease with

respect the policyholder.

property

of

the

The P30T is onerous. Therefore, it is not pure anymore. ONEROUS DONATION. It is not really a donation. Like the example about dancing lesson. If the dance lesson is worth P50T, equal to the amount of the donation, then it is not true donation anymore. It is onerous and is governed by the provisions of contracts. It is now a contract. An onerous donation is one that the charges of future services are equal to the thing donated. ARTICLE 727: Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed.

ARTICLE 726: When a person gives to another a thing or right on account of the latters merits or of the services rendered by him to the donor, provided they do not constitute a demandable debt. Or when the gift imposes upon the donee a burden which is less than the value of the thing given, there is also a donation. REMUNERATORY. When a person gives to another a thing or right on account of the latters merits or of the services rendered by him to the donor x x x. Meaning it is a donation to reward past services which do not constitute a demandable debt. Ito yung donation where the cause is gratitude or utang na loob. Because you saved the life of the son of your neigbor, your neighbor gifted you a brand new honda civic. That is a donation and it is classified as remuneratory donation. What do you understand by the phrase "do not constitute a demandable debt"? This means that the service which was rendered did not produce an obligation demandable against the donor. The purpose is to reward past services with no strings attached. These services do not constitute recoverable debts. Meaning, it is not in payment of a debt. He has no right to demand from you because it is out of your own liberality. Example: Like you were crossing the street, and didnt know that there is a vehicle that is going to hit you and somebody saves your life, and because you are very rich, you decided to give the person a car. That is a remuneratory donation, on account of the latter merits. MODAL OR CONDITIONAL. 2nd sent: Or when the gift imposes upon the donee a burden which is less than the value of the thing given, there is also a donation. Under this donation, you give something but you have a condition. This is an exchange of future services. But the services expected is less than the value of the thing given. Example: I will give you my car but you have to be the driver. Ex. Danna will give Mitos a cellphone worth P50T. The condition is that she will have a dancing lesson. The value of the dancing lesson is P30T. So P20T was donated to Mitos. Modal or conditional donation is partly onerous and partly simple. The simple donation here is P20T in excess of the value of the services.

If the condition of the contract is illegal, such contract is VOID. But in donation if there is a condition that is illegal, the condition is disregarded and the donation remains to be valid. Donation will become simple.

ARTICLE 728: Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession.

Art. 728 talks about mortis causa which partakes of the nature of testamentary provisions, and are covered in the rules on succession. It takes effect from the death of the donor.

ARTICLE 729: When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered until after the donors death, this shall be a donation inter vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise. When we talk of donation inter vivos, it takes effect during the lifetime of the donor. What are the REQUISITES of DONATION PRAESENTI? a) Intent by the donor that donation shall take effect during the lifetime of the donor. b) The property subject to donation is not yet delivered. In donation, delivery is not required before the owner can acquire the property. So if it is a donation in praesenti, the property even if not yet delivered is already owned by the donee. Q: What happens to the fruits of the property?

A: By GR: The fruits of the property although not delivered will go to the donee. Exception: Unless the donor provides otherwise. Example: A donated to B a house on January 10, 2000. B accepted on the same day. The donation provides that A donates the house to B now, but while A is alive, A will remain in the possession of the house. And the house shall only be delivered to B after the death of A. What is the significance? What are the CONSEQUENCES? (1) Beginning January 10, 2000, the donee is now the owner of the house upon acceptance. He is also entitled to the fruits unless the contrary is provided. (2) A cannot revoke the donation without a valid cause. (For me, that is one of the most important distinction because when you go to Succession, you will learn that the testator can change his will everyday if he wants. If you are the donee, you cannot complain because you have no right to tell the testator what he wills or donates, even if it is already notarized. The latest will is the valid will.) Now, in donation inter vivos is not easy to revoke. If I give my pen to Blithe, I cannot take it back anymore unless I have a valid ground. What is a valid ground? If I have a child that comes out. But we will take that up later. (3) Even if the house that was donated (earlier example) was no yet delivered, B can already dispose it because we know very well that he is already the owner. DISTINCTIONS BETWEEN INTER VIVOS AND MORTIS CAUSA: (1) As to effectivity. Inter vivos takes effect during the lifetime of the donor, mortis takes effect only after the death of the donor; (2) As to the formalities. Inter vivos will follow the formalities under this title; mortis causa to be valid should follow the formalities required under the provisions on Succession. So form should be in the form of a will; (3) As to its revocability. Inter vivos cannot be revoked as a GR, except for the grounds provided by law; in mortis causa YES, it can be revoked anytime for any reason provided that the donor is still alive. Of course, when he dies he can no longer revoked, unless there is another will that he executed while he was still alive (like it was found out after his death, it is still ok for as long as he revoked the earlier will.) (4) As to the impairment of legitime. Donations mortis causa will be reduced ahead from the donations inter vivos to accommodate the

(5)

(6)

legitime; donation inter vivos are preferred to donation mortis causa (Priority in time is Priority in right). They wont be touched until donations mortis causa are not enough to cover the legitime. As to the right to dispose. Inter vivos can be disposed of upon acceptance because there is already transfer of ownership although there may be a reservation to deliver it after the death of the donor; mortis causa, no, until the donor dies; As to acceptance. In inter vivos, acceptance must be made during the lifetime of the donor and the donor must know of the acceptance; in mortis causa, it can only be done after the donors death. He cannot accept it in advance.

ARTICLE 730: The fixing of an event or the imposition of a suspensive condition, which may take place beyond the natural expectation of life of the donor, does not destroy the nature of the act as a donation inter vivos, unless a contrary intention appears. This is one situation where the donation is considered as donation inter vivos notwithstanding the fact that the happening of the event or the fulfilment of the condition transpires after the death of the donor. ILLUSTRATION: So if A gives B a car, but A said that you have to pass the bar exam. Is that a donation inter vivos? YES, because it takes effect right away if B says I accept it. Then B is already the owner of the car. Even if B only passes the bar after the death of the donor, it is still a donation inter vivos. Unless A says, but if you do not pass at all, you will have to return the car. That will become a resolutory condition. A suspensive condition that is becoming a resolutory condition because you have to terminate the obligation. So, remember that it will not destroy the act as donation inter vivos, unless a contrary intention appears. ARTICLE 731: When a person donates something, subject to the resolutory condition of the donors survival, there is donation inter vivos. Even if the donation is subject to a resolutory condition of the donors survival, there is still a donation inter vivos. On the other hand, Art. 731 gives us also the effect of the fulfillment of a resolutory condition: When a person donates something subject to the resolutory condition of the donor's survival, there is a donation inter vivos. Example:

A is going to undergo a heart transplant and he will give to B a car on the condition that if he will survive, the ownership of the car will go back to A. B accepts it and the donation is effective. If he survives, then it will revert to A, but if A dies, then B is the owner. But it does not mean that it took effect after the death of A because B already accepted it earlier. It was just subject to the resolutory condition of the donors survival. ARTICLE 732: Donations which are to take effect inter vivos shall be governed by the general provisions on contracts and obligations in all that is not determined in this Title.

A: He can dispose the property because the donation has not yet taken effect. That is not tantamount to revocation because the donation has not yet taken effect. Thats why, usually now, the donation and the acceptance are in the same instrument. Both singled by the donor and the donee. PAJARILLO vs. IAC GR No. 72908. August 11, 1989 FACTS The mother was Juana Balane de Suterio, who had a brother named Felipe Balane and a sister named Perfecta Balane de Cordero. Perfecta died in 1945 leaving inter alia a registered tract of land consisting of about 28 hectares in the barrio of Luctol, Municipality of Macalelon in Quezon Province. In 1946, Juana and Felipe, as the only brother and sister respectively and forced heirs of Perfecta, executed a public instrument entitled "Extra-judicial Settlement of the Estate of the Deceased Perfecta Balane de Cordero." In the agreement, Juana and Felipe, in consideration of love and affection agreed in carrying out the antemortem wish of Pefecta by donating to private respondent SALUD SUTEXIO DE MATIAS (only niece) the 28-hectare land Perfecta owned. It also conditioned that SALUD must assume the P1,000 obligation or debt of Perfectas estate with the Philippine National Bank. It was also stated therein that SALUD accepted the said donation and expressed her gratitude for the kindness and liberality of Juana and Felipe. Later, SALUD executed a public instrument accepting the donation made by Felipe and Juana. Therein, she expressed her gratitude for the kindness and liberality of Juana and Felipe. One of the witnesses, who signed in this document was petitioner EUFEMIA PAJARILLO. These instruments were never registered nor was title transferred in SALUD's name although she said she immediately took possession of the land. Meantime, intestate proceedings were instituted on the estate of Perfecta and the said land was among those included in the inventory of the properties belonging to the decedent. SALUD interposed no objection to its inclusion nor did she oppose its subsequent adjudication to her mother Juana in the project of partition. It was not clear if the land was ever registered in Juana's name. However, there is evidence that Juana confirmed the earlier donation of the land to SALUD but requested that she be allowed to possess the same and enjoy its fruits, until her death. It has also not been controverted that Salud paid the P1,000.00 loan for which the land was mortgaged. In 1951, acceding to this request, she transferred the possession of the land to her mother, who was then staying with

The governing laws when it comes to donations are the provisions of this title. And if it is not determined by the provisions of this title, then the general provisions on Oblicon such as onerous donations. What are the governing laws when it comes to onerous donations? Art. 733 of NCC, with respect to remuneratory donations with respect to the donation (the P20T example earlier) it will be govern by the provisions on donation but with respect to onerous part (P30T) that will govern by the law on contract.

ARTICLE 733: Donations with an onerous cause shall be governed by the rules on contracts, and remuneratory donations by the provisions of the present Title as regards that portion which exceeds the value of the burden imposed. ARTICLE 734: The donation is perfected from the moment the donor knows of the acceptance by the donee. This is COGNITION THEORY under your lessons in Oblicon. So donation is not perfected the moment the donee accepts, but the moment the donor KNOWS/LEARNS of the acceptance by the donee. In relation to this, refer to Art. 745 and 746: the acceptance may be made through an agent and MUST be made during the lifetime of the donor and the donee. Donor A donates a car to B in January 1, 2006. He accepted it thru a letter in February 1, 2006. But on February 2, A dies and the letter reaches As house on February 5. So, A does not know that B accepted the donation, so the donation is not valid. Acceptance must be made during the lifetime of the donor and he must know of the acceptance while he is still alive. Q: So what shall the donor do before he knows that the donee accepted the donation?

petitioner CLAUDIO SUTERIO, SR. and his family. During the period they were occupying the land, CLAUDIO paid the realty taxes thereon. In 1956, Juana executed a deed of absolute sale conveying the land to CLAUDIO for the declared consideration of P12,000.00. In 1958, Claudio had the land registered in as name and was issued a TCT. CLAUDIO died in 1961 and his mother in 1963. In 1965, private respondents spouses SALUD and PEDRO MATIAS filed a complaint for the reconveyance of the property on the ground that the deed of sale in favor of CLAUDIO was fictitious and its registration in his name was null and void. SALUD alleged that she was unaware until later of the supposed sale of the land to CLAUDIO. She faulted it as having been procured through fraud and improper influence on her sick and aged mother. She claimed that no compensation was actually paid by CLAUDIO and that the transaction was deliberately concealed from her by her brother and the defendants. For their part, the respondents EUFEMIA PAJARILLO, CLAUDIO SUTERIO, JR., NYMIA SUTERIO and MARILYN SUTERIO, widow and children of CLAUDIO, assailed the donation to SALUD as legally inefficacious and defective and contended that her complaint was barred by prescription, estoppel and res judicata. In 1979, the CFI of Quezon upheld the donation to SALUD and annulled the deed of sale and the registration of the land in favor of CLAUDIO. The defendants were required to reconvey the land to SALUD as a result. On appeal, the decision was affirmed in toto. Hence, this appeal by EUFEMIA, ET. AL. The petitioners assailed the intrinsic validity of the extrajudical settlement and submit that it was not really a donation as conceptually understood in civil law. Their argument was that the real donor of the property was Perfecta, the deceased sister, who, however, could no longer bestow the intended gift. For their part, Felipe and Juana could not have made the donation either because they were not moved by the same sentiments Perfects had for her niece SALUD. That feeling would have provided the required consideration if Perfecta herself had made the donation, but not the other two. ISSUE Whether or not the extrajudicial settlement was really a donation since the donor of the property who was Perfecta, as she was already deceased, could no longer bestow the intended gift and that Felipe and Juana could not have made the donation either because they were not moved by the same sentiments Perfecta had for her niece SALUD. RULING

YES, it was a donation. The argument aappeared to be too much nitpicking, if not sophistry. Felipe and Juana had declared themselves the heirs of Perfecta and the owners of the property in question. As such, they were free to give the land to whomever they pleased and for whatever reason they saw fit. Hence, if they chose to respect Perfecta's wishes and carry out her intentions by donating the land to SALUD, there was no legal impediment to their doing so. In fact, that was not only the legal but also the moral thing to do. There is no question that Felipe and Juana could have simply disregarded their sister's sentiments and decided not to donate the property to SALUD, keeping the same for themselves. The fact that they did not do this speaks well indeed of their integrity and their loyalty as well to their deceased sister. The extrajudicial settlement also reflected their own affection for SALUD which constituted the valid consideration for their own act of liberality. Notably, in her acceptance of the donation, SALUD referred to the donors Felipe and Juana, and not Perfecta. DE LUNA vs. Hon. ABRIGO GR No. No. L-57455. January 18, 1990 articles 733 The prescriptive period of 4 years provided under Article 764 is not applicable to onerous donations. Under Article 733, onerous donations shall be governed by the rules on contract. Hence, for purposes of prescription of onerous donations, it shall be governed by Art. 1144, which provides that an action to enforce a written contract prescribes in 10 years. In the present case, the action filed by the DE LUNAs was well within the 10-year period. FACTS In 1965, Prudencio de Luna donated a portion of 7,500 square meters of his registered lot in Lucena to the Luzonian Colleges, Inc., (now private respondent LUZONIAN UNIVERSITY FOUNDATION, INC). The donation, which was embodied in a Deed of Donation Intervivos was subject to certain terms and conditions and provided for the automatic reversion to the donor of the donated property in case of violation or non-compliance. The FOUNDATION failed to comply with the conditions of the donation. But in 1971, Prudencio de Luna "revived" the said donation in favor of the FOUNDATION, in a document entitled "Revival of Donation Intervivos" subject to terms and conditions which among others, required the construction of the following: a Chapel, a Nursery and a Kindergarten School, to be named after St. Veronica. It also conditioned that the plan must be in

accordance with the one prepared by the O.R. Quinto & Associates provided that the flooring of the Altar and parts of the Chapel shall be of granoletic marble. It also stipulated that the 3 constructions must be at least 70% finished, 3 years from the date of donation and must be completed within 5 years, though extensions may be granted by Prudencio de Luna in writing. As in the original deed of donation, the "Revival of Donation Intenrivos" also provided for the automatic reversion to the donor of the donated area in case of violation of the conditions thereof. The FOUNDATION, through its president, accepted the donation in the same document, subject to all the terms and conditions stated in the donation. In 1971, the donation was registered and annotated in the memorandum of encumbrances. In the same year of 1971, Prudencio de Luna and the FOUNDATION executed a 'Deed of Segregation" whereby the area donated was adjudicated to the FOUNDATION. As a result, a TCT was issued in the name of the FOUNDATION while the remaining portion of the lot was retained by Prudencio de Luna. In 1980, Prudencio de Luna died. As a result, in the same year, his children and only heirs, petitioners EVELYN, ROSALINA, PRUDENCIO, JR., WILLARD, ANTONIO and JOSELITO filed a complaint with the RTC of Quezon alleging that the terms and conditions of the donation were not complied with by the FOUNDATION. They stated that camE 1976 but the 3 constructions were not yet completely built by the FOUNDATION. Among others, they prayed for the cancellation of the donation and the reversion of the donated land to them. On the other hand, the FOUNDATION claimed that it had partially and substantially complied with the conditions of the donation and that the donor has granted the FOUNDATION an indefinite extension of time to complete the construction of the chapel. It also invoked the affirmative defense of prescription of action and prayed for the dismissal of the complaint. The CFI of Quezon dismissed the case on the ground of prescription. It applied Article 764 of the Civil Code which provides that an action to enforce a revocation of a donation due to non-compliance with conditions prescribes in 4 years. Since the complaint was brought in 1980 or more than 5 months beyond the prescriptive period, it was already barred by prescription. Hence, this appeal by the DE LUNAs. The alleged that the action they filed before the CFI of Quezon is not one for revocation of the donation under Article 764 of the New Civil Code which prescribes in 4 years, but one to enforce a written contract which prescribes in 10 years under Article 1144. ISSUE

Whether or not the applicable law is Article 764, which states that an action for revocation of a donation for non-compliance with the condition prescribes in 4 years or Article 1144, which states that an action to enforce a wriiten contract prescribes in 10 years. RULING The applicable law is Article 1144, which states that an action to enforce a wriiten contract prescribes in 10 years because the donation made was an onerous donation. From the viewpoint of motive, purpose or cause, donations may be 1) simple, 2) remuneratory or 3) onerous. A simple donation is one the cause of which is pure liberality (no strings attached). A remuneratory donation is one where the donee gives something to reward past or future services or because of future charges or burdens, when the value of said services, burdens or charges is less than the value of the donation. An onerous donation is one which is subject to burdens, charges or future services equal (or more) in value than that of the thing donated. It is the finding of the trial court, which is not disputed by the parties, that the donation subject of this case is one with an ONEROUS CAUSE. It was made subject to the burden requiring the donee to construct a chapel, a nursery and a kindergarten school in the donated property within 5 years from execution of the deed of donation. Under the old Civil Code, it is a settled rule that donations with an onerous cause are governed not by the law on donations but by the rules on contracts. On the matter of prescription of actions for the revocation of onerous donation, it was held that the general rules on prescription applies. The same rules apply under the New Civil Code as provided in Article 733 thereof which provides: Art. 733. Donations with an onerous cause shall be governed by the rules on contracts, and remuneratory donations by the provisions of the present Title as regards that portion which exceeds the value of the burden imposed. It is true that under Article 764 of the New Civil Code, actions for the revocation of a donation must be brought within 4 years from the non-compliance of the conditions of the donation. However, it does not apply to onerous donations in view of the specific provision of Article 733 providing that onerous donations are governed by the rules on contracts. The trial court was therefore not correct in holding that the complaint in the case at bar is barred by prescription under Article 764 of the New Civil Code because Article 764 does not apply to onerous donations. As provided in the donation executed in 1971, complaince with the terms and

conditions of the contract of donation, shall be made within 5 years from its execution. The complaint which was filed on in 1980 was then well within the 10 year prescriptive period to enforce a written contract under Article 1144 of the Civil Code, counted from 1976. The validity of the stipulation in the contract providing for the automatic reversion of the donated property to the donor upon non-compliance cannot be doubted. It is in the nature of an agreement granting a party the right to rescind a contract unilaterally in case of breach, without need of going to court. Upon the happening of the resolutory condition of non-compliance with the conditions of the contract, the donation is automatically revoked without need of a judicial declaration to that effect. LAGAZO vs. CA GR No. 112796. March 5, 1998 Articles 733 A donation is simple when although the donee in reality paid for the installments in arrears and for the remaining balance of the lot in question, no burdens, charges or conditions imposed upon such was stated on the deed of donation itself. Being a simple donation, acceptance must be in a public instrument and that the donor must be formally notified thereof. FACTS Catalina Jacob Vda. de Reyes, a widow and grandmother of petitioner TITO R. LAGAZO was awarded in 1975, a 60.10square meter lot which is a portion of the Monserrat Estate located at 3320 2nd St., V. Mapa, Old Sta. Mesa, Manila. The Monserrat Estate was a public land owned by the City of Manila and distributed for sale to bona fide tenants under its land-for-the-landless program. Catalina constructed a house on the lot. In 1977, or shortly before she left for Canada where she was a permanent resident at that time, Catalina executed a special power of attorney in favor of her son-in-law Eduardo B. Espaol authorizing him to execute all documents necessary for the final adjudication of her claim as awardee of the lot. In 1984, due to the failure of Eduardo B. Espaol to accomplish the purpose of the power of attorney granted to him, Catalina revoked said authority in an instrument executed in Canada. Simultaneous with the revocation, Catalina executed another power of attorney of the same tenor in favor of petitioner TITO R. LAGAZO. In 1985, Catalina executed in Canada a Deed of Donation over the lot in favor of

LAGAZO. Following the donation, LAGAZO checked with the Register of Deeds and found out that the property was in the delinquent list, so that he paid the installments in arrears and the remaining balance on the lot and declared the said property in the name of Catalina. In 1986, LAGAZO sent a demand letter to respondent ALFREDO CABANLIT asking him to vacate the premises of the lot. A similar letter was also sent afterwards. However, CABANLIT refused to vacate the premises claiming ownership thereof. Hence, LAGAZO instituted a complaint for recovery of possession and damages against CABANLIT. LAGAZO claimed ownership over the house and lot by virtue of the Deed of Donation in his favor executed by his grandmother Catalina, the real awardee of the lot in question. Opposing LAGAZO's version, CABANLIT claimed ownership over the house and lot in controversy through purchase from Eduardo Espaol in 1982. He argued that it was Espaol who was the owner of the house and lot by virtue of the Deed of Absolute Sale executed by Catalina in 1977 over the house and a Deed of Assignment over the lot in 1980, in favor of Espaol. After trial, the RC of Manila decided in favor of LAGAZO and against CABANLIT, It thereafter, ordered the reconveyance of the property to LAGAZO. On appeal to the Court of Appeals, the appellate court reversed the decision of the RTC. It anchored its ruling upon the absence of any showing that LAGAZO accepted his grandmother's donation of the subject land. It also struck down LAGAZO 's contention that the formalities for a donation of real property should not apply to his case since it was an onerous one he paid for the amortizations due on the land before and after the execution of the deed of donation reasoning that the deed showed no burden, charge or condition imposed upon the donee; thus, the payments made by LAGAZO were his voluntary acts. Hence, this appeal by LAGAZO. He contended that the burdens, charges or conditions imposed upon a donation need not be stated on the deed of donation itself. Thus, although the deed did not categorically impose any charge, burden or condition to be satisfied by him, the donation was onerous since he in fact and in reality paid for the installments in arrears and for the remaining balance of the lot in question. Being an onerous donation, his acceptance thereof may be express or implied, as provided under Art. 1320 of the Civil Code, and need not comply with the formalities required by Art. 749 of the same code. His payment of the arrearages and balance and his assertion of his right of possession against private respondent clearly indicate his acceptance of the donation.

ISSUE Whether or not the donation made by Catalina to LAGAZO was an onerous one eventhough it did not expressly impose any burden in the deed of donation but in reality, LAGAZO actually paid charges imposed on the property like land taxes and installment arrearages. RULING NO, it was not an onerous obligation. It was a simple donation rather. A simple or pure donation is one whose cause is pure liberality (no strings attached), while an onerous donation is one which is subject to burdens, charges or future services equal to or more in value than the thing donated. Under Article 733 of the Civil Code, donations with an onerous cause shall be governed by the rules on contracts; hence, the formalities required for a valid simple donation are not applicable. Even conceding that LAGAZO's full payment of the purchase price of the lot might have been a burden to him, such payment was not however imposed by the donor, Catalina, as a condition for the donation. Rather, the deed explicitly stated that Catalina donated to LAGAZO said property as an act of liberality and generosity and considering that the latter is her grandson, said land and all its improvements, free from all liens and encumbrances and charges whatsoever. It is clear that the donor did not have any intention to burden or charge LAGAZO as the donee. The words in the deed are in fact typical of a pure donation. The payments made by LAGAZO, as found by the Court of Apepals were merely his voluntary acts. This much can be gathered from his testimony in court, in which he never even claimed that a burden or charge had been imposed by his grandmother. The payments even seem to have been made pursuant to the power of attorney executed by Catalina in favor of LAGAZO, her grandson, authorizing him to execute acts necessary for the fulfillment of her obligations. Nothing in the records showed that such acts were meant to be a burden in the donation. As a pure or simple donation, the following provisions of the Civil Code are applicable: Art. 734. The donation is perfected from the moment the donor knows of the acceptance by the donee. Art. 746. Acceptance must be made during the lifetime of the donor and the donee. Art. 749. In order that the donation of an immovable may be valid, it must be made in a public instrument, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation and in a

separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in authentic form, and this step shall be noted in both instruments. Like any other contract, an agreement of the parties is essential. The donation, following the theory of cognition, is perfected only upon the moment the donor knows of the acceptance by the donee." Furthermore, if the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. Acceptance of the donation by the donee is, therefore, indispensable; its absence makes the donation null and void. The perfection and the validity of a donation are well explained by former Sen. Arturo M. Tolentino in this wise: . . . Title to immovable property does not pass from the donor to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Solemn words are not necessary; it is sufficient if it shows the intention to accept. But in this case it is necessary that formal notice thereof be given to the donor, and the fact that due notice has been given must be noted in both instruments (that containing the offer to donate and that showing the acceptance). Then and only then is the donation perfected. If the instrument of donation has been recorded in the registry of property, the instrument that shows the acceptance should also be recorded. Where the deed of donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void. The deed of donation did not show any indication that LAGAZO accepted the gift or donation. It was only after the Court of Appeals had rendered its decision, when he submitted an affidavit dated 1990, manifesting that he "wholeheartedly accepted" the lot given to him by his grandmother, Catalina. This is too late, because arguments, evidence, causes of action and matters not raised in the trial court may no longer be raised on appeal. True, the acceptance of a donation may be made at any time during the lifetime of the donor. And granting arguendo that such acceptance may still be admitted in evidence on appeal, there is still need for

proof that a formal notice of such acceptance was received by the donor and noted in both the deed of donation and the separate instrument embodying the acceptance. At the very least, this last legal requisite of annotation in both instruments of donation and acceptance was not fulfilled by LAGAZO. For this reason, the subject lot cannot be adjudicated to him. Hence, on the basis of the alleged donation, LAGAZO cannot be considered the lawful owner of the subject property. However, this did not necessarily mean that CABANLIT is automatically the rightful owner. GESTOPA vs. CA GR No. 111904. October 5, 2000 An acceptance clause is a mark that the donation is inter vivos. Acceptance is a requirement for donations inter vivos. Donations mortis causa, being in the form of a will, are not required to be accepted by the donees during the donors' lifetime. FACTS Spouses Diego and Catalina Danlag were the owners of 6 parcels of unregistered lands. They executed three deeds of donation mortis causa, in favor of private respondent MERCEDES DANLAGPILAPIL. The first deed pertained to parcels 1 & 2 while the second deed pertained to parcel 3. The third deed pertained to parcel 4. All deeds contained the reservation of the rights of the donors (1) to amend, cancel or revoke the donation during their lifetime, and (2) to sell, mortgage, or encumber the properties donated during the donors' lifetime, if deemed necessary. In 1973, the Danlags, executed a deed of donation inter vivos covering the aforementioned parcels of land plus two other parcels, respectively, again in favor of MERCEDES. This contained two conditions, that (1) the Danlags shall continue to enjoy the fruits of the land during their lifetime, and that (2) the MERCEDES cannot sell or dispose of the land during the lifetime of the said spouses, without their prior consent and approval. MERCEDES caused the transfer of the parcels' tax declaration to her name and paid the taxes on them. In 1979 and 1979, respectively, the Danlags sold parcels 3 and 4 to herein petitioners spouses AGRIPINO and ISABEL GESTOPA. Later, the Danlags executed a deed of revocation recovering the 6 parcels of land subject of the aforecited deed of donation inter vivos. In 1983, MERCEDES filed with the RTC a petition against the GESTOPAs and the Danlags, for quieting of title over the above parcels of land. She alleged that she was an illegitimate daughter of Diego Danlag; that she lived and rendered incalculable beneficial services to Diego and his mother, Maura Danlag, when the latter was still

alive. In recognition of the services she rendered, Diego executed a Deed of Donation in 1973, conveying to her the 6 parcels of land. She accepted the donation in the same instrument, openly and publicly exercised rights of ownership over the donated properties, and caused the transfer of the tax declarations to her name. Through machination, intimidation and undue influence, Diego persuaded the husband of MERCEDES, Eulalio Pilapil, to buy 2 of the 6 parcels covered by the deed of donation. Said donation inter vivos was coupled with conditions and, according to Mercedes, since its perfection, she had complied with all of them; that she had not been guilty of any act of ingratitude; and that respondent Diego had no legal basis in revoking the subject donation and then in selling the two parcels of land to the GESTOPAs. In their opposition, the GESTOPAs and the Danlags averred that the deed of donation dated 1973 was null and void because it was obtained by MERCEDES through machinations and undue influence. Even assuming it was validly executed, the intention was for the donation to take effect upon the death of the donor. Further, the donation was void for it left the donor, Diego Danlag, without any property at all. In 1991, the trial court rendered a decision against MERCEDES. It revoked the donations mortis cause and intervivos. It declared Diego as the absolute and exclusive owner of the 6 parcels of land mentioned in the Deed of revocation. It also ruled that the Deeds of Sale executed by Diego in favor of the GESTOPAs were valid and enforceable. The trial court found that the reservation clause in all the deeds of donation indicated that Diego did not make any donation; that the purchase by MERCEDES of the two parcels of land covered by the Deed of Donation Inter Vivos bolstered this conclusion; that MERCEDES failed to rebut the allegations of ingratitude she committed against Diego Danlag; and that MERCEDES committed fraud and machination in preparing all the deeds of donation without explaining to Diego their contents. On appeal by MERCEDES to the Court of Appeals, the appellate court reversed the decision of the trial court. It held that the deed of donation dated 1973 be not revoked and that the deed of revocation be null and void. It declared MERCEDES as the absolute and exclusive owner of the 6 parcels of land specified in the deed of donation inter vivos. It then declared the sale by Diego to the GESTOPAs as null and void. It further ordered reconveyance of the parcels of land to MERCEDES. Hence, this appeal by the Gestopas. They argued that the donor, Diego, did not only reserve the right to enjoy the fruits of the properties, but also prohibited the donee, MERCEDES, from selling or disposing the land without the consent and approval

of the Danlags. This then implied that the donor still had control and ownership over the donated properties. Hence, the donation was post mortem. ISSUES 1. Whether the donation was inter vivos or mortis causa. 2. Whether or not the revocation of the donation by the donor, Diego was valid. RULING (1) The donation was intervivos. Crucial in resolving whether the donation was inter vivos or mortis causa is the determination of whether the donor intended to transfer the ownership over the properties upon the execution of the deed. In ascertaining the intention of the donor, all of the deed's provisions must be read together. The deed of donation dated 1973 showed that Diego donated the properties out of love and affection for the donee. This is a mark of a donation inter vivos. Second, the reservation of lifetime usufruct indicated that the donor intended to transfer the naked ownership over the properties. Third, the donor reserved sufficient properties for his maintenance in accordance with his standing in society, indicating that the donor intended to part with the 6 parcels of land. Lastly, the donee accepted the donation. An acceptance clause is a mark that the donation is inter vivos. Acceptance is a requirement for donations inter vivos. Donations mortis causa, being in the form of a will, are not required to be accepted by the donees during the donors' lifetime. The right to dispose of the properties then, belonged to the donee, MERCEDES. The donor's right to give consent was merely intended to protect his usufructuary interests. The attending circumstances in the execution of the subject donation also demonstrated the real intent of the donor to transfer the ownership over the subject properties upon its execution. Prior to the execution of donation inter vivos, the Danlag spouses already executed 3 donations mortis causa. If they did not intend to donate inter vivos, they would not again donate the 4 lots already donated mortis causa. (2) NO, it was not valid. A valid donation, once accepted, becomes irrevocable, except on account of officiousness, failure by the donee to comply with the charges imposed in the donation, or ingratitude. The donor-spouses did not invoke any of these reasons in the deed of revocation. The GESTOPAs cited Mercedes' vehemence in prohibiting the donor to gather coconut trees and her filing of instant petition for quieting of title. There is nothing on record, however, showing that MERCEDES prohibited the donors from

gathering coconuts. Even assuming that MERCEDES prevented the donor from gathering coconuts, this could hardly be considered an act covered by Article 765 of the Civil Code which provides that Art. 765. The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases: (1) If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority; (2) If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority; (3) If he unduly refuses him support when the donee is legally or morally bound to give support to the donor. (648a) Nor does this Article cover MERCEDES's filing of the petition for quieting of title, where she merely asserted what she believed was her right under the law. Finally, the records do not show that the Danlags instituted any action to revoke the donation in accordance with Article 769 of the Civil Code, which provides that Art. 769. The action granted to the donor by reason of ingratitude cannot be renounced in advance. This action prescribes within one year, to be counted from the time the donor had knowledge of the fact and it was possible for him to bring the action. Consequently, the supposed revocation in 1979 had no legal effect. PERSONS WHO MAY GIVE OR RECEIVE A DONATION ARTICLE 735: All persons who may contract and dispose of their property may make a donation. It is required that the person has the capacity to contract. Who has the capacity to contract? 1. anybody who is not a minor; 2. anybody who is not insane or not imbecile; 3. anybody who is not a deaf-mute; 4. anybody who is not prodigal; 5. those who are not in civil interdiction. Now who can dispose the property? The owner because it is only the owner who has the right to dispose (jus disponendi), not the possessor, not the usufructuary, not the lessee. Q: Can the husband and wife donate? A: GR: They cannot donate to each other. EXCEPT: Moderate donation on occasion of family rejoicing only.

Q: Can the husband donate his capital property without the consent of the wife? A: YES. He can donate his capital property to his children (whether legitimate or illegitimate) and to 3rd persons (to the driver, friend etc) but not to his wife. The wife can also with respect to her paraphernal properties donate it even without the consent of the husband. Q: What about the conjugal property? A: It can be disposed of as long as there is consent from both. Q: Can one spouse donate without the consent of the other with respect to the conjugal property? A: GR: NO. Exceptions: a) Moderate donation given for charity; b) On occasion of family rejoining; or c) On occasion of family distress. ARTICLE 736: Guardians and trustees cannot donate the property entrusted to them.

lucid moments. Insane people who do not have lucid moments cannot donate. Example: A donated on May 1 to B at that time he was insane; B accepts on May 5 at the time A was sane, is the donation valid? Yes. Because if you look at the provision, the capacity is determined at the time he knows of the acceptance not at the time he made the donation. ARTICLE 738: All those who are not specially disqualified by law therefore may accept donations.

We have disqualifications which we will take up under 739 and under the laws on Succession. There are also those who are incapacitated to inherit.

The kind of donation that is being referred to here is simple donation. So that onerous donations may be made by the trustee provided that the donation is beneficial to the ward. In case of onerous donations, the trustee may donate if the donation will benefit the donee. This provision refers only to simple donation. However, if you look in the laws of guardianship, trustees and guardians are allowed to sell the properties of their wards or the beneficiaries where the properties can be subject to levy or execution due to non-payment of taxes or debts. The trustees or the guardians are allowed to pay taxes, or debts of the minor.

ARTICLE 739: The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. In the case referred to in #1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. 1st: Those made between persons who were guilty of adultery or concubinage at the of the donation; If you look at the provisions, it says guilty. Does that mean that they have to be proven guilty beyond reasonable doubt? NO. The adultery or concubinage need not be proven in criminal action. It is enough that there is a donation given by a man on his mistress. How can we prove? When his wife files in court for the declaration of nullity of the donation. In that case, there can be evidence already that they have been sleeping together in the same house, etc. Preponderance of evidence is sufficient to show that there was concubinage or adultery. If the donation took place after the commission of the adultery, meaning naghiwalay na sila, it is said to be valid according to some legal commentaries because it says here, who were guilty at the time of the donation. So if the donation was made after the affair, it does not anymore fall under the special disqualification, unless the

ARTICLE 737: The donors capacity shall be determined as of the time of the making of the donation. Art. 737 is related to 734. When we talk of making of donation, we are referring to the perfection of the contract. So when you talk of the capacity of the donor, the donor must be capacitated to make a donation at the time of the perfection. Example: A donates to B on May 1; B accepts on May 5; A, the donor dies on May 8. The acceptance was made known to A on May 10? Was the donation perfected? No because at that time the acceptance was made known, the donor no longer has the capacity to donate. Insane people who have lucid intervals can donate during their

consideration of the donation is the commission of the act. EX: H and W are husband and wife. H2 and W2 are also husband wife. H had carnal knowledge with W2. H2 accused W2 of adultery. H and W2 are convicted. H previously gave a gift to W2. May W file a case that the donation is void? Yes because at the time of the donation they were both guilty of adultery. Who can raise the nullity of the donation? It is The spouse of the donor or the donee (last par 739). Not the donee ha himself. The donor and the donee do not have cause of action. You cannot revoke the donation if you are the guilty party himself. You must come to court with clean hands. This also applies to persons who do not have the benefit of marriage.

or undue influence. Hence the donation is voidable. However, if the donation is made to prevent the commission of the crime, then it is valid. Another thing to remember, whether the donation transpired before the commission of the offense, or during or after, the donation is void, for as long as it was done in consideration of the donation. Unlike in the first instance.

3rd. Those made to a public officer or his wife, descendants and ascendants, by reason of his office.

The purpose for this disqualification is to prevent bribery. However, this is case to case basis because not all gifts given to the official fall under the disqualification.

LIGUEZ V CA The old man donated a parcel of land to a 15-yr old girl in order to induce her to live with him. The SC said that the donation is void because it is violative of Art. 739 but this old man can no longer recover the property donated because he was the one who filed the case of illegal transaction. 2nd: Those made between persons found guilty of the same criminal offense, in consideration thereof; This particular disqualification requires conviction. It is made by those persons found guilty of the same criminal offense, in consideration thereof. They are two parties: the donor and the donee and they are both found guilty of the same criminal offense. So how can that happen in relation to your criminal law, in consideration thereof? It is thru principal by inducement and principal by direct participation. Example: A is the wife and then she hires B to kill her husband. The donor is the wife and the donee is the killer. A gives B P1M in consideration of the commission of the crime. This kind of donation is void because of moral consideration. This provision requires that they have to be found guilty of the same crime.

ARTICLE 740: Incapacity to succeed by will shall be applicable to donations inter vivos.

1.

2.

If a person insists that a donation be given so that he would, for example, not to kill the giver or any other person, this would tantamount to extortion or black mail. The consent of the donor is being given only because of force, intimidation, fear,

3.

If you are incapacitated to receive by will or incapacitated to be as heir, then you are also incapacitated to become a donee. There are 2 KINDS of INCAPACITY to inherit: (1) absolute incapacity. Where in no case can there be a transmission of the inheritance. Like an infant that is abortive cannot be a donee. (2) relative incapacity. Where under certain conditions, particular person cannot inherit from a particular decedent (donor). Article 1027 also enumerates the following disqualification as applied to this chapter. The following are disqualified under Art. 1027: The priest who heard the confession of the donor during his last illness. The priest must have heard the confession of the donor and it must be during his last illness in order for the priest to be incapacitated but if the donor does not die right away or dies 5 days later, then the priest is not incapacitated. The minister of the gospel who extended spiritual aid to the donor during his last illness. The same thing because he extended spiritual aid and then the donor must die. The relative of the priest or the minister of the gospel within the 4th degree. They cannot receive some from that particular person to whom the minister extended spiritual aid or who confessed to the priest. So the relative

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6.

of the priest and the minister cannot also receive from that particular donor. The church order chapter, community, organization or institution to which such priest or minister may belong. The guardian with respect to testamentary disposition given by a ward in his favor before the final accounts of the guardianship have been approved even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendants, descendant, brother, sister, or spouse, shall be valid. While he is still the guardian of the ward, he cannot receive or cannot be a donee but after the final account of the guardianship has been approved, so pwede na maging donee. But if the guardian is the ascendant, descendant, brother or sister of the ward, of course he can be a donee. Physician, nurse, surgeon, health officers or druggist who took care of the testator during his last illness. Why is it that these people are not allowed to receive donation? They are incapacitated because of undue influence. But of course if the physician, nurse, surgeon, etc. is a relative, he is allowed kc entitled naman ang relative to receive.

4. Any person who has been convicted of concubinage or adultery with the spouse of the donor. So as mentioned earlier, if the confession or the extended spiritual aid or the taking care by the doctor or the nurse and the donor survives, then the priest, minister, doctor, nurse is not disqualified. What if the donee tried to kill the donor and later the donor forgave the donee. After forgiving the donee, the donor donated something to the donee. Is the donee capacitated to receive? Yes, because there has been condonation. ARTICLE 741: Minors and others who cannot enter into a contract may become donees but acceptance shall be done thru their parents or legal representatives. MINORS. - They can become donees but they cannot become donors. A donation made to a minor is valid provided that the acceptance must be done thru their parents or legal representative. Q: May minors accept by themselves? A: Yes, if the donation is simple except if formal acceptance is required. If the donation is onerous and conditional, they cannot accept it by themselves because of the burden imposed on the donation. If that would be the case, the parents and legal representatives must intervene. But if the minor accepts the onerous donation, the donation is considered voidable. - Parents cannot receive a donation in favor of their children if the value of the donation is more than P50K unless there is an approval from the court. ARTICLE 742: Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born. Relate this to Article 40 of the NCC. When does the person acquire juridical personality? For the unborn child to receive a donation, the child must be born alive if it has a normal intrauterine life but if it has an intrauterine life of 7 months, it has to be alive for 24 hours. The child must at least have some kind of juridical personality before a donation can be accepted in his behalf.

ARTICLE 1032. Relative incapacity by reason of unworthiness. The unworthiness of the donee. The donee is unworthy; he has no right to receive from the donor. 1. Any person who has been convicted of an attempt against the life of the donor, his/her spouse, ascendants or descendants. So if you are convicted for attempted homicide or attempted murder, then you cannot receive from that particular donor but even if it is not an attempt against the life of the donor but to his/her spouse, ascendants or descendants, you are still unworthy to become a donee. 2. Any person who has accused the donor of a crime for which the law prescribes an imprisonment for six years or more. If the accusation has been found groundless. What are the REQUISITES here? a. If the donee accused the donor of the crime and the crime must have a penalty of more than 6 yrs of imprisonment. b. The accusation was found to be groundless. 3. Any heir of full age who having knowledge of the violent death of the testator should fail to report it to an officer of the law.

ARTICLE 743: Donations made to incapacitated persons shall be void, through simulated under the guise of another contract or thru a person who is interposed.

What do you mean by the incapacitated here? Incapacitated because of 739; Art. 1027 because of undue influence and Art. 1032 due to unworthiness. If you made donations to these people, the donation shall be void even though simulated under the guise of another contract like contract of sale or use of another person. The law will be frustrated if you go thru another person or if you use another contract. Remember, if it is illegal to donate something to your mistress it is also illegal to sell something to her. EXAMPLE: A and B were paramours convicted of adultery. A donated to X, a mutual friend thru a previous understanding that X shall donate the same thing to B. Are the donations valid? NO, because it circumvents the law. ARTICLE 744: Donations of the same thing to two or more different donees shall be governed by the provisions concerning the sale of the same thing to two or more different persons. This is in cross reference to Art. 1544 of double sale. - The rule on movable property in case of double sale is that if the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith. - If it be immovable property, the ownership shall belong to the person acquiring it who in good faith recorded it in the Registry of Property. If theres no inscription, the ownership shall pertain to the person who in good faith was first in the possession and in the absence thereof, to the person who presents the oldest title, provided there is good faith. ILLUSTRATION: What if A donated to B (January 5, 2005) and then A sold the same property to C (January 10, 2005) but C registered it on January 11, 2005, who is the owner of the property? It is B. The donee already owns the property donated even though the property is not yet delivered. The rule on double sale will not apply in donation because the two are different contracts. A sold the property first to B and then donated it to C. Will the law on sales apply? It depends. If the property is already delivered to B, then B is the owner. A cannot donate something that is no longer owned by him. But if it is not yet delivered to B, A can donate to C because A is still the owner.

ARTICLE 745: The donee must accept the donation personally, or thru an authorized person with a special power for the purpose, or with a general and sufficient power, otherwise, the donation shall be void. Q: How do you accept donation? A: Normally, you accept the donation personally. Q: What if the donee is not around or a minor? A: Thru an authorized person. Q: How do you authorize this person to accept a donation? A: He should be given either a special power of attorney for that particular purpose to accept the donation; or a general and sufficient power of attorney, that is all encompassing powers. This authorization to accept for the donee must be made in public instrument. So if you are an ordinary agent, meaning youre not somebody who has special power or somebody with general or sufficient power authorized thru a public instrument, you cannot accept on behalf of the donee. The donation shall be void. What is the status of the contract accepted by an unauthorized agent? It is unenforceable.

ARTICLE 746: Acceptance must be made during the lifetime of the donor and of the donee. ARTICLE donations may not obliged to which Art. 747: Persons who accept in representation of other who do so by themselves shall be make notification and notation of 749 speaks.

This article refers to incapacitated persons not those incapacitated because of unworthiness or by moral considerations. So in case of donation, notification shall be made by the representative of the incapacitated upon his acceptance.

ARTICLE 748: The donation of a movable may be made orally or in writing. An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated. If the value of the personal property donated exceeds Five thousand pesos, the donation and the acceptance shall be made in writing. Otherwise, the donation shall be void. The formalities very important. donation is not completely void. FORMALITIES DONATION PROPERTY in this article are Without them, the only voidable but OF FOR THE MOVABLE

If the value of the donated movable is more than P5000, it should always be in writing. The acceptance must also be in writing. Hence, if the donation is made in an affidavit and the donee merely signifies his acceptance orally, the donation shall be null and void. If the value of the donated movable is P5 000 or less: a) Can be made orally but there must be: 1. simultaneous delivery of a thing; or 2. simultaneous delivery of the document representing the right donated. (Acceptance may be oral or in writing, express or implied.) b) can be made in writing PROBLEM: A writes a letter to B on June 1, 2003 in which the former states that he makes to the latter a donation or gift of a certain sum of money (P800) which he may collect from the BPI on June 20, 2003 in order to celebrate his birthday. B receives the letter but does not answer. On June 20, 2003, B goes to the bank which hands him the P800 donated as the Bank has orders from A to that effect. Does the donation produce legal effects? YES, the donation was perfected since there was implied acceptance on Bs part. While the donation was in writing, still his acceptance does not have to be in writing since the donation does not exceed P5000. Had it exceeded, acceptance in writing would have been required. ARTICLE 749: In order that the donation of an immovable may be valid, it must be made in a public document specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. If the deed of donation and the acceptance are in the same instrument: a. The instrument must be in a public document. b. The document must specify the property donated and the charges if any. If the deed of donation and the acceptance are NOT in the same instrument: a. The donation must be in a public instrument or document.

b. The document must specify the property donated and the charges, c. The acceptance in a separate instrument must be in a public instrument. d. The donor shall be notified in authentic form of the fact that acceptance is being made or has been made in a separate public document. e. The fact that there has been a notification must be noted in both instruments. CHARGES refers to: a. Conditions or burdens imposed if any (but which should not be equal in value to the realty donated) b. Encumbrance on the property such as lease, usufruct, or mortgage. PAJARILLO vs. IAC GR No. 72908. August 11, 1989 article 749 Under Art. 749, when the acceptance by the donee is made in a separate instrument, the acceptance must be noted both in the deed of fonation and instrument of acceptance. Its purpose it to ensure that the acceptance of the donation was duly communicated to the donor. This requirement may be dispensed with if the donor was actually informed. In this case, Juana, the donor, was aware of such acceptance (though not noted), as she confirmed it later and requested Salud, the donee, not to register the property during her lifetime. FACTS The mother was Juana Balane de Suterio, who had a brother named Felipe Balane and a sister named Perfecta Balane de Cordero. Perfecta died in 1945 leaving inter alia a registered tract of land consisting of about 28 hectares in the barrio of Luctol, Municipality of Macalelon in Quezon Province. In 1946, Juana and Felipe, as the only brother and sister respectively and forced heirs of Perfecta, executed a public instrument entitled "Extra-judicial Settlement of the Estate of the Deceased Perfecta Balane de Cordero." In the agreement, Juana and Felipe, in consideration of love and affection agreed in carrying out the antemortem wish of Pefecta by donating to private respondent SALUD SUTEXIO DE MATIAS (only niece) the 28-hectare land Perfecta owned. It also conditioned that SALUD must assume the P1,000 obligation or debt of Perfectas estate with the Philippine National Bank. It was also stated therein that SALUD accepted the said donation and expressed

her gratitude for the kindness and liberality of Juana and Felipe. Later, SALUD executed a public instrument accepting the donation made by Felipe and Juana. Therein, she expressed her gratitude for the kindness and liberality of Juana and Felipe. One of the witnesses, who signed in this document was petitioner EUFEMIA PAJARILLO. These instruments were never registered nor was title transferred in SALUD's name although she said she immediately took possession of the land. Meantime, intestate proceedings were instituted on the estate of Perfecta and the said land was among those included in the inventory of the properties belonging to the decedent. SALUD interposed no objection to its inclusion nor did she oppose its subsequent adjudication to her mother Juana in the project of partition. It was not clear if the land was ever registered in Juana's name. However, there is evidence that Juana confirmed the earlier donation of the land to SALUD but requested that she be allowed to possess the same and enjoy its fruits, until her death. It has also not been controverted that Salud paid the P1,000.00 loan for which the land was mortgaged. In 1951, acceding to this request, she transferred the possession of the land to her mother, who was then staying with petitioner CLAUDIO SUTERIO, SR. and his family. During the period they were occupying the land, CLAUDIO paid the realty taxes thereon. In 1956, Juana executed a deed of absolute sale conveying the land to CLAUDIO for the declared consideration of P12,000.00. In 1958, Claudio had the land registered in as name and was issued a TCT. CLAUDIO died in 1961 and his mother in 1963. In 1965, private respondents spouses SALUD and PEDRO MATIAS filed a complaint for the reconveyance of the property on the ground that the deed of sale in favor of CLAUDIO was fictitious and its registration in his name was null and void. SALUD alleged that she was unaware until later of the supposed sale of the land to CLAUDIO. She faulted it as having been procured through fraud and improper influence on her sick and aged mother. She claimed that no compensation was actually paid by CLAUDIO and that the transaction was deliberately concealed from her by her brother and the defendants. For their part, the respondents EUFEMIA PAJARILLO, CLAUDIO SUTERIO, JR., NYMIA SUTERIO and MARILYN SUTERIO, widow and children of CLAUDIO, assailed the donation to SALUD as legally inefficacious and defective and contended that her complaint was barred by prescription, estoppel and res judicata. In 1979, the CFI of Quezon upheld the donation to SALUD and annulled the deed of sale and the registration of the land in favor of CLAUDIO. The defendants were required

to reconvey the land to SALUD as a result. On appeal, the decision was affirmed in toto. Hence, this appeal by EUFEMIA, ET. AL. They pointed out that the donation was defective in form because of noncompliance with the requirements of the law regarding its acceptance. They stated that SALUDs acceptance did not comply with Article 749 (then Article 633) of the Civil Code. Being that the acceptance was made in a separate instrument, her acceptance was not "noted in both instruments," meaning the extrajudicial partition itself and the instrument of acceptance, as required by the Civil Code. ISSUE Whether or not the acceptance made by SALUD was defective in form because being that it was made in a separate instrument, it was not noted not "noted in both instruments," that is, in the extrajudicial partition itself and the instrument of acceptance, as required by the Article 749 Civil Code. RULING NO, it was not defective. The court sustained the validity of the donation though there was an absence of the required notation in both instruments (the deed of donation and the instrument of acceptance) as under the circumstances of the present case, a literal adherence to the requirement of the law might result not in justice to the parties but conversely a distortion of their intentions. Article 749 of the Civil Code provides that Art. 749. x-x-x If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. There is no question that the donation was accepted by SALUD in a separate public instrument and that it was duly communicated to the donors, Juana and Felipe. Even EUFEMIA, ET. AL. could not deny this. But what they contended was that such acceptance was not "noted in both instruments," meaning the extrajudicial partition itself and the instrument of acceptance, as required by the Civil Code. That is perfectly true. There was nothing in either of the two instruments showing that "authentic notice" of the acceptance was made by SALUD to Juana and Felipe. And while the first instrument contains the statement that "the donee does hereby accept this donation and does hereby express her gratitude for the kindness and liberality of the donor," the only signatories thereof were Felipe and Juana. That was in fact the reason for the separate instrument of acceptance signed by SALUD a month later.

A strict interpretation of Article 749 can lead to no other conclusion than the annulment of the donation for being defective in form as urged by EUFEMIA, ET. AL. This would be in keeping with the unmistakable language of the above-quoted provision. However, we find that under the circumstances of the present case, a literal adherence to the requirement of the law might result not in justice to the parties but conversely a distortion of their intentions. It is also a policy of the Court to avoid such an intepretation. The purpose of the formal requirement is to insure that the acceptance of the donation is duly communicated to the donor. In the case at bar, it was not even suggested that Juana was unaware of the acceptance for she in fact confirmed it later and requested that the donated land be not registered during her lifetime by SALUD. Given this significant evidence, the Court could not in conscience declare the donation ineffective because there was no notation in the extrajudicial settlement of the donee's acceptance. That would be placing too much stress on mere form over substance. It would also disregard the clear reality of the acceptance of the donation as manifested in the separate instrument dated and as later acknowledged by Juana. Hence, it was clear that Juana had no right to sell the subject land to CLAUDIO because she was no longer its owner, having previously donated it to her daughter SALUD., When Claudio registered the land in his name knowing there was a flaw in his title, an implied trust was created in favor of Salud as the real owner of the property in accordance with Article 1456 of the Civil Code. As trustor, SALUD had every right to sue for the recovery of the land in the action for reconveyance against Claudio's heirs.The record showed that while the land was registered in the name of CLAUDIO in 1958, the complaint for reconveyance was filed by SALUD in 1965, or still within the ten-year prescriptive period. ARTICLE 750: The donation may comprehend all the present property of the donor, or part thereof provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself, and of all relatives who, at the time of the acceptance of the donations, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced on petition of any person affected. What can the donor donate? All present property of the donor which refers to those in which the donor can dispose of at the time of the donation. Provided: He reserved something for the support of himself and for his relatives

WHO CAN BE AFFECTED IF RESERVATION: a. The donor b. Those entitled for support c. Creditors DONATIONS NOT INCLUDED: a. Onerous donation b. Donation mortis causa c. Donation propter nuptias

NO

ARTICLE 751: Donations cannot comprehend future property. By future property is understood anything which the donor cannot dispose of at the time of the donation.

The law defines future property as anything which the donor cannot dispose of at the time of the donation. Future inheritance cannot be the object of a donation. In the law of conditional obligations, when the suspensive condition is fulfilled, the effects retroact to the date of constitution of the obligation. Thus, if a person is promised with a car if he passes the bar, may he right now donate the car to somebody else? YES, because although right now the car may be as to him still future property, still when he passes the bar, the ownership retroacts to the day the obligation was constituted.

ARTICLE 752: The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. This article means that: 1. A person may not give by donation more than what he can give by will; 2. A person may not receive by way of donation more than what the giver may give by virtue of a will. 3. The limitation of this provision naturally applies only to persons who have compulsory heirs at the time of his death. 4. PRESCRIPTIVE PERIOD: The action to revoke or reduce the inofficious donation must be brought by the donors compulsory heirs, within 5 years after the donors death.

ARTICLE 753: When a donation is made to several persons jointly, it is understood to be in equal shares, and there shall be no right of accretion among them, unless the donor has otherwise provided. The preceding paragraph shall not be applicable to donations made to the husband and wife jointly, between whom

there shall be a right of accretion, if the contrary has nor been provided by the donor. INSTANCES WHEN ACCRETION IS PROPER: 1. In case of predecease (donee dying ahead of donor before perfection); 2. In case of incapacity (of donee); 3. In case of refusal or repudiation (by donee). ARTICLE 754: The donee is subrogated to all the rights and actions which in case of eviction would pertain to the donor. The latter, on the other hand, is not obliged to warrant the things donated, save when the donation is onerous, in which case the donor shall be liable for eviction to the concurrence of the burden. The donor shall also be liable for eviction or hidden defects in case of bad faith on his part. This article pertains to Subrogation. Upon the perfection of donation, all the rights of the donor to the thing donated shall be transmitted to the donee. If the donation is simple, and there is a hidden defect on the thing donated, the donee shall not be entitled to any indemnity. But if the donation is onerous, the donor shall be liable for eviction. Examples: 1. X donated to Y a parcel of land. B claimed to be the owner and filed for ejectment. Whatever right that X has to the parcel of land is transmitted to Y (the donee). 2. X bought a car from Y and donated it to R but it has hidden defect, the right of the buyer (X) to sue the seller (Y) for breach of warranty would appertain not to X but to R. In other words, R would step into the shoes of X. 3. A donated to B a piece of land, which A thought belonged to him. If the real owner should oust or evict B, will A be responsible to B? NO, because the donation is simple and made in good faith. But if A knew that he did not own the land, A would be liable because of bad faith.

faith, but only up to P200 000 which was the amount of the burden, the donation being in part onerous. WHEN WARRANTY EXISTS: a.) If donor is in bad faith; b.) If donation is onerous; c.) If warranty is expressly made; d.) If donation is propter nuptias unless the contrary is stipulated. ARTICLE 755: The right to dispose of some of the things donated, or of some amount which shall be a charge thereon, may be reserved by the donor; but if he should die without having made use of this right, the property or amount reserved shall belong to the donee. ARTICLE 756: The ownership of property may also be donated to one person and the usufruct to other/s, provided all the donees are living at the time of donation. When one person receives the usufruct, it is understood that the other donee receive only the naked, not the full ownership. The term living includes conceived children provided that they are later born with the requisites mentioned in Arts. 40 and 41 respectively.

ARTICLE 757: Reversion may be validly established in favor of only the donor for any case and circumstances, but not in favor of other persons unless they are all living at the time of the donation. ILLUSTRATION: - A donated a car to Blithe, and it stated in the donation that after 5yrs, Blithe will return the car to A. Is that a valid condition? Is that allowed? That is an example of reversion. REVERSION. You donate something to another under a stipulation that the thing donated will go back to you. What if A donated a car to Blithe and then it was stipulated that the car will go to Joyce after 10 yrs, is that valid? Yes. But if the reversion will go to the person who is not yet living, it is void because it is violation of what is provided in the preceding paragraph shall be void. - The stipulation is void but the donation is still valid. Blithe will still validly receive the donation. Its just that the reversion stipulation is void. GR: Reversion may be validly established in favor of only the donor for any case and circumstances. EXCEPTION: Reversion

4. A donated to B a piece of land

worth 1M with the condition that B would pay him only P200 000. If the land really belongs to another (R) and A really thought he (A) was the owner, and B is evicted, would A be responsible? YES, even though he was in good

may be made to a 3rd person provided they are living at the time of the donation. EFFECT: Donation is valid but reversion is disregarded. ARTICLE 758: When the donation imposes upon the donee the obligation to pay the debts of the donor. If the clause does not contain any declaration to the contrary, the former is understood to be liable to pay only the debts which appear to have been previously contracted. In no case shall the donee be responsible for debts exceeding the value of the property donated, unless a contrary intention clearly appears. When is the donee liable to pay for the debt of the donor? Only when there is stipulation. Limit: It should not exceed the value of the property donated and only to debts contracted prior to the donation.

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If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous; If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to be living. If the donor should subsequently adopt a minor child. REQUISITES for a valid REVOCATION: a. The situation is that there is donation made inter vivos. b. The status of the donor who made the donation is that he does not have any children or descendants, legitimate, illegitimate or legitimated. c. After the donation, a child is born either to his wife or to his mistress, or if she is a woman, she delivered, a child whom he believed to be dead when he made the donation turns out to be alive or, after the donation the donor adopts a minor child. (The acronym is BRA, birth, reappearance, adoption.) If the court makes the decision, it is merely a declaratory act and not revocatory because as [I've] said, the moment the incidents enumerated happen, the donation is deemed revoked or reduced accordingly.

ARTICLE 759: There being no stipulation regarding the payment of the debts, the donee shall be responsible therefore only when the donation has been made in fraud of creditors. 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. GR: When there is no stipulation, the donee is not obliged to pay the debts of the donor. EXCEPTION: When the donation was made in fraud of creditors. There is a presumption here. Q: When is donation made in fraud of creditors? A: When at the time thereof the donor did not reserve sufficient property to pay his debts prior to the donation. Q: What is the remedy? A: The donation may be rescinded by the defrauded creditors. But only up to the extent of the debts.

ARTICLE 761: In the cases referred in the preceding article, the donation shall be revoked or reduced insofar as it exceeds the portion that may be freely disposed of by the will, taking into account the whole estate of the donor at the time of the birth, appearing or adoption of a child. INOFFICIOUS DONATION. What will take into account here? The estate of the donor at the time of the BRA. Example: In 1990, X gave to Y 1M. X does not have any children. In 1995, X married A and they had B. At the time B was born, the estate of X is only P500T. How do you determine the value of his estate at the time of the birth of B? - The birth of B is the reckoning period. You add the present property of 500 000 + 1M (the donated amount) 1.5 M Then you go back to 752. In other words he cannot donate more than the free portion of his estate. If the estate is 1.5M, the legitime should be 750T, that is 1.5M/2. Meaning he cannot donate more than P750T. If the free

The following are the instances where the donation can be REVERTED back to the donor: Under Articles 739, 1027, 1031. But there should be a proper action for the declaration of nullity because the donation is voidable or rescission.

REVOCATION AND REDUCTION OF DONATIONS ARTICLE 760: Every donation inter vivos, made by a person having no children or descendants, legitimate, or legitimated by subsequent marriage, or illegitimate may be revoked or reduced as provided in the next article, by the happening of any of these events:

portion is 750 000 and the donation made to Y was 1M, donation is in excess of 250T. In other words, the donation can be reduced by 250T. That is what 761 means taking into account the whole estate of the donor at the time of BRA. How much was the estate at the time of birth of B? 500T and you have to collate everything that was donated. That is the whole estate of the donor at the time of birth. That is the estate which the free portion shall be based. What if Y, the donee refuses to return the donation? X can file a case for reduction of donation. That is the cause of action, reduction of donation. But for example, at the time of birth of B, the estate of X is zero. In this case, it can be revoked because there is nothing to dispose. Normally, it is the reduction under this provision. That is the 1st ground for reduction of donation, inofficious donation under 760. Remember under the adoption, in the 3rd par, the child must be a minor child. And it musts be judicially approved adoption. Art. 760 applies only to donation inter vivos. Donation propter nuptias cannot be included here in the computation of the estate because they can only be revoked under the conditions mentioned in Art. 132. Onerous donation shall not also be included in the computation of the net estate because they are not really donation per se. They are contracts. Donations mortis causa is also included but only when the donor dies. But they are not effective if the donor is still alive.

destroyed, the donee must return its value at the time of perfection of the donation. ARTICLE 763: The action for revocation or reduction on the grounds set forth in this Article 760 shall prescribe after four years from the birth of the first child, or from his legitimation, recognition or adoption, or from the judicial declaration of filiation, or from the time information was received regarding the existence of the child believed dead. This action cannot be renounced, and is transmitted, upon the death of the donor, to his legitimate and illegitimate children and descendants. Q: Can this action for revocation or reduction be renounced? A: NO. According to the provision, it cannot be renounced because the legitime is really entitled to . So, if the donor dies within the prescriptive period, the action is transmitted to his children. ARTICLE 764: The donation shall be revoked at the instance if the donor, when the donee fails to comply with any of the conditions which the former imposed upon the latter. In this case, the property donated shall be returned to the donor, the alienations made by the donee and the mortgages imposed thereon by him being void, with the limitations established, with regard to 3rd persons, by the Mortgage Law and the Land Registration Laws. This action shall prescribe after four years from the noncompliance with the condition, may be transmitted to the heirs of the donor, and may be exercised against the donees heirs.

ARTICLE 762: Upon the revocation of reduction of the donation by the birth, appearance or adoption of a child, the property affected shall be returned, or its value if the donee has sold the same. If the property cannot be returned, it shall be estimated at what it was worth at the time of the donation . This will only be applied if the donation is in the form of property. What should the donee do if the donation is reduced because of 760? The donee must return the property, or if the property has been sold he must return the price. Meaning the value of the sale. If it has been mortgaged, the donor may pay off the debts but the donor can recover reimbursement from the donee. If the property cannot be returned, like it was lost or

This provision is the 2nd ground for revocation because the ground here is non-compliance by the donee of the conditions imposed by the donor. PRESCRIPTIVE PERIOD: 4 years from the date of non-compliance. The action may be transmitted to his heirs and may be exercised against the donees heirs provided, it falls within the 4yr prescriptive period. A donation may be revoked at the instance of the donor when the donee fails to comply with any of the conditions which the former imposed upon the latter. Exception dito when the condition is immoral, illegal or impossible. Actually, another remedy dito is an action for specific performance, because when the donee accepts a donation with a condition, he is bound by such condition. So the donor may either revoke the donation or seek its performance.

ELEMENTS: a. There is a donation inter vivos; b. There is a stipulation in the deed of donation that certain conditions have to be met. c. The donee fails to comply. d. There is a period for the compliance of the obligation. EFFECTS OF NON-COMPLIANCE. 1. The property donated shall be returned to the donor. 2. Any encumbrance made shall be void, as a general rule. But, you have to take into account the provisions on the Mortgage Law and Land Reg Law, like innocent purchaser for value. Perhaps, the property can no longer be returned if it was sold to an innocent purchaser for value, so the value of the amount of the property shall be retuned to the donor. ARTICLE 765: The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases: 1. If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority. 2. If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority. 3. If he unduly refuses him support when the donee id legally or morally bound to give support to the donor.

765? No, because children referred to here are those under parental authority. 2nd act, the donee imputes to the donor any criminal offense. GR: The donation shall be revoked if the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it. Exception: Unless the crime or the act has been committed against the donee himself, his wife, or children under his authority. 3rd act, if he unduly refuses him support when the donee is legally or morally bound to give support to the donor. Q: What do you mean by legally or morally bound? A: There is a court order, after the case for support is filed, the court orders the donee to give support. The law always says morally. The donor is old, he cannot work anymore, he has no capacity to do any kind of work, of course if you are the daughter or son of the donor, you are morally obliged to support him. According to the provision the refusal of the support must be unduly unjustified. Like, what if the donee has no money also, he has no job, or he is also handicapped that cannot be considered an act of ingratitude. ARTICLE 766: Although the donation is revoked on account of ingratitude, nevertheless, the alienation and mortgages effected before the notation of the complaint for revocation in the Registry of Property shall subsists. Later ones shall be void. If the act of ingratitude is committed before the donation and the donor knows about it, and still the donor donates then its an implied forgiveness. Then, he can no longer revoke it. Q: What happens if the property donated has been alienated by the donee and the donee commits an act of ingratitude? Example: - X is the donor. He donates a parcel of land to Y and then Y sells the land to B in 1990. And then in 1992, Y commits an act of ingratitude against X, kunyari Y tries to rape the daughter of X. 1994, X filed a case for revocation. What happens to the property? According to the provision, alienation and mortgage effected before the notation of the complaint for revocation in the Registry of Property shall subsist. - What if X donates a parcel of land to Y and then there was act of ingratitude committed by Y against X. And then in 1994, X files a case for revocation, but in 1995 Y sold the

This is the 3rd ground for revoking a donation. And this is acts of ingratitude by the donee. When we took up the acts of unworthiness, under the provision of Succession, we also have provisions in donation for acts of ingratitude. According to some authors, these acts are exclusive. If they are not included in this provision, they are deemed excluded.

1st act: If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority. Do not relate this to the crimes in the RPC, like crimes against honor, against person, and against property otherwise, you may conclude that only those RPC crimes are included. You treat the 1st as offense against the donor, or to his wife or children under parental authority. Example: When the donee commits acts of lasciviousness against the donor. What if the donee attempts to rape the married daughter of the donor? Does it fall under

property to B. The sale or alienation is void. That is the effect. ARTICLE 767: In the case, referred to in the first paragraph of the preceding article, the donor shall have a right to demand from the donee the value of the property alienated which he cannot recover from the third persons, or the sum for which the same has been mortgaged. The value of the said property shall be fixed as of the time of the donation. 767 refers to 766, if there is an alienation made and it is valid because it was effected before the complaint for revocation. Then the donor can no longer recover the property from the buyer of the donee. What can be done? The donor has the right to demand the value of the property alienated at the time of the donation or the sum for which the same has been mortgaged. He still has the right to demand the value of the property.

the fact and provided it was possible for him to bring the action. ARTICLE 770: This action shall not be transmitted to the heirs of the donor, if the latter did not institute the same, although he could have done so, and even if he should die before the expiration of one year. Neither can this action be brought against the heir of the donee, unless upon the latters death the complaint has been filed. If you look at the other grounds, inofficiousness, failure to comply with the conditions, can the action be transmitted? YES. It can be transmitted from the donor to his heirs and the case can be filed against the donee and can be transmitted to the donee. GR: With respect to the acts of ingratitude, the right to revoke cannot be transmitted because this right is purely personal to the donor. Even if the act was committed against his wife, his children under parental authority, it is still the donor who has the right to revoke the donation. EXCEPTIONS: 1. The heirs of the donor are allowed to continue the suit for as long as it is within the prescriptive period of 1 yr and the donor has already instituted the action but he dies before the termination of the case. That is called substitution of party under the Rules of Court. 2. If the donee kills the donor, of course he can no longer file an action to revoke, then the heirs of the donor can file a case for revocation. 3. If the donor dies without knowing that an act of ingratitude was committed. 4. If circumstances clearly manifest that the donor intended to revoke the donation but he was prevented by sickness or insanity or fortuitous event. ARTICLE 771: Donations which in accordance with the provisions of Article 752, are inofficious, bearing in mind the estimated net value of the donors property at the time of his death, shall be reduced with regard to the excess; but this reduction shall not prevent the donations from taking effect during the life donor, nor shall it bar the donee from appropriating the fruits. For the reduction of donations, the provisions of this Chapter and of Articles 911 and 912 of this Code shall govern. 771 talks about 752, estate of the donor. 771 in relation to 752 will only apply when the donee dies. The value of the estate at the time of the donor's death. So net estate = property left at the time of death

ARTICLE 768: When the donation is revoked for any of the causes stated in Article 760, or by reason of ingratitude, or when it is reduced because it is inofficious, the donee shall not return the fruits except from the filing of the complaint. We know that when the donation is revoked the donee has to return the property itself. But 768 also provides that the fruits also have to be returned. If the donation was revoked on the ground of failure to fulfill the conditions, then all the fruits from the time of failure must be returned to the donor. If it is based on BRA under 760, or ingratitude under 765, or under 771 inofficiousness, then only the fruits from the time the action are filed, fruits accruing from the action is filed. Not from the time of birth, not from the time of ingratitude. So that is the reckoning period.

ARTICLE 769: The action granted to the donor by reason of ingratitude cannot be renounced in advance. This action prescribes within one year, to be counted from the time the donor had knowledge of the fact and it was possible for him to bring the action.

The right to revoke cannot be renounced in advance. It says here, the action to revoke prescribes within 1 yr. This is different from the other grounds which are 4 yrs. But with respect to the acts of ingratitude, it is 1 yr from the time the donor has knowledge of

less debts and charges plus value of donations. COLLATION. Everything that he donated while he was alive will have to be taken into account in determining the net estate upon his death. You do not return the property. You just include whatever has been donated inter vivos in the inventory so that the net estate of the donor can be determined. If it was found that the donor actually donated more than the free portion of his estate at the time of his death, then those donations are inofficious and they have to be reduced. But this reduction shall not prevent the donations from taking effect during the life of the donor, nor shall it bar the donee from appropriating the fruits. So the donations are effective even if they are found later to be inofficious. Example: X has 3 children when he died, and the value of his estate is 600T at the time of his death. He died in 2000. In 1990, X donated to A 1M. What do we do when he dies, we collate the property. So: 600 000 + 1M 1.6M The free portion is 800T, and so the inofficious donation is 200T. Therefore, A has to return 200T to the estate. 6. The rule in this provision is similar to 760 but remember 760 only applies when the donor has no children or descendants at the time of the donation. Here, the donor has children. Example: 1. In 1990, X donated 1M to B. At the time of the donation, Y the son of X was already conceived but not yet born. What article should be applied? Should we compute at the time of the birth or at the time the donor dies? Answer: It depends. - If the donor did not know that Y was already conceived and he made the donation, then 761 applies. Meaning at the time of birth of the child, there must be computation of his estate and there must be reduction of the donation if it is found to be inofficious. - But if he knew already that he is going to have a child, and just the same he donated, then that falls under 771. There will no longer be computation of his estate when the child is born. It will be made upon his death and if the donation of 1M is found to be inofficious then that is the only time that it will be reduced. So the difference here is, when will the donation be reduced. The computation is similar but you have

to determine whether it is to be at the time of the BRA or at the time of death.

2. B is the son of X. G is the son of B. So

grandfather, father, and grandson. B disappears for a long time and when he disappeared he had G. X did not know that he has a grandson. X thought that B was dead, so he donated 500T to A. Later X finds out that he had a grandson. And when he found out, he was already a pauper. He has 1,000 and the only property that he can run after is the donation made to A. Can the donation made to A be reduced? If it can be reduced, when? A: Under the rules of Succession, B is the compulsory heir of X. If B dies then G represents B. And therefore G is entitled to the legitime. Definitely the donation must be reduced because it impairs the legitime of B. The reappearance of G will not affect donation made to A, hence 760 will not apply. But 752 in relation with 771 will apply because G is the compulsory heir. If you look at this how much is the estate? 500,000. So the legitime is 250 500. So you just deduct the 250 500 from the 500 000 = 250 000 is the inofficious donation and should be given to G. So take note of the every word in 760. - In the 1st paragraph of 760, it says no children or descendant.... what if the donor already has a grand child existing at the time of donation? Then if he donates something to a stranger then there will be no reduction or revocation because the grand child is already there. It is only the birth, reappearance of a child, or adoption which will give rise to the computation of his estate at that time and then the donation will be reduced. But a reduction will be done at the time of his death na. Q/A: Again if the donees refuses to return the donation, who can file a case under 752 in relation to 771, inofficious donation? The compulsory heirs, the legitime. Q/A: Can a donor file a case for reduction under 752 in relation to 771? NO because hes already dead. Take note for this particular provision, inofficious donation under 752 in relation to 771, the donor is dead. Q/A: Now, when we talk of adoption under 760, adoption of a minor child. If the person being adopted is a minor, there shall be reduction. But no donation shall be reduced if the person adopted is no longer a minor because he can already take care of himself. Q/A: What does 771 last par. means? Art. 911 simply says that donation inter vivos are preferred over donation mortis causa. Meaning if there is reduction, uunahin ang mortis causa. Meaning the provision in the

will that are not given to the legitime. Like, I will give 1M to my loyal friend, I will give 500T to my driver, or teacher. Those are the ones that must be reduced first. The last to be reduced are the donations inter vivos. Those given last shall be reduced first, those given first shall be the last. ARTICLE 911: After the legitime has been determined in accordance with the three preceeding articles, the reduction shall be made as follows: 1. Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; 2. The reduction of the devices or legacies shall be pro-rata, without any distinction whatever; 3. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime; 4. If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. ARTICLE 912: If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them. The devisee who is entitled to a legitime may retain the entire property, provided its value does nor exceed that of the disposable portion and of the share pertaining to him as legitime. The rule is that if the reduction is less than 60%, the property will remain with the donee. The donee will just pay in cash. If the reduction is more than 60%, the property will go back to the estate and then the estate will pay the donee the balance. Example: Here, kunyari 70% that is inofficious. What is 70% of 500T? 350T db? So, the property will go back to the estate and the estate will pay 150T to the donee. If what is inofficious is only 150T then the property will remain with the donee and he just have to pay the estate 150T. That is 912. ARTICLE 772: Only those who at the time of the donors death have a right to the legitime of the donor, either by express

declaration, or by consenting to the donation. Those referred to in the preceeding paragraph cannot renounce their right during the lifetime of the donor, either by express declaration, or by consenting to the donation. The donees, devisees and legatees, who are not entitled to the legitime and the creditors of the deceased can neither ask for the reduction nor avail themselves thereof. ARTICLE 773: If, there being two or more donations, the disposable portions is not sufficient to cover all of them, those of the more recent dates shall be suppressed or reduced with regard to the excess. CASES ABELLO CASE. FACTS: 1. It is a case concerning one of the senior partners of ACRA, Manuel Abello. Some partners of ACRA law firm contributed P800K to the campaign fund of Angara. Angara is the founding partner of ACRA. 2. The BIR assessed each of them, divided the P800K among them. They questioned the assessment of BIR alleging that political contributions or electoral contributions are not considered as gifts under the NIRC, therefore, not liable to tax. Angara said that the contributions cannot be considered as donations because there was no increase on his patrimony, the contributions went to the campaign. ISSUE: Should the contribution for the campaign fund be considered donation? HELD: There is still a donation although it did not go directly to the patrimony of the donee but the fact remains that it was made in his favor. The SC considered the contributions as donations because there was increase in his pocket for him to spend in any he wanted to whether for his campaign or whatever. It was definitely an addition to his patrimony and therefore, considered a donation. Further, one of the requisites of donation is that the intention must be the liberality on the part of the donor. The ACRA lawyers argued that it is important to look at the intention of the giver to determine if the political contribution is a gift. But the SC said NO. The donative intent is the feature of the mind, it cannot be perceived except by the material and tangible act which manifests its presence. The intent is presumed present when it becomes a part of ones patrimony. Theres a presumption of intention. The court is not convinced the seemed purpose of the contribution which was to help elect a candidate and with that there was no donative intent. So it doesnt mean just because your work was to help him with the election theres no donative intent. The SC said that it is animus donandi. The fact that their purpose for

donating was to aid the election of the donee does not imply the absence of the donative intent. PAJARILLO CASE. Felipe and Juana are the donors. The donee is Salud. Is the donation inter vivos or Mortis causa? The donation is inter vivos. What about the issue on sale? The sale is not valid. The naked ownership was transferred already to Salud. The right to dispose belongs to Salud. What was the issue on the acceptance? The lack of notification. You have to note that in the acceptance of the deed of donation, the donor has to be notified; and that the acceptance must be in the separate instrument. In this case, that particular requirement was missing. What does the SC say? Is it a valid acceptance? YES, it is valid. What kind of interpretation did the SC give to the provision as to the required formality? Liberal interpretation is needed. According to the SC, do not place too much stress on mere formality. The fact is Juana, the donor, already knew of the acceptance. So the notification is unnecessary. DELGADO CASE. The issue is WON the donation is simple or onerous because the donee had paid the taxes. The donation is simple. How can a donation become onerous? It becomes onerous when there is a condition which is equivalent to the donation. In this case, was there a condition here that he must pay the taxes? None. For the donation to be onerous, the condition or burden must be imposed by the donor. In this case, there was no imposition on the part of the donor. It was the donee himself who decided to pay for the taxes. Q: What is the important in the determination WON it is onerous or simple? A: If is onerous, the formality required is in the form of contract. But if it is a donation of immovable property, the formality under 749 has to be complied with. In this case, the formality was not complied with. There was no acceptance. What do you mean by no acceptance? The law provides that the acceptance must be in a public document, specifying therein the property donated and the value of the charges which the donee must specify. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. In this case, the donee actually informed the donor that he accepted the donation but he did not go to the formalities required. In the case of Pajarillo, there was liberal interpretation. But in this case, strict interpretation. You have to look at the circumstances, the donor in this case is out

of the country, and the SC said that she should be notified. MAGLASANG CASE. ISSUE: WON the donation is mortis causa or inter vivos. HELD: The deed is very clear that the donation will only become effective upon the death of the donor. Hence, it is donation mortis causa. The SC enumerated the characteristics of donation mortis causa: (1) conveys no title or ownership to the transferee before the death of the transferor; (2) before his death, the transfer is revocable by the transferor at will; (3) that the transfer would be void if the transferor should survive the transferee. If any of these stipulations exist in the deed, it is a donation mortis causa. And if it is a donation mortis causa, the formalities of the will are required. In this case, the formalities of the will were not complied with, therefore, the donation is void. DE LUNA CASE (?) FACTS: 1. The donation was made on April 9, 1971. It was agreed upon that the donees should build a chapel within 5 yrs from the date of donation that is until 1976, otherwise there shall be reversion. 2. However, the donees did not build any chapel within the 5yr period. The donor now is claiming back the property. Donees contended that the prescription of 4 yrs had already lapsed; hence the action for revocation is barred. The case was filed in 1981. 3. The donors insist that the law on contracts should be applied. If the alleged donation should be considered as contract, you will not look at the revocation anymore. The cause of action was an action for specific performance because of the agreement. HELD: The SC here said that if the donation is onerous, it does not fall under 764. The difference here is that there was an agreement and therefore, the donors could actually use that agreement. If all donations with conditions are considered onerous, there is no longer revocation; the prescription of 4 yrs does not apple. VALENCIA CASE ISSUE: WON the donation propter nuptias was valid. Valencia alleged that the donation was not valid because there was no acceptance. What kind of acceptance does she want? Valencia wanted that the acceptance must be made in a public instrument and other requirements prescribed by 764 must be complied with. In this case, how was the acceptance made? The acceptance was made in writing by the happening of the marriage. HELD: The SC said that in case the marriage happens, then the donation is

impliedly accepted. So what is the rule in case of donation propter nuptias? Under the NCC, donation propter nuptias falls under the Statute of Frauds, meaning it must be made in writing otherwise, it would be unenforceable but it is still valid between the donor and the donee. Further, implied acceptance is sufficient. In other words, if it is a donation propter nuptias, it is not covered by the provisions of donation. Donation propter nuptias has its own provisions. The requirement of acceptance in a separate instrument is not required. CRUZ CASE The donor is childless; has no heirs, so she donated to her grandnieces (not her compulsory heirs) and then she adopted. In this case, after computation, it was found out that she still has enough property. The value of the donation given to the grandnieces did not exceed the free portion of the property at the time of the adoption. According to the SC, the burden proof is on the donor. If the donor wants to revoke or reduce a donation made because of adoption, the donor has to prove that he donated more than what he is allowed to give by will meaning he donated more than the free portion of her property at the time of the adoption. EDUARTE V CA What was the act of ingratitude in this case? The falsification of public documents. The donor wanted to revoke the donation. Can the donation be revoked? YES. Crimes committed by the donee against the person, the property of the donor does not need to fall under the RPC so as to make the donation revocable as long as the crime committed which offends the donor, then that is considered as an act of ingratitude. All crimes which the donor showing ingratitude are causes of revocation. Can the donor forgive the donee? YES, here if the ground is an act of ingratitude, the donor can forgive the donee. But if it is a crime against the RPC, even if the donor forgives the donee, and gives the donation, it does not mean that the donee cannot be convicted because the crime will still remain. OCCUPATION Article 712. Ownership is acquired by occupation and by intellectual creation. Ownership and other real rights over property are acquired and transmitted by law, by donation, by testament and intestate succession, and in consequence of certain contracts, by tradition. They may be acquired by means of prescription. 2 MODES OF ACQUIRING PROPERTY.

1. occupation hunting, fishing,

hidden treasures 2. intellectual creation books, copyrights, patents and letters. These are independent of any preexisting rights or titles by another. They are ownership acquired for the first time.

b)

Derivative modes there was already a previous owner of the property and it was acquired and transmitted by law, by: 1. Succession 2. Donation 3. Prescription under Art. 1106 4. Law, examples Articles 153, 445, 461, 465, 466, 681, 1434, 1456. Yang 445, 461 and 466 yan yung accession noh, abandoned river beds, formation of island, adjunction. 681 falling fruits. 1434, estoppel, 1456 on implied trust. 5. Tradition meaning legal delivery, actual or constructive, as a consequence of other contracts, example sale, barter, assignment and simple loan. MODE vs TITLE a. Mode is the process of acquiring or transferring ownership. Title is that which gives juridical justification for mode. Why did you deliver this particular thing to B? Because I sold it. That is the justification, the sale. But the sale itself is not sufficient to convey ownership. There has to be a title.

b. The c.

proximate cause of ownership is the mode; the remote cause is the title. And a mode directly produces a real right. So when the mode is complied with, the person to whom the thing has been delivered has a real right over the property. But, a title merely gives an opportunity for the existence of real right.

Article 713. Things appropriate by nature, which are without an owner, such as animals that are the object of hunting and fishing, hidden treasure and abandoned movables are acquired by occupation.

a)

Original modes - ownership is acquired by:

When we say "acquired by occupation" there is seizure of corporeal things that have no owner, with the intention of acquiring them. Abandoned movables, res derelicta and all res nullius, there must be no intent to recover or no intent to return. Otherwise, it will not be considered res derelicta.

Occupation is a mode of transferring ownership. Also, one thing that you have to remember is that occupation refers to personal property. You cannot acquire ownership of real property through occupation. So according to 713, what are the things acquirable through occupation? Things without an owner, i.e. fish in the ocean, hidden treasure. But if you look at 718, He who by chance discovers hidden treasure in anothers property shall have the right granted him in Article 438 of this Code. How does the owner acquire the treasure? Is accession a mode of acquiring ownership? No. Accession is not a mode of acquiring ownership, but as the owner of the land, you acquire the treasure through occupation. But if you are the finder, you also acquire it through occupation but you only get half of it if you are not a trespasser or a stranger then. Abandoned movables movables in which there are no more expectation to recover them. You want to get rid of your car, then you abandon it on the road, with no more expectation to get back, that could be considered abandoned. So, car, which has been abandoned, may be acquired through occupation.

1. In occupation, the property (because it is original mode) has no owner; in prescription, it is already owned by somebody else. 2. Occupation is an original mode; prescription is a derivative mode. 3. In occupation, the periods are very short; in prescription, the periods are no longer. 4. You can also own personal property through prescription. You can also acquire ownership of movables or personal property through prescription. What are the periods? 4 years and 8 years because in these cases, there is an original owner. Art. 715. The right to hunt is regulated by special laws. Art. 716. The owner of bees shall have a right to pursue them to anothers land, indemnifying the possessor of the latter for the damage. If the owner has not pursued the swarm, or ceases to do so within two consecutive days, the possessor of the land may occupy or retain the same. The owner of domesticated animals may also claim them within twenty days to be counted from their occupation by another person. This period having expired, they shall pertain to him who has caught and kept them. Who is the owner of the swarm of bees? The owner of the land where the beehive is located. So if they go to the land of another, you have the right to pursue them. But if you manage to get back your bees, you need to indemnify the owner of the other land, i.e. kinagat yung anak, you never know this might be asked in the bar exam. 2 KINDS OF ANIMALS: a.) wild animals b.) Domesticated animals under 716 -animals that were once wild. So if you acquire occupation of a wild animal and you put in your house, then it becomes domesticated. If it goes of your property, you are still the owner of that animal within 20 days from the time that the animal has been occupied by another person. After the expiration of the 20 days, the person who has caught the animal shall be considered the new owner thereof. Some author say that tamed pets cannot be acquired by occupation because pets are owned unless it is clear that they are abandoned, then they may be acquired through occupation.

REQUISITES FOR OCCUPATION:

1. There

2. 3. 4. 5.

must be a seizure or apprehension do you have to hold or physically possess the particular property? No. As long as you have the right to dispose then that is considered seizure and apprehension. The property seized must be a personal property; The property seized must be susceptible of appropriation Those within the commerce of man. There must be intent to appropriate The requisites and condition of the law must be complied with, i.e. acquire it in BF or GF, etc.

Art. 714. The ownership of a piece of land cannot be acquired by occupation.

It is very clear that a piece of land cannot be acquired through occupation, it is never ever res nullius. If it is not privately owned, it is owned by the State. So how do you acquire a piece of land? Normally, you buy, pay then it is delivered or you can own by prescription. OCCUPATION V PRESCRIPTION

Art. 717: Pigeons and fishes which from their respective breeding places pass to another pertaining to an different owner shall belong to the latter, provided they

have not been enticed by some article or fraud. So here, once the fish goes to the property of another, for example there is a stream, then the ownership should pass to another. Exception there, it will not belong the other person if the fish or pigeon has been enticed or acquired through fraud.

must be reimbursed the expenses or the Mayor. Bar Question: Somebody found a wallet and gave it to the Mayor or the Chief of Police, but the Mayor of the Chief of Police kept it. Then he is liable for theft.

Art. 718. He who by chance discovers hidden treasure in anothers property shall have the right granted him in article 438 of this Code. The finding shall be publicly announced by the mayor for two consecutive weeks in the way he deems best. If the movable cannot be kept without deterioration, or without expenses which considerably diminish its value, it shall be sold at public auction eight (8) days after the publication. Six (6) months from the publication having elapsed without the owner having appeared, the thing found, or its value, shall be awarded to the finder The finder and the owner shall be obliged, as the case may be, to reimburse the expenses.

Art. 720. If the owner should appear in time, he shall be obliged to pay, as a reward to the dins, one-tenth of the sum or the price of the thing found. Finders fee is 10% of the price of the sum of money of the thing found. INTELLECTUAL CREATION Art. 721. By intellectual creation, the following persons acquire ownership: 1) The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work; 2) The composer; as to his musical composition; 3) The painter, sculptor, or other artist, with respect to the product of his art; 4) The scientist or technologist or any other person with regard to the discovery or invention. Intellectual creation is the product of mental labor embodied in writing or some other material form. The author, composer, painter, sculptor and other artists are under the copyright law. In general, intellectual creation is the product of mental labor, because he creates his composition, his arts, then he becomes the owner thereof. The scientist or technologist is under patent law as to their discovery or an invention. 4 KINDS OF PEOPLE who can acquire ownership by INTELLECTUAL CREATION. the author the composer the painter, sculptor, or other artist the scientist or technologist If you have a short story, and you publish it in a newspaper, the one who bought the newspaper can get a copy of that then convey it to another. You are still the owner of the story but no more exclusive ownership. Because whoever reads your publication can exercise acts of ownership over that particular work already. But the moment I disseminate it, I publish it to the public, my exclusive ownership over the said work ceases to exist. Except when I have it copyrighted.

Art. 719. Whoever finds a movable, which is not treasure, must return it to the previous possessor. If the latter is unknown, the finder shall immediately deposit it with the mayor of the city or municipality where the finding has taken place. VIP favorite bar question!!! So there are no such things as finders keepers. If you keep something that is owned by another, a criminal case of theft can be filed against you. Now, if you find something that is not a treasure, then you must return it to the owner, if the owner is known. But if he is unknown, the finder should deposit it to the Mayor. I dont know if it is still applicable nowadays. There must be an announcement by the Mayor for 2 consecutive weeks in newspaper or like Gikan sa Masa Para sa Masa he can do that or in a public announcement. If the item is perishable, it has to be sold at the public auction within 8 days after publication. I dont know how it should be done, maybe freeze it or so. Now, 6 months after publication and theres no owner will appear, then it shall be awarded to the finder. If there is an owner, then the finder

1) 2) 3) 4)

But mere circulation among close friends, few selected people, however is not considered publication.

Art. 722. The author and the composer, mentioned in Nos. 1 and 2 of the preceding article, shall have the ownership of their creations even before the publication of the same. Once their works are published, their rights are governed by the Copyright laws. The painter, sculptor or other artist shall have dominion over the product or his art before it is copyrighted. The scientist or technologist has the ownership of his discovery or invention before it is patented. Q/A: When shall they have ownership of their creation? With respect to the author and the composer, it says even before the publication. Art. 724. Special laws govern copyright and patent. RA 6293 The Intellectual Property Code of the Philippines 1. What are included in the term intellectual property rights? Section 4. Definitions The term intellectual property rights consist of: a) Copyright and Related Rights b) Trademark and Service Marks c) Geographic Indications d) Industrial Designs e) Patents f) Lay-out Designs (Topographies) of Integrated Circuits and g) Protection of Undisclosed Information Section 3. International Convention and Reciprocity Any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to intellectual property rights or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to nations of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights which any owner of an intellectual y property right is otherwise entitled by this Act. Who are protected by this law? a.) This law is made available to any person who is a national or who is domiciled or has a real and effective industrial establishment in a country which is also a party to a Convention or a treaty or agreement relating to

b.)

intellectual property rights to which the Philippines is also a party, i.e. the Vienna Convention of 1951, the Stockholm Act of 1967, the Tariff Act of 1971 and exchange notes between US and the Philippines in 1948. Any person whose national extends reciprocal rights to nationals of the Philippines by law.

What is this person entitled to? - This person is entitled to benefits to any provision of such treaty convention or reciprocal law. It is also extended to foreign nationals for as long as the 2 requirements or either of the 2 is present. Governing Body of the Intellectual Property Law: Section 5. Functions of the Intellectual Property Office (IPO). Section 6. The Organizational Structure of the IPO. 1. The Bureau of Patents in charge of search and examination of patent applications and the grant of patents. 2. The Bureau of Trademarks search and examination of the applications for the registration of marks, geographic indications and other marks of ownership and the issuance of the certificates of registration (9.1); and conduct studies and researches in the field of trademarks in order to assist the Director General in formulating policies on the administration and examination of trademarks (9.2). 3. The Bureau of Legal Affairs hear and decide opposition to the application for registration of marks; cancellation of trademarks; subject to the provisions of Section 64, cancellation of patents, utility models, and industrial designs; and petitions for compulsory licensing of patents; exercise original jurisdiction in administrative complaints for violations of laws involving intellectual property rights: Provided, That its jurisdiction is limited to complaints where the total damages claimed are not less than two hundred thousand pesos (P200,000) (10.2). Bar question: So if it is less than P200,000.00 and it is an administrative complaint involving intellectual property rights, jurisdiction is with the Bureau of Legal Affairs of the IPO. If the damage is more than P200, 000.00 RTC has jurisdiction. COPYRIGHT

It is the exclusive right secured by law to an author or his assigns to multiply and dispose of copies of an intellectual or artistic creation. It is a

protection of your work. Its not a mode of acquiring ownership but it is an intellectual creation. So this is just a reiteration and this is emphasized from the fact the ownership is acquired through intellectual creation and not through copywriting or patenting. Objectives: To encourage individuals to intellectual labor by ensuring them protection and just rewards, and to secure the society of the largest benefit of their products. With respect to the sculptor, painter or other artist, he should have dominion over the product of his and even voice copyrighted. So also whenever his artwork is done or completed, he is already the owner.

original they may be are not covered by the protection. Why? Because there is no such thing as monopoly of theories of the author. He may transfer these theories or ideas into an intellectual creation like books, etc. These are exclusively his. Example: Einstein is known for the theory of relativity. He writes a book regarding his theory, yung kanyang form, style andun sa kanyang libro. Now another scientist would make the same dissertation on the theory of relativity of matter. Do you think he would infringe on the right of Einstein? A: If you write on something affecting the same theory or idea, there is no infringement. Kasi sabi nga there is no monopoly of idea. Ideas are there, it is up to you to create something out of the said idea.. but the moment you copy the form, the substance, the style of the work of an author, then you are liable for infringement. But ideas, concepts and speculations alone, no infringement. NB: Copyright does not extend to format of a dating game show.

Art. 723. Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorized their publication or dissemination if the public good or the interest of justice so requires.

So when we talk about letters and other private communication, there are actually 2 OWNERS: a. The OWNER of the letter itself he is the recipient. b. The WRITER or SENDER the owner of the thoughts and ideas in the letter. Example: Blithe is the recipient of the letter, hence, the owner of the letter. She may throw it away or pick it or burn it, but she cannot publish it because the thought and ideas belong to A, if A was the writer. EXCEPTIONS: a. Consent of the writer or his heirs; b. The court authorizing its publication if the public good or the interest of justice so requires. EXCEPTIONS TO THE EXCEPTION: 1. The publication is necessary for the vindication of the character of the person to whom the letter is addressed; 2. The letter is produced as evidence in court in the course of the administration of justice, except when the letter constitutes a privilege communication and cannot be admitted in evidence without the consent of the writer. Remember: Concepts, theories, speculations, abstract of ideas, however

Copyright extends to adaptations of the original work. The author has the right to make a translation, adaptation, abridgement, illustration, etc. and these may be covered by another copyright. So that these may be copyrighted. But a copyright given to these abridgement, etc may refer only to those things not covered by the original work. Kunwari may humingi ng permiso sa kanya na gumawa ng translation ng work. So he (the translator) is given a copyright of the translated work, but does his copyright include those which are covered by the original copyright? No, dun lang sa bago. Only those parts that are new are the ones protected by the new copyright. LIMITATIONS ON COPYRIGHT:

1. Presentation or performance, if done

privately free of charge or for charitable or religious institutions or society, no infringement; Making of quotations for a book report, no infringement, provided you have to place the name of the author; The reproduction and communication to the public by mass media of articles and other current political, social or economic, religious topic for information purposes -- again you have to name your sources. Reports of current events;

2.

3.

4.

5. Educational 6. 7. 8. 9. 10. 11.

purposes, teaching purposes; The recording in schools and the use of such broadcast for the use of the school; Making of a temporary recordings; Criticisms, comments, research, etc. Private reproduction of a single copy for research and private study. Archival purposes; Computer program and one back up copy for archival purposes (requisites: one copy is made; that such copy is made by the owner of the program or item, or at least you are authorized to make computer; the purpose of the reproduction is legal.) So if you are an author and it is published in a journal (law journal, etc), once it is published there you are open to criticism. So if they use your work to prove their point, would there be an infringement of copyright? No. Criticisms are meant to balance the monopoly being enjoyed by the authors with interest of the public and society. Commissioned work: I ask you to make a novel, who owns the work? The work belongs to the person who commissioned. The copyright belongs to the person who commissioned and the creator. Of course this is subject to the agreement between the parties. THE LAW ON PATENTS

Section 23. Novelty An invention shall not be considered new if it forms part of a prior art. When is an invention considered new? First, when it is novel, meaning bago. It is novel when it does not form part of a prior art.

- What is prior art? Sec. 24. Prior art is everything which has been made available to the pubic anywhere in the world, before the filing date or the priority date of the application claiming the invention.
Example: So if you invent a robot and you want to apply patent for your robot but if that particular robot has already been available to the public in Japan or in the US, then that is not considered new, that is already considered prior art. If it is already known, publicly used, already patented, described, identified, registered somewhere else, that is already prior art. And therefore it is not new and not patentable. MAGUAN V. CA According to SC, for an invention to be patentable, it must possess the following: c. novelty; d. originality e. and precedence. A patent issued for powder puffs lacks novelty. Powder puffs are used since time immemorial. SO it lacks novelty and this patent may be cancelled in an action for infringement thereof. The burden of proving novelty is on him who avers it. MANZANO V CA Who has the burden of proving the novelty? The person who is against the application has the burden of proof. What is INVENTIVE STEP? Section 26. Inventive Step An invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention. An inventive step can refer to a prior art, but you are actually improving on a prior art, so it involves an inventive step if it is not obvious to the person skilled in the art. Example: Inventive step is the making of an improvement on the invention. An improvement that is patentable, if that particular step is not obvious to the person who makes robots, so that is really an

PATENT is a grant made by the government to an inventor conveying and securing to him the exclusive right to make use of his invention for a given limited period. REQUISITES: 1. new (prior art) 2. involves an inventive step, 3. industrially applicable (capable of some beneficial use) Example: If you are an inventor and you know how to turn water into gasoline, you can have that patented but only for a limited period. What you get is the exclusive right to use your invention. What is patentable? (bar question) Sec. 21. Section 21. Patentable Inventions. Any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be patentable. It may be or may relate to, a product, or process, or an improvement of any of the foregoing.

inventive step because it is not common among robot-makers, i.e. robot which flies, something like that.

Can you actually patent a discovery? According to Art. 722 Yes the scientist or technologist has the ownership of his discovery or invention even before it is patented. You discover a new element or a planet, can you be the owner? No. According to Sec. 22 discoveries, scientific theories, and mathematical methods cannot be registered (Sec. 22.1).

2. That there is no intent to infringe. No, it is not a valid defense. Intent does not matter. 3. That there was no exact duplication of the patentees existing patent but only a minor infringement.

Who has the right to a patent? Sec. 28 the inventor, his heirs, or assignees. What if 2 or more persons made the invention? Section 29. First to File Rule. If two (2) or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention, or where two or more applications are filed for the same invention, to the applicant who has the earliest filing date or, the earliest priority date. (3rd sentence, Sec. 10, R.A. No. 165a) Section 20. Inventions Created Pursuant to a Commission The person who commissions the work shall own the patent, unless otherwise provided in the contract. What is the earliest priority rule? Sec. 31. Right of Priority An application for patent filed by any person who has previously applied for the same invention in another country which by treaty, convention, or law affords similar privileges to Filipino citizens, shall be considered as filed as the date of filing the foreign application. Example: If an application for patent was filed in the US on Jan. 1, 05. The inventor also applied for application of patent in the Phil, let's say Jan. 1, 06. The IPC considers the filing date as the filing date in the foreign country, provided the local application has taken priority (meaning may tatak na priority). But what are the CONDITIONS? 1. You have to state in your local application that you have filed ahead in a foreign country; 2. It is filed within 12 months from the date the earliest foreign application was filed; 3. A certified copy of the foreign application together with an English translation is filed within 6 months from the date of filing in the Philippines. Who shall own the patent of commissioned works? Sec. 30. Inventions Created Pursuant to a Commission The person who commissions the work shall own the patent, unless otherwise provided in the contract. Sec. 30.2. In case the employee made the

THE FF. CANNOT BE PATENTED/GROUNDS FOR THE CANCELLATION: 1. Sec. 22.2. Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers. 2. Sec. 22.3. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall not apply to products and composition for use in any of these methods i.e. how to treat a kidney failure or operate. But if you have products like medicines, they are patentable, i.e. needles for sewing the needle is patentable but the process on how to sew, it is not patentable. 3. Sec. 22.4. Plant varieties or animal breeds or essentially biological process for the production of plants or animals. This provision shall not apply to microorganisms and non-biological and microbiological processes. Provisions under this subsection shall not preclude Congress to consider the enactment of a law providing sui generis protection of plant varieties and animal breeds and a system of community intellectual rights protection. 4. Sec. 22.5: Aesthetic creations; and 5. Sec. 22.6: Anything which is contrary to public order or morality. Bar Question 1989: X invented a boguscoin detector which can be used exclusively on self-operating gambling devices otherwise known as the one-armed bandit. Can X apply a patent? The invention cannot be patented being one against public policy. Bar question 1992: In an action for infringement of patent, the alleged infringer, Y, defended himself, by saying: 1. That the patent issued by the patent office was not really an invention patentable. Is that a defense? Yes. Because this patented by Y is not patentable so wala syang na-infringe.

invention in the course of his employment contract, the patent shall belong to: a) The employee, if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities, and materials of the employer. b) The employer, if the invention is the result of the performance of his regularlyassigned duties, unless there is an agreement, express or implied, to the contrary. In case the employee has invented something in the course of his employment contract, the patent shall belong to him if the inventive activity is not part of his regular duties even if the employee uses the time given to him by his employer. But if the invention is a result of his performance of duty to invent something like that, then the patent should belong to the employer. The right to a patent belongs to the inventor, his heirs or assigns. If two or more persons make the invention together, co-ownership will govern. If two person make the same invention independent of each other, the right belongs to the first to apply for the patent since we are now following the first to file rule. The person commissioning shall own the patent. NB: In copyright, the person commissioning shall own the work, but the copyright shall be co-owned by the creator and the commissioning person. In patents, the person who commissioned the work owns the patent.

invention is not new or patentable; b) That the patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by any person skilled in the art; or c) That the patent is contrary to public order or morality.

Who may file a case for cancellation? Any person Section 61.1.

If the patent is cancelled, what is the effect of the cancellation? Sec. 66. Effect of Cancellation of Patent or Claim The rights conferred by the patent for any specified claim or claims cancelled shall terminate. Notice of the cancellation shall be published in the IPO Gazette. Unless restrained by the Director General, the decision or order to cancel by Director of Legal Affairs shall be immediately executory even pending appeal.

You remember what is the rights of patentee? To use his invention. So, what is the exception of the cancellation? A: If it is restrained by the Director-General.

Section 32. The Application. The patent application shall be in Filipino or English and shall contain the following: a) A request for the grant of a patent; b) A description of the invention; c) Drawings necessary for the understanding of the invention; d) One or more claims; and e) An abstract.

Section 67. Patent Application by Persons Not Having the Right to a Patent. If a person conferred to in Section 29 other than the applicant, is declared by final court order or decision as having the right to the patent, such person may, within 3 months after the decision has become final: a) Prosecute the application as his own application in place of the applicant; b) File a new patent application in respect of the same invention; c) Request that the application be refused; or d) Seek cancellation of the patent, if one has already been issued.

The 6th is the name of the inventor. If the applicant is not the inventor, the IPO may require him to submit authority to apply. So he becomes the inventor himself. When shall a patent take effect? Sec. 50 It is not the date of application, not the date of approval, but the date of publication of the grant of the patent in the IPO Gazette. TERM OF THE PATENT: 20 years from the filing of the application.

Ang nangyari dito, the application was filed under the first to file rule, but it was discovered that there was an earlier filing abroad made by another. So, if the person referred to in Section 29, who have filed in earlier priority date, shall be declared by final order as having the right of patent and within 3 months after the decision has become final, prosecute the application as his own application in replace of the applicant because so pwede na.

GROUNDS FOR CANCELLATION: Sec. 61: a) That what is claimed as

the

Section 68. Remedies of the True and Actual Inventor If a person, who was deprived of the patent without his consent or through fraud is declared by final court order or decision to be the true and actual inventor, the court shall order for his substitution as patentee, or at the option of the true inventor, cancel the patent, and

award actual and other damages in his favor if warranted by the circumstances. (Sec.33, RA No. 165a) Section 69. Publication of the Court Order The court shall furnish the Office a copy of the order or decision referred to in Section 67 and 68, which shall be published in the IPO Gazette within three (3) months from the date such order or decision became final and executory, and shall be recorded in the register of the Office. Section 70. Time to File Action in Court The actions indicated in Section 67 and 68 shall be filed within one (1) years from the date of publication made in accordance with Sections 44 and 51, respectively. Section 71.1 Rights Conferred by Patent A patent shall confer on its owner the following exclusive rights: a) Where the subject matter of a patent is a product, to restrain, to prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product; b) Where the subject matter of a patent is a process to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process. Sec. 71.2. Patent owners shall have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same. These are the rights conferred by patent and these are the same rights removed if the patent is being cancelled under Section 60.

constitutes patent infringement. Favorite bar question! Infringement: use one's invention w/o the inventor's authority. Who has jurisdiction over actions for infringement? Section 76.2. So infringement cases falls under the jurisdiction of the RTC. REMEDIES in case the RIGHTS of the patentee who have been infringed: 1. The court may also secure an injunction for the protection of his rights. 2. To receive reasonable royalty if the damage is inadequate or cannot be ascertained. So paano kung maraming benta yung infringer? You can ask for royalty. 3. To have the infringing goods, materials and implements predominantly used in the infringement be disposed of outside the channels of commerce or destroy it without compensation 4. And to hold the contributory infringer jointly and severally liable with the infringer. So merong mga factory dyan na gumagawa, they can be held jointly and severally liable with the infringer.

Duration of the protection: As to Original and Derivative works, the duration is during the lifetime of the author and for 50 years after his death. If there are multiple creators, it would last during the lifetime of the last surviving creator and 50 years after his death. Photographic and Audio Visual works: 50 years. THE

TEST AS TO INFRINGEMENT: DOCTRINE OF EQUIVALENCE

Sec. 73.1. Rights of Prior user. Any prior user, who, in good faith was using the invention or has undertaken serious preparations to use the invention in his enterprise or business, before the filing date or priority date of the application on which a patent is granted, shall have the right to continue the use thereof as envisaged in such preparations within the territory where the patent produces its effect.

a.) b.)

So far if you are the user of a particular invention before it was registered, you have to right to continue using it under Section 73.

This is a test to determine infringement of patents that may have substantial identity between patented product and the other product. They are considered identical if: They perform substantially the same functions; Substantially the same way to obtain the same result even if they differ in name, form, shape or dimension. What the law requires is merely substantial identity, not exact identity between the two devices.

Section 76.1: Infringement the making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of the patentee

Sec. 72: These are not infringements: 1. When the original machinery is improved by the use of different form or combination; 2. When the single elements in the original device is left out; 3. When the making or using of a patented invention is not conducted for profit and

4. 5. 6. 7.

solely for the purpose of research and experiments or for instructions; Preparation of medicines for individual cases in a pharmacy, so like the doctors prescription; When used in a foreign ship or vessel or aircraft; Any prior user who in GF was using the invention (Sec. 73); Used by the government or third person authorized by the government when required by public interest such as national security, health or development by other sectors, or used by the government or third person when determined by judicial or administrative body, by exploitation by the owner of the patent or licensee, as anticompetitive.

g. Or after final judgment, file a criminal action for repeated infringement. 1993 Bar Question: Ferdie is a patent owner of his invention. He discovered that his invention was infringed by Joan. What are the remedies available to him? A: Same. Q: If you are the lawyer of Joan, the infringer, what are your defenses? A: Sec. 61, 22, 21. TRADEMARK TRADEMARKS: Anything which is adapted and used to identify source or origin of goods, and which is capable of distinguishing them from goods emanating from a competitor. SERVICE MARK: Used to identify distinguish the service or an enterprise or

On whom does the burden of proof lies? Sec. 78 on the patent holder who alleges that this product is similar to yours. What are the DEFENSES in infringement? a. the patent is invalid; b. the invention is not new or not patentable, etc. CRIMINAL CASE:

COLLECTIVE MARK: It is a mark being used by different enterprises. TRADE DRESS: Refers to the total image of the product, like the size, the shape or color combinations, texture or graphics Section 138. Certificate of Registration. When you are granted with the certificate of registration, according to 138, a certificate of registration of a mark shall be prima facie evidence of the: (1) Secure validity of the registration; (2) Registrants ownership of the mark. Meaning, if you have the certificate, then you are the owner of the mark. (3) The registrants exclusive right to use the same in connection with the goods or services and those related thereto specified in the certificate.

Can you file a criminal action right away? No, because the ground for filing a criminal case has to be repeated infringement, that is, Sec. 84: If the infringement is repeated by the infringer after the finality of the judgment of the court. X infringed the patent of Y, if X repeats, then a criminal case may be brought. Prescriptive Period: 3 years from the commission of the crime. (1st offense, 1-3 years; 2nd offense 3-6 years, 3rd 6-9 years).

Bar 1985/1997: Basilio invents and secures registration of a mini-threshing machine. Rudy, his employee, assisted him in the actual making of the machine. Later, after resigning, Rudy bought tools and equipment to manufacture similar minithreshing machines for his own benefit. Q: What legal steps would you take as counsel of Basilio? A: File a civil action in court for the following purposes: a. Section 76; b. Damages c. Secure an injunction d. Receive royalty e. To have the goods, materials destroyed f. To hold the contributory infringer jointly and severally liable.

HOW MARKS ARE CREATED: 1. Use; 2. registration.

Before, we are using the First to use policy. kung sinong nakauna, sya ang pwedeng magregister. But now, we use the FIRST TO REGISTER POLICY. Registration is a proof of ownership but it is not a requirement of ownership. What do you mean by USE? When a person has identified in the mind of the public the goods he manufactures or builds in his business or services from those of others, such person has a property right in the goodwill of such goods or services which should be protected. Assuming that his mark is not registered, definitely he cannot sue

for infringement of trademarks, but he can sue for unfair competition. BADGES OF PRIOR USE:

1.

2.

3.

The use must be public so as to allow a segment of the public to identify the mark with the goods or services (alam ng public na pagmark na yan, ang may-ari ay si ABC enterprise) The distibution of the goods must be to the public, meaning alam ng customers, hindi lang purchasers ng malalaking companya; The mark must have been made closely associated to goods that a prospective purchaser viewing the display would immediately associate the mark with the goods. What cannot be registered in general: Immoral, scandalous, deceptive, or contemptous, contrary to public order and morality. Surnames: Surname per se, kunwari dela Cruz, Dela Cruz brand for a dress, can that be registered? No, generally names, surnames cannot be registered because everybody has a right to use his/her name/surname. However, while a name/surname cannot be reserved to the exclusion of another, a combination of surname which is distinctive, there is no hindrance to its registration. Example, Johnson&Johnson, Proctor&Gamble, Batacan,Montejo&Vicencio (harhar)

ISSUE: Should the Director of Patents deny the petition for registration by Co Beng Kay? HELD: NO!!! The petitioner has not ventured into the production of briefs, an item not listed in its certificate of registration; hence, it would have no cause of action. So, the Director of Patents can confer upon petitioner the exclusive right to use its own symbol only to those goods specified in the certificate. So. Co Beng Kay is allowed to use Brute for the briefs.

CANON KABUSHIKI KAISHA The SC said that the certificate of registration confers upon the trademark owner the exclusive right to use its own symbol only to those goods specified in the certificates, subject to the conditions and limitations stated therein. In this case, Canon Kabushiki Kaisha, its registration covers paints, chemicals, toner, and dyestuff. So it cannot oppose. Canon is also used in sandals. Since sandals are not related to paints, chemicals, toner and dyestuff which are the goods specified in the certificate of registration of Canon Kabushiki Kaisha, it does not have the exclusive use of the same trademark. FABERGE, INC. V IAC FACTS: Co Beng Key wanted to register the trademark Brute to the manufactured briefs. Petitioner opposed the petition for registration by Co Beng Key on the ground that said trademark was similar to the symbol Brut which it previously registered for after-shave lotion, shaving cream, deodorant, talcum powder and toilet soap.

The EXCEPTION to such rule is when the trademark is a WELLKNOWN MARK. Even though the goods are not similar, the owner of the well-known can prevent third parties from using that particular mark or any identical or similar mark in any goods. Provided: a. That the use of that mark in relation to those goods and services indicate a connection between those goods or services and the owners of the registered mark; b. That the interests of the owner of the registered mark are likely to be damaged by such use. If you use Palmolive for bra, then there will be an indication that the Palmolive for bra is the same for Palmolive for shampoo. The interest of the owner of Palmolive would slightly be damaged. You will buy the Palmolive bra thinking that it is produced by the manufacturer of the Palmolive shampoo.

Section 145: The duration of trademark is 10 years, provided that within one year from the 5th anniversary of the date of registration of the mark, file a declaration of use and evidence to that effect.

Prior use is not required to apply for registration for trademark but after the registration is granted, the registrant has to file a declaration of actual use of the trademark or service mark that it is actually being used, otherwise, the mark should be removed from the register by the IPO. Does the certificate of registration may be renewed? Yes, it may be renewed for the period of 10 years at its expiration upon payment of the prescribed fee and upon filing a request. You will not go thru the procedure anymore.

Section 147. RIGHTS CONFERRED BY THE TRADEMARK:

The owner of a registered mark shall have the exclusive right to prevent third parties not having the owners consent from using in the course of trade identical or similar sings or containers for goods or services which are identical or similar to those in respect of which the trademark is registered. Take note: where such use of unregistered mark would result in a likelihood of confusion gives right to one to prevent other parties from using similar or identical signs to those in respect to the trademarks which are registered. The mark may be cancelled within 5 years from the date of the registration.

Section 148. Use of Indication by third parties for purposes other than those for which marked is used. Example: Paterno is the registered mark under the name of X, Y cannot be prevented from using Paterno if Paterno is his name. But the other party cannot register it but he can use it. The owner of the mark cannot prevent, there is no infringement of the part of Paterno (the 3rd party). If he wants to put up coffee shop under the name of Paterno, he cannot be prevented from using it. CANCELLATION

2. 3. 4.

generic name of goods or services solely because such mark is also used as a name of or identify a unique product. o TEST AS TO THE GENERIC NAME: The primary significance of the registered mark to the relevant public rather than purchase motivation shall be the test for determining whether the registered mark has become the generic name of goods or services on or in connection with which it has been used. So, it is not for us to say that what is generic or not. o But if the court decided that it is generic, then, it should be cancelled at any time. The mark has been abandoned. Its registration was obtained fraudulently or contrary to the provisions of the code. If the registered mark is being used by, or which the permission of, the registrant so as to misrepresent the source of the goods or services on or in connection with which the mark is used. If the owner of the mark failed to use the mark for 3 years uninterrupted, a case may be filed for cancellation but this has to be proven.

1.

The trademark may be cancelled within 5 years from the date of the registration. A petition to cancel a registration of a mark may be filed with the Bureau of Legal Affairs by any person who believed that he will be damaged by the registration of a mark. Any person who will be damaged by the registration of a mark may file the cancellation. The reckoning point for the filing of a petition for cancellation of certificate of registration of trademark is not from the alleged date of use but from the date the certificate of registration was published in the Official Gazette and issued to the registrant 5 years from the date of publication in the IPO Gazette and issuance to the registrant. However, at any time, any person may file a petition for cancellation, if the registered mark: Becomes a generic name for the goods or services, or a portion thereof for which it is registered. Diba marami ng trademarks na parang generic na like Band-Aid. Everybody knows what band-aid is, but it is actually a mark. A registered mark shall not be deemed to be the

BETA INDUSTRIES, LRD. The SC said that the exclusive right to trademarks may be lost by non-use but a petition for cancellation must be filed. When non-use of the mark is excused? You look at Section 152. Non-use of a mark may be excused if caused by circumstances arising independently of the will of the trademark owner. So if it is proven that there are other circumstances independent of the will of the trademark owner, then, it would be excused. Lack of funds shall not excuse non-use of a mark. SEC. 155. Remedies; Infringement. What is infringement? In general, it is the used of others by a mark without the registrants consent for the purpose of a reproduction or colorable imitation off a registered mark. So, it has to be reproduction or colorable imitation of a registered mark, service mark, trade name with the purpose of causing confusion, to cause mistake or to deceive or to mislead or misleading the public that such goods or services are those of the registrant. Bar Question 1990: What constitutes an infringement? To

answer that properly, you go to see 155. CASES ON COLORABLE IMITATION AMIGO The SC said a person could not be guilty of infringement on the basis alone of the similarity in the sound of petitioners Gold Top with that of respondents Gold Toe. Admittedly, the pronunciations of the two do not, by themselves create confusion. However, the Bureau of Patents did not rely on the idem sonans test alone. The Bureau considered the drawings and the labels, the appearance of the labels, the lettering, and the representation of a mans foot wearing a sock. You have to look at the whole package and not only on the sounds alone. SOCIETY DE PRODUITS NESTLE V CA HELD: Colorable imitation denotes such a close or ingenious imitation as to be calculated to deceive an ordinary purchaser as to cause him to purchase the one supposing it to be the other. So, it is something that would confuse an ordinary person. It was claimed that Master Roast and Master Blend should not be registered because of the generic word MASTER. Sabi ng SC, generic terms are those which constitute the common descriptive name of an article or substance, like Verbana flower. - What kind of term is Master? Master is a suggestive term brought about by the advertising scheme of Nestle. - Suggestive terms are those which, in the phraseology of one court, require imagination, thought and perception to reach a conclusion as to the nature of the nature of the goods. - So, master can be registered because it is neither generic nor descriptive. - According to the SC, there are 2 TESTS to determine WON there is a colorable imitation: a. The Dominancy Test b. The Holistic Test DOMINANCY TEST focuses on the similarity of the prevalent features of the competing trademarks which might cause confusion or deception and thus continue infringement. In dominancy test, you have to look at the dominant features only. HOLISTIC TEST mandates that the entirety of the marks in question must be considered in determining confusing similarity. You have to look at the entirety or every feature to determine if there is colorable imitation. ASIA BREWERY CASE The SC used the test of dominancy.

Two kinds of violations:

1. Unfair competition - selling goods and

giving them the general appearance of another manufacturer. 2. violation of trademarks COLUMBIA PICTURES V CA FACTS Complainants COLUMBIA PICTURES, INC., ET. AL. filed a complaint with the NBI for violation of PD No. 49 and sought its assistance in their anti-film piracy drive. Agents of the NBI and private researchers made discreet surveillance on various video establishments in Metro Manila including private respondent corporation SUNSHINE HOME VIDEO INC., owned and operated by private respondent DANILO A. PELINDARIO. NBI conducted a search on December 14, 1987 in the premises of SUNSHINE. They seized various video tapes of duly copyrighted motion pictures/films owned or exclusively distributed by private complainants and other implements. A trial commenced afterwards. During trial, the following facts have been established: (1) the seized copyrighted video tapes bearing were being sold, leased, distributed or circulated, or offered for sale, lease, distribution, or transferred or caused to be transferred by SUNSHINE at their video outlets, without the written consent of the private complainants or their assignee; (2) the video tapes originated from spurious or unauthorized persons; and (3) said video tapes were exact reproductions of the films listed in the search warrant whose copyrights or distribution rights were owned by complainants. The RTC of Makati ruled against COLUMBIA, ET AL. for the reason that the search warrant issued was a general warrant. The same decision was sustained by the Court of Appeals. Hence, this appeal. In its defense, SUNSHINE contended that PD 49 (Decree on the Protection of Intellectual Property) covers only producers who have complied with the requirements of deposit and notice (in other words registration) under Sections 49 and 50 thereof. Absent such registration, as in this case, there was no right created, hence, there was no infringement. They further maintained that the complainants and their witnesses led the Court to believe that a crime existed when in fact there was none. SUNSHINE presented the certifications from the Copyright Section of the National Library, to show nonregistration of some of the films of petitioners, assume no evidentiary weight or significance, whatsoever.

ISSUE Whether or not COLUMBIA, ET AL. has the right to file an action for infringement against SUNSHINE when the latter sold various video tapes of their duly copyrighted motion pictures/films they owned or exclusively distributed, given the fact that they (COLUMBIA, ET AL.) failed to comply with the requirements of registration under PD 49. RULING YES, they have the right. The Department of Justice has resolved this legal question as far back as December 12, 1978 in its Opinion No. 191 of the then Secretary of Justice Vicente Abad Santos which stated that Sections 26 and 50 do not apply to cinematographic works and PD No. 49 "had done away with the registration and deposit of cinematographic works" and that "even without prior registration and deposit of a work which may be entitled to protection under the Decree, the creator can file action for infringement of its rights." He cannot demand, however, payment of damages arising from infringement. The same opinion stressed that "the requirements of registration and deposit are thus retained under the Decree, not as conditions for the acquisition of copyright and other rights, but as prerequisites to a suit for damages." The statutory interpretation of the Executive Branch being correct, is entitled to weight and respect. PD 49 does not require registration and deposit for a creator to be able to file an action for infringement of his rights. These conditions are merely pre-requisites to an action for damages. So, as long as the proscribed acts are shown to exist, an action for infringement may be initiated. Furthermore, a closer review of Presidential Decree No. 49 reveals that even with respect to works which are required under Section 26 thereof to be registered and with copies to be deposited with the National Library, such as books, including composite and cyclopedic works, manuscripts, directories and gazetteers; and periodicals, including pamphlets and newspapers; lectures, sermons, addresses, dissertations prepared for oral delivery; and letters, the failure to comply with said requirements does not deprive the copyright owner of the right to sue for infringement Such non-compliance merely limits the remedies available to him and subjects him to the corresponding sanction. The reason for this is expressed in Section 2 of the decree which prefaces its enumeration of copyrightable works with the explicit statement that "the rights granted under this Decree shall, from the moment of creation, subsist with respect to any of the following classes of works." This means that under the present state of the

law, the copyright for a work is acquired by an intellectual creator from the moment of creation even in the absence of registration and deposit. As has been authoritatively clarified: The registration and deposit of 2 complete copies or reproductions of the work with the National Library within 3 weeks after the first public dissemination or performance of the work, as provided for in Section 26 (PD 49), is not for the purpose of securing a copyright of the work, but rather to avoid the penalty for noncompliance of the deposit of said two copies and in order to recover damages in an infringement suit. In the case at bar, SUNSHINE could not show proof of their authority or that there was consent from the copyright owners for them to sell, lease, distribute or circulate petitioners' copyrighted films. That private respondents are licensed by the Videogram Regulatory Board does not insulate them from criminal and civil liability for their unlawful business practices. The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright. A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such cases, did not know what works he was indirectly copying, or did not know whether or not he was infringing any copyright; he at least knew that what he was copying was not his, and he copied at his peril. In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy. The question of whether there has been an actionable infringement of a literary, musical, or artistic work in motion pictures, radio or television being one of fact, it should properly be determined during the trial. GODINESS V CA FACTS

On July 15, 1976, the Philippine Patent Office issued a patent to one Magdalena S. Villaruz for a utility model for a hand tractor or power tiller. This patent was acquired by private respondent SV-AGRO INDUSTRIES ENTERPRISES, INC., from Magdalena Villaruz, its chairman and president, by virtue of a Deed of Assignment executed by the latter in its favor. In accordance with the patent, private respondent manufactured and sold the patented power tillers with the patent imprinted on them. In 1979, SV-Agro Industries suffered a decline of more than 50% in sales in its Molave, Zamboanga del Sur branch. Upon investigation, SV-AGRO discovered that power tillers similar to those patented by it were being manufactured and sold by petitioner PASCUAL GODINES. Consequently, SV-AGRO notified GODINES about the existing patent and demanded that the latter stop selling and manufacturing similar power tillers but he failed to comply with the demand. Thereafter, SV-AGRO filed before the RTC a complaint for infringement of patent and unfair competition. GODINES contended, in contrast, that he did not manufacture or make imitations or copies of plaintiffs turtle power tiller as what he merely did was to fabricate his floating power tiller upon specification and designs of those who ordered them but no document was presented showing such job orders After trial, the court held GODINES liable for infringement of patent and unfair competition. It ordered GODINES to pay damages to SV-AGROs business reputation and goodwill and for unrealized profits during the period defendant was manufacturing and selling copied or imitation floating power tiller. It held that it was rather unusual for defendant to manufacture something without the specification and designs, considering that he is an engine, by profession and proprietor of the Ozamis Engineering shop. On the other hand, it is also highly unusual for buyers to order the fabrication of a power tiller or hand tractor and allow defendant to manufacture them merely based on their verbal instructions. This was contrary to the usual business and manufacturing practice. Upon appeal to the Court of Appeals, the same decision was affirmed. Hence, this petition. GODINES maintained that he was not engaged in the manufacture and sale of the power tillers as he made them only upon the special order of his customers who gave their own specifications. Hence, he averred, that he could not be liable for infringement of patent and unfair competition and that those made by him were different from those being manufactured and sold by SVAGRO.

ISSUE Whether or not there was infringement of patent and unfair competition since the turtle power of GODINES was similar in form and function with that of that floating power tiller of SV-AGRO. RULING YES, there was. Tests have been established to determine infringement. These are: (a) LITERAL INFRINGEMENT; and (b) THE DOCTRINE EQUIVALENTS. In using literal infringement as a test, resort must be had, in the first instance, to the words of the claim. If accused matter clearly falls within the claim, infringement is made out and that is the end of it. To determine whether the particular item falls within the literal meaning of the patent claims, the Court must juxtapose the claims of the patent and the accused product within the overall context of the claims and specifications, to determine whether there is exact identity of all material elements. The trial court found that in appearance and form, both the floating power tillers of the defendant and the turtle power tiller of the plaintiff are virtually the same. Viewed from any perspective or angle, the power tiller of the defendant is identical and similar to that of the turtle power tiller of planitiff in form, configuration, design and appearance. The parts or component., thereof are virtually the same. In operation, the floating power tiller of the defendant operates also in similar manner as the turtle power tiller of plaintiff. This was admitted the defendant himself in court that they are operating on the same principles. Moreover, it also observed that petitioner also called his power tiller as a floating power tiller. The patent issued by the Patent Office referred to a "farm implement but more particularly to a turtle hand tractor having a vacuumatic housing float on which the engine drive is held in place, the operating handle, the harrow housing with its operating handle and the paddy wheel protective covering." Recognizing that the logical fullback position of one in the place of defendant is to aver that his product is different from the patented one, courts have adopted the doctrine of equivalents which recognizes that minor modifications in a patented invention are sufficient to put the item beyond the scope of literal infringement. Thus, according to this doctrine, an infringement also occurs when a device appropriates a prior invention by incorporating its innovative concept and, albeit with some modification and change, performs substantially the same function in substantially the same way to achieve substantially the same result.

The reason for the doctrine of equivalents is that to permit the imitation of a patented invention which does not copy any literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such imitation would leave room for indeed encourage the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of the law. In infringement of patent, similarities or differences are to be determined, not by the names of things, but in the light of what elements do, and substantial, rather than technical, identity in the test. More specifically, it is necessary and sufficient to constitute equivalency that the same function can be performed in substantially the same way or manner, or by the same or substantially the same, principle or mode of operation; but where these tests are satisfied, mere differences of form or name are immaterial. To establish an infringement, it is not essential to show that the defendant adopted the device or process in every particular. Proof of an adoption of the substance of the thing will be sufficient. It may be said that no device can be adjudged an infringement that does not substantially correspond with the patent. But another construction, which would limit these words to exact mechanism described in the patent, would be so obviously unjust that no court could be expected to adopt it. The law will protect a patentee against imitation of his patent by other forms and proportions. If two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape. HENG AND DEE V WELLINGTON FACTS Since 1938, plaintiffs ANG SI HENG and SALUSTIANA DEE were engaged in the business of manufacturing shirts, pants, drawers, and other articles of wear for men, women, and children. They had obtained the registration for the said articles, the trademark of "Wellington." In the year 1940, they registered the business name "Wellington Company," and this registration of the name was renewed on June 11, 1946. Their invoices, stationery, and signboard bore the trade name "Wellington Company," and in newspaper advertisements they described their business as "Wellington Shirt Factory." But their trademark for their articles of wear was never again registered after August 27, 1938, neither was their trade name registered after 1946.

On May 7, 1946, defendant Benjamin Chua applied for the registration of the business name "Wellington Department Store". His application was approved by the Bureau of Commerce and a certificate issued in his favor. On June 8, 1946, this business name was transferred to Wellington Department Store, Inc., of which he was the president. But CHUAs application with the Bureau of Commerce for the registration of the business name "Wellington Department Store" and the business name "Wellington Company" applied for by plaintiffs had been renewed. HENG and DEE filed an action in the CFI of Manila to enjoin defendants from using the business name "Wellington Department Store" and the corporate name "Wellington Department Store, Inc.". They alleged that the use of the words "Wellington Department Store" as a business name and as a corporate name by the defendants deceived the public into buying defendant corporation's goods under the mistaken belief that the names were the plaintiff's or, have the same source as plaintiffs' goods, thereby resulting in damage to them. WELLINGTON DEPARTMENT STORE, INC., and BENJAMIN CHUA alleged that plaintiffs were engaged in the manufacture or production of clothing and keep a dry goods store for the sale of the same. They averred that they on the other hand were keeping a store for articles such as shoes, hats, toys, perfumes, bags, apparels, and the like, most of which are different from those manufactured and sold by plaintiffs. The CFI ruled in favor of defendants. It held that the corporate name "Wellington Department Store, Inc.," has not been previously acquired and appropriated by any person or corporation. Hence, this appeal by HENG and DEE. They contended the following: 1. that defendants business was similar and identical to theirs and that the use of the business name "Wellington Department Store, Inc., misled and confused the public; 2. that they had acquired a property right in the name "Wellington;" and 3. that if the defendants were not liable for any infringement of tradename, at least they were liable for unfair competition.

ISSUES (1) Whether or not there is deception when there is a similarity of trademark or tradename between a clothing manufacturer named Wellington Company and a department store named Wellington Department Store. (2) Whether or not the similarity of said trademark or tradename resulted into unfair competition. RULING

(1)

NO, there is no deception. While there is similarity between the trademark or tradename, "Wellington Company and that of "Wellington Department Store," confusion or deception can possibly result or arise from such similarity because the latter is a "department store," while the former does not purport to be so. The name "Wellington" is admittedly the name of the trademark on the shirts, pants, drawers, and other articles of wear for men, women and children, whereas the name used by the defendant indicates not these manufactured articles or any similar merchandise, but a department store. Neither can the public be said to be deceived into the belief that the goods being sold in defendant's store originate from the plaintiffs, because the evidence shows that defendant's store sells no shirts or wear bearing the trademark "Wellington but other trademarks. Neither could such deception be by any possibility produced because defendant's store is situated on the Escolta, while plaintiffs' store or place of business is located in another business district far away from the Escolta. The mere fact that two or more customers of the plaintiffs thought of the probable identity of the products sold by one and the other is not sufficient proof of the supposed confusion that the public has been led into by the use of the name adopted by the defendants. No evidence has been submitted that customers of the plaintiffs had actually been misled into purchasing defendant's articles and merchandise, for the very witnesses who have supposedly noted the use of plaintiffs' tradename do not claim to have actually purchased any articles from defendant's store. (2) NO, there was no unfair competition. Even a name or phrase not capable of appropriation as trademark or tradename may, by long and exclusive use by a business with reference thereto or to its products, acquire a proprietary connotation, such that the name or phrase to the purchasing public becomes associated with the business or the products and entitled to protection against unfair competition. But in the case at bar, the principle therein enunciated cannot be made to apply because the evidence submitted by the appellants did not prove that their business has continued for so long a time that it has become of consequence and acquired a goodwill of considerable value, such that its articles and products have acquired a well-known reputation, and confusion will result by the use of the disputed name by the defendants' department store. It is true that appellants' business appears to have been established a few years before the war and appellees' after liberation, yet it seems appellees' business

and goodwill are the products of their own individual initiative, not wrested by unfair competition from appellants' business and goodwill.
N A T U R E PATENT A grant made by the government to an inventor conveying and securing to him the exclusive right to make use of his invention for a given period. TRADEMARK Any sign, word, or symbol adopted and used by manufacturer to identify his goods and distinguish them from those manufactured, sold, and dealt by others. Bureau of Trademark COPYRIGHT Intangible right. Effective from the moment of creation.

W Bureau of Patents h e r e t o f i l e C o v e r e d

Technical solutions, novelty, inventive step, industrially applicable

Goods/services

N Methods, plants, o animal breeds, t aesthetic, contrary to public c policy o v e r e d

1. 2.

W Inventor, h assignees o c a n f i l e ? D 20 yrs u application r a t i o n E f

immoral; insignia of Philippines 3. name, portrait, signature of person 4. identical registered mark a. same goods/closely related b. cause deceit and confusion c. exclusive indications generally commonly used The owner

Books, letters, lectures, cinematogra phy, photography , designs, drawings works of the government; ideas, principles, methods, processes; new or miscellaneo us facts that merely forms part of news; official texts of admin/legisl ative

from

From the date of the cre,ation

10 years from effectivity provided that 1 yr from the 5th yr anniversary of the date of registration, file declaration of actual use. From the date of publication

Moral right is protected during the lifetime of the author and 50 yrs after death

From date

the of

f e c t i v i t y R e m e d i e s 1. civil action for damages ; 2. injunction 3. receive royalty 4. disposition outside the commerce 5. solidary liability 6. criminal case for repeated one (3yrs) Damages: measured by: 1. reasonable profit 2. actual profit made by defendant 3. reasonable percentage based on the amount of gross sales of defendant. Used of others w/o the registrants consent of reproduction or colourable imitation of a registered mark which would cause confusion.

creation but once copyrighted, it is governed by copyright laws.

I n f r i n g e m e n t d e f i n e d T e s t o f i n f r i n g e m e n t C a n c e l l a t i o n

The making, using, offering a product or process without authorization from the patentee causing damage.

Same with unfair competition: 1. injunction 2. impounding 3. destruction 4. actual damages exemplary damages/mo ral 5. criminal case An act of copying, in whole or in part, a copyrightabl e material without authority that would cause substantial damage.

f e n s e J u r i s d i c t i o n

patentable or new

general public

Bureau of legal affairs: 1. opposition to the application for registration of marks 2. cancellation of marks 3. cancellation of patents 4. violations of laws provided damages asked less than P200 In cases of Infringement: RTC

W Anyone h o c a n c a n c e l

Bureau of legal affairs: 1. opposition to the application for registration of marks 2. cancellation of marks 3. cancellation of patents 4. violations of laws provided damages asked less than P200 In cases of Infringement: RTC Anyone

LAW ON WATERS Article 503. The following are of private ownership: 1. Continuous or intermittent waters rising on lands of private ownership, while running through the same; 2. Lakes and lagoons, and their beds, formed by nature on such lands; 3. Subterranean waters found on the same; 4. Rain waters falling on said lands, as long as they remain within their boundaries; 5. The beds of flowing waters, continuous or intermittent, formed by rain water and those of brooks, crossing lands which are not of public dominion. In every rain or aqueduct, the water bed, banks and floodgates shall be considered as an integral part of the land or building for which the waters are intended. The owners of lands, though which are along the boundaries of which the aqueduct passes, cannot claim ownership over it, or any right to the use of its bed or banks, unless the claim is based on the titles of ownership specifying the right or ownership claimed. Do you agree with Article 503, paragraphs 1, 3, 4? Do you recall the provision with Article XII Section 2 of the Constitution? All waters of the Philippines belong to the State. If you read the water code, you will

Doctrine of equivalencesubstantial identity; substantial function; substantial results of the patented and infringing

1. Dominancy testfocuses on similarity of the prevalent features of the competing trademarks w/c might cause confusion or deception 2. Holistic testmandates entirety of the marks.

Doctrine of equivalence

Can be filed 1 yr. from effectivity Grounds: 1. against public policy 2. unclear disclosure not new or patentable

D 1. patent invalid e 2. item not

Filed within 5 yrs from the time of publicatio n (effectivity ) Grounds: anytime 1. generi c name 2. aband oned 3. obtain ed fraud ulentl y misrepresent Creates no confusion to

For criminal action 1 yr from commission

find out that Article 503 has counterpart in the water code that is in Art. 6 of the Water Code: The following waters found in private lands also belong to the State. And what can the private person do? The owner of the land where the water is found can use it for domestic purposes without securing the permit. When will the use of water for domestic purposes be regulated? a. Wastage b. in cases of emergency

Article 11: The State may declare the waters not previously appropriated be exempt of appropriation for any or other purposes. And one of the reasons is public policy, by reason of public policy.

Article 7 of the Water Code. Subject to the provisions of this Code, any person who captures or collects water by means of cisterns, tanks or pools, shall have exclusive control over such water and the right to dispose of the same. So in this provision even though, the person cannot be considered as the owner of the water, he has the right to dispose of the water and control the same. It emphasized in Article 3 that all waters belong to the State. If you look at Article 3, Section B, it cannot be a subject to prescription. Then therefore, Article 100 of the Water Code repeals the provisions on the Civil Code of ownership of waters and easement relating to waters.

Article 12. Waters appropriated for a particular purpose may be applied for another purpose only upon approval of the Council and on condition that the new use does not unduly prejudice the rights of other permits or require an increase in the volume of water. Article 13. Except as otherwise provided, no person including government instrumentalities or government-owned or controlled corporation, shall appropriate water without a water right, which shall be evidenced by a document, known as water permit. So if you apply for appropriation in Article 9, what do you have to get? Water permit in evidence that you have a water right. It is a privilege granted by the government to use the water. So is there such a thing as water permit that is oral? No. There must be an evidence of a document not verbal or oral permit. There must be a document.

Article 8: Water legally appropriated shall be subject to the control of the appropriator. A person can actually build an aqueduct from the water of the river. Now this (river) is owned by the State so that must be appropriated. In the requisites, it must go through formalities required. So this is one of the formalities, appropriation. From the moment it reaches the appropriators canal or aqueduct leading to the place where the water will be used or stored.

Article 14. Subject to the provisions of this Code, concerning the control, protection, conservation, and regulation of the appropriation and use of waters, any person may appropriate or use natural bodies of water without securing a water permit for any of the following: 1. Appropriation of water by means of handcarried receptacles; and 2. Bathing or washing and other objects of flotation. GR: A water permit is required if you want to appropriate a water or use natural bodies of water whether the come from the river of the bay or the sea EXCEPTION: Article 14 provides the exception. If you just want to get a water by means of a balde, planggana, whatever, there is no need. But if it is for irrigation, there should be permit.

What is appropriation? Article 9. Appropriation is the acquisition of rights over the use of waters or taking or diverting of water from its natural source. So again as I have told you, you can use the water from the river but in the aqueduct, there is a need of appropriation or for any purposes allowed by law.

So when is water appropriated? Article 10. Provides: 1. for domestic use washing, bathing and cooking; 2. for municipal use

And who are qualified to exploit water natural resources permit? Article 15 which provides that only citizens of the Philippines of legal age as well as juridical persons. If you are a natural person, you must be a Filipino. But if you are a juridical person, there is no saying that you are a Filipino.

So basically, these are what we should take up. You just have to remember that water can no longer be subject to private ownership based on the Constitution. REGISTRY OF PROPERTY

What is the object of Registry of Property? According to Article 708, it is the inscription or annotation of acts or contracts relating to the ownership of immovable property. So when we talk about registry of property, take note that it refers to immovable. What is Registration of Property here? The Register of Deeds. What is the reason of registration? a. First, is to bind the whole world. b. Second, so that you have a right as to any transactions pertaining to your property. c. Third, to prevent the coalition of frauds; if you dont have registration then anybody can sell without being caught.

Article 709. Titles of ownership and other rights over immovable property which are not duly inscribed or annotated in the registry of property shall be prejudice third persons. H, the husband, donated a parcel of land to his mistress by way of a simulated sale. Now the wife is suing for nullity of that particular sale. If she does not have that deed annotated that she is suing, then the mistress can sell it to somebody and the third person shall be considered an innocent purchaser for value for the purpose of registration is served when there is actual knowledge or notice. Article 710. All documents in the Registry of Property are public documents.