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FUNDAMENTALS OF LAND OWNERSHIP



BY:

Atty. RAYMOND B. BATU




BATU ESTARES Law & Realty Office
Door no. 2, Residencia Del Marina Business Center
Jacinto St., Davao City
Telephone number (082) 300-3945

PROPERTY OWNERSHIP:

It is the independent and general right of a person to control a thing particularly in his
possession, enjoyment, disposition, and recovery, subject to no restrictions except those
imposed by the state or private persons, without prejudice to the provisions of law.

NOTES:

It is not absolute there are restrictions imposed by the state or private persons
without prejudice to the provisions of the law.

PRINCIPLE OF RES NULLIUS:

NOTES:

Res Nullius is a Latin term that means without owner.

Examples: fish in the ocean, wild animals.

However, everything must have an owner and if there are no private claimants or
owners, then that particular property is presumed to be owned by the State.

Regalian Doctrine - All lands of the public domain belong to the State, which is the
source of any asserted right to ownership of land. All lands not otherwise appearing to
be clearly within private ownership are presumed to belong to the State and all lands
not otherwise clearly appearing to be privately-owned are presumed to belong to the
State

Thus, when a person dies without any heir, then the State succeeds to the estate of the
deceased [escheat].

PRINCIPLE OF RES COMMUNES: Things that are owned by everybody

PRINCIPLE OF RES ALICUJUS: Object, tangible or intangible, which are owned
privately, either in collective or individual capacity

NOTES:
Intangible shares of stock

KINDS OF LAND OWNERSHIP:

1. Full Ownership: This includes all the rights of an owner.
NOTES: The absolute right to possess, use, dispose, abuse, to fruits etc
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2. Naked Ownership: An ownership where the right to the use and the fruits has
been taken by another, as in the case of usufruct.
NOTES: If you enter into a contract of usufruct you are the owner of the property
but you do not enjoy the fruits of your property.
3. Sole-Ownership: Where ownership is vested in only one person.
4. Co-Ownership: Where ownership of the land as a whole is vested in two or more
persons.
NOTES: The concept of this kind of ownership is UNITY in the property and
PLURALITY of the subjects. Each co-owner, together with the other co-owner is the
owner of the whole and at the same time owner of the undivided part/share
thereof.
MODES OF ACQUIRING LAND OWNERSHIP:

1. Public Grant: A different administrative method of acquiring public land, such as
homestead and free patent it has restrictions and thus, not absolute.
a. Homestead is a mode of acquiring alienable and disposable lands of the
public domain for agricultural purposes conditioned upon actual
cultivation and residence. The Philippine Legislature passed the
Homestead law in 1903.
NOTES:
-Application must be filed at the DENR. Must be a Filipino citizen, of legal
age, preferably the head of the family and the applicant must not own more
than 12 hectares
RESTRICTION: OCT
"Section 118. Except in favor of the Government or any of its branches, units, or
institutions, lands acquired under free patent or homestead provisions shall not
be subject to encumbrance or alienation from the date of the approval of the
application and for a term of five years from and after the date of issuance of
the patent or grant, nor shall they become liable to the satisfaction of any debt
contracted prior to the expiration of said period, but the improvements or crops
on the land may be mortgaged or pledged to qualified persons, associations, or
corporations.
"No alienation, transfer, or conveyance of any homestead after five years and
before twenty-five years after issuance of title shall be valid without the
approval of the Secretary of Agriculture and Commerce, which approval shall not
be denied except on constitutional and legal grounds."
b. Free Patent is a mode of acquiring public alienable and disposable lands
which have been zoned as residential.
NOTES: Take note of the FREE PATENT ACT RA 10023 which was signed into
law on March 9, 2010
Important features of the law:
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Sec. 3. Qualifications. - Applicants for the issuance of a residential free
patent shall possess the following qualifications, namely:
3.1. Filipino citizenship - the land investigator concerned may ask for proof of
citizenship such as, but not limited to, a copy of the birth certificate,
passport, decree or order of naturalization, or certificate of dual citizenship.
3.2. Actual occupation, actual residence and continuous possession and
occupation of the parcel subject of the application, either by herself or
himself or through her or his predecessor-in-interest, under a bona fide claim
of acquisition of ownership, for at least ten (10) years prior to the filing of the
application.
There shall be no age requirement for applicants as long as minor applicants,
aged below eighteen (18) years old, are duly represented by their legal
guardians. The heirs of a deceased applicant may substitute the applicant
provided that they themselves possess the required qualifications. There
shall likewise be no limit as to the number of applications which may be filed
under RA 10023, provided that the limitations as to the size of the parcel as
stated in Section 4 shall not be exceeded.
No application shall be approved for any individual whose total landholding
would exceed a total of an accumulated twelve (12) hectares, including
agricultural lands, should the application be granted.
Sec. 4. Coverage. - The IRR covers all residential lands that have been
identified and zoned through the appropriate ordinance of the LGU
concerned, provided that the land applied for is not needed for public service
and/or public use.
4.1. For highly urbanized cities, the area shall not exceed two hundred (200)
square meters.
4.2. For other cities, the area shall not exceed five hundred (500) square
meters.
4.3. For first class and second class municipalities, the area shall not exceed
seven hundred fifty (750) square meters.
4.4. For all other municipalities, the area shall not exceed one thousand
(1000) square meters.
Sec. 9. Removal of Restrictions. - The following restrictions under Chapter XIII,
Title VI of Commonwealth Act No. 141 shall not be applicable to patents issued
under RA 10023, to wit:
Section 118. Except in favor of the Government or any of its branches, units, or
institutions, lands acquired under free patent or homestead provisions shall not
be subject to encumbrance or alienation from the date of the approval of the
application and for a term of five years from and after the date of issuance of the
patent or grant, nor shall they become liable to the satisfaction of any debt
contracted prior to the expiration of said period, but the improvements or crops
on the land may be mortgaged or pledged to qualified persons, associations, or
corporations.
No alienation, transfer, or conveyance of any homestead after five years and
before twenty-five years after issuance of title shall be valid without the
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approval of the Secretary of Agriculture and Commerce, which approval shall not
be denied except on constitutional and legal grounds.
c. Miscellaneous Sales Application is an act permitting sale without public
auction of alienable and disposable lands of the public domain for
residential purpose.
NOTES: RA 730
- Maximum area that may be granted is 1000 square meters

- WHO ARE QUALIFIED TO APPLY?

1. A Filipino citizen of lawful age, married; if single, applicant must be the
head or bread winner of the family;
2. He is not the owner of a home lot in the municipality/city where the land
applied for is located;
3. He must have occupied in good faith the land applied for and constructed
a house thereon where he/she and family is actually residing.

2. Adverse Possession or Prescription: The continuous, open adverse possession in
the concept of owner for the period fixed by law. However, land titled under the
Torrens System of Registration cannot be acquired by prescription or adverse
possession.
NOTES: Must be alienable and disposable
3. Accretion: The process by which soil is deposited to lands adjoining rivers. Article
457 of the Civil Code provides that the owners of land adjoining the banks of
rivers are also the owners of the accretion which they gradually receive from the
effects of the current of the waters.
NOTES: Accretion is the process. ALLUVIUM is the soil deposited
4. Reclamation: The filling of submerged land by deliberate act such as the
reclamation of Manila Bay.
5. Voluntary Transfer of Private Grant: The execution by the owners of the
appropriate documents transferring ownership to another.
6. Involuntary Alienation or Involuntary Grant: The process by which the land is
taken against the consent of the owner. Examples are expropriation proceeding,
execution of judgments, tax sales and foreclosure of mortgage.
7. Descent: The acquisition of land by virtue of hereditary succession as an heir.
NOTES: The rule on inheritance established by law in cases which there is NO will
naming the persons to succeed, the estate shall descend to his descendants in the
direct line.
8. Devise: The acquisition of land by a person through the will of an owner or
testator.
9. Emancipation Patent: The grant of agricultural lands to tenant-farmers in the
implementation of the land reform program of the government.
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RIGHTS INCLUDED IN LAND OWNERSHIP (BUNDLE OF RIGHTS):

1. Jus Utendi (The Right to Use): This includes the right to exclude any person from
the enjoyment and disposal of the property. For this purpose, the owner-
possessor may use such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical invasion or usurpation of the
property. [DOCTRINE OF SELF HELP]
2. Jus Fruendi (The Right to the Fruits): This includes the right to natural, industrial
and civil fruits.
Natural fruits are the spontaneous products of the soil and the young
and other products of animals

Industrial Fruits are those produced by lands of any kind through
cultivation or labor

Civil fruits rents of buildings, price of lease of lands.

3. Jus Disponendi (The Right to Dispose): This includes the right to donate, to sell
or to mortgage.

NOTES:
Donation Must be in public document
Sale or mortgage Must be in writing and enough to bind the parties. Public
document necessary for registration only and to be valid and binding to third
persons.
Sale Owner at the time of delivery [Art. 1459]
Mortgage Must be the owner at the time of mortgage
4. Jus Abutendi (The Right to Abuse): However, the right of the owner to abuse his
property is restricted by law.
Example of restrictions:

- In Donations Must reserved sufficient property to support himself and for
those he is obliged to support

- Destruction of the house/building demolition permit

5. Jus Vindicandi (The Right to Recover): However, the owner must use judicial
process, if the property comes into the unlawful possession of another. He
should not take the law into his own hand.
- Replevin - Recovery of personal property
- Forcible entry A person in possession was deprived by FISTS 1 year
dispossession
- Unlawful detainer
- Accion Publiciana recover better right of possession
- Accion Reinvindicatoria recovery of ownership

6. Jus Possidendi (The Right to Possess): It means the right to hold a thing or to
enjoy a right.

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NOTES:

If you buy a real property and there is someone renting the house. Can you ask the
renter to leave? Yes, generally
Except: - If lease contract is unexpired and lease duly recorded at the ROD
- Or you know the existence and duration of the lease when you bought
the property

Exception to the exception: Rent Control Act RA 9653 section 10:

SEC. 10. Prohibition Against Ejectment by Reason of Sale or Mortgage. No lessor or
his successor-in-interest shall be entitled to eject the lessee upon the ground that
the leased premises have been sold or mortgaged to a third person regardless of
whether the lease or mortgage is registered or not.

Applies to Residential unit and shall refer to an apartment, house and/or land on
which anothers dwelling is located and used for residential purposes and shall
include not only buildings, part or units thereof used solely as dwelling places,
boarding houses, dormitories, rooms and bed spaces offered for rent by their
owners, except motels, motel rooms, hotels, hotel rooms, but also those used for
home industries, retail stores or other business purposes if the owner thereof and
his or her family actually live therein and use it principally for dwelling purposes.

To summarize, If you are the owner of a house and lot, you can:

a. Live in it
b. Use it
c. Receive rentals from a tenant in case you lease it
d. Destroy it
e. Sell or mortgage or donate it
f. Recover it from anyone who has deprived me of its rightful possession

EXTENT OF OWNERSHIP:

Article 437 (NCC): The owner of a parcel of land is the owner of its surface and of
everything under it and he can construct thereon any works or make plantations or
excavations which he may deem proper, without detriment to servitude and subject
to special laws and ordinances.

He cannot complain of reasonable requirements of aerial navigation. This provision of
law deals in part with what is known as surface or air rights. It denotes the owners
claims in the space above the surface of his property.

REGALIAN DOCTRINE:

Everything in the country without a registered owner is owned by the State.

NOTES: Regalian Doctrine - All lands of the public domain belong to the State, which is
the source of any asserted right to ownership of land. All lands not otherwise appearing
to be clearly within private ownership are presumed to belong to the State and all lands
not otherwise clearly appearing to be privately-owned are presumed to belong to the
State
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HIDDEN TREASURE:

Article 438: Hidden treasure belongs to the owner of the land, building or other
property on which it is found. Nevertheless, when the discovery is made on the property
of another or of the State or of any of its subdivisions, and by chance, one half (1/2)
thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be
entitled to any share of the treasure.

If the things found are 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.

NOTES: Treasure any hidden and unknown deposit of money, jewelry or other
precious objects, the lawful ownership of which does not appear

ACCESSION, ACCRETION, ALLUVIUM AND AVULSION:

1. Right to Accession: It is the right of the owner to everything that is produced,
incorporated or attached thereto naturally or physically, i.e. fruits, buildings,
formation of land.
Art. 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 two meters from the
dividing line of the estates if tall trees are planted and at a distance of at least fifty
centimeters 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.
(591a)
Art. 680. If the branches of any tree should extend over a neighboring estate,
tenement, garden or yard, the owner of the latter shall have the right to demand
that they be cut off insofar as they may spread over his 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.
Art. 681. Fruits naturally falling upon adjacent land belong to the owner of said land.

2. Accretion: The act by which the land bordering a stream or body of water
increases its area by action of the river current or other natural process.
3. Alluvium: Refers to the soil deposited in the process of accretion. [ gradual and
imperceptible] Here, you can claim and apply for a title
4. Avulsion: The process by which the current of the river, creek or torrent
segregates from an estate a known portion and transfer it to another estate.
[sudden abrupt]
NOTES; In avulsion, it belongs to the owner from whose property it was detached
provided that he removes it within 2 years from where it was deposited. How about if
not removable? Make a claim within 2 years also

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How about trees uprooted? Remove or get it back within 6 months

LIMITATIONS OF LAND OWNERSHIP:

1. Voluntary Limitations: Imposed by the owner or by agreement with others.
NOTES: Lease or usufruct
2. Limitations Imposed by the Grantor: Example of this would be the donor
prohibiting the donee from partitioning the property within a period of 20 years.
3. Limitations Imposed by the State or by Law:
Inherent Powers of the State:
a. Police Power: The right of the State to regulate and restrict personal property right
for a common welfare. This is based on the maxim the welfare of the people is the
supreme law of the land [SALUS POPULI SUPREMA LEX]. An example would be when
there is a fire in a neighborhood, some house may have to be destroyed or demolished
by firemen to prevent the spread of fire without compensation to the owner.

Regulations for public welfare:
- Remove billboard offensive to sight
- Require building permit/fence permit
- Subdivision [HLURB] PD 957

b. Power of Taxation: the inherent power of the State to raise income or revenue to
defray necessary governmental expenses for a public purpose. Lifeblood of the
government

c. Power of Eminent Domain: The superior right of the State to take certain properties
under certain conditions. This right of the State is based on the need for human
progress and community welfare and development. The requisites of Eminent Domain
are:

1) Property must be taken for public use

2) The taking must be by competent authority
3) Due process of law must be observed
4) Just compensation must be paid.
d. Escheat: The reversion or automatic conveyance of real property to State upon the
owners death due to the absence of willed heirs or other legal claimants to the title, or
when the owner fails to pay the real estate taxes.

Limitations Imposed by Law:
a. Legal easement, right of way, right of water, zoning regulations
b. Rent Control Law RA9653
o Not more than 7% percent increase
o 1 month advance and 2 months deposit
o The deposit must be deposited in the bank and the interest shall be given
to the Lessee
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o Cannot be ejected
c. Comprehensive Agrarian Reform Law
CONCEPT OF TITLE:

Title should not be mistaken as the same as a Torrens Certificate of Title. It is a term that
means evidence or proof of ownership. Thus, a tax declaration, tax realty receipt, deed
of sale and Torrens Certificate of Title are some evidences of ownership. The best proof
of ownership is the TCT because it is imprescriptible and indefeasible.

Imprescriptible Exempt from prescription
Indefeasible Cannot be defeated, revoked or voided

RIGHT TO OWN REAL ESTATE

The right to own real estate in the Philippines is defined under the 1987 Constitution
wherein only Filipino Citizens and corporation and partnerships at least 60% of the
capital of which is owned by Filipinos are allowed to acquire lands in the Philippines

PRIVATE LANDS STILL OWNED BY ALIENS [Foreigners]:

1. Acquired before the 1935 Constitution
2. Acquired by inheritance
- If foreigner is a legal heir;

This simply means that when the non-Filipino is married to a Filipino citizen and the
spouse dies, the non-Filipino as the natural heir will become the legal owner of the
property. The same is true for the children. Every natural child (legitimate or
illegitimate) can inherit the property of his/her Filipino father/mother even if he/she
does not have any Filipino citizenship.
3. Purchase of not more than 40% interest in a condominium project

4. Acquired by foreigners who were formerly natural-born Filipino citizens.
-. Mode of acquisition is not limited to voluntary deeds (such as sale or donation)
but includes involuntary deeds (such as tax sale, foreclosure sale, or execution sale).

- Maximum area that may be allowed is as follows:

a.. For residential purpose - 1,000 square meters of urban land or one (1) hectare
of rural land (BP 185)

b.. For business or other purpose - 5,000 square meters of urban land or three
hectares of rural land.

"Business or other purpose" refers to the use of the land primarily, directly and
actually in the conduct of business or commercial activities in the broad areas of
agriculture, industry and services, including the lease of land, but excluding the
buying or selling thereof."



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MOVABLE & IMMOVABLE PROPERTIES:

1. Movable Property: Property which, generally, as the words imply, can be moved
from one place to another.
2. Immovable Property: Property, which from its nature, destination or the subject
to which it is applied, cannot be moved or be removes. The law does not define
which properties are immovable; they are merely enumerated by Article 415
(NCC):
Land, buildings, roads and construction of all kinds adhered to the soil
Trees, plants and growing fruits while they are attached to the land and form an
integral part of an immovable property
Everything attached to an immovable property in a fixed manner, in such a way
that it cannot be separated there from without breaking the material or causing
deterioration of the object
Statues, relics, paintings and other objects for use as ornamentation, placed in
buildings or on lands by the owner of the immovable property in such a manner
that it reveals the intentions to attach them permanently to the tenements
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 a
piece of land and which tend directly to meet the needs of the aid industry or
works.
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 as
permanent part of it. The animals in these places are included.
Fertilizer actually used on a piece of land
Mines, quarries and slag dumps, while the matter thereof forms part of the bed
and the water either running or stagnant
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
Contract for public works and servitude and other real rights over immovable
property.