Property PRE-FINALS (EH 408)

August 15, 2016

I had a question in the midterm exam about the change
in river course. The owner of the land traversed by the river course
immediately went to the predecessor of the old river bed and
started constructing a fence. Contending that under the New Civil
Code, the owner of the land of the new river course may assert
ownership on the proportionate portion of the old river bed.
However, a suit for injunction was filed by the government
contending that he has no right because the government has not
deemed to have abandoned the old river bed by the mere fact alone
of the change of river course. Is the government correct?
Paul: Yes. Sir: There was a case that triggered Dean
Capistrano to put the phrase ipso facto on the provision. Of
course, the other Civil Law commentators do not necessarily agree
with that. Because Dean Capistrano is of the opinion that because of
the words ipso facto already incorporated in the provision then it
would now be correct for the owner of the land traversed by the new
river course to say that my ownership of a portion of the old river
bed is now automatic because there is a phrase ipso facto. Is the
government correct there? Would it be fair to say then that the
phrase ipso facto in that case have been abandoned? yes sir so
if yes, the government is not correct? Yes sir. Okay. So In other
words, there is abandonment already by the mere fact of change in
the river course even if there is no affirmative act of the
government. Art. 461. Adjacent owner vs owner of the land
traversed. Who has preferential right? If you were the judge, how will
you settle the controversy? Take note of art. 58 of the water code of
the philppines. Does the govt have a legal right to file a suit for
injunction? Mayang: The government is correct. A mere change of
the river does not equate to abandonment. Sir: Based on the Civil
Code, yes the government is correct. And that should be the
governing law. The government is not deemed to have abandoned
their right.
CO- OWNERSHIP
First of all, what is co-ownership? Land owned by your father or your
parents, and then your parents have siblings. Yuta na gi inhert sa
imung papa together with his siblings. Do you see a problem there?
What is the usual problem? Ang igsuon mu tukod ug balay nya mura
nag siya ang ga tag-iya. Lain pud, usually, tax matters. Kung naa
gani bayad ah kamo lang uy kay kamu bitaw dato. Sa sunod.
Kamo lang sah gihapun hahahaha nya kung ibaligya na, problema
napud sa pag bahin. (naa pay lain examples pero di gyud nako ma
make-out mga bisaya words na gi ingun ni sir amsorreh)
So what is co-ownership? Its basically a right of common dominion
which two or more persons have in a common thing. So we have
here a scenario of one thing owned by several persons. These are
the characteristics: (1) plurality of subjects and (2) unity of object.
So when you say plurality, one thing owned by several persons.
What is the right of the several persons over the thing? For example,
you happen to be one of the co- owners of the land and you want to
plant there, you want to engage in sugar cane planting because it is
more profitable than studying law (ha ha sir), and then you are
stopped by another co- owner, your sibling, telling you na ayaw ing
ana kay di ra ikaw ang tag-iya ana do you have a legal ground for
using the lot? Kung mu ingon sila nga kung wa paman partion, wa
say pwede maka hilabut sa yuta. Patition sah ta usa mu maka
tanom. Sakto ba? No. (wronggg! in the voice of marquez) because
as co- owner, you have the right to use the entire property. You are
the owner of the whole thing as well as a part. However, the part
thing is spiritual, something abstract. Owner ka sa entire lot pero

owner pud ka ug portion lang for example one- fifth. Ang pangutana
karun, asa man na ang one- fifth? Kung mu ana sila na owner lagi
kas whole, pero 1/5 ra pud imong pwede gamitun maski wtition.
Sakto sila? No. that is not correct because as an owner, pwede ka
mu gamit sa entire portion. Kung pwede ka mu gamit, sila sad! Nay
violation sa co- ownership? walaaaa! Basta kay gi taga.an nimo silag
chance na mu gamit, pero wa man sila. So wala juy violation sa coownership.
Another thing, owner man kaha kas whole lot ug a part, pwede nimo
ma baligya ang entire? What will be the status of the sale? In what
extent? Only the one-fifth. Ang problema, naa bay buyer na ganahan
mu palit ug something na wa siya kibaw asa. Kay kung wa pay
partition wa siya kibaw asa sa whole iyang palitun. I am not saying
that the sale is invalid. The sale is valid. But what you are actually
buying is the interest of the co-owner. In other words, when I say
interest of the co-owner, mu step in the shoes man ka, ma owner jud
gihapun ka pero subject to the results of the partition. Thats the
essence of co-ownership.
Another aspect of co-ownership is unsa man ang effect sa act made
by one co-owner? Does it bind the other co-owners? It would
depend. But the relationship by and among the co-owners is
fiduciary in character. Mao na ang general rule. Any act of the coowner is presumed to be done to benefit everybody. Mao na ang
general rule. Para jud sa kaayuhan sa tanan. Unsa may consequence
ani? If nay situation. nay co-owner nya iyang igsuon kay naa sa
states. Siya nalang usa diri. Ang ither sibling ni agree for practical
reason na iregister ang land under his name alone. That has been
the set-p for several years. Nya ig uli na nila kay nang retire na, ang
sibling nan aa diri kay ni contend na 40 years na daw siya ga stay sa
land so gi acquire na niya by prescription. Thats a very possible
scenario. Ako na ni! Now the sibling cannot say that. Because what
the other siblings did was for the benefit of everyone like if nay
transaction, siya naman jud ang naa diri, so sa iyang name nalang
jud. And also because co-ownership is fiduciary in character, for the
benefit of all tu.
AUGUST 16, 2016
LIMITATIONS TO THE RIGHT OF A CO-OWNER
What is the right of a co-owner with regard to the co-owned
property? If you are a co-owner together with your siblings and you
and your siblings are co-owners of a property, what is your right
over that property? Can you use the entire property (100% of the
area)? The answer is yes. Now, are there limitations to your right to
use the entire property? One is you cannot prevent the other coowners from using it. How about the manner of using the co-owned
property? Is there a limitation? Yes, when the manner of using is not
in accordance with the purpose intended. What is meant by this?
(The coconut plantation was not a good example daw) For example:
A residential house which must be used for residential purposes only.
Can you convert that residential house into a parlor? No, because
thats already converting from residential purpose to commercial
purpose. This is an example of the limitation that the property must
be used in accordance with the purpose. How do you know that
there is a purpose? Ideally, there must be agreement.
De Guia vs C.A.:
In the case if De Guia, the conflict was upon the two undivided
parcels of land used as a fishpond situated in Bulacan. It was
originally owned by Maxima Romulo and it was inherited by its heirs
who became the co-owners. De Guia here has a lease contract with
the co-owners. He acquired the entire fishpond. And although the
lease contract already expired, he still continued to possess the
fishpond. So the Abejos, heirs of the co-owners, demanded De Guia
to vacate. Several demands was sent to him. Abejos then filed for
the recovery of possession with damages against De Guia, however,
De Guia claimed ownership over the portion of the fishpond which
according to him was not yet adjudicated to the heirs. De Guia
argued that the Abejos should have filed an action for partition

rather than an action for reconveyance for the fishpond was not yet
divided among the co-owners. SC used Art. 484 of the CC in deciding
the case, that there is co-ownership whenever the thing is owned by
different persons and that a certain co-owner is the owner of the
whole and at the same time the owner of the portion which is
abstract. On the other hand, SC held that there is no co-ownership
when the different portions owned by different people are already
determined and parted. To discuss the point in so far as it relates to
the rights of a co-owner, under Art. 487, a co-owner may file an
ejectment suit against a third person and even against a co-owner if
such co-owner asserts exclusive ownership over the land. The right
to the enjoyment of the property of a co-owner is limited by the
similar right of a co-owner to also use the property. What is an
illustration of how shall this be complied? Co-owner cannot use the
common property if the exclusive use is to the prejudice of the coownership. What is an example of an act which will prejudice
ownership? In a residential house, the co-owners has the right to
reside on the property. How about if only one co-owner occupies the
house and you happened to be a co-owner who is not occupying the
property, can you ask for payment of rentals? No. The sole-occupant
co-owner has 2 available defenses. To wit, one would be because he
is a co-owner and he has the right to enjoy the property and,
secondly, that he did not prevent the other co-owners from using the
property.
Pardell vs Bartollome:
This involves a house with two stories. The upper floor, occupied by
3 co-owners, was used for residential purposes while the ground
floor was for rent. The other co-owner, not living in the co-owned
house, filed a suit against the 3 co-owners residing in the upper floor
to compel them to pay for rents. SC held that the 3 co-owners
cannot be compelled to pay rents since they did not prevent the
other co-owners, in any way, from enjoying the common property
and they did not prejudice the rights of the other co-owner. In fact,
SC added that it was the husband of the suing co-owner, occupying
an office in the lower ground, who must pay rentals corresponding to
the share of the demanding co-owner because he is not a co-owner.
DEMAND FOR PARTITION
In order that the demand for payment of rentals by a co-owner may
have basis, what must you do? You must demand for partition. In
this case, di na kapalag ang other co-owners. In other words, wa na
silay laing mabuhat because there is no reason nganong di sila
ganahag partition. Otherwise, from the moment that the other coowners refused to accept the demand for partition, sugod nsad ilang
pgkaobligado nga mubayad. Thus, the payment of rentals shall start
to run upon formal demand for partition.
SHARE OF CO-OWNERS IN BENEFITS AND CHARGES
To discuss this, be guided with Art. 485. It would be dependent on
your interest. In the absence of evidence to the contrary, the
presumption is that the portions belonging to co-owners shall be
presumed equal. So, if there are 5 co-owners, each own their
interest equivalent to 1/5 each. But it does not always follow,
because it happens that one co-owner may purchase the right of the
other co-owners. For example I am one of the 5 co-owners then I
purchased the share of my brother, I will be entitled to the extent of
2/5. Thus, because my share is 2/5, if there are profits my share is
also 2/5. Also, if there are expenses, my share of the expenses is
also 2/5. Remember that any stipulation contrary to this is void
under Art. 485.
RIGHT OF A CO-OWNER TO FILE AN ACTION FOR EJECTMENT
First, we need to know what is the rule on impleading the parties to
an action. In Remedial Law, when a case is filed, the question will
arise kung kinsa man ang dpat nga mufile ug kinsa man ang dapat
nga defendant. In fact, in Civil Procedure, there are rules on the

parties in a civil action. So kinsa man dpat? All those who have
interest should be included either as parties plaintiff or parties
defendant. Dapat ang tanan nga maapektohan sa kaso. If the case is
about recovery of a co-owned property, kinsa man dpat ideally ang
iinclude as plaintiff? Tanang co-owners. What is the consequence
diay if you will not properly implead an individual as a party to an
action? The case is not supposed to proceed without their presence.
This is not only because the Court has no jurisdiction over the
parties not impleaded, but also to the parties impleaded. The Court
has no jurisdiction nga mupadayon so madismiss ang kaso. Because
kung naay defendant nga dapat unta giimplead nya wa nimo giapil,
madismiss ang kaso ky ang defendat is an indispensable party.
However, Art. 487 creates an exception. So magamit nimo ni nga
Art. 487 if naay muobject saimong kaso ky wa nimo giapil ang ubang
co-owners (Discussion on the practicality of this provision due to the
existence of such circumstances as when the other co-owners are
residing abroad). Why is it that the law allows a single co-owner to
file a case for and in behalf of the others? This is because the
relationship between the co-owners is fiduciary in character and is
therefore built upon utmost trust. And not only that, what is the
effect if an act is performed by one? It will affect the interests of the
others and it will be deemed as an act for and in behalf of the
others. This is the essence of the relationship between co-owners as
fiduciary in character. Is there a basic guideline that we have to
observe when a co-owner will file a case for and in behalf of the
others?
Adlawan vs Adlawan:
Adlawan here, an illegitimate child who claims to be the sole heir of
his father, filed a case for ejectment against his purported uncles.
He is claiming exclusive ownership over the subject property.
However, after the death of his father, the wife of the latter was still
alive. Thus, it turned out, by virtue of intestate succession, that
Adlawan and his fathers wife (including the wifes legal heirs) are
co-owners of his fathers estate. So, Adlawan here is only a co-owner
of the subject property together with the legal heirs of the wife of his
purported father. Then, upon realizing this, Adlawan invoked Art.
487. According to the Supreme Court, a co-owner may file an
ejectment case even without impleading the other co-owners for it is
presumed that it is filed for the benefit of the other co-owners.
However, if it is for the benefit of the plaintiff alone, the action
should be dismissed. This is because if Adlawans claim would be
granted, he will be declared as the sole owner of the property. The
legal heirs of his fathers wife here are indispensable parties who
should be impleaded. Why is there a need for them to be impleaded
despite Art. 487? This is because Adlawan did not recognize at the
outset nga the subject property is a co-owned property. Di na
puydi!!! So what is the moral of the story here? If you can undo
what Adlawan did, assuming you are him, what must you do? I will
recognize the other co-owners. And how do you do it? You must
state in the complaint that plaintiff is a co-owner bla bla bla being an
heir of so and so and he is bringing this suit for and in behalf of his
co-heirs A, B, C, and D in order to show that you are recognizing the
co-ownership.

English

Penmanship

Perfect your legal & written English.

Find the correct basi

Co-ownership
Acts of preservation

If the sea will touch your land it will be public dominion so

expenses of creation of dike or sea wall may constitute
expense for preservation.
Any owner may spend on it
If practicable he must notify the others
If he fails to notify it does not mean he will lose right to
reimbursement. He may be reimbursed but considering
failure to notify they may question necessity of the
repairs

Assuming it is necessary then other co-owners may

renounce

Property law the moment you renounce you can

no longer be run after
Oblicon novation must have consent of the
creditor

These are acts which are recurring, done by general

agent.Example: managing a building, payment of utilities.
No need to ask permission because this is recurring.
Which is to be decided by the majority of co-owner
controlling interest

Instances wherein majority cannot be obtained

Needs unanimous consent of all owners

Act that can be done only by the owner. In coownership there are many owners so there is a
need for unanimous decision

If there is a question there is a legal question asked

Presentation is the key

Believe you me

Its how you present your faken answer

Careful because these are acts of

alterations. We must be careful in
recklessly concluding that the sale
of one co-owner of the entire
property is whole is void

When a co-owner purports to sell

the entire property that is partially
void alone

Husband sells property

consent of wife void

In co-owner that is valid.

Ex: CO of property grants a right of

way to A without informing or
getting consent of other CO. if
other Cos decide to close it then
they can do it. The act of the 1 st CO
is void. Right of way is an
encumbrance. Di man ikaw tag.iya
ra so di ka mag.garagara nga
magdecide

Hapit na September so wa nay

orals. Happy days napud. No more
reading. Hehe I might use this in
exam and different facts same
principle

Under 493 each CO

enjoys the part he owns
so
he may
assign,
substitute another or
mortgage it except in
personal
rights
are
involved

The
effect
of
the
alienation is limited to
the portion allotted to
him

Purmitan vs ca

without

Case of cruz vs catapang

Valid to the share of the

co-owner selling, void on
the rest.

Family law

Without this the act generally is void

How to answer in my easy exams

Explikar at point of issue. Answer like sir does not know
this so I have to explain properly. Answer what is asked

Act of alienation or alteration or encumbrance

Ex of act of alteration which we must be

careful. sale, lease, donation

Remedy is the appointment of administrator or

receiver

August 30, 2016

Nindot ni nga caso. Ex of case

where SC said this is entry by
strategy/stealth. Maglibug ta ana.
What happened is 3rd person built
house
in
co-owned
property
because he was given consent bby
1 co-owner. He had the co-owner
stay at his house. When the other
CO found out they filed a suit. 3 rd
person defended himself saying
how can I be guilty of forcible entry
when the entry is with consent of a
co-owner. A co-owner has the right
to use the entire property. SC said
there is a cause of action for
forcible entry. Ang right of co-owner
to use entire property has a
limitation, that being not to
prejudice the interest of other coowners, there being no consent,
respondent had no right to
construct her house at the coowned property. None of the CO
may make without consent of all
others alterations to the thing
owned in common

Sale of the entire property without

consent of the others is not null or
void.

Legal redemption

Brother of your father sells his share and

there is co-ownership. He sold it to 3 rd
person. Legal redemption not applied if
sold to brother. The other co-owners has
the right to buy back the property within
30 days from time they were notified.

In relation to selling
o

If you sell a share in co-ownership you

have legal obligation to inform coowners about the sale. They have the
right to exercise legal redemption from
time they were notified.
When you become lawyers and asked to
draft documents of co-owner selling.
The stipulation in deed of sale which is
notices
were
given
to
possible
redemptors or to redemptorsfor the
possible exercise of their right to
redemption. Under art 1623 of your civil
code. Deed of sale shall not be
recorded
unless
accompanied
by
affidavit of vendor that he has given
notice to possible redemptory.
It happened to me. Document of sale of
pro indiviso sale. We went to registry of
deeds. There is an examiner. Mangtas
pana nimu. Kataw-an raka ana.. They
will check it. He asked me why is there
not notice of legal redemption. Balik sa
opisina. Attorney. Yes maam? SAYUP daw
to imu document. Muhiyum imu tuhod
class(taya). Muana ka UNSAY sayop.
Defense mechanism ba. Kotikotihan
walas lugar. Tan.aw dayun civil code
1620. Hinay hinay matay saktu. Ana jud
na sila maam samuk kaayu. Storya story
ba. Pwede mani natu i-consulta ba. Pero
samuk na maam. Comply nalang ta.
Moral of the story wa ka naminaw, wa
nibasa wa kasabut.

Read the case of arangulo v velasco

o

maglisud gani mug tindog. Baligya and divide

the proceeds. Same concept. Do not compel
you ask for partition via sale

What ordinarily happens in the common

setting in our culture? Small property very
impractical to actually divide. What should be
done is to sell it. The problem there in ramos is
if one of the co-owners will not sell. Nganung
mag buot man ka? Ang ang muingun ka DI
man tika igsuon. Under civil code. If there is
act of alteration the co-owners may go to
court and ask for appropriate relief. They went
to court for appropriate relief and the relief
was to compel the unwilling co-owner to
consent. Asa ka mangita ana. The issue in this
case was can you compel and unwilling coowner because his unwilling to consent is
prejudicial to others? SC said you cannot
compel. It upheld right to co-owner to sell or
not to sell. Same result ra gihapon guys.
Different way of skinning the cat. SC
suggested the other co-owners may ask for
partition. Take note that partition there are
several modes of partitioning. The most
common is actual partition. The other mode is
partition by sell. In instances where it is
impractical to apportion a property like it is
very small. 100 sq meters and 10 co owners.
Gahiag ulo ninyu uy basig inyu i.partition

CO sells, that is only good as so far as his

share is concerned. In Cruz vs. Leis. In this
case this is a case where there is interplay of
land titles principle on what appears face of
the title and the extent of the Cos right. The
widow hose name appears ton the title sold it
but the truth is it was co-owned by widow and
children. There is innocent buyer who relies on
what appears on the face of the title. The
question is can the entire ownership be
transferred to him. SC said yes tinoud na nga
CO can only sell his share but in this case what
appears on the title is only the seller the
widow and the buyer can rely on what appears
on the title. So the share of the widow and the
other
If you are the lawyer nya nag.away na.
Annotate as adverse claim. The moment it is
annotated it could no longer be said that the
seller is not bound by anything which does not
appear on the title

Termination of co-ownership
o

If you sell your unit it includes your

co-owners share in the common
area

Premise in termination of CO is that no coowner is obliged to remain in the CO. no CO.

sturya nga dili ni ipabahin nga if bahinon
gabaan ta nya ang gastruya ang gapuyu. Di na
tinoud. He has the right to ask for the
termination of the CO. the law frown upon the
co-ownership but the law likes marriage
forever. Does not apply on co-ownership of a
thing. Pwede ka. Get out of the CO. one mode
for termination is ask for partition. This right
has exceptions

Merger

Prescription

highly contentious

Co-owner
cannot
invoked
prescription. No because it goes
against the meaning of the coowners relationship between and
among themselves because it is
fiduciary in character. 1 sibling is
here and the others are abroad and
when they comeback he says wana ako nani dugay na.

Prescription in favor of 3 rd person

no problem. Exception if it is
registered property under torrens
system. No land with title can be
acquired via prescription

Can
a
co-owner
invoke
prescription? Yes. Before that he
first must show that he has
repudiated the coownership

delima vs court of appeals

exceptions

Agreement to keep thing undivided

up to 10 years but can extended by
new
agreement.
(naa
tuy
congressmen nga nahan nga ang
marriage certificate kay ma renew
every 10 years) thanks for the
idea sir

Donor or testator prohibits partition

for a period not exceed 20 years.
No such thing as perpetual
prohibition to partition

Absolute community not accurate

not co-ownership really. Baligya ug
share. Not really co-ownership

Perfect example is condominium.

You are owner of the unit and coowner of the common area. Yuta,
lobby hallway. Because you are a
co-owner can ask partition any time
pwede diay ka magpa partition sa
common area. There is a law
prohibits that the condominium law.

Co-owned property but he made a

document wherein he made it
appear that he is the only heir. In
other words he did not recognize
the other heirs. On that basis of
the affidavit of adjudication of
sole heir. Once you inherit
property without will then this is
the document you create. Ikaw
ray bugtung ank nga gihimugso
ngadtong mil nubesentos. Wa
silay utang so ikaw herediro. If
daghan
mu
extra
judicial
settlement. On the strength of
that title he was able to get a title
and more than 10 years lapsed.
Nawala silas passing. SC said
prescription has run in his favor.

Segura vs segura

In this case the certificate of title

with annotation in favor of the other
heirs. This is under rule 74 of rules
of court. Extra judicial settlement
mainyu nang yuta wallay will and
testament waay utang magexecute
mug extra judicial settlement bayad
mug estate tax. If naa nana ma
issuahan mug title with 2 year
statutory lien. Reservation in favor
of heirs nga na excluded.

In segura gipacancel niya and then

a certificate of title was issued with
that cancelled annotation that act of

partition is prohibited because the law says so

co-owner buys the interest of the

others. You buy out the others

canceling the annotation is an act of

repudiation. Which would start the
running of prescriptive period.

General rule starts to run from the

issuance of new title. But in
maritigue vs ca, wa giireckon sa
issuance of title but time of
discovery of the fraudulent act

So what do we use?
Date of discovery what
happens to constructive
notice rule? Whereas
date of issuance of title.

Should be reckoned time

of issuance of title.
Apply maritigui cases in
cases where the facts
are all fours of the case.
Klaru kaayu ba nga
gitagu
tagu
ang
fraudulent act. Sinister
and
very
evil
ang
motive. Otherwise go by
the general rule.

repudiation of co-ownership

You refuse, reject the existence of

co-ownership. Wa nimu giila. If you
are the CO and you said nga sugud
karon wan a nako ilha. Igkaugma
ikaw na tag-iya? No prescription is
needed the lapse of time reckon
from actual repudiation

acts

We must know that the

acts is a valid. Because
it is for there where we
know
the
time
pf
prescription

it must be expressed not

clandestine

example: You do not

give share of produce of
land.
When
they
demand you disregard
their demand valid;
when
there
are
restrictions

You have adverse claim, you register coownership right sa adverse claim. The title
which registers your adverse claim was
cancelled and a new title was issued and your
claim was not carried over pursuant to the
representations of the former co-owner that is
repudiation.
Acts you have to be careful this are not
necessarily a form of repudiation

Act of redeeming by himself a co-owned property in

instances where co-owners have right to redeem.

When you utang from a bank, you put up collateral in

the form of real estate. It will require you to execute
real estate mortgage. The moment you fail to pay the
bank will foreclose your property. it will be sold in
public auction. The property will be offered to sell in
the bank. The highest bidder will be issued by sheriff
with a certificate of sell at the moment. Certificate of
sell only because at that point mortgagor has one
year to redeem such property. Now during such
period the mortgagor is still the owner. Once it
expires. When does one year starts? From
registration of the certificate of sale this is the strict
meaning. If it is not registered the certificate of sell
will not run. During the 1 year redemption period let
us suppose property is co-ownership. 1 co-owner
redeemed a property. Does that vest on him sole
ownership? Settled ruling is no. that is still under coownership although he is entitled to be reimbursed of
the amount he paid. The provision does not give to
the redeeming co-owner the right to the entire
property because it does not provide for mode of coownership.
Different story is the mortgage has consolidated each
title over the property. The redemption period has
finished the title has been cancelled and has been
transferred to highest bidders. At this pont 1 of the
co-owners is negotiating with the bank, he will say
ako paliton ang yuta mr manager. Done after the title
is consolidated. This payment is after the
consolidated ang title sa highest bidder? Can the
other ask for co-ownerhisp? No not anymore.

September 3, 2016
Termination of Co-ownership
Last time we discussed the modes of terminating ownership. The
most common one is partition. I mentioned that partition can be
done in two ways:
1) Can be done extra-judicially or
2) When the co-owners cannot agree as to which portion shall
belong to whom, then we have to resort to the court for that
purpose. There is a special rule in the Rules of Court, Rule 6partition proceeding. That is the most common one.
The right to ask for partition cannot be restricted as a general rule.
We can ask for partition anytime. The only restrictions are:
1) When there is an agreement not to divide, the disagreement must
not exceed 10 years
2) When the co-owners receive the property pursuant to donation or
through testate succession and the donor or testator imposes that it
must not be partitioned. In which case it must not be partitioned in
20 years.
3) Condominium Law. I mentioned that when you are an owner of a
unit, you are not only an owner but a co-owner as well of the
common areas- the land on which the building stands, the hallway.
You cannot ask for partition because it is prohibited by the
condominium law.
Prescription and Repudiation of Co-ownership
The second mode of terminating co-ownership is by prescription.
Can one co-owner assert for his benefit prescription adverse to his
other co-owners? The rule is he cannot because the relationship
among the co-owners is beneficiary in character. But when one coowner repudiates the co-ownership, then from the time of
repudiation, prescription will immediately start to run. So the
question is what are those acts/examples of repudiation of co-

ownership? Just go by how repudiation is described. When you do

not recognize the co-ownership, this would include acts of one not
giving the share pertaining to the other co-owner- that is
repudiation.
Delima v. CA
Tthe SC had the chance to give us an example of what repudiation
is. This is a co-owned property where Delima executed an affidavit of
adjudication as a sole heir. When you inherit by intestate succession
a property, in order for the property to be transferred in your name,
there are two documents which will be executed.
1) If there is one heir, you will execute an affidavit of adjudication of
sole heir.
2) If there are several heirs, the document is extra-judicial
settlement among heirs.
What should have been done here is extra-judicial settlement among
heirs but instead Delima executed an affidavit of adjudication
denying the co-ownership. And on the basis of that document, he
was able to secure a title in his name. This act of Delima was
recognized by the SC as repudiation of co-ownership. Thus, from the
time of the issuance of the title in his name, prescription
immediately starts to run in his favor. So the moral of the story is:
for prescription to run in favor of a co-owner, it must be preceded by
repudiation of co-ownership. RULE: No repudiation, no prescription in
favor of a co-owner.
Problem is for you to know examples of repudiation of co-ownership.
Other example is the case of Segura v. Segura
What was done here is the certificate of title issued in favor of the
co-owners carried an express reservation of whatever rights that
might pertain to the other heirs. Kana mag transfer kag title in favor
of co-owners, there is a requirement under the law para dili ma
deprive ang other prospective co-owners sa ilang share, i.anotate
ang reservation nila. They are given 2 years to assert their claim as
a co-owner. Ang nahitabo diri was the certificate of title contained
that kind of annotation, but subsequent issuance in one of the coowners did not anymore carry the reservation. In other words, gi
wala na to ang reservation. Now, suggesting from the eyes of the
objective observer, kung wala na ang reservation so the impression
is that the property is not under co-ownership. So kung ikaw
affectado ka nga wala sa imong panaglan pero co-owner ka, in truth,
naa kay proprietary interest over that property. What you should you
do is immediately file the appropriate action to assert your right. For
example, settlement proceeding. Because if you sleep on your right,
then from the moment na gi cancel ang reservation in your favor
and other co-owners, the prescription will begin to run because that
is an example of repudiation of co-ownership.
The problem here is we are already settled that prescription can run
in favor of one co-owner against the other co-owners. The problem is
how shall we determine the reckoning point of prescription.
In the case of Delima, the reckoning point was the date of the
issuance of the title in Delimas name because we go by what we
learned in our Land Titles of the constructive notice rule which says
that dealings with regard to registered lands (PD 59) the operative
act for dealings with registered lands will commence from the time
of registration. The legal effect for whatever acts you caused to
register with the Register of Deeds adto gud na sa pag register
nimo, sa primary entry book. Ang registration is the operative act
for a general rule. Therefore, kung mag mention ang reckoning
point, the reckoning point is the date of issuance of the title whether
the co-owner knows or not because that is the essence of
constructive notice. That is the rule in Delima.
But in Maritegui v. CA, the SC relaxed the harshness of the
constructive notice rule. Kanang i.notify ta di pa gani ta mubasa.
Can you imagine that you will be bound of the legal effects whether
you know or not? Dba, very harsh. Are you expected to go to the

Register of Deeds? Mao na ang Maritegui case, naay element of ilad.

So the SC reckoned the prescriptive period from the knowledge of
the defraudation.
Sa Maritegui, gi himo sia ug exception. Kang Delima case about the
constructive notice rule, the weight of the authority tends to lean on
Delima case. Kanang Maritigui case gi invoke na kung gi labas na ug
10 years from the date of issuance and how prescriptive period can
run from date of discovery. Exception ni that prescriptive period will
run from date of discovery of fraud.
From the case of Pangan v. CA , the rule we can derive here is that
from the view point from the co-owner nga nag assert that there is
prescription on his favor, first he must prove that he repudiated the
co-ownership. So kung ikaw mo assert ana as a defense (resist the
case of partition) ang imong defense is there is no partition because
you are already the exclusive owner. The basis is prescription
because you already repudiated the co-ownership. Dont expect that
the court will accept at face value that you already repudiated the
co-ownership. You must prove and establish before the court what
specific acts you did to establish repudiation of co-ownership. Di
man pwede nga I already repudiated co-ownership. Dili, imo dapat
i.specify .
In Pangan v. CA the SC ruled that there must be categorical and
clear assertion. According to the court there is no categorical
assertion of the petitioners of their exclusive right to the entire
property nor is there any explanation that she had no right to a
shared right. So remember the case ofPangan kanang mo assert kag
repudiation dapat i.specify nimo ang acts of repudiation.
Partition
Did I already discuss to you the effects when there is already
partition? When the co-ownership terminates, what are some of the
notable effects? Naay certain rights na pwede nimo i.assert if coownership still exists: legal redemption.
If its termination of co-ownership by partition, one notable effect
there is when the co-owned property is burdened with servitude or
there is right of way gi constitute sa property at the time of the coownership nya gi partition. It doesnt mean gi extinguish ang right of
way.
I also mentioned that there is a duty to render mutual accounting
then there is also liability for defects of title. E.g. there is a partition
and then one co-owner received a property which cannot by
partitioned like forest land. Then can that specific co-owner bear
less? No, the other co-owners can have their share reduced and
make up for the prejudice of that co-owner.
What are some notable effects of termination of co-ownership
through partition? Now in relation to co-ownership, I included the
condominium law. This is RA 4726. Because ownership of a
condominium as I describe it partakes of co-ownership.
Sec 2- A condominium is an interest of real property consisting of:
1) separate interest of a unit in a residential or commercial building;
2) undivided interest in common directly or indirectly in the land on
which it is located.
What is meant by directly and indirectly? Directly- walay
condominium corporation ang gi organize. Kung naay condo corp. na
gi organize (this is often the case) kanang common areas, gi register
ni in the name of the condo organization in which automatic
shareholders or members are the condo unit owners. Provision of
this law will only apply if recorded in the Registry of Deeds or
registered in the city where the property lies- an enabling or master
deed. Before ka mo deal ug corporation of condominium, icheck sa
Register of Deeds kung condo ba jud na sia. There must be an
enabling or master deed.

Sec 5 is for me one of the important articles so far as property is

concerned because it states that any transfer or conveyance of a
unit shall include transfer or conveyance of the undivided interest in
the common areas. So for example, nag execute kag deed of sale on
your condo unit, automatic by operation of law, apil ang conveyance
sa imong common interest. Remember in the rule of contracts, that
law is deemed incorporated in contracts.
All right, lets talk about partition of condominium. In the condo law,
gi prohibit ang right to ask for partition. So are we therefore saying
that there can be no partition sa condo owner? You can ask for
partition but only on specified grounds. In ordinary co-owned
property, you can ask for partition. You dont have to site a reason
why you are getting out of the co-ownership. That is your absolute
right provided you dont fall under the restrictions. There is a
condominium law where an action can be brought by one or more
persons of their partition thereof by sale of the entire project. Sa Sec
8 therefore, usa ra gi allow ang mode of partition. Only partition by
sale.

OFWs nga naay magpadala ug bag then naay contraband then gi

kiha? This goes to the issue of malice or intent to commit which is
immaterial in special penal law. Your defense should be possession
involves material holding of the thing and intent to possess. In other
words, kung material holding ra and walay intent to possess, ther is
no possession. No intent so it is not a valid prosecution for
possession of dangerous drugs.
To possess means to actually and physically occupy the thing.
Possession implies nga dunay actual or phsycial holding. Possession
is the holding of a thing and enjoyment of a right. In other words,
kung wa ka gi hold sa thing there is no possession. In ownership,
pwede nga w aka nag hold and enjoy. The delivery of public
document is already transfer of ownership by tradition. Pero ang
possession is not like that. Constructive possession- is possession of
a part is possession of a whole. Kinahanglan ghapon nga naay
physical holding bisag part lang. So these are the ways where
material occupation is the most common way of acquiring
possession.

Arambulo v. Nolasco the court ordered the sale. Usahay dili practical
ang partition so the court can order the sale and divide the
proceeds. Sa condo you can ask for partition but only in partition by
sale. You cannot ask actual partition of property. This is the only
ground allowed by law. So di nimo ma apply ang partition of coownership that you can ask for partition anytime

But if something cannot be physically held for e.g. if it is intangible.

So subjection of a thing or subject to the right of ones will. E.g. you
are a stock holder, possession of a right of a stock holder, how will
you take over it? It is the fact that you are exercising your right as a
stockholder with the proper act and legal formalities. Like you are a
buyer in an auction sale or transfer pursuant to donation. That is
also delivery of possession.

By the way, when you are condo owner, you are entitled to be given
a condo certificate of title. Condo corporation is normally created
because they constitute the management body of the project. I
mentioned condo corporation because ownership of the common
areas is normally held by the condo corporation and not directly by
the unit owners individually.

Medina v. Greenfield Corp.

SC distinguished possession from ownership. According to the SC
there are 2 different legal concepts. Just because you are not in
possession that is not prrof that you are an owner. And just because
you are in possession, that is not conclusive evidence of ownership.
Precisely because possession and ownership are 2 different things.

Now, this is constitutional law. A question may be raised. Can a

foreigner or alien own a condo unit in his name? Yes. When you are a
condo owner, dba you have ownership in the common areas as well.
Nya pwede diay ang alien owner of the land in common?
It would depend. If the condo unit is organized and the common area
is in the name of the condo organization, it is possible for an alien to
be a condo unit owner. But if the common area is in name of the
individual unit owners, the alien cannot buy a unit in that project.

Exception is the case of ownership in the case of movables like

cellphone. Possession of a movable Is equivalent of a title.
Possession and ownership are two different concepts. Remember the
case of forcible entry- possession of a squatter v. a registered owner.
The only issues here is material possession. But ingon ang squatter
nga material possession judge so the registered owner has to file an
accion reinvidictoria. Then, of course, to make the long story short,
mao na ang basis sa squatter coz mu balik man ang issue of
ownership. You have to assert how you were first able to assert
possession.

POSESSION
What is possession and what are cases where possession is a
material issue?
There are several kinds of possession:
-Possession in the name of another, possession in one owns name.
What is a case where possession is the main issue? Forcible entrypriority of possession, who has a better right.
-Possession in good faith, possession in bad faith. Kung good faith
ka, you have the right of retention.
-Possession in the concept of owner or possession in the concept of
holder. Asa ni sia ma relevant?
Bogo-Medellin Milling Co. Inc. v. CA
Before ka maka assert ka nga owner ka by prescription, unsay basic
requirements? What is the character of your possession? You must
be in adverse possession. If yours is possession only as a mere
holder then it will not give rise to prescription. Kung ang character is
that of an owner whether you are the real owner or adverse
claimant, for 10 years, wala gi question imong posession as an
adverse claimant, you can acquire ownership by prescription.
Balik ta forcible entry. Determine ta ug priority of possession. Naay
rules of possession that cannot be recognized in two different
personalities. Even in a criminal case. Have you heard stories of

Balik ko sa exception: Movable possession is equivalent to

ownership. Under the Civil Code, possession of a movalbe of which a
cellphone is, is equivalent to a title.. So class, possession of a
movable is equivalent to a title but cannot be applied in the case of
immovable.
Material occupation includes the idea of occupation. Under the Civil
Code, one of the modes of acquiring ownership, is occupation. This
is occupation in the grammatical sense of the term. Kato occupation
as a mode of acquiring ownership, legal man to. For e.g. hunting or
catching a fish. Mao na ang material ownership by occupation.
Kaning possession and ownership, they are not the same kay kaning
occupation as a legal sense of the term implies ownership.
Possession does not imply ownership.

Two Types of Occupation: Literal Sense; and Legal Sense

Literal Sense
Possession always include the idea of Occupation
Legal Sense
Occupation as a mode in acquiring ownership (e.g.
hunting, fishing, etc.)

Possession vs Occupation
Occupation in the legal sense of the term implies
ownership whereas Possession does not.
As to land, a land cannot be an object of Occupation
whereas in Possession it can be an object.
However, it is not necessary that the person in possession should
himself be the occupant.
Example:
Mr. X is a Filipino citizen residing in USA who has landholdings in the
Philippines. Are you in possession? Assume further, you want to file
a forcible entry case because your property was intruded by a
squatter but you are in states. Your caretaker was driven out
(Caretaker cannot file the action for lack of cause of action since he
is not the owner). The squatter may raise as a defense that you are
not in possession because you are in the USA. If you are the judge,
how would you rule? Will you dismiss the case?
The case will not be dismissed. This is because, the
possession of the caretaker is the possession of the
owner. Hence, it is not necessary that the person in
possession should himself be the occupant. The
occupancy can be held by another in his name.
Holding of the thing or Enjoyment of the right extends to
both corporeal and incorporeal property.
In Land Titles, the law states that possession and occupation
since June 12, 1945. Notice that both must be present.
If you file a petition for confirmation of imperfect title based on your
possession on or before June 12, 1945. You have to prove aside from
possession, actual occupation. This is because, in possession,
there is a tendency that such requirement will be overlooked in
cases of constructive possession. However, in occupation for
purposes of June 12, 1945, you must be able to prove that you
actually occupy the property. Otherwise, your petition cannot be
given due course. (ONG vs REPUBLIC)
That is why occupation must be continuous, exclusive and
notorious.
Elements of Possession
1
Occupancy; and
2
Intent to Possess
TAKE NOTE: If you say that you have rightful possession of the
thing, you prove not only that you possess, but you also have the
intent to possess.
Example:
Mr. Kerk rode a bus who fell asleep because of too much drinking.
Here comes, Mr. dela Cruz (a drug trafficker) and placed his bag on
Mr. Kerks lap who even hugged such bag while sleeping. There was
a checkpoint conducted, Mr. Kerk was arrested. What should be his
defense?
The defense is that he has no intent to possess.
TAKE NOTE: If possession is the gravamen of the offense, the valid
legal defense would be no intent to possess.
Animus Possidendi
Involves a state of mind whereby the possessor intends
to exercise a right of possession whether it be legal or
not.
Example:
In possession of a theft, if you are in possession of the thing, you
cannot say that you have no intent to possess.
Constructive Possession
This is a liberal view.

Possession 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.

Example:
You have a big lot then there are some unused portions. Then,
people entered your lot so you filed a case for forcible entry (issue
on who has priority of possession). How would you say that you have
priority of possession when the truth is the area is undeveloped? The
judge will dismiss the case. Would you accept that ruling?
Take note: possession as a fact cannot be recognize in two different
personalities. Hence, if who is declared as the rightful possessor, he
shall be the possessor of all. OF COURSE, the judge in this example
is WRRRRRONG. Under the Theory of Constructive Possession,
possession of a part is possession of a whole. Provided that
the remainder is not in the adverse possession of another
(this is the catch).
In the preceding example, you can assert the theory of constructive
possession if purely squatter. However, if it is an adverse claimant,
then it would be a different story and you cannot assert the theory
of constructive possession.

Possession which you can invoke even against

the owner.
b
No assertion of ownership
Possession with a Just Title but not from the True Owner;
a
Possession of a buyer from one who pretends
to be the owner.
b
Would
require
prescription
to
perfect
possession and ownership.
c
With assertion of ownership
Possession with a Just Title from the True Owner.
a
Cannot be contested.
b
With assertion of ownership

Types of Possession
Possession in Ones Own Name
You are not relying to someone elses possession.
Would also include possession even if you are not the
owner but you have an independent right of possession.
E.g. Possession of a Lessee (this is not in concept of an
owner but in the concept of ones own name).

Who is an Adverse Claimant?

An Adverse Claimant is someone who is in possession of
a property in the concept of an owner.

Possession in the name of another

- Possessor does not have an independent right
- Possession of the possessor is just an extension of the possession
of the rightful possessor

Right to Possession vs Right of Possession

Right to possession is a possession which springs from
ownership.
Right of possession is possession independent of
ownership (e.g. lease).

For Example:
1.
Caretaker
2.
Possessor by Mere Tolerance

CASE: Ernesto Yu vs. Baltazar Pacleb

This case is about a registered owner vs a claimant in which the
issue is priority of possession.
Supreme Court ruled that the one who has priority of possession is
the registered owner because in the first place he was not deprived
of possession because the one contesting derived his possession
from someone with no right of possession. (The spring cannot rise
higher than its source)
How do you prove that you are in possession?
Tax declaration is proof of possession because no one in
his right mind would not pay if he is not the owner. If
there is no tax declaration, then prove it by actual
possession.
Example (a case handled by Atty. G):
There was a piece of land covered by two different titles. So an
action for quieting of title was filed.
Who should be given ownership considering that both are valid
titles? The one who first registered? However, Attys client was the
one who registered late. Well, it boils down to whoever possess the
property first base on the theory if they are the first possessor, the
title of the other has no basis. They should prove that they have
possession before the other titles registration. How did they prove
such possession?
They presented the earliest tax declaration. Hence, the other client
entered into a settlement agreement.
Degrees of Possession (Least Strong to Most Strong)
1
Mere holding of possession without title (e.g. usurper of
land);
a
No assertion of ownership
2
Possession with Juridical Title but not of Ownership;

Hence, if the property owner wants you to vacate the property, you
have no right to raise against the eviction. Moreover, you cannot
claim ownership by prescription.
Possession in the concept of an owner
- Possession of the owner or of one who claims to be an owner (e.g.
adverse claimant)
What is the implication or consequence if you are in possession who
claims to be an owner?
If you will be able to prove that you are in possession in
the concept of an owner, then you can acquire ownership
by prescription.
TAKE NOTE:
Only in possession in the concept of an owner that you can
acquire a property through prescription.
Possession in the concept of a mere holder
- The holder has an independent right of possession except that a
mere holder acknowledges that there is another with a superior right
of ownership.
What is the consequence if you are in possession in the concept of a
mere holder?
You cannot acquire ownership by prescription although
you have an independent right of possession.

CASE:
Bogo-Medellin Milling Co., Inc. vs CA and Heirs of Magdaleno
Valdez Sr.
Facts:
Theres a piece of land which is used as a railroad truck for several
years. Initially there was an agreement, Easement of a right of

way. Later on, there was no renewal of the agreement for the use
of their land so Bogo-Medellin filed a case.
Bogo-Medellin contended that they have acquired an easement of
right of way by prescription through the lapse of time by usage of
such right. Moreover, when their easement agreement expired they
were allowed to continue the usage of the railroad truck. Thus, they
became the owner of such land.
Later, when they Bogo-Medellin realized that they cannot succeed
that they have acquired easement by prescription, they now claim
that they are the owner of the lot in which they filed it with the
cadastral survey.
Issue:
WON they acquire the land by prescription.
Ruling:
During those times that you were using the right of way and you
signed an agreement with the owner of the land, it cannot be
considered as possession in the concept of an owner for purposes of
prescription. The possession in the concept of an owner started only
when Bogo-Medellin filed an adverse claim in the cadastral survey.
Hence, the prescriptive period has not been sufficient for purposes
of prescription.
It is a fundamental principle of law in this jurisdiction that acts of
possessory character executed by virtue of license or tolerance of
the owner, no matter how long, do not start the running of the
period of prescription.
Possession of Hereditary Property
Hereditary Property the property which you inherit.

Hence, the child must take possession for another 2 years

(8 years will be credited from the 24 years of bad faith
possession).
Possession in Good Faith and Bad Faith
Article 448 is still applicable.
Effects of Possession in Good Fatih:
Entitled to reimbursement of necessary expenses;
Entitled to reimbursement of useful improvements; and
If you are not paid, you have the right of retention.
Whereas, if you are in bad faith, you only have the right for
reimbursement of necessary expenses.
Who is a possessor in Good Faith?
He is one who believes that the person from whom he
received the thing was the owner of the same and can
convey the title. The belief must be based on some title
or mode of acquisition.
Is ignorance of the law a basis of Good Faith?
Generally, NO unless it is a mistake upon a doubtful
provision of law.
Who is a possessor in Bad Faith?
A person knowing that his title is defective. Moreover, just
like a purchaser in bad faith is somebody who is aware of
facts and circumstances which should have compelled
him to make further inquiries on the title of his transferor
who fails to do such.

Rule on Tacking of Possession - adding your length of possession

with the length of possession of your predecessor/s.
Example:
The number of years that your predecessor (father, grandfather,
etc.) possessed the property will be added to your number of years
of possession. It is because possession in hereditary property is
deemed transmitted to the heir without interruption from the
moment of death of the decedent in case the inheritance is
accepted. Hence, the present possessor may complete the period
necessary for prescription by tacking his possession with that of his
predecessors-in-interest.
As possessor and successor, you succeed by hereditary title. You
shall not suffer the inconsequence of the wrongful possession of the
decedent. This is relevant if your predecessor is in bad faith. Take
note that bad faith possession is not transmissible because bad faith
is personal to the individual so it does not follow that the successor
is also in bad faith.
There are two views on this:
1st View:
Example: Bad Faith Possession 30 years prescriptive period. If the
parent (in bad faith) died in the 10th year and the child (in good faith)
succeeded. How many years is left for prescription shall set in? 10 or
20 years?
Only 10 years is required because bad faith is not
transmissible. Good Faith starts only upon death
provided, you have no knowledge of the bad faith.
2nd View:
Assume that in the previous example on the 24 th year the parent (in
bad faith) died. How many years must the child in good faith take
possession for prescription to set in? Should it still require 10 years?
The bad faith possession in this case will be given a credit
on the ratio of 1 credited year for every 3 years of bad
faith possession of the predecessor or 1:3 (10/30 years).

GENERAL RULE:
Every person dealing with a Torrens Title may safely rely
on the face of the title. Only the liens and encumbrances
annotated may bound the purchaser.
EXCEPTION:
If you have actual knowledge.
If the buyer is a corporation engaged in Banking, Lending
Institution who merely relied on the title for the reason
that there is a presumption that they have the necessary
personnel to check the title.
CASES:
Domingo Realty vs CA
The Supreme Court ruled that with the failure to make inquiries
placed the buyer in bad faith.
Hopefully this case will serve as a precaution to prospective parties
to a contract involving titled lands for them to exercise the diligence
of a reasonably prudent person by undertaking measures to ensure
the legality of the title and the accurate metes and bounds of the lot
embraced in the title. It is advisable that such parties (1) verify the
origin, history, authenticity, and validity of the title with the Office of
the Register of Deeds and the Land Registration Authority; (2)
engage the services of a competent and reliable geodetic engineer
to verify the boundary, metes, and bounds of the lot subject of said
title based on the technical description in the said title and the
approved survey plan in the Land Management Bureau; (3) conduct
an actual ocular inspection of the lot; (4) inquire from the owners
and possessors of adjoining lots with respect to the true and legal
ownership of the lot in question; (5) put up signs that said lot is
being purchased, leased, or encumbered; and (6) undertake such
other measures to make the general public aware that said lot will
be subject to alienation, lease, or encumbrance by the parties.

Manotok Realty vs CA
Buying a property not from the registered owner must compel you to
make further inquiries.
TAKE NOTE:
When you buy from an agent you cannot invoke the benefit
you relied merely on the face of the title.
September 5, 2016
We are now on the topic of ways of acquiring possession. This
answers the questions on how did you validly acquire possession.
Now our civil code provides for the ways of validly acquiring
possession.
First one is the most common form which is material occupation. To
say material occupation class, what it means is actual physical
holding. Of course, they should be coupled with intent to possess. As
I have discussed earlier, it is not enough that you physically hold the
thing, there must be intent to possess on the part of the possessor.
The second way is subjecting the action or right to the persons will.
This would apply in regard to rights so it is not only things that are
the object of possession, rights as well, may also be object of
possession.
The third way of acquiring possession is proper acts and legal
formalities which is the one, for us, have a hard put at pointing out
an example of this. An example of this is very simple, when we say
acquisition of possession through proper acts and legal formalities
they are basically referring to acquisition of possession as a result of
acquiring ownership through any of those recognized by law.
So there are seven modes of acquiring ownership. When we say
tradition, in what transaction will there be transmission of ownership
by tradition? Sale. Why do we say that in sale there is transmission
of ownership by tradition? Transferred through the execution of a
public document. When public document is delivered to you as a
result of a sale transaction and that document is delivered to you,
that is not only delivery of ownership, that is also delivery of
possession as well. That is the general rule. You are not required to
established actual residence there before it can be said that you are
in possession because there is no adverse claimant there, the mere
delivery of that public document is already delivery of possession.
That is one example of acquiring possession through this third way.
Succession is also a mode of acquiring ownership when you inherit a
property from a decedent, you dont have to actually possess
because by the reason of law when there is succession, upon the
death of the decedent, rights of ownership are transmitted to the
successors. It is not only delivery of possession but delivery of
ownership as well because succession is a mode of acquiring
ownership. Other than acquiring possession through this modes of
acquiring ownership.
There are also other juridical acts which would have the effect of
delivering possession like when you join a public auction and you
happen to be the highest bidder, a certificate of sale is delivered to
you or you filed a writ of possession as a result of the fact that you
are the highest bidder and you want to be immediately placed in
possession of the thing which you purchased in a public auction. The
issuance of a writ of possession in your favor is also delivery of
possession through proper acts and legal formalities.
Lets take up article 533 which is possession of hereditary property.
533 says that possession of the entire property is deemed
transmitted to the heirs without interruption and from the moment
of the death of the decedent. When you inherit a property provided
that you accept the inheritance, there is already delivery of

possession to you. For example, the land that you inherited, there
are squatters there on the land that you inherited. The original
registered owner is already dead. So you want to get rid of these
squatters. So you will be filing a case for forcible entry because
normally you will be interested to avail of this summary action to
recover rather than an accion reivindicatoria.
Now, remember that in forcible entry, the issue there is who has
prior physical possession. Normally in forcible entry, the court will
not deal with who has legal possession much less ownership. The
only issue there is who has prior actual possession. If the squatter
can prove that he is the one in actual possession, the judge might be
tempted to dismiss your forcible entry case because you, the
successor, has never been in actual possession of the property, you
might be advised by that stupid judge to just file a case for
reivindicatoria and you might be infected with this stupidity and you
will agree and just file an accion reivindicatoria. Now that is wrong
because the rule is, when the registered owner dies and you are the
successor, from the moment of death of the predecessor, the
possession is also transmitted without interruption. Of course this
would presuppose that you will accept the inheritance because if
you reject the inheritance it can never be said that you possessed
the property.
Now, there are however problems that may arise with regard to
transmission of possession from the predecessor to the successor.
(Asks whether na discuss na) Now, the situation may arise where the
property is possessed by the predecessor in good faith and before
the perfection of the period required he died, the question may arise
on how many more years the successor is required to possess the
property.
The rule is very simple if both the the predecessor and successor are
in good faith, all you have to do is just to tuck the possession of the
predecessor with that of the successor. The problem is when the
predecessor is in bad faith and the successor is in good faith. That is
the presumption because a bad faith possession cannot be inherited
according to the law it says that one who succeeds by hereditary
title shall not suffer the consequences of their wrongful possession
of the decedent so the implication of this is if the predecessor is in
bad faith, that does not mean that the successor is in bad faith. Bad
faith is something personal. It is not transmissible. If the predecessor
is in bad faith, there is a rule of presumption of good faith so the
successor is in good faith. If we apply this strictly, his bad faith
possession will be erased and renewed for another ten years. Ang
problema ana class is when the possession in bad faith of the
possessor is too long and gamay nalang kaayog kulang nya namatay
man ang predecessor. For example, 25 years na siyang pinossess sa
property in bad faith, kulang nalang tag 5 years class. So, ug atong i
apply nga di nato iconsider ang bad faith possession. It would not be
correct to say that the successor only needs 5 years diba? So
therefore, mu renew another 10 years diba? So mabutang ni nga
situation nga mas maayo nalang diay ug bad faith nalang pud ni ang
successor para 5 years nalang kaysa 10 ang possessor in good faith
diba? A theory is advanced by some civil law commentators nga how
do you credit? dili pud tanan, ratio and proportion in mathematics ba
1 is to 3 man diba? 10 years good faith is equivalent to 30 years bad
faith. Sa 25 years kuhaon nimo ang creditable number years. Lets
talk about instances where possession is not required. In other
words, even if the one who is in actual possession, he cannot validly
say that he is in legal possession.
Again, I would advert to a situation nga kaning forcible entry case.
Kay kaning forcible entry case class, this is the best case that I can
cite wherein we can apply the different rules and principles
regarding possession because that case involves possession as an
issue. This will be our reference point to understand that provision. I
am talking about acquisition of possession by force or intimidation.
So, remember that German Management case? Where the actual
occupants were bulldozed then the occupants filed a case for
forcible entry and they won in that case. Why? Well before the case

was filed, take note ha, that the one who was in possession was the
agent of the owner but how did he acquire possession class? He
acquired it by bulldozing the property, destroying the perimeter
fence so this would fall squarely under article 536 that is acquisition
of possession by force or intimidation. So, can he validly argue that
before he filed the case for forcible entry he was the one in prior
physical possession? He cannot because 536 is very clear. In no case
may possession be acquired through force or intimidation as long as
there is a possessor who objects thereto. He who believe that he
has an action to deprive another of the holding of a thing, must
invoke the aid of the competent court. So acquisition of possession
by force or intimidation, the one who successfully retake possession
cannot claim that he has now the legal possession. The theory being
that when this is the manner of acquiring possession, it is as if the
possession of that possessor was never interrupted. Bisan pa in
actuality, nawala na siya sa premises. Sa balaod it is as if
nagpadayon iyang possession. Now in relation to that, aside from
acquiring possession through force or intimidation.
Possession also by tolerance of the actual possessor or possession
obtained by the actual possessor in a clandestine manner. Nga wala
nakabalo ang lawful possessor, they do not also affect the legal
possession of the rightful possessor. How do we apply this? You
already know what a possessor by mere tolerance is right? Naa kay
yuta class unya naa karon nihangyo nimo nga mupuyo sa imong
yuta. Gipapuyo nimo. The rule if it is possession by mere tolerance
class, the possessor has an implied obligation to vacate whenever
the owner needs the premises. You are actually subject to the whims
of the owner. Ug muingon ang owner hawa na diha kay di nako
ganahan makakita sa imong nawong you have to hawa. Di mana
pariho ug lessee class nga muingon nga hawa na diha pwede mana
muingon ang lessee nga di man ka pwede makapahawa nako
because naas kontrata nato o i have two months to stay here. Pero
kung possessor by tolerance ka, in theory ha, pwede ka
papahawaon. Just because the possessor by mere tolerance is given
possession it doesnt mean nga ikaw nga nihatag ug possession na
interrupted ang imong possession. Nag continue imong possession.
The possessor by mere tolerance is a possessor in the name of
another. How did we describe a possessor in the name of another?
He has no independent right of possession. He is just an extension in
the actual possession. What he has is only the fact of possession but
he does not have the legal possession. But even that fact of
possession if maabot to ang punto nga mag forcible entry case na
dili na pwede niyang ma invoke as a defense. Same with clandestine
possession and possession by violence. They do not affect
possession. When the law says they do not affect possession
pasabot class, continue ra gyud ang possessory right of the legal
possessor. Pag abot sa forcible entry di gyud siya pwede muingon
nga I am in the one in prior physical possession your honor,
therefore the forcible entry case should be dismissed. No because of
this article 537. We have a case there example of possessor by mere
tolerance, Kilario vs CA. You remember however the case of
Macasaet ha. You still remember that? The invitation thing by the
parents. That is not a possession by tolerance. I dont know what
that kind of possession is. Maybe that is possession by a
usufructuary.
Kaning possession sa usufructuary class, kusog kusog ni nga kind of
possession ha. We will discuss later on what a usufructuary is. When
there is conflict as to possession class, conflict over possession de
facto we resolve it in the basis of the standards under article 538.
Now in possession because the essence of possession is actual
physical holding. In resolving issues about possession is on a winner
take all basis ha. Pasabot ana kinsa ang rightful possessor siya ang
possessor sa tanan. Dili pwede nga dako man kaayo ning yutaa ni
nganong mag lalis man mo ani. Ikaw didto kas northern ikaw adto
kas southern portion. Di na pwede ingon anaon pag resolve because
that is not a resolution on the basis of law except when it is a case of
co-ownership. Co-ownership class, the co-owners, pwede mana sila
mu possess. When there is a question regarding who is in actual

possession, the present possessor shall be preferred. Subject of

course to the one I discussed earlier about katong wala gyuy right.
Tolerance, possession by violence, di ka makaingon nga he shall be
preferred because he is the present possessor. Kaning muingon ta
ug the present possessor shall be preferred, this would presuppose a
situation class that, kaning duha ka tawo nga nag contest sa
possession puro ni mga adverse claimants. Ang pangutana karon
kinsa maning mga adverse claimants. Kani silang duha class, ug
muingon ta adverse claimant ka ang pasabot ana ang imong
possession is in the concept of an owner. Puro mo in the concept of
an owner. For example, naay yuta puro na ninyo gi applyan ug free
patent. Both of you nagpuyo mo dira puro mo adverse claimant
dinha. If ang usa adverse claimant ang usa squatter, pilde gyud ang
squatter, wa manay right.
Lowest mana ang degree sa iyang possession. If puro mo adverse
claimant, mao ning iapply ni the present possessor shall be
preferred. Kinsa ang actual possessor. How can you be an adverse
claimant when you are not in present possession? Mag depende
naman sad na sa ebidensya. Now if there are two possessors, which
is often the case, the one in longer in possession. The one longer in
possession, unsay pasabot ani class? How do you prove you are the
one longer in possession class? Tax declaration. Possession under
claim of ownership raises a disputable presumption of ownership.
That is how to prove length of possession. You can present a tax
declaration. That is the best way although that is not the only way.
Obtaining a tax declaration is not a mode of acquiring ownership.
Not even a TCT class. The supreme court has been consistent with
that obtaining a TCT is not a mode of acquiring ownership. So iprove
nimo ang antecedent transaction nga how did you secure a tax
declaration. Pero when you cannot present a deed of sale, what you
have is a tax declaration but you can prove that you are in actual
possession.
Remember that possession under claim of ownership raises
disputable presumption of ownership. So ang kadtong mu question
mao to ang mu prove otherwise. Otherwise, if he cannot prove then
you are deemed as the owner by the mere fact that you are the one
in possession. So the one longer in possession is normally proven by
who is in possession of the oldest tax declaration or the older tax
declaration. If the dates of the possession are the same, the one
who presents a title. What is a title here? Is it required to be a
certificate of title? It is not a certificate of title. It is normally, ideally,
it should be a document just because you do not have a document
then the law says present your title class. It means present proof of
your ownership through any of the modes of acquiring ownership. If
it cannot be decided in this manner then the thing shall be placed in
judicial deposit. This is how to resolve conflict of possession.
Now effect of possession, you have the right to be respected in your
possession. For you to acquire ownership on the basis of possession,
niingon man ko class nga possession and ownership are two distinct
and different legal concept right? Thats true, that is still true but
there are cases class where you may have to rely alone on
possession to prove ownership. You get that? But before you can
fully avail of possession as proof of your ownership, what must be
the character of your possession? It must be a possession in the
concept of an owner. Kay kanang lessee ka possessor man ka pero di
na pwede mahimong basis for ownership. So only the possession
acquired in the concept of an owner can serve as a title for acquiring
dominion. What do we mean by possession in the concept of an
owner? Para mahimo kang tag iya, mu claim ka nga tag iya ka kay
nag possess ka. Iprove na nimo nga ang character sa imong
possession is in the concept of an owner? Imong pag possess dira
nga wala ka niila nga naay laing tag iya.
Unlike in this case of, Wolfson vs Aenlle, ang nahitabo ani class,
there is a boundary dispute between the two of them. Adjacent
owner ni sila. Ang kaning usa nga nisulod sa perimeter fence niingon
siya nga sige lang bai. Akoy nag possess pero if ma determine nga
kaning portion nga atong gitugian karon, if ma determine nga imoha

ni when the boundaries will be relocated, I will willingly surrender

this to you. So there was a relocation survey. True enough na
determine nga nasulod to erroneously sa iyang yuta. Karon, nausab
na ang hangin. Niingon siya nga di nako, dugay na kaayo ko pinuyo
diri unya ako isurrender nimo? So ang issue karon is did he already
acquire ownership of it based on prescription? The Supreme Court
said no, because kanang imong pag ingon nga kung ma determine
nga imoha ni ako ning isurrender nimo meaning dili categorical ang
imong assertion sa ownership. Kanang possession in the concept of
an owner class kanang wa ka niila. It is how you project yourself
insofar as third persons are concerned. Dili nang murag hesitant ka
ba. Dili na adverse possession on the strength of this case. Kanang
adverse possession, you do not recognize that there are other
persons with a better title than you.

use it
want

Allowed but it is called abnormal

usufruct

What will you return?

Usufruct is real right of temporary nature

Most important concept is the use of fruits.

Ex. I am a person with several landholdings. I

do not want to give to Catholic Church but I
want to help them. Not a deed of donation
because it transfers ownership. I want the
church to use my land as long as they do not
change the nature of the property. I can do
usufruct incorporated in deed of donation inter
vivos. Catholic church cannot say they are
absolute owner of property they have right to
use. They can have it rented or planted.
Income will be used for church purposes. Or I
can convey usufructory right by last will and
testament. Me as testator naked ownership to
my heirs, usufructory right to the catholic
church

Real right enforceable over the whole world

so long as annotated. It is a right that attaches
to a property wherever it goes as long as
annotated

Limit is normal use and exploitation

Extent

o
o

If term is 50 years and

you want to change it to
memorial park that is
not allowed because you
did not preserve form
and substance

Exception

Unless the contract of

usufructory says you can

parents are the usofractory of their

unemancipated
children
under
family code
o

They cannot use the

usufractory
for
themselves but for their
children.

Rights of a usufractory when he does not put up required

security
o

Spring may not rise higher than the

source

What is transferred is
usufruct.
In
the
constitution
what
is
prohibited is transfer of
full ownership. Here it is
not the case.

Limit is the one renting it must be mindful of

the limits of the usufruct

Ex if agri it cannot be
converted to non agri.

What are the rights of usufractory

who did not put up bond

You can have someone rent the land and you

just receive the rent

It must be preserve in form and

substance, should not be abused.

What are the

movables
received

Before he can possess the thing he has the

obligation to make and inventory wherein he
will list down the immovable he received and
the movable.

But if there is violation of

possession usufractory cannot file
that he was in prior possession. He
cannot file such case

He cannot enter possession

Rights of naked owners

May deliver the property

May waive right to demand the

putting up of bond.

May choose retention as property

as administrator

Or go to
administrator

court

to

appoint

Ex testator ko (buyag) catholic church as

usufruct id not put up bond. My heirs can say
heirs can file petition for administrator in the
meantime that the church has not complied
with its obligation

Usufractory may be exempted putting up of security

o

Naked owner continues

to receive fruits but he is
treated as administrator
of the usufractory. He
will hold it in trust. when
the usufractory complies
then ihatag nana niya
plus the fruits.

Usufractory can also alienate his right

It does not defer the usufractory

relation but the usufractory cannot
yet possess the property. The point
is that it is disadvantageous ion the
part of the usufractory because it
will terminate without you enjoying
it. You cannot lease it because if
you do not have right to possess
you cannot convey anything?

Ramirez vs Ramirez

Temporary nature/ duration it is mere

convenience to right of use and income if it
expires then it should be returned

Contents of inventory

Reason so that during

return there be no
controversy.

To assure the naked

owner
that
he
will
comply
with
his
obligation which is to
preserve the form and
substance. Because if
there is violation naked
owner may run after the
bond

What if there is no bond?

You can do that legally

When you vest usufructory of land over alien

o

What is purpose of the bond?

The appraised value.

Characteristics
o

Aside from that he has the obligation to put up

security.

Before he possess the thing he

must make an inventory,

What about consumable?

you

Usufruct the normal object is non consumable thing

because you have obligation to preserve form and
substance. The very same thing you receive must be the
one you returned

September 9, 2016

whatever

Caucion juratoria - promise under oath in lieu

of putting up a bond in usufruct over a house
for personal use

During the usufruct

The usufruct beneficial title of the property

naked title retained by the owner

Case of bislig bay lumber vs provincial

govt of surigao

Beneficial title

Do not lalis supreme court.

Question
what
nagpakabana

Use and enjoyment of fruits

Alienate the right of usufruct

Usufructuary may make useful improvements

o

No right to be indemnified

Difference between possessors of good faith.

thy have right to be reimbursed usufractory
does not have that right

Usufruct has right to remove provided no

damage to property

PGF if he exercises right to remove he may

be stopped by owner because he will just
indemnify him. This is not present in the case
of usufruct.

Take care as good father ordinary care of

good father

Shall answer for any damage

Obliged to make ordinary repairs

SC says real estate tax it is tax that burdens

the capital

It is not burden imposed in the fruits so naked

owner must pay

Usufrucat will be prejudiced so he

pays muna, he is subject to
reimbursement
such
as
extraordinary repairs. After the
term you have right of retention till
it is paid.

Prescription

It is not non-use but use of third

person

Fulfillment of condition

Obligation of usufructory
o

Lose the right to the possession

Death of usufractory

Deliver the thing as as is ,where is basis

No right of retention except if you advanced

taxes and extraordinary repairs.

General rule is it is terminated

Heirs are bound by the usufruct

made by the naked owner

Obligations as well as rights are

transmitted to heirs (relativity of
contract)

Ex
small
confusion.
I
am
constituting a usufruct in your favor
so that you will earn income to pay
for tuition of your children. If
usufruct dies then children still at
school. Ari singit ang contrary
intention. Clear intention will play

There was aunt that was single working as

teacher in US. She was sad for his cousins
in Agdaw in davao. Marami sparrow units
didtu. Nalouy siyas paryente niya. Ingun
sya pangita yuta and I will buy it and you
put your houses there. When she retired
and nipuyu na siyas balay sa davao.
Deprived nya saputun. Sige nag away.
Niabut sa punto nga ang aunt ni file ug
ejectment case against niece and family.
Niece said they cannot be ejected. Under
the document any of my kins can live on
the property and may availed use thereof
provided it is not inimical. They must leave
in an atmosphere of cooperation, no
bickering. In affidavit she said, my kins can
live as long as they lie. It was a
potestative condition. The remedy matud
pas neice was fix period and then file for
breach. Niece said ganahan paman sila
mu-stay so no ejectment. Aunt must first
fix period then ejectment. On its face
sakto man. Bright ang abugado.
SC said the argument presupposes there is
only one way to terminate usufruct. Term.
There are other ways. Another is
fulfillment of resolutory condition. Sc
examined the document. When they

Wa man jud ni lami class gikan ni

nya wa kuy labot ani

Easement
o

Encumbrance imposed upon an immovable for

the benefit of another immovable belonging to
different owner

This is a type of servitude

Requisite

Case of merced moralidad vs sps pernes

If it is extinguished then there is no right

anymore

Philosophy is to benefit usufractory

Real estate taxes

Exception is stipulation

Ex. Adverse owner files case and

the naked owner is in the US. You
had term 10 years and did not do
anything. If you do this you will be
held liable. Because you have
obligation to notify the owner

Go by the position of the Supreme Courts. Go

by majority

wa

Death of naked owner

Extraordinary is for the account of

naked owner

owner

Obliged to notify owner of any act of 3 rd owner

that is prejudicial to the ownership

Usufractory cannot say he believe honestly

that he is the owner because he knows he is a
usufruct

naked

Extinguishment

Nangutang then nabayran nangayu ug

reimbursement, SC said no reimbursement
because possession is akin to usufractory.

Obligations of usufractory

If not removed by U then it becomes thank

you

Usufruct is not a builder in good faith

o

Caveat this does not

apply to all types of
usufruct

if

analyze, the condition was to maintain

harmonious
relationship.
When
you
violated this your right to stay was lost.
This extinguishes the usufruct.

2 owners not co-owner

Property is adjacent

Property of one serves that of the

other

Ex right of way

Happens when the interior

lot walay kaagian padung
highway but muagis sa us
aka person

Called easement because if

the owner of outside lot
does not give he may
compel
him
to
give
easement

The outside owner serves

the needs of the interior
lot.

There is dominant and servant

Interior
dominant

is

master/

Easement is not only right of way

Drainage/canal

Do not say
neighbor:

to

your
uy

pagamita kus easement

of drainage under the
civil
code
kataw-an
raka. Hangyua tarung

Right of way
Easement of party wall

Common wall
elevation

If sya ray nigasto then to the other

belongs the wall.

Why is it easement

Serves the needs, because it serves the

needs of both owners.

point

of

Acknowledgement
of
easement is admission
that
the
property
belongs to another

READ BOGO-MEDILLIN
CO vs CA

common

Easement of light and view:

Cannot be seen

It is non apparent easement

The visible representation of light and

view is window or openings.

Happens when you are prohibited

from obstructing the admittance of
the light to anothers property
Sulayi ninyu class. Magbuild mug
building nya imu silingan nay opening
nya
iblock
ang
opening
dba
mureklamu na. diba padad.an kag
representative of the building official.

Should not be so great as to be

inconsistent to general right of
ownership.

Being mere encumbrance then it

should not impair the entirety of
the usefulness of the servient
estate

This was the argument of our

respondent, ang dalan naa guds
tunga sa property. He said matay di
ta katukud diha judge masamuk ta
ana. Ana Atty manok pamay naa
jude. Speculation mana.

Real right

An be imposed only on the property

of another, never on own property

Owner cannot make construction that

will block the view

In your minds I know you are saying

alkansi ko ana sir. Datu gud ko pahimu
kog condo di diay pwede? (mind shout
= PWEDE)

It is inseparable from the tenement

to which it is attached

Exists only between neighboring

tenements

No it means the owner

must construct and set
back a few meters. Setback
3 meters.
MAU RAGUD
GIHAPON. Pero dili pariho.
inahak?

Easement there is no transfer of ownership.

Right of way

Do not think that you

own the property. The
owner is still the owner
you do not even have
right of possession over
the said land. You only
have right to access.
Ex. Attorney client said
he cemented the area.

Produces limitation on ownership

but ownership of servient state is
impaired

Indivisibility

Easement
because
it
imposes limitation that this
is your boundary pero ayaw
tiloka and boundary

Characteristics of easement
o

Under my case kay ako mang kaso

nya ako maning klase so minaw mu
(minaw mi uy, nabuang na, gawas
palang nis exam inatay)

What was filed by first lawyer was

voluntary easement. The lawyer
filed a case here thinking that it
was of voluntary easement. In the
document there was no mention
of right of way over lot A owned
by defendant. How can it be
voluntary? There was no legal
right .The court denied the first
TRO.

What I did class (not saying

mayng laki ko) I amended
complaint and placed alternative
cause of action legal easement. If
I can prove later that there is no
adequate
access
to
public
highway I may be granted
compulsory legal easement. I
think I will win because I was
granted tro. (shet bilib name nimu
pre, papasara name)

Benefits of burden

at

When you are given

right of way you need to
pay. Easement gives
holder incorporeal right
but grants no title

When there is partition does not

mean easement is extinguished
because easement is indivisible. In
fact when easement is constituted
over co-owned property it needs
unanimous consent. Cannot be
terminated by partition

Legal easement
o

Waters

Right of way

Light and view

Drainage of buildings

Nuisance

Lateral and subjacent support

You have contract of right of way.

Okay na sya. The governing rule is
that the terms and conditions
agreed by parties
Under property law. What we will
discuss is legal easement whether
the dominant estate likes it or not
as long as the elements of
easement are there then it should
be applied

Excavation

When you excavate you must be

mindful of adjacent property

Modes of acquiring easement

Law

The requisites provided by law are

present. So you are entitled as a matter of
law.Ex right of way 649. There you will find
when can you find declaration of right o
way

Role of court is to declare. But you must

establish the following.

No adequate outlet to public highway

Easement must be established at point

least prejudicial to servient estate

The dominant estate surrounded by

immovable belonging to servient estate

If any of the requisites are not there then

you are not entitled

Under my case:

May be voluntary

The road is nindot. Paved naba.

Nakadaut lang kay dali musalig.
Way basa basa gadali. Gadali for
example
of
the
compulsory
easement di ta kaingun nga ari ta
kay pinaka nindot.

Law
states
convenient.

Read
case
gatchalian

adequate.
of

ramos

to juan and pedro. There is a right

of way traversing the portion sold
to juan which pedro may use.
Pagkatag-iya na ni juan di na niya
paagion si pedro perting kisikisi ni
pedro. Nganu imu mana gihimu?
Question is there an easement? Yes
because at the time it was sold
there was an apparent sign that
there is easement and no contrary
provision on deed of sale saying
otherwise

Dili
vs

Prescription

Good thing There is only one period 10

year period
Bad thing is the determination of
reckoning point of prescription.
Bad thing applicable only to easement
that are continuous and apparent

Valisno vs Adriano

Continuous - The use is without any

interruption. In theory, easement of
drainage.
Apparent - External signs of
easement. Ex: Septic tank; Use was
cut off

Tanedo vs Bernard
Common septic tank wala pagamita nya abot syas
supreme court.

Not apparent
Easement not to construct to build a higher
structure
Law says only continuous and apparent
easements may be acquired

Read roncillo vs roco

Mun of dumangas vs bishop of jaro

The issue presented was can an easement of right of

way be acquired by prescription. According to SC a
right of way can never be acquired by prescription,
while it is true that it is an apparent easement it is not
continuous.

Legal presumption or apparent sign

My case

Happens if originally the land is

owned
by
one person
then
subdivided and this person sold it

Read concurring of jbl reyes.

SC tend to cite prescription as

mode of acquiring

Peculiarity of the case

Tolentino says

Why? Continuous means the use does not stop. Right of

way is it continuous? No?

If you do not want it to

be imposed. Before sale
you must removed the
existence
of
the
apparent sign. If there is
sale and no removal plus
no contrary stipulation
then wala naka

Bogo-medillin.

Ex right of way, imung silingan nga tuas sa sulud nay

right of way. Ikaw tag-iya. Ang routine sa silingan pag
10 pm di nana siya mugawas. Ikaw engage in bbq
sugal, inuman. Imu silingan suku. Ana sya nganu man
kang gigamit mana nimu akong dalan diha ug
hantakan. Naa bya kuy right of way ana? Can you be
stopped by injunction? Go back to principle of
easement your right as servient owner is absolute so
long as he is not using it. If mugawas siya alas 12 then
imu ingnon. Oops oops paagia paagia. No violation.
(tayas oops oops)

Siblings get water from

Pampanga River. Sister
plants in interior and
there is canal. Brother is
servient with the canal.
Sister sold her land.
Brother flattened the
canal. Buyer filed a case
and he was granted
easement of drainage
due to existence of
apparent sign.

Why can it not be

acquired when mismu
ng
ownership
maacquire man. Easement
of right of way is lesser
right. So if a greater
right be acquired why
not a lesser right.

Rule is that easement of right of way cannot

be acquired by prescription because though it
is apparent it is not discontinous.

In one case involving a stolen vehicle, which was in the possession

of a purchaser in good faith, the SC held that just because you are a
buyer of a stolen property and you did know that it was a product of
theft or robbery, you have a right to be respected in your
possession. Not even the mere filing of a criminal information would
divest you of your right of possession over the stolen property. This
is what is meant by every possessor has a right to be respected in
his possession.
In relation to this, you have to take note and remember the various
remedies available to a property owner or to the rightful possessor
to recover possession:

If personal property, you have the remedy of REPLEVIN.

If real property,

Recovery of physical possession, FORCIBLE

ENTRY or UNLAWFUL DETAINER.

Recovery of possession which is not dependent

on ownership or in cases where the loss of
possession has already exceeded one year,
ACCION PUBLICIANA.

Recovery of possession based on ownership,

ACCION REINVIDICATORIA.

Art 540.Only the possession acquired and enjoyed in the concept of

owner can serve as a title for acquiring dominion.
Possession in the concept of an owner

This is the only type of possession which can be the basis

of ownership. It is not necessarily possession only by the
owner himself, but also someone who believes that he is
the owner, provided that if he asserts possession as the
basis of ownership, he must show that he acquired it
through any of the modes of acquiring ownership, i.e. 7
modes of acquiring ownership: Tradition, Occupation,
Donation, Succession, Law, Prescription, and Acquisition.
If you are in possession in the concept of an owner, you
do not recognize that there is another person who has a
better title than you.
Lessee, usufructuary, and a possessor by mere tolerance
are excluded. No matter how long their possession has
been, they cannot acquire ownership over the thing they
have been in possession of.

Application of Article:
1.
To consolidate title by prescription, the possession must
be under claim of ownership and it must be peaceful,
public, and uninterrupted.
2.
Acts of possessory character done by virtue of a license
or mere tolerance on the part of the real owner are not
sufficient, e.g. possession by lessees, trustees, pledges,
tenants.
There is a conclusive presumption that if you are a lessee, you
cannot assert a right adverse to the lessor.
Article 541.A possessor in the concept of owner has in his favor the
legal presumption that he possesses with a just title and he cannot
be obliged to show or prove it.

September 13, 2016

Just title in Possessionvs Just title as basis for prescription

Effects of Possession

Just title in prescription The elements are: first, the possessor must
have a just title + prescriptive period. In prescription, it needs
passage of time to perfect ownership.

Art 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. xxx

Meaning of Just Title in possession (Article 541) You do not have

to wait for passage of time. Your mere possession in the concept of

an owner establishes a presumption that you are the owner.

However, if your possession is that of a mere lessee, you cannot
invoke Article 541. For example, there are adverse claimants. One is
not in possession, you are in possession, both of you are adverse
claimants, meaning, both of you are asserting ownership. Based on
Article 541, possessor in the concept of an owner has in its favor the
legal presumption that he possesses with a just title. As such, pabor
nimo because you are in possession. In other words, katong ning
claim otherwise has the burden of proof to show the contrary that
you are not the owner. Otherwise, you will be declared as owner
based on Article 541.

In Escobela, gikulata sa SC ang CA. The argument of the respondent

nga paagion sila was that dugay na kaayo, panahon pa sa gira nag
agi nami dinhi. SC said bida oi. Kana laging easement of right of way
cannot be acquired by prescription. So kanang muingon ka dugay na
kay ka gaagi dinha, thats a LEGALLY USELESS ARGUMENT!! Kay
ngano, og ni agi ka sa panahon pa ni Magellan, muingon ang
Supreme Court okay rana, niagi na panahon pa ni Magellan??
DILI!! YOU CANNOT ACQUIRE EASEMENT OF RIGHT OF WAY
THROUGH PRESCRIPTION BECAUSE IT IS DISCONTINUOS. (Gravi:
Take note this will come out in the bar exam and you will remember
me)

less than a distance of three meters to be measured in the manner

provided in Article 671. Any stipulation permitting distances less
than those prescribed in Article 670 is void.
Let us say nana kay easement of light and view. Would that mean
that the adjacent owner cannot construct? Pwede gihapon. Set back
lang ka og 3 meters. You cannot construct on the boundary line
because the adjacent property is already enjoying an easement.
However, you can construct if mu set back ka og 3 meters from the
boundary line.
Extinguishment of Easement:

Just title in possession is presumed, just title in

prescription must be proved through any of the modes of
acquiring ownership.

Just title in possession means true and valid title

sufficient to transfer ownership, just title in prescription
means merely colorable title although there was mode of
transferring ownership.

Example of continuous and apparent easement: Light and

View.

When will prescription start to run?

In just title in possession, the grantor is the owner. In just

title in prescription, the grantor is not the owner, thats
why it needs the passage of time.

Easement (contd)
Ways of acquiring easement:
1.

2.

From law When the requisites for easement under the

law are present, then you are entitled to an easement.
(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 a right of way through the
neighboring estates, after payment of the proper
indemnity.) If you can establish and prove it, then the
court will confirm that it exists.
By prescription

When there is passage of time of 10 YEARS.

Only continuous and apparent easement

are subject to prescription.
Continuous easements are those the use of which is or
may be incessant, without the invervention of any act of
man. (Way hunong hunong, i.e. aqueduct, drainage.)
Discontinuous easements are those which are used at
intervals and depend upon the acts of man. (Naay
interruption, i.e. right of way, kay easement will only
happen when one actually traverses the land.)
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. (Maklaro, i.e.
right of way, easement of light and view)
Non-apparent easements are those which show no
external indication of their existence.

In Bogo-medellin, sayop ang judge. His ruling was ma acquire by

prescription ang easement of light and view. That is
WWWRRROOONG! Jurisprudence is clear that a right of way is a
discontinuos easement, although apparent, therefore IT CANNOT BE
ACQUIRED BY PRESCRIPTION.

1.

Positive easements (e.g. drainage or aqueduct) 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.

Article 631.Easements are extinguished:

(1) By merger in the same person of the ownership of the dominant
and servient estates;

For example, you make an opening on a wall that does not belong to
you. Ang wall nimo gihimuan og bintana sa imong silingan. PWEDE
BA NAH?! PWEDE!!! At the time he made the opening, the period of
prescription will start to run. Why man at the time he made the
opening?? Because ang wall nga iyang gi gam.an, does not belong
to him. So nag impose cya og encumbrance.
2.

Negative easements (e.g. light and view) from the day

on which the owner of the dominant estate forbade, by
an instrument acknowledged before a notary public
(NOTARIAL PROHIBITION), by the owner of the servient
estate from executing an act which would be lawful
without the easement.

For example, my neighbor made an opening in his own wall. He told

me, the adjacent owner, not to construct a higher structure, ayaw
blockingi akong opening diri.So when will prescriptive period run?
From the time you receive the prohibition. Why? Because at the time
he made the opening, he hasnt imposed an encumbrance yet. Ang
pag impose happens when you send a restriction to the other party.
When you receive a prohibition, you can still do what is prohibited,
because he has still not acquired easement of light and view by
prescription. But if 10 years from the receipt of the notarial
prohibition you did not do anything, and on the 11 th year ning
construct ka, pwede ka mapa stop. Why? Because he has already
acquired easement of light and view through prescription.
In a case, nag palit cyag balay nya naay opening. Ang window sa
iyang balay has been there for more than 50 years. And then, naka
silingan siya og lain tao who constructed a structure that blocked the
window. Ning kiha siya Injuction to stop the construction, claiming he
has easement of light and view. SC: WRONG. This is a negative
easement. It will only start to run from the service of notarial
prohibition. Without which, prescription will not start to run.
(Negative easement)
However, if an opening is made on a party wall or on the wall of
another, prescription will start to run FROM THE TIME THE OPENING
WAS MADE. (Positive easement)
Art 673.Whenever by any title a right has been acquired to have
direct views, balconies or belvederes overlooking an adjoining
property, the owner of the servient estate cannot build thereon at

For example ikaw nag gamit ka sa right of way and naka

realize ka nga ang owner of the servient estate nga di na
niya magamit so he offered nimo to buy the right of way
and ang lot nga gigamit sa right of way, now if inana
mahitabo, di nana right of way, imoha nanang yuta. The
easement is extinguished because you were formerly the
dominant owner, but by the reason of the sale, the
personality of the servient and dominant are merged into
one.

(2) By non-use for ten years; with respect to discontinuous

easements, this period shall be computed form the day on which
they ceased to be used; and, with respect to continuous easements,
form 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;

If it is continuously flooded, that is an example. Right of

way, sigeg gi flood. And pwede ra muagi, pumpboat. Di
na pwede.

(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.
(Solid Manila case) For example, you are a subdivision lot owner, you
are enjoying your right of way in going to and from the subdivision.
But the easement is in favor of ALL the residents of the subdivision.
This is an easement in favor of a community. Ikaw you happen to be
one of the members of that community. Then, you bought that lot on
which the right of way was constituted. Sa pag palit nimo, imong gi
close ang right of way kay imo man to. You cannot do that. Thats
what happened in the case of Solid Manila. There is no true merger
there because the title of the easement is in favor of all individuals
residing in the subdivision. But had it been an easement in favor of
your lot only, and imo gipalit ang lot where the easement was
constituted, there is merger there.