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Title II of Property Ownership Arts. 427-439 Chapter 1: Ownership in general (12 articles)

427: Ownership may be exercised over things or rights

-Ownership may either be things or rights -Things: only to material objectscorporeal (consisting of a physical body or form) property -Rights: real or personalincorporeal -it would have been better to state that Ownership is exercised over property -questions relating to ownership or even validity of a mortgage should generally be ventilated in an ordinary civil action or proceeding except when the court is able to obtain sufficient evidence to guide the Land Registration Court in formulating its decision -informacion possessoria (possessory information): duly recorded in the Registry of Property :prima facie evidence that the registered possessor is also the owner of the land involved. -Torrens title as conclusive evidence of ownership: confirm and register the title which one may already have on the land


Property v. Ownership






Dominium meaning the absolute control over thing except as may be restrained by law Domus or house Dominus- master of the house Dominium- domestic power over the household


Proprius meaning one’s own Proprietas- ownership

Roman Law

no difference bet the concepts of property and ownership


Castan no difference in extent or contents but simply a difference of viewpoint

Emphasizes the relation bet. The thing and owner to whom it belongs

Implies power over a thing w/c belong to the owner

Civil Code (does not define but enumerates the rights which are included therein

Things which are susceptible of appropriation/ object

Mass or bundle of rights that may be exercised over a property /rights

An independent right of exclusive enjoyment and control of the thing for the purpose of deriving therefrom all advantages required by the reasonable needs of the owner (holder of the right) and the promotion of the general welfare but subject to the restrictions imposed by law and the right of others. (Justice J.B.L Reyes)

RIGHTS (EDR, EFD, JCH, A) The right to… Enjoy the property (428, par. 1) Dispose (same) Recover the property from any holder or possessor (par. 2)

Exclude any person from enjoyment and disposal (429) Fence or enclose the land or tenement (430)

Demand indemnity for damages suffered due to lawful interference by a 3 rd person to avert an imminent danger (432)

Just compensation in case of eminent domain (435) Construct any works or make any plantations and excavations on the surface or subsurface of the land


Hidden treasure found in the owner’s property (438) Accessions (440)

431-No injury to rights of 3 rd persons 433- Disputable presumption of ownership 434- Requisites in an action to recover 436-Seizure as an exercise of police power 439- Requisites in the definition of hidden treasure

Attributes of Ownership/rights of an owner under roman law




1. Jus utendi

Right to use property without destroying its substance


the right to exclude any person from the enjoyment and disposal thereof

The owner may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of the property (429) 1

2. Jus fruendi

Right to the fruits


Right to 3 kinds of fruits:

Only owners and not



mortgagees can claim damages for injury to the fruits of a piece of land


products of the soil and the young and other products of animals 2



and for injury

1 Owner is entitled to intervene to protect his rights. If he is not allowed to intervene, a judgement against the brother-possessor would generally not be binding on the brother-owner.

2 442


-those produced by lands of any kind through cultivation or labor

caused by the deprivation of possession.


c. -rents of buildings, the price of leases of lands and other

property and the amount of perpetual or life annuities or other similar income

3. Jus disponendi

Right to dispose or alienate



4. Jus abutendi

Right to abuse or to consume the thing by its use


5. Jus possidendi

Right to possess


6. Jus vindicandi

Right to recover



A. Ownership is a real right (Jus in re) - power belonging to a person over a specific thing w/o a definite passive subject against whom such right may be personally enforced. - provides owner the most ample power of domination over the property

Jus in re/right in rem

Jus in Personam

Real right

Personal Right

-imposes an obligation on persons generally

-Imposes an obligation on a definite person

- power belonging to a person over a specific thing without a definite passive subject against whom such right may be personally enforced.

-Right of obligation is the power belonging to one person to demand from another, as a definite passive subject

-creates a direct relation bet. The specific thing and its holder in such a way that it permits the holder to exclude others from the enjoyment of the thing


-creates obligation on the part of 3 rd persons not to interfere








2 general categories of real rights

Jus in re propria

Jus in re aliena

-Real rights over one’s own property

-Rights are lesser rights than the right of


ownership yet they make inroads upon and curtail the rights of the owner


Ex. Possession, Usufruct, Mortgage and Easement (some of his right of ownership was restricted and abridged) Usufruct: possesses a right over a thing owned by another

-independent; it can exist w/o necessity of other rights

Cannot exist independently of ownership because they presuppose the existence of ownership


Kinds of ownership


a. Dominium or jus in re propia

b. Nuda proprietas

c. Sole ownership

d. Co-ownership/ Tenancy in Common

-Full ownership

-naked ownership

-ownership is vested in only person

-ownership is vested in 2 or more owners

-includes all the rights of an owner

-the right to the use and the fruit has been denied.


-unity of the property and plurality of subjects (Manresa)

Naked ownership + usufruct= full ownership

Usufruct= full


-co-owners: the owner of an undivided aliquot part (aliquot: contained an exact no. of times in something else)

ownership- naked




Naked ownership= full ownership- usufruct


Beneficial ownership

Legal Ownership

Naked Ownership

-Ownership recognized by law and capable of being enforced in court

-used in 2 senses:

(1)Equitable ownership: interest of a beneficiary in trust property (2)Power of a shareholder or corporation to buy or sell, the shares though the shareholder is not registered in the corporation’s book as the owner

- right to its enjoyment in one person where the legal title is in another (beneficial use, ownership or interest)

-enjoyment of all benefits and privileges of ownership, as against the bare title to property

428: The owner has the right to (1) enjoy and (2) dispose of a thing,

428: The owner has the right to (1) enjoy and (2) dispose of a thing, without other limitations than

those established by law.

owner has the right to (1) enjoy and (2) dispose of a thing, without other limitations
The owner has also a right of action against the holder and possessor of the

The owner has also a right of action against the holder and possessor of the thing in order to

(3) recover it.

The owner has also a right of action against the holder and possessor of the thing

-Things embraces both material objects and rights

(1) RIGHT TO ENJOY -Right of the owner to freely enjoy either the property itself or the benefits derived therefrom

- Jus possessidendi (possession), jus abutendi (consumption) or its jus utendi (use), jus fruendi (enjoyment of its fruits), right to accession (enjoyment of anything attached or incorporated to it, either naturally or artificially

a. Right to use and Abuse

Jus utendi (right to use)

Jus abutendi (right to consume)


-consumption of the thing by its use


-X (not) :right of the owner to exercise absolute and unlimited power over the thing to the point of destroying it by any means; however inconvenient and prejudicial to the public interest or to the right of others


-use that extinguishes that consume by acts of the owner, things which are consummable


-a person can dispose of his wealth but he must leave enough for his own support and for those who is obliged to support (750). If he wasted his money for the purpose of depriving his compulsory heirs of their rightful legitime, he may be declared a spendthrift or prodigal.


RIGHT TO DISPOSE - power of the owner to dispose of his property includes the power to alienate, to encumber, to limit, to transform, to destroy and to merge


-Right of the owner to transmit either by:

a. Onerous

b. Gratuitous title

His right to another by any act of:

a. Inter vivos

b. Mortis causa

-Right is exclusively vested upon the owner based upon “no one can give what he does not have:

-Ex. Sale and donation (a seller need not to be the owner at the time of perfection of the contract of sale. It is

sufficient that he be the owner at the time of delivery (1459)

Limit or Encumber

-Power of the owner to deprive himself of the


several of the rights included in ownership and transfer them to another -deprive himself by entering into contracts of lease and commodatum (ex) -constituting a usufruct: deprive himself to enjoy his property including the right to receive the fruits in favor of a third person. -It is essential in the contract of mortgage or pledge that the mortgagor or the pledgor be the owner of the thing mortgaged or pledge, otherwise the contract is null and void


-Power to change the nature of the thing, or its form or destination


-Power to render useless or to abandon or annihilate (thrash) the thing

(3) RIGHT TO RECOVER (jus vindicandi)

a. Right to possession -entitled to exclusive possession of his property -he may exclude any person from the enjoyment and disposal by force if necessary (429) -he may also enclose or fence his property by any means (430) -However, he is not justified to take the law into his own handsproper legal processes to recover possession (433) and (536) 3 539, par1 -transmissible to the heirs or assignees of the person entitled to it.

Right included in ownership

Possession (right independent and apart from ownership)

Jus possidendi

Jus possessionis

-right to possession

-right of possession (see Title 5 of Book 2)

b. Actions for recovery of possession -replevin: an action or provisional remedy to recover possession of a personal property under Rule 60, Rules of Court-machinery and equipment used for an industry and indispensable for the carrying on of such industry, cannot be the subject, under premises they real not personal property -Other remedy: writ of preliminary injunction and writ of possession -“move in the premises” resolution-not a license to occupy or enter the premises subject of litigation esp. in cases involving real property. It simply means that the parties are oblige to inform the Court of developments pertinent to the case which may be of help to the court in its immediate disposition.

3 kinds of actions available to recover possession of real property

3 kinds of actions available to recover possession of real property

3 kinds of actions available to recover possession of real property

Accion Interdictal

-comprises 2 distinct causes of action:

a. forcible entry

Accion Publiciana/ Plenaria de posesion

-action for recovery the right to possess/plenary action to recover the

-action for recovery the right to possess/plenary action to recover the

Accion Reivindicatoria

-reinvidcatory action -an action to recover ownership over real

-reinvidcatory action -an action to recover ownership over real

3 Modes thru which possession cannot be acquired (force, tolerance, secrecy)

(detentacion) b. unlawful detainer (desahuico) -both within the exclusive jurisdiction of MTC -required to be brought within 1 year from the date of actual entry in case of forcible entry, -and from the date of the last demand: unlawful detainer *prescriptive period (554(4)) 4

better right of possession - a plenary action 5 in an ordinary civil proceeding to determine the better right of possession of realty independent of the title or ownership of the

property -must be brought within 10 years or 30 years as the case may be depending on whether the other party seeks to obtain ownership by ordinary (good faith and just title runs for 10 years) or extraordinary prescription. (not require good faith or just title, runs for 30 years)


-jurisdiction shall depend on the location of the realty and its assessed value

If the property is located in Metro Manila and its assessed value does not


-constructive trust=regardless of lapse of time(imprescriptibility of an implied trust) -does not lapse by


exceed P50,000= jurisdiction is with MTC


If it exceeds P50, 000=

death:recovery of title or possession of real estate

with RTC

If it is situated outside Metro Manila, it is the MTC if the assessed value


-action for recoveyance based on implied trust (10 years) -based on fraud, (4 years counted from the discovery of fraud)

does not exceed P20,000, otherwise it is the RTC

Ejectment cases:

-also used to refer to an ejectment suit filed after the expiration of 1 year from accrual of the cause of action -must be brought within a period of 10 years, otherwise the real right of possession is lost. -possession de jure


-intended to provide an expeditious means of protecting actual possession or right to possession of property -not processes to determine the actual title

-question is the physical or material possession (possession de facto) -court: initial determination who is the owner of the property.

-determination of t



ownership is not clothed with finality

-limited to the question of possession de facto

-determination of the better right of possession or possession de jure


4 The possession de facto is lost if the possession by another person has lasted for more than one year.

5 as distinguished from the summary nature of ejectment cases

Basis of the recovery:


Ownership itself; involves recovery of possession as an incident or attribute ownership, or what is known as jus possidendi

plaintiff’s real right of possession/ jus possessionis


-plaintiff merely alleges proof of a better right to possess w/o claim

-an action whereby plaintiff alleges ownership over a parcel land and seeks recovery of full possession.


Plaintiff has been deprived of the exercise of all rights included in ownership and what he seeks to recover by filing such an action


Jurisdiction depend on the location of the realty and its assessed value:

a. Property located in Metro Manila and value does not exceed P50,000= MTC

b. Exceeds=RTC

c. Outside Metro Manila=MTC=does not exceed 20,000

d. Otherwise=RTC

-if the judgment in an ejectment case is already final, the writ of execution and a writ of demolition may already be issued


-requisites discussed in Art. 433 &434

-supersedeas bond answers only for back rentals.


A mortgagee does not have any right to intervene in an ejectment case involving only possession, which is completely foreign to his claim that the subject matter of the litigation has been mortgaged to him to secure payment of a load.


Action to rescind contracts in fraud of creditors


Forcible entry v. unlawful detainer

both ownership is not involved but only the right to material possession (de facto possession)

both are proceedings in personam (binding only on the parties and privies) -if involve real property , they may also termed “actions quasi in rem”


a. forcible entry (detentacion)

b. unlawful detainer (desahucio)


summary action to recover material or physical possession of real property when the person who originally held it was deprived of possession by force, intimidation, threat, strategy, or stealth (FISTS)

-action may be filed by a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied.

Time when possession become unlawful

Possession by the defendant is unlawful ab initio

Possession is originally lawful but becomes illegal by reason of the termination of his right of possession under his contract with the plaintiff


Plaintiff must allege and prove that he was in prior physical possession of the premises until deprive

Plaintiff need not have been in prior physical possession


Plaintiff has prior possession and he is deprived by the defendant through FISTS

The defendant unlawfully withholds possession of the property after the expiration under any contract, implied or express, prior physical possession is not required

Period to bring the action

Gen.: counted from the date of actual entry on the land Exc.: when entry was made through stealth (a secret action), 1 year period is counted from the time the plaintiff learned it.

1 year prescriptive period from the date of the last demand -if there is a fixed period for the termination 1 yr period begins from the expiration of the lease -if the reason of ejectment is non payment of the rent /non fulfillment of the

conditions-1 year period must be counted from the date of demand to vacate A lessor,
conditions-1 year period must be counted from the date of demand to vacate A lessor,
conditions-1 year period must be counted from the date of demand to vacate A lessor,
conditions-1 year period must be counted from the date of demand to vacate A lessor,

conditions-1 year period must be counted from the date of demand to vacate

A lessor, may sue for both ejectment and rescission

2 kinds of accion publiciana


1.Entry was not obtained thru FISTS

2.where the 1 year period for bringing forcible entry or unlawful detainer has already expired

-can be brought as soon as the dispossession takes place, without waiting for the lapse of one year


Process in ordering the delivery of property to him (replevin)

1.Applicant must show his own affidavit or some other person who personally knows of the facts:



It must show that the applicant is the owner of the property claimed, particularly describing it, or is


entitled to the possession


that the property is wrongfully detained by the adverse party, alleging the cause of detention according to

his best knowledge, information and belief


it has not been distrained or taken for a tax assessment or fine pursuant to law or seized placed under

custodial legis or if so seized, that it is exempt from such seizure or custody


actual market value of the property


must also give a bond, executed to the adverse party in double the value of the property as stated in the

affidavit, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.


The court then orders the sheriff to take such property into his custody. Under the old law, it was the

clerk of court who made the order


If the property or any part be concealed in a building or enclosure, and not delivered upon demand, the

sheriff must cause the building or enclosure to be broken open. He then takes the property.

Process a defendant in replevin wishes to restore the property taken by the sheriff (should within 5 days)

1. post a counterbond in double the value of said property

2. serve plaintiff a copy-both requirements as well as compliance therewith within 5 day period

mentioned, being mandatory

Remedy of a stranger to the action for replevin: 3 rd party claim under Sec. 7 Rule 60 of the Rules of CourtRemedy of intervention: prior determination of whether one is a proper party defendant or a stranger to the action is necessary.

Other remedy


Writ of injunction

Writ of possession

-may be availed of in the original case, of forcible entry and during the appeal, in the case of unlawful detainer

-used in connection with the Land Registration Law is an order directing the sheriff to place a successful registrant under the Torrent system in possession of the property covered by a decree of the Court.

-may be issued only against the person defeated in the registration case and against anyone unlawfully and adversely occupying the land or any portion thereof, during the proceedings, up to the issuance of the final decree.

The issuance of the decree of registration in part of the registration proceedings

Writ of demolition is merely a complement of writ of possession

Neve prescribes----summary in nature:cannot be considered a judgment on the merits which is defined as “one rendered after a determination of which party is right, as distinguished from a judgement rendered upon some preliminary or formal technical point.

428rights of an owner under the civil coderight to enjoy, to dispose, to recover or vindicateright to enjoy (right to possess, to use, to the fruits)right to dispose (right to consume or destroy or abuse, to encumber or alienate)


A. Welfare of the people is the supreme law of the land

B. Use your property so as not impair the rights of ohers -the owner of the thing cannot make use thereof in such a manner as to injure the rights of a third person (431) “sic utere tuo ut alienum non laedas”

Limitations on Ownership


1.Given by the State

a. Police power

-right of the state to regulate and restrict personal and property rights for the common welfare. -property may be interfered with, even destroyed, if the welfare of the community so demands it -salus populi est suprema lex -interest of the public in general, as distinguished from a particular class -reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals


-no financial compensation in police power (unlike eminent domain)what he gets in return are the benefits arising from a healthy economic


standar of societydamage without injurydamnum absque injuria


-vested in Congress of the Philippines but its exercise may be delegated to municipal corporations (gen. welfare clause), sometimes to the Pres. During emergency period


b. Power of taxation

-power to raise income or revenue to defray/cover necessary governmental expenses for a public purpose -the strongest power, it involves power to destroy (Chief Justice John Marshall)


Congress has the exclusive power although it may be delegated to mun. corporations.


c. Power of eminent domain


1.1 by the Law

-legal easement of waters -legal easement of right of way


2.By the owner or grantee himself

-when the owner leases his property to another, said owner in the meantime cannot physically occupy the premises -when the owner pledges his personal property, he has in the meantime to surrender his possession


3.By the grantor

-donor may prohibit the donees from partitioning the property for a period not exceeding 20 years