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CIVIL LAW

CIVIL LAW

PROPERTY

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I. Property All things which are, or may be,

the object of appropriation. [NCC 414]

CIVIL LAW

(4) Statues, reliefs, paintings or other objects

for use or ornamentation, placed in
buildings or on lands by the owner of the
immovable in such a manner that it
reveals the intention to attach them
permanently to the tenements;
(5) Machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which
may be carried on in a building or on a
piece of land, and which tend directly to
meet the needs of the said industry or
works;
(6) Animal houses, pigeon-houses, beehives,
fish ponds or breeding places of similar
nature, in case their owner has placed
them or preserves them with the intention
to have them permanently attached to the
land, and forming a permanent part of it;
the animals in these places are included;
(7) Fertilizer actually used on a piece of land;
(8) Mines, quarries, and slag dumps, while
the matter thereof forms part of the bed,
and waters either running or stagnant;
(9) Docks and structures which, though
floating, are intended by their nature and
object to remain at a fixed place on a river,
lake, or coast;
(10) Contracts for public works, and
servitudes and other real rights over
immovable property.

I. Characteristics
(1) Utility capacity to satisfy human wants
(2) Substantivity and Individuality separate
and autonomous existence
(3) Susceptibility of being appropriated
what cannot be appropriated because of
their distance, depth, or immensity cannot
be considered things (i.e. stars, ocean)

II. Classification
A. HIDDEN TREASURE
Hidden treasure any hidden and unknown
deposit of money jewels aor other precious
objects, the lawful ownership of which does
not appear. [NCC 439]
Owner of the land, building or other property
on which the hidden treasure was found, also
owns it, subject to:
(a) Right of a finder by chance who is not
a trespasser/intruder: of treasure
(b) Right of a usufructuary who finds
treasure: of treasure
(c) Right of State to acquire things of
interest to science or the arts [NCC
438]

CATEGORIES OF IMMOVABLES
(a) By nature
(b) By incorporation
(c) By destination
(d) By analogy

B.
BASED
ON
MOBILITY
[IMMOVABLE OR MOVABLE]

Immovables by Nature: cannot be moved from

place to place; their intrinsic qualities have no
utility except in a fixed place. (pars. 1 & 8)

B. 1. REAL OR IMMOVABLE PROPERTY

NCC 415.
(1) Land, buildings, roads and constructions
of all kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while
they are attached to the land or form an
integral part of an immovable;
(3) Everything attached to an immovable in a
fixed manner, in such a way that it cannot
be separated therefrom without breaking
the material or deterioration of the object;

(1) Par. 5
(a) Building - their adherence to the land
must be permanent and substantial.
(b) Buildings have been considered as
immovables, despite:

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(i) Treatment by the parties e.g. they

constitute a separate mortgage
on the building and the land
[Punzalan v. Lacsamana]
(ii) Separate Ownership i.e. a
building on rented land is still
considered
an
immovable.
[Tolentino]

CIVIL LAW
separation will be substantial e.g.
wells, sewers, aqueducts and railways
(i) Whether attached by the owner
himself or some other person

(3) Par. 7
Actually used (it has been spread over the
land)
Immovables by Destination: are essentially
movables but by the purpose for which they
have been placed in an immovable, partake of
the nature of an immovable [Par. 4, 5, 6 & 9]

(2) Par. 8
(a) Mineral Deposits
(i) Minerals still deposited in the soil;
(ii) When minerals have been
extracted, they become chattel.
(b) Slag Dump: dirt and soil taken from a
mine and piled upon the surface of
the ground. Minerals can be found
inside the dump.
(c) Waters: those still attached to or
running thru the soil or the ground.

(1) Par. 4
(a) Placed by the owner or by the tenant
(as agent);
(i) With intention of attaching them
permanently even if adherence
will not involve breakage or injury.
(b) Where the improvement or ornaments
placed by the lessee are not to pass to
the owner at the expiration of the
lease, they remain movables for
chattel mortgage purposes. [Davao
Sawmill v. Castillo (1935)]

Immovables by Incorporation: are essentially

movables but are attached to an immovable in
such a way as to be an integral part [Par. 2, 3,
& 7]
(1) Par. 2
(a) Trees and plants: only immovables
when they are attached to the land or
form an integral part of an immovable
(i) When they have been cut or
uprooted, they become movables.
(b) By special treatment of Act 1508
(Chattel Mortgage Law), growing
crops may be subject of a Chattel
Mortgage.
(c) For the purpose of attachment:
growing crops are to be attached in
the same manner as realty. (Rule 59,
Sec. 7)

Par. 3 v. Par. 4
Par. 3
Cannot be separated
from
immovable
without breaking or
deterioration

Par. 4
Can be separated
from
immovable
without breaking or
deterioration
Must be placed by
Need not be placed by the owner, or by his
the owner
agent, expressed or
implied
Real property by
Real property by
incorporation
and
incorporation
destination
(2) Par. 5
Immovability depends upon their
being destined for use in the industry or
work in the tenement;

(2) Par. 3
(a) Res vinta in Roman Law
(b) Attachment in a fixed manner:
breakage or injury in case of

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The moment they are separated,

(from the immovable or from the
industry or work in which they are
utilized) they recover their condition
as movables.
If it is still needed for the industry but
separated from the tenement
temporarily, the property continues to
be immovable.
Requisites for Immovability in Par. 5:
Placed by the owner or the tenant (as

CIVIL LAW

(4) Par. 9
A floating house tied to a shore and
used as a residence is considered real
property, considering that the waters on
which it floats are considered
immovables.
But if the floating house makes it a
point to journey from place to place, it
assumes the category of a vessel, and is
considered a movable.
Immovables by Analogy: Contracts for public
works, servitudes, other real rights over
immovable property e.g. usufruct and lease of
real property for a period of 1 year and
registered [Par. 10]

agent);
The machine, receptacle, instrument,
implement must also be ESSENTIAL to the
business in order to be considered realty.
[Mindanao Bus Co. v City Assessor (1962)]
Except: Estoppel
Parties may, by agreement, treat as
personal property that which by nature
would be real, as long as no third
parties would be prejudiced. That
characterization is effective between
the parties. [Makati Leasing v. Wearever
(1983)]
Effect of Attachment
Machinery becomes part of the
immovable.
The installation of machinery and
equipment in a mortgaged sugar central for
the purpose of carrying out the industrial
functions
and
increasing
production,
constitutes a permanent improvement on said
sugar central and subjects said machinery
and equipment to the mortgage constituted
thereon. [Berkenkotter v. Cu Unjieng(1935)]

Note: Enumeration in Art. 415 not absolute.

Parties may by agreement treat as, but
effective only as to them. It is based, partly,
upon the principle of estoppel. [Evangelista
vs. Alto Surety(1958)]
For purposes of taxation, improvements on
land are commonly taxed as realty, even
though for some purposes, they might be
considered as personalty.
It is a familiar phenomenon to see things
classified as real property for purposes of
taxation, which on general principle, might
be considered personal property. [Manila
Electric v. Central Bank (1962)]

B.2. PERSONAL OR MOVABLE

(3) Par. 6
(a) Requisites:
(i) Placed by the owner or the tenant
(as agent);
(ii) With the intention of permanent
attachment;
(iii) Forming a permanent part of the
immovable.

NCC 416 & 417.

(1) Those
movables
susceptible
of
appropriation which are not included in
the preceding article;
(2) Real property which by any special
provision of law is considered as
personalty;
(3) Forces of nature which are brought under
control by science; and
(4) In general, all things which can be

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(4) By forces of nature

e.g. electricity, gas, heat, oxygen

transported from place to place without

impairment of the real property to which
they are fixed.
(5) Obligations and actions which have for
their object movables or demandable
sums; and
(6) Shares of stock of agricultural,
commercial and industrial entities,
although they may have real estate.

TESTS TO DETERMINE
CHARACTER

CIVIL LAW

B. 3. IMPORTANCE AND SIGNIFICANCE

OF CLASSIFICATION UNDER THE NCC
(1) In criminal law
(a) Usurpation of property can take place
only with respect to real property.
[RPC 312]
(b) Robbery and theft can be committed
only against personal property. [RPC
293, 308]

MOVABLE

(1) By exclusion
Everything NOT included in Article 415
Parties cannot by agreement treat as
immovable that which is legally
movable

(2) In the forms of contracts:

(a) Subject matter of specific contracts:
(i) Only real property can be the
subject of real mortgage [NCC
2124] and antichresis. [NCC 2132]
(ii) Only personal property can be the
subject of voluntary deposit [NCC
1966], pledge [NCC 2094] and
chattel mortgage. [Act 1508]
(b) Donations of real property are
required to be in a public instrument
[NCC 749] but a donation of a
movable may be made orally or in
writing. [NCC 748]

(2) By description
(a) Ability to change location whether it
can be carried from place to place;
(b) Without substantial injury to the
immovable to which it is attached.
The steel towers built by MERALCO are not
buildings or constructions since they are
removable and merely attached to a square
metal frame by means of bolts, which when
unscrewed could easily be dismantled and
moved from place to place, without breaking
the material or causing deterioration to the
object they are attached. [Board of
Assessment Appeals v. Meralco]

(3) For acquisitive prescription:

(a) Real property can be acquired by
prescription in 30 years (bad faith)
and 10 years (good faith). (NCC 1137,
1134)
(b) Movables can be acquired by
prescription in 8 years (bad faith) and
4 years (good faith). (NCC 1132)

(3) By special provision of law

(a) Growing crops under the Chattel
Mortgage Law
(b) Machinery installed by a lessee not
acting as agent of the owner [Davao
Sawmill v. Castillo]
(c) Intellectual property considered
personal property; it consists in the
pecuniary benefit which the owner can
get
by the
reproduction
or
manufacture of his work.

(4) Actions for recovery of possession:

(a) Possession of real property recovered
through
accion
reivindicatoria, accion publiciana,
forcible entry and unlawful detainer.
(b) Possession of movable property recovered through replevin.

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CIVIL LAW

C.1. PUBLIC DOMINION

(5) Venue of actions:

(a) Real actions - Actions concerning real
property are commenced in the court
that has jurisdiction over the area
where the real property is situated.
[Rules of Court Rule 4 Sec. 1]
(b) Personal actions - Commenced where
the plaintiff or any of the principal
plaintiffs, or where the defendant or
any of the principal defendants
resides, or if a non-resident
defendant, where he may be found, at
the election of the plaintiff. [Rule 4
Sec. 2]

Property of public dominion is outside the

commerce of man. They cannot be the subject
matter of private contracts, cannot be
acquired by prescription and they are not
subject to attachment and execution nor
burdened with a voluntary easement.
Public
Dominion
Public
Domain
Public Lands

As defined by NCC 420

Used in Art XII, Section 2,
1987 Constitution
Public Land Act

CHARACTERISTICS

(6) The governing law (Private International

Law):
(a) Immovables - governed by the law of
the country where they are located.
(b) Movables - governed by the personal
laws of the owner. (which in some
cases is the law of his nationality and
in other cases, the law of his domicile)

Not owned by the State but pertains to it as

territorial sovereign; to hold in trust for the
interest of the community.
Purpose: For public use, and not for use by
the State as a juridical person.
Cannot be the subject of appropriation
either by the State or by private persons.

CLASSIFICATIONS

(7) In affecting third persons:

(a) In transactions involving real property
must be recorded in the Registry of
Property to affect third persons.
(b) In transactions involving personal
property registration is not required,
except for chattel mortgages. [Chattel
Mortgage Register, NCC 2140]
(c)

Administered by the State [NCC 420

(1) Those intended for public use. (roads,
canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores,
roadsteads, and others of similar
character)
May be used by everybody, even by
strangers or aliens but nobody can
exercise over it the rights of a private
owner.

C. BASED ON OWNERSHIP/RIGHTSHOLDER

(2) Those intended for some public service:

may be used only by authorized persons
but exists for the benefit of all. e.g.
fortresses, unleased mines and civil
buildings.

NCC 419. Property is part of either the public

dominion or private ownership.
Churches and other consecrated objects are
considered outside the commerce of man;
they are considered neither public nor private
property.

(3) Those for the development of the national

wealth. Includes natural resources such as
minerals, coal, oil and forest.

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(4) Patrimonial property:

(a) Owned by the State over which it has
the same rights as private individuals
in relation to their own property.
(b) Subject to the administrative laws and
regulations on the procedure of
exercising such rights. E.g. friar lands,
escheated properties and commercial
buildings.
(c) Purpose:
(i) Enables the State to attain its
economic ends.
(ii) Serves as a means for the States
subsistence and preservation.
(iii) Enables the State to fulfill its
primary mission.
(d) Conversion of Property of Public
Dominion for Public Use to
Patrimonial Property:
(i) Property of public dominion, when
no longer intended for public use
or for public service, shall form
part of the patrimonial property of
the State [NCC 422, Civil Code]
(ii) An express Declaration by the
State (either by the Congress or by
the President, if the power was
provided by law) that the public
dominion property has been
converted
into
patrimonial
property, even though it was
classified
as
alienable
or
disposable. [Heirs of Malabanan v.
Republic (2009)]

The province or municipality, as a

juridical entity, also possesses private
property to answer for its economic
necessities.
Classification of Properties of provinces,
cities, and municipalities [Salas v.
Jarencio, (1972)]
(i) Properties acquired with their own
funds in their private or corporate
capacity over which the political
subdivision has ownership and
control.
(ii) Properties of public dominion
held in trust for the States
inhabitants are subject to the
control and supervision of the
State.
A municipal corporation must prove that
they acquired the land with their own
corporate funds
Presumption: that land comes from the
State upon the creation of the
municipality. All lands in the possession
of the municipality
Exception: for those acquired with its
private funds, are deemed to be property
of public dominion, held in trust for the
State for the benefit of its inhabitants.
Congress has paramount power to
dispose of lands of public dominion in a
municipality, the latter being a
subdivision only for purposes of local
administration. [Salas v. Jarencio, (1972)]

Administered by Municipal Corporations [NCC

424]
(1) Property for public use, in the provinces,
cities, and municipalities, consist of the
provincial roads, city streets, municipal
streets, the squares, fountains, public
waters, promenades, and public works for
public service paid for by said provinces,
cities, or municipalities.
(2) Patrimonial property
Corporations:

of

CIVIL LAW

C.2. PRIVATE OWNERSHIP

Can be exercised by the state in its private
capacity or by private persons.

KINDS
(1) Patrimonial property - Property owned by
the State and its political subdivisions in
their private capacity; all property of the
State not included in NCC 420 (on public
dominion) [NCC 421-424]

Municipal

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(2) Property belonging to private persons,

either individually or collectively [NCC
425]
Property of private ownership, besides
the patrimonial property of the State,
provinces, cities, and municipalities,
consists of all property belonging to
private persons, either individually or
collectively.
Refers to all property belonging to
private persons, natural or juridical,
either individually or collectively (coowned property)

DETERMINATION
VIEWS)

(TWO

CIVIL LAW

Private Land converted to Property of Public

Dominion
through
abandonment
and
reclamation
Through the gradual encroachment or
erosion by the ebb and flow of the tide,
private property may become public IF the
owner appears to have ABANDONED the
land, and permitted it to be totally
destroyed so as to become part of the shore.
The land having disappeared on account of
the gradual erosion, and having remained
submerged until they were reclaimed by the
government, they are public land.
[Government v. Cabangis (1929)]

DIFFERENT

(1) Determined by how the property was used

In Province of Zamboanga v. City of
Zamboanga
(1968),
property
was
considered patrimonial for they were not
for public use.

D. BASED ON CONSUMABILITY
[NCC 418]

(2) Determined by how the property was

acquired
According to Salas v. Jarencio (1972), the
absence of a title deed to any land,
showing that it was acquired with its
private or corporate funds, the
presumption is that such land came from
the State upon the creation of the
municipality.

(1) Movables which cannot be used in a

manner appropriate to their nature
without their being consumed. (e.g. food)
(2) Consumable goods cannot be the subject
matter of a commodatum unless the
purpose of the contract is not the
consumption of the object, as when it is
merely for exhibition.

CONVERSION

All others not falling under consumable e.g.

money in coin.

Only applies to movable property, determined

by nature.

D.1. CONSUMABLE

D.2. NON-CONSUMABLE

Alienable Public Land converted to Private

Property through Prescription
Alienable public land held by a possessor
personally/through
predecessors-ininterest,
openly,
continuously
and
exclusively for 30 years is CONVERTED to
private property by the mere lapse or
completion of the period. The application
for confirmation is mere formality, because
land had already been converted, giving rise
to a registrable title. [Director of Lands v.
IAC(1986)]

E. BASED ON SUSCEPTIBILITY TO
SUBSTITUTION
Only applies to movables, determined by the
intention of the parties.

E.1. FUNGIBLES
Things that, because of their nature or the will
of the parties, are capable of being
substituted by others of the same kind, not
having a distinct individuality.

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E.2. NON-FUNGIBLES

G.4.
BY
REASON
OF
SUSCEPTIBILITY TO DIVISION

(1) Things that cannot be substituted for

another;
(2) If the parties agreed that the same thing
be returned, it is not fungible.

Public Agricultural Land;

Mineral Land;
Timber Land;
National Parks.

G.5. BY REASON OF DESIGNATION

G. OTHER CLASSIFICATIONS

(1) Generic
That which indicates its homogenous
nature, but not the individual such as a
horse, house, dress, without indicating it.
(2) Specific
That which indicates the specie or its
nature and the individual, such as the
white horse of X.

G.1. BY THEIR PHYSICAL EXISTENCE

(1) Corporeal
All property the existence of which can be
determined by the senses. (res qui tangi
possunt)
(2) Incorporeal
(a) Things having abstract existence,
created by man and representing
value.
(b) Includes rights over incorporeal
things, credits, and real rights other
than ownership over corporeal things.

G.2. BY THEIR
DEPENDENCE

AUTONOMY

G.6. EXISTENCE IN POINT OF TIME

(1) Present
Those which exist in actuality, either
physical or legal, such as, the erected
building.
(2) Future
Those which do not exist in actuality, but
whose existence can reasonably be
expected with more or less probability,
such as ungathered fruits.

OR

(1) Principal
Those to which other things are
considered dependent or subordinated,
such as the land on which a house is built.
(2) Accessory
Those which are dependent upon or
subordinated to the principal. They are
destined to complete, enhance or
ornament another property.

G.3.
BY
SUSCEPTIBILITY
DETERIORATION

THEIR

(1) Divisible
Those which can be divided physically or
juridically without injury to their nature
e.g.: piece of land or an inheritance.
(2) Indivisible
Those which cannot be divided without
destroying their nature or rendering
impossible the fulfillment of the juridical
relation of which they are object.

F. BASED ON THE CONSTITUTION

[ARTICLE XII, SEC 3]
(1)
(2)
(3)
(4)

CIVIL LAW

III. Ownership
A. DEFINITION AND CONCEPT
Independent right of exclusive enjoyment
and control of a thing.
Has the purpose of deriving all advantages
required by the reasonable needs of the
owner/holder of right and promotion of
general welfare.
A complete subjection to an owners will.

TO

(1) Deteriorable
Those that deteriorate through use or by
time.
(2) Non-deteriorable.
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C.3. PROTECTING PROPERTY

C.3.1 BASIC DISTINCTIONS

May be exercised in everything not

prohibited by public law or the rights of
another.

REAL RIGHTS V. PERSONAL RIGHTS

B. TYPES OF OWNERSHIP

Real Rights
Rights that confer upon its holder an
autonomous power to derive directly from a
thing
certain
economic
advantages
independently of whoever the possessor of
the thing.

(1) Full Ownership

With complete rights over the property.
(2) Naked Ownership
Absence of jus fruendi and jus utendi.
(3) Sole Ownership
Ownership vested only in one person.
(4) Co-Ownership
Ownership vested in 2 or more persons.

C. RIGHT IN GENERAL
C.1.
RIGHTS
INCLUDED
OWNERSHIP [NCC 428]

CIVIL LAW

Personal Rights
Rights of a person to demand from another as
a definite passive subject, the fulfillment of a
prestation to give, to do or not to do.

IN

Real Rights
Definite active subject
who has a right
against ALL persons
generally
as
an
indefinite
passive
subject.
Object is generally a
corporeal thing.

(1) Right to enjoy and dispose of a thing,

without other limitations than those
established by law.
(2) Right of action against the holder and
possessor of the thing in order to recover
it.

Personal Rights
Definite
active
subject
(creditor)
and
a
definite
passive
subject
(debtor).

Subject matter is
always
an
incorporeal thing.
Generally
Personal
right
extinguished by the survives the subject
loss or destruction of matter.
the thing over which it
is exercised.
It is directed against It is binding or
the whole
world, enforceable
only
giving rise to real against a particular
actions against 3rd person giving rise to
persons.
personal
actions
against such debtor.

C.2. BUNDLE OF RIGHTS

(1) Jus Utendi: right to enjoy and receive what
the property produces.
(2) Jus Fruendi: right to receive the fruits.
(3) Jus Accessiones: right to the accessories.
(4) Jus Abutend: right to consume a thing by
use.
(5) Jus Disponendi: right to alienate,
encumber, transform or even destroy the
thing owned.
(6) Jus Vindicandi: right to recover possession
of property based on a claim of
ownership.
(7) Jus Possidendi: right to possess the
property. (Implied from all the other
rights)

REAL ACTION V. PERSONAL ACTION

(ROC, RULE 4 SEC 1-2)
Real action
Actions affecting title to or possession of real
property or any interest therein.
Personal action
All other actions.
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ACTION IN REM V. ACTION IN

PERSONAM V. ACTION QUASI IN REM

CIVIL LAW
Prior physical possession by the plaintiff is
not required.
The action must be filed within 1 year
AFTER dispossession / unlawful possession
/ demand to vacate.

Action in rem
Action against a property, judgment binding
against the whole world.
Action in personam
Action against a specific person, judgment
binding against that particular person.

Distinction between forcible entry and

unlawful detainer
(1) Forcible Entry: Lawful possessor deprived
through FISTS:
FISTS (Force, Intimidation, Strategy,
Threats, Stealth)
Prescription: 1 year from dispossession
(force, intimidation, threats) or from
knowledge of dispossession (strategy,
stealth).
(2) Unlawful Detainer: Possessor refused to
vacate upon demand by owner.
Legal possession (by permission/
tolerance) becomes unlawful upon
failure to vacate.
Prescription of action: 1 year from last
notice to vacate.

Action quasi in rem

Action against a specific property with respect
to a person.

C.3.2. REMEDIES
DOCTRINE OF SELF-HELP [NCC 429430]
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 his property.
Every owner may enclose or fence his
land or tenements by any other means
without
detriment
to
servitudes
constituted thereon.

Movable property
Replevin
For manual delivery of property
Prescription of Right: 4 years (good faith) or
8 years (bad faith)

ACTIONS TO RECOVER OWNERSHIP

AND POSSESSION OF PROPERTY
Immovable Property
Accion Reivindicatoria
Recovery of ownership of real property.
Including but not limited to possession.
Prescription of Action: 30 years.

Requisites for recovery of property [NCC 434]

(1) Property must be identified;
Through a relocation survey and a title
properly identifying boundaries and
location.
(2) Plaintiff must rely on the strength of his
title and not on weakness of defendants
title.
Right must be founded on positive title
and not on lack or insufficiency of
defendants.
Ei incumbit probatio qui dicit, non qui
negat: He who asserts, not he who
denied must prove.

Accion Publiciana
Recovery of a better right to possess (de jure).
Judgment as to who has the better right of
possession.
Also, actions for ejectment not filed within 1
year must be filed as accion publiciana.
Prescription: 10 years.
Accion Interdictal
A summary action for recovery of physical
possession through either an action for
Forcible Entry or Unlawful Detainer.

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(a) Private property or its use as the object of

the expropriation;
(b) The property or its use is taken by the
State or by competent authority;
(c) The purpose of the taking is for public
use;
(d) The taking must be attended with due
process of law; and
(e) There is payment of just compensation.

D. LIMITATIONS ON OWNERSHIP
D.1. GENERAL LIMITATIONS:
TAXATION, EMINENT DOMAIN, POLICE
POWER
POLICE POWER
PROPERTY
TAKEN
WITH
NO
COMPENSATION
FOR
GENERAL
WELFARE.
When any property is condemned or seized
by competent authority in the interest of
health, safety or security, the owner thereof
shall not be entitled to compensation,
unless he can show that such condemnation
or seizure is unjustified. [Art. 436, Civil Code]

Note:
Expropriation may be exercised on both
real and personal property. [Rule 67,
Rules of Court]
Expropriation may be exercised not only
on property but also its use such as the
use of telephone lines [Republic v PLDT
(1969)]

Requisites
To justify the exercise of police power, the
following must appear [US v Toribio(1910)]:
(a) The interests of the public generally,
require
such
interference
(as
distinguished from those of a particular
class); and
(b) The means are reasonably necessary for
the accomplishment of a purpose, and
not unduly oppressive.

D.2. SPECIFIC LIMITATIONS:

IMPOSED BY LAW, SIC UTERE TUO,
NUISANCE, STATE OF NECESSITY,
EASEMENTS,
AND
THOSE
VOLUNTARILY IMPOSED BY THE
OWNER: SERVITUDES, MORTGAGES
IMPOSED BY CONTRACT.
(1) Legal Servitudes
Once requisites are satisfied, the servient
owner may ask the Court to declare the
existence of an easement.
(a) Art. 644 & 678: Aqueduct
(b) Art. 679: Planting of trees
(c) Art. 670: Light and View
(d) Art. 649 & 652: Right of Way
(e) Art. 637: Passage of water from upper
to lower tenements
(f) Art. 676: Drainage of buildings
(g) Art. 684-687: Lateral and subjacent
support

TAXATION
Forced contribution to the operation of
government.

EMINENT DOMAIN
Property taken for public use/purpose, but
subject to due process and payment of just
compensation.
Requisites
To justify the exercise of the right of eminent
domain, the following requisites must all be
present:

(2) Must not injure the rights of a third person

(a) Sic Utere Tuo Ut Alienum Non Laedas
(b) The owner of a thing cannot make use
thereof in such manner as to injure
the rights of a third person. [NCC 431]
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A nuisance is any act, omission,

establishment, business, condition of
property, or anything else which:
(a) Injures or endangers the health or
safety of others;
(b) Annoys or offends the senses;
(c) Shocks, defies or disregards decency
or morality;
(d) Obstructs or interferes with the free
passage of any public highway or
street, or any body of water; or
(e) Hinders or impairs the use of property.
[NCC 694]

(3) Actions in a State of Necessity

The owner of a thing has no right to
prohibit the interference of another with
the same, if the interference is necessary
to avert an imminent danger and the
threatened damage, compared to the
damage arising to the owner from the
interference, is much greater. The owner
may demand from the person benefited,
indemnity for the damage to him. [NCC
432]
(4) Nuisance

SUMMARY OF ACTIONS
Action
Forcible Entry /
Unlawful
Detainer
Accion
Publiciana

Venue

Summon

Prayer

Real
Action

In
personam

Possession

Prior physical 1 year

possession

Real
Action
Real
Action

In
personam
In
personam

Possession

Real right of 10 years

Possession
[NCC 555(4)]
Ownership
GF: 10 years
BF: 30 years
[NCC 1137]

Possession

Accion
Reividicatoria

Reconveyance
Quieting of Title
Replevin

Real
Action
Real
Action
Personal
Action

In
personam
Quasi-in
rem
In
personam

Title

Basis

Ownership

Quieting of Ownership
Title
Possession
Ownership

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Prescription

Exceptiion: Torrens Title;

Exception to exception:
laches
10 years
(NCC 1456)
Imprescriptible
GF: 4 years
BF: 8 years

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IV. Accession

(1)
(2)
(3)
(4)

Accession the right by virtue of which the

owner of a thing becomes the owner of
everything that is produced thereby, or which
is incorporated or attached thereto, either
naturally or artificially. [NCC 440]

CIVIL LAW

Possession in good faith

Usufruct
Lease
Antichresis

In cases where there is a clear and convincing

evidence to prove that the principal and the
accessory are not owned by one and the same
person or entity, the presumption shall not be
applied and the actual ownership shall be
upheld. In a number of cases, we recognized the
separate ownership of the land from the building
and brushed aside the rule that accessory
follows the principal. [Villasi v. Garcia (2014)]

Accessories things joined to or included

with the principal thing for the latters
embellishment, better use, or completion.

A. CLASSIFICATION OF ACCESSION
(1) Accession Discreta (fruits) the right
pertaining to the owner of a thing over
everything produced thereby (by internal
forces).
(2) Accession Continua the right pertaining
to the owner of a thing over everything
that is incorporated or attached thereto
either naturally or artificially; by external
forces (by external forces).
(a) Over Immovables
(i) Industrial
(ii) Natural
(1) Alluvion
(2) Avulsion
(3) Change of Course of River
(4) Formation of Islands
(b) Over Movables
(i) Conjunction and Adjunction
(ii) Commixtion and Confusion
(iii) Specification

FRUITS
All periodical additions to a principal thing
produced by forces inherent to the thing itself.
KINDS OF FRUITS
(1) Natural spontaneous products of soil and
the young and other products of animals
[NCC 442 (1)].
Under the rule partus sequitur ventrem, to the
owner of female animals would also belong
the young of such animals although this
right is lost when the owner mixes his cattle
with those of another.
(2) Industrial produced by lands of any kind
through cultivation or labor [NCC 442 (2)].
Standing trees are not fruits since they are
considered immovables although they
produce fruits themselves. However, they
may be considered as industrial fruits when
they are cultivated or exploited to carry on an
industry.

A.1. WITH RESPECT TO IMMOVABLES

ACCESSION DISCRETA
Right of ownership to the fruits. [NCC 441]
General Rule: To the owner of the principal
belongs the natural, industrial and civil fruit.

(3) Civil easily prorated for under NCC 544

they are deemed to accrue daily and belong
to the possessor in good faith in that
proportion.

Exceptions:

Notes:

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(a) Natural and Industrial Fruits are real

property while still ungathered.
(b) Only those that are manifest or born
are considered as natural or
industrial fruits.

PRINCIPLES
APPLICABLE
ACCESSION DISCRETA

Presumptions
(a) All works, sowing and planting are
presumed made by the owner.
(b) All works are presumed made at the owners
expense, unless the contrary is proved.
(c) The owner of the principal thing owns the
natural, industrial and civil fruits, except
when the following persons exist:
(i) Possessor in Good Faith
(ii) Usufructuary
(iii) Lessee
(iv) Antichretic creditor

TO

(1) Time of Accrual depending on kind:

Annuals: from the time seedlings
appear on the ground.
Perennials: from the time fruits actually
appear on the plants.
Young of animals: from the time they
are in the womb, although unborn
beginning of maximum ordinary period
of gestation.
Fowls: from the time of incubation.

Meaning of bad faith

(1) On the part of the landowner
Whenever the building, planting or sowing
was done with the knowledge and without
opposition on his part.
(2) On the part of owner of materials
Allows the use of his materials without
protest.

(2) A receiver of fruits has the obligation to

pay the expenses incurred by a third
person in the production, gathering and
preservation. [NCC 443]
Exception: Receiver does not have to
pay if fruits are recovered before
gathering from a possessor in bad faith,
receiver does NOT have to pay
indemnity.
But if recovered after fruits have been
gathered, receiver must pay since the
fruits have been separated from
immovable, hence accession principles
will not apply.

PRINCIPLES
APPLICABLE
ACCESSION CONTINUA

CIVIL LAW

(3) On the part of the builder, planter and sower

Knows that he does not have title to the land,
nor the right to build thereon OR no
permission of the owner of the materials to
pay their value.
Note
Bad faith leads to liability for damages and the
loss of the works or the improvement without
reimbursement.
Bad faith of one party neutralizes the bad faith
of the other.

TO

(4) Accession Continua Natural

Land deposits, etc.

(1) Accession Continua Artificial or Industrial

Building, planting or sowing on land
owned by another (over immovables).

(a) Alluvium
Soil is gradually deposited on banks adjoining
the river. There can be no acquisition of soil
deposited on the shores of the sea [De Buyser v.
Director of Lands (1983)]

General Rule: Whatever is built, planted

or sown on the land of another +
improvements or repairs made thereon,
belong to the owner of the land subject
to the rules on BPS.

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Requisites
(1) Deposit of soil or sediment is gradual
and imperceptible;
(2) As a result of the action of the currents of
the waters of the river and should have
no human intervention;
(3) Land where the accretion takes place is
adjacent to the banks of the rivers; and
(4) Deemed to Exist: When the deposit of the
sediment has reached a level higher than
the highest level of the water during the
year.

CIVIL LAW

(c)
Change Of Course Of River
Requisites:
(1) Change in the natural course of the waters of
the river; and
(2) Such change causes the abandonment of the
river beds. Natural Bed: ground covered by
its waters during the highest floods. [Binalay
v Manalo (1991)]
(3) Such change is sudden or abrupt
Results
(1) Owners whose lands are occupied by the new
course automatically become owners of the
old bed, in proportion to the area they lost
(2) Owners of the lands adjoining the old bed
are given the right to acquire the same by
paying the value of the land.
*Not exceeding the value of the land invaded
by the new bed (the old property of the
owner)
(3) The new bed opened by the river on a private
estate shall become of public dominion.

Effect
The riparian owner automatically owns the
Alluvion BUT it does not automatically
become registered property in his name.
[Grande v CA (1962)]
Rationale
To offset the owners loss from possible
erosion due to the current of the river;
To compensate for the subjection of the
land to encumbrances and legal
easements.

(d)
Formation of Islands
They belong to the State if:
(1) Formed on the seas within the jurisdiction of
the Philippines.
(2) Formed on lakes, or
(3) Formed on navigable or floatable rivers:
(a) Capable of affording a channel or
passage for ships and vessels;
(b) Must be sufficient not only to float
bancas and light boats, but also bigger
watercraft;
(c) Deep enough to allow unobstructed
movements of ships and vessels.
TEST: can be used as a highway of
commerce, trade and travel.

(b)
Avulsion
A portion of land is segregated from one
estate by the forceful current of a river, creek
or torrent and transferred to another.
Requisites
(1) Segregation and transfer of land is
sudden and abrupt;
(2) Caused by the current of the water; and
(3) The portion of land transported must be
known and identifiable.
OR
(4) Can also apply to sudden transfer by
other forces of nature such as land
transferred from a mountain slope
because of an earthquake.

They belong to the owners of the nearest margins

or banks if:
(1) Formed through successive accumulation of
alluvial deposits
(2) On non-navigable and non-floatable rivers
(3) If island is in the middle: divided
longitudinally in half.

Effect
The ownership of the detached property is
retained by the owner subject to removal
within 2 years from the detachment.

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Landowner [LO] in Good Faith

Landowner [LO] in Bad Faith

Rights of Landowner [NCC 448]

Options:
(1) Buy (only after payment of indemnity for
Builder,
necessary, useful and ornamental expenses [NCC
Planter, Sower
546 and 548]);
[BPS]
(2) Sell to BP (unless the value of the land is
in Good Faith
considerably more than that of the building or
trees); or
Remedy: Rent to BP if LO does not want to buy
(3) Rent to S.

Absolute Duties of Landowner

[NCC 447]:
(1) Pay damages; and
(2) Allow removal; or
(3) Buy or pay for value of
improvement.

Rights of Landowner [NCC 449-452]

Same as though both
Options:
landowner and BPS are in
(1) Appropriate the improvements without paying good faith
Builder,
indemnity;
Planter, Sower (2) Demolish/Removal of the work of BPS at the
[BPS]
expense of BPS;
in Bad Faith (3) Sell to BP; or
(4) Rent to the S
Absolute right to Damages from BPS.

Landowner [LO] in Good Faith

Landowner [LO] in Bad Faith

Right of Landowner [NCC 447]

Absolute Duties of Landowner [NCC 447]:
Owner of
To buy the improvements unless OM can (1) Pay damages; and
Material [OM]
remove without damage.
(2) Allow removal in any event; or
in Good Faith
(3) Pay for value.
Absolute Rights of Landowner [NCC 447] Same as though both landowner and
Owner of
(1) To appropriate the materials without material man are in good faith
Material [OM]
payment.
in Bad Faith
(2) Right to damages from OM.

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Landowner
Good faith
Options:
(1) Right to acquire improvements
and pay indemnity to BPS;
subsidiarily liable to OM;
(2) Sell the land to BP except if the
value
of
the
land
is
considerably more; or
(3) Rent to sower.
Good faith
Options:
(1) Right to acquire improvements
and pay indemnity to BPS;
(2) Sell land to BP except if the
value
of
the
land
is
considerably more; or
(3) Rent to sower.
Good faith
(1) Landowner has right to collect
damages from BPS in any case
and the option to either
(a) Acquire improvements w/o
paying for indemnity;
(b) Demolition or restoration;
or
(c) Sell to BP, or to rent to
sower
(2) Pay necessary expenses to
BPS.
Bad faith
Same as when all acted in good
faith under Article 453
Bad faith
(1) Acquire improvement after
paying indemnity and damages
to BPS unless the latter
decides to remove.
(2) Subsidiarily liable to OM for
value of materials.

PROPERTY

BPS

CIVIL LAW

Owner of Material [OM]

Good faith
Good faith
(1) Right of retention until (1) Collect value of material
necessary and useful
primarily from BPS and
expenses are paid;
subsidiarily to landowner if
(2) To pay value of materials
BPS is insolvent; and
to OM.
(2) Limited right of removal (if
the removal will not cause
any injury)
Good faith
Bad faith
(1) Right of retention until (1) Lose the material without
necessary and useful
right to indemnity.
expenses are paid.
(2) Must pay for damages to
(2) Keep
BPS
without
BPS.
indemnity to OM and
collect damages from him.
Bad faith
Bad faith
Recover necessary expenses (1) Recover value from BPS
for preservation of land from
(as if both are in good
landowner unless landowner
faith)
sells land.
(2) If
BPS
acquires
improvement,
remove
materials if feasible w/o
injury
(3) No
action
against
landowner but may be
liable to landowner for
consequential damages
Bad faith
Bad faith
Same as when all acted in Same as when all acted in
good faith under Article 453
good faith under Article 453
Good faith
Good faith
(1) May
remove (1) Remove
materials
if
improvements.
possible w/o injury
(2) Be
indemnified
for (2) Collect value of materials
damages in any event
from BPS; subsidiarily from
(3) Pay OM the value of the
landowner
materials

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Landowner
Good faith
Options:
(3) Right to acquire improvements
and pay indemnity to BPS;
subsidiarily liable to OM;
(4) Sell the land to BP except if the
value
of
the
land
is
considerably more; or
Rent to sower.
Good faith
(1) Landowner has right to collect
damages from BPS in any case
and the option to either
(a) Acquire improvements w/o
paying for indemnity;
(b) Demolition or restoration;
or
(c) Sell to BP, or to rent to
sower
(2) Pay necessary expenses to
BPS.
Bad faith
Acquire improvements and pay
indemnity and damages to BPS
unless the latter decides to remove
materials.

PROPERTY

BPS

CIVIL LAW

Owner of Material [OM]

Bad faith
Good faith
(1) Right of retention until (1) Collect value of materials
necessary expenses are
primarily from BPS and
paid.
subsidiarily
from
(2) Pay value of materials to
landowner.
OM
and
pay
him (2) Collect damages from
damages.
BPS.
(3) Absolute right to remove
materials in any event.
Bad faith
Good faith
(1) Right
to
necessary (1) Collect value of materials
expenses.
primarily from BPS and
(2) Pay value of materials to
subsidiarily
from
OM.
landowner
(3) Pay damages to OM/LO.
(2) Collect damages from BPS
(3) If
BPS
acquires
improvements,
absolute
right of removal in any
event.

Good faith
Bad faith
(1) Receive indemnity for (1) No right to indemnity.
damages.
(2) Loses right to material.
(2) Absolute right of removal
of improvements in any
event.

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A.2. WITH
PROPERTY
TYPES

PROPERTY

RESPECT

TO

MOVABLE

Ownership of new object formed by adjunction

(1) If union was made in good faith
The owner of principal thing acquires the
accessory, with obligation to indemnify
the owner of the accessory for its value in
its uncontroverted state.

(1) Conjunction or Adjunction

Process where 2 movables belonging to
different owners are attached to each other
to form a single object.
(2) Mixture
The union of material where
components lose their identity.

CIVIL LAW

(2) If union was in bad faith, NCC 470 applies:

Owner of accessory in bad faith loses
the thing incorporated and has the
obligation to indemnify the owner of the
principal thing for damages.
If owner of principal is in bad faith,
owner of the accessory has a right to
choose between the owner of principal
paying him its value or that the thing
belonging to him be separated, even
though for this purpose it be necessary
to destroy the principal thing; and in
both cases, there shall be indemnity for
damages

the

(3) Specification
Transforming or giving of a new form to
anothers material through labor.

CONJUNCTION / ADJUNCTION
Requisites
(1) There are 2 movables belonging to 2
different owners;
(2) They are united in such a way that they
form a single object; and
(3) They are so inseparable that their
separation would impair their nature or
result in substantial injury to either
component.

Test to determine the principal thing

In the order of application, the principal is
that:
(1) To which the other has been united as an
ornament or for its use or perfection
(Rule of importance and purpose).
(2) Of greater value.
(3) Of greater volume.
(4) That of greater merits, taking into
consideration all the pertinent legal
provisions, as well as the comparative
merits, utility and volume of their
respective things. [Manresa]

Kinds
(1) Inclusion or engraftment e.g. a diamond
is set on a gold ring
(2) Soldadura or soldering e.g. when lead is
united or fused to an object made of lead
(a) Ferruminacion if both the accessory
and principal objects are of the same
metal; and
(b) Plumbatura, if they are of different
metals
(3) Escritura or writing e.g. when a person
writes on paper belonging to another;
(4) Pintura or painting e.g. when a person
paints on canvas belonging to another;
(5) Tejido or weaving e.g. when threads
belonging to different owners are used in
making textile

When separation allowed

(1) When separation will not cause any injury;
or
(2) When the accessory is much more
precious:
(a) Owner of accessory may demand
separation even though the principal
thing may suffer.

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SPECIFICATION

(b) Owner who caused the union shall

bear the expenses for separation even
if he acted in good faith.
(3) When the owner of the principal is in bad
faith.

Definition
Takes place when the work of a person is
done on the material of another, such
material, in consequence of the work itself,
undergoes a transformation.

MIXTURE
Kinds
(1) Commixtion: mixture of solid things
(2) Confusion: mixture of liquid things

Rules
(1) Person in good faith
General rule
Worker becomes the owner but must
indemnify the owner (who was also in
good faith) for the value of the material.
Exception
If the material is more valuable than the
new thing, the owner of the material may
choose:
(a) To take the new thing but must pay
for the work or labor; or
(b) To demand indemnity for the
material.

Rules
(1) Mixture by will of the owners:
(a) Primarily
governed
by
their
stipulations.
(b) In the absence of stipulation, each
owner acquires a right or interest in the
mixture in proportion to the value of
his material.
(2) Mixture caused by an owner in good faith or
by chance
(a) Share of each owner shall be
proportional to the value of the part
that belonged to him.
(b) If things mixed are exactly the same
kind, quality and quantity, divide the
mixture equally.
(c) If things mixed are of different kind or
quality, a co-ownership arises.
(d) If they can be separated without injury,
the owners may demand separation.
(e) Expenses are borne by the owners pro
rata.
(f) NOTE: Good faith does not necessarily
exclude negligence, which gives rise to
damages.
(3) Mixture caused by an owner in bad faith
(a) Actor forfeits the thing belonging to
him.
(b) Actor also becomes liable for
damages.
(4) Mixture made with knowledge and without
objection of the other owner
Rights to be determined as though both
acted in good faith.

If the owner was in bad faith, maker may

appropriate the new thing without paying
the owner OR require the owner to pay
him the value of the thing or his work,
with right to indemnity
(2) Person in bad faith
General rule
(a) Owner may either appropriate the
new thing to himself without paying
the maker OR
(b) Owner may demand value of material
plus damages
Exception
The first option is not available in case the
value of the work, for artistic or scrientific
reasons, is considerably more than that of
the material
(3) Person made use of material with consent
and without objection of owner
Rights shall be determined as though
both acted in good faith

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V. Quieting of Title

CIVIL LAW

E. THE ACTION TO QUIET TITLE

DOES NOT APPLY:

OR INTEREST IN AND REMOVAL OR

PREVENTION OF CLOUD OVER TITLE
TO OR INTEREST IN REAL PROPERTY

(1) To questions involving interpretation of

documents;
(2) To mere written or oral assertions of
claim, unless made in a legal proceeding
or asserting that an instrument or entry in
plaintiffs favor is not what it purports to
be;
(3) To boundary disputes;
(4) To deeds by strangers to the title unless
purporting to convey the property of the
plaintiff;
(5) To instruments invalid on their face; or
(6) Where the validity of the instrument
involves a pure question of law.

A. IN GENERAL
A remedy or form of proceeding originating in
equity jurisprudence. Equity comes to the aid
of the plaintiff who would suffer if the
instrument (which appear to be valid but is in
reality
void,
ineffective,
voidable
or
unenforceable) was to be enforced.

B. PURPOSE
(1) To declare:
(a) The invalidity of a claim on a title; or
(b) The invalidity of an interest in property.
(2) To free the plaintiff and all those claiming
under him from any hostile claim on the
property.

F. REQUIREMENTS
F.1. REQUISITES OF AN ACTION TO
QUIET TITLE
(1) There is a CLOUD on title to real property
or any interest to real property;
(2) The plaintiff must have legal or equitable
title to, or interest in the real property;
and
(3) Plaintiff must return the benefits received
from the defendant.

C. NATURE: QUASI IN REM

A suit against a particular person or persons
in respect to the res and the judgment will
apply only to the property in dispute.
The action to quiet title is characterized as
proceeding quasi in rem. Technically, it is
neither in rem nor in personam. In an action
quasi in rem, an individual is named as a
defendant. However, unlike suits in rem, a
quasi in rem judgment is conclusive only
between the parties. [Spouses Portic v.
Cristobal]

Cloud on title means a semblance of title,

either legal or equitable, or a claim or a right
in real property, appearing in some legal form
but which is, in fact, invalid or which would be
inequitable to enforce.
A cloud exists if:
(1) There is a claim emerging by reason of:
(a) Any instrument e.g. a contract, or any
deed of conveyance, mortgage,
assignment, waiver, etc. covering the
property concerned;
(b) Any record, claim, encumbrance e.g.
an attachment, lien, inscription,
adverse claim, lis pendens, on a title;
or

D. JUSTIFICATIONS TO BRING AN
ACTION TO QUIET TITLE
(1) To prevent future or further litigation on
the ownership of the property.
(2) To protect the true title and possession.
(3) To protect the real interest of both parties.
(4) To determine and make known the precise
state of the title for the guidance of all.

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(c) Any proceeding e.g. an extrajudicial

partition of property.
(2) The claim should appear valid or effective
and extraneous evidence is needed to prove
their validity or invalidity;
(a) Test: Would the owner of the property
in an action for ejectment brought by
the adverse party be required to offer
evidence to defeat a recovery?
(b) As a general rule, a cloud is not
created by mere verbal or parole
assertion of ownership or an interest in
property.
(3) Such instrument, etc. is, in truth and in fact,
invalid,
ineffective,
voidable,
or
unenforceable, or has been extinguished or
terminated, or has been barred by
extinctive prescription; and
(4) Such instrument, etc. may be prejudicial to
the true owner or possessor.

CIVIL LAW

G. QUIETING OF TITLE V. REMOVAL

OF CLOUD
Quieting of Title

Removal of Cloud

There isnt always

an adverse claim
(eg.
land
registration
cases)

There is always an
adverse claim by virtue
of an instrument, record,
claim, encumbrance or
proceeding.

H.
PRESCRIPTION
/
PRESCRIPTION OF ACTION

NON-

PRESCRIPTION OF ACTION
(1) When the plaintiff is in possession of the
property, the action to quiet title does not
prescribe.
Rationale for Rule
The owner of real property who is in
possession thereof may wait until his
possession is invaded or his title is
attacked before taking steps to vindicate
his right. A person claiming title to real
property, but not in possession thereof,
must act affirmatively and within the time
provided by the statute. Possession is a
continuing right as is the right to defend
such possession. So it has been
determined that an owner of real property
in possession has a continuing right to
invoke a court of equity to remove a cloud
that is a continuing menace to his title.
Such a menace is compared to a
continuing nuisance or trespass which is
treated as successive nuisances or
trespasses, not barred by statute until
continued without interruption for a
length of time sufficient to affect a change
of title as a matter of law." [Pingol v. CA]
(2) When the plaintiff is not in possession of
the property, the action to quiet title may
prescribe.
(a) 10 yrs. ordinary prescription
(b) 30 yrs. extraordinary prescription (in
bad faith)

F.2. REQUISITES OF AN ACTION TO

PREVENT A CLOUD:
(1) Plaintiff has a title to a real property or
interest therein;
(2) Defendant is bent on creating a cloud on
the title or interest therein. The danger
must not be merely speculative or
imaginary but imminent; and
(3) Unless the defendant is restrained or
stopped, the title or interest of the plaintiff
will be prejudiced or adversely affected.
The plaintiff must have legal or equitable title
to, or interest in the real property [NCC 477]
(1) Legal title: the party is the registered owner
of the property.
(2) Equitable title: the person has the
beneficial ownership of the property.
The plaintiff must return the benefits received
from the defendant [NCC 479]

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VI. Co-ownership

(3) The portions belonging to the co-owners

in the co-ownership shall be presumed
equal, unless the contrary is proved.

The form of ownership when the ownership of

an undivided thing or right belongs to different
persons. [NCC 484]

Each co-owner has absolute control over his

ideal share
Every co-owner has absolute ownership
of his undivided interest in the co-owned
property and is free to alienate, assign or
mortgage his interest except as to purely
personal rights. While a co-owner has
the right to freely sell and dispose of his
undivided interest, nevertheless, as a coowner, he cannot alienate the shares of
his other co-owners nemo dat quod non
habet. [Acabal v. Acabal]

A. REQUISITES
(1) Plurality of owners;
(2) Object must be an undivided thing or right;
and
(3) Each co-owners right must be limited only
to his ideal or abstract share of the
physical whole.

B. WHAT GOVERNS CO-OWNERSHIP

(1) Contracts;
(2) Special laws; and
(3) The Civil Code

C. CHARACTERISTICS
OWNERSHIP

OF

CIVIL LAW

Mutual respect among co-owners with regard

to use, enjoyment, and preservation of the
things as a whole
(1) The property or thing held pro-indiviso is
impressed with a fiduciary character: each
co-owner becomes a trustee for the
benefit of his co-owners and he may not
do any act prejudicial to the interest of his
co-owners.
(2) Until a judicial division is made, the
respective part of each holder cannot be
determined. The effects of this would be:
(a) Each co-owner exercises, together
with the others, joint ownership over
the pro indiviso property, in addition
to his use and enjoyment of the same
(b) Each co-owner may enjoy the whole
property and use it.
(3) Redemption exercised by a co-owner
inures to the benefit of his other coowners [Mariano v CA (1993)]

CO-

(1) There are 2 or more co-owners.

(2) There is a single object which is not
materially or physically divided and over
which and his ideal share of the whole.
(3) There is no mutual representation by the
co-owners.
(4) It exists for the common enjoyment of the
co-owners.
(5) It has no distinct legal personality.
(6) It is governed first of all by the contract of
the parties; otherwise, by special legal
provisions, and in default of such
provisions, by the provisions of Title III on
Co-Ownership.
There are ideal shares defined but not
physically identified [NCC 485]
(1) The share of the co-owners, in the benefits
as well as in the charges, shall be
proportional to their respective interests.
(2) Any stipulation in a contract to the contrary
shall be void.

Only limitation
A co-owner cannot use or enjoy the property
in a manner that shall injure the interest of his
other co-owners. [Pardell v. Bartolome]

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D. SOURCES OF CO-OWNERSHIP

the thing owned in common, insofar as his share

is concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not
exceeding ten years, shall be valid. This term may
be extended by a new agreement.

D.1. LAW
(1) Cohabitation:
co-ownership
common law spouses

CIVIL LAW

between

The Family Code, in the following

provisions, made the rules on coownership apply:
Art. 147: between a man and a woman
capacitated to marry each other
Art. 148: between a man and a woman
not capacitated to marry each other
Art. 90: if matter is not provided in the FC
Chapter on ACP, then rules on coownership will apply

A donor or testator may prohibit partition for a

period which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner or
co-heir against his co-owners or co-heirs so long
as he expressly or impliedly recognizes the coownership.
By the creation of a Universal Partnership of all
present property
NCC 1778. A partnership of all present
property is that in which the partners
contribute all the property which actually
belongs to them to a common fund, with the
intention of dividing the same among
themselves, as well as all the profits which
they may acquire therewith.

(2) Purchase creating implied trust

If two or more persons agree to purchase
property and by common consent, the
legal title is taken in the name of one of
them for the benefit of all, a trust is created
by force of law in favor of the others in
proportion to the interest of each.
[NCC 1452]

NCC 1779. In a universal partnership of all

present property, the property which
belonged to each of the partners at the time
of the constitution of the partnership,
becomes the common property of all the
partners, as well as all the profits which they
may acquire therewith.
A stipulation for the common enjoyment of
any other profits may also be made; but the
property which the partners may acquire
subsequently by inheritance, legacy, or
donation cannot be included in such
stipulation, except the fruits thereof

(3) Easement of Party Wall: co-ownership of

part-owners of a party wall (NCC 658)
(4) Condominium Law: co-ownership of the
common areas by holders of units
Sec. 6, RA 4726. The Condominium Act.
Unless otherwise expressly provided in the
enabling or master deed or the declaration of
restrictions, the incidents of a condominium
grant are as follows:
(c) Unless otherwise, provided, the common
areas are held in common by the holders
of units, in equal shares, one for each unit.

D.3. INTESTATE SUCCESSION

D.2. CONTRACT
By Agreement of Two or More Persons

Co-ownership between the heirs before

partition of the estate

Article 494, Civil Code. No co-owner shall be

obliged to remain in the co-ownership. Each coowner may demand at any time the partition of

NCC 1078. Where there are two or more heirs,

the whole estate of the decedent is, before its

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partition, owned in common by such heirs,

subject to the payment of debts of the
deceased.
For as long as the estate is left undivided the
heirs will be considered co-owners of the
inheritance.
If one of the heirs dies, his heirs will in turn
be co-owners of the surviving original heirs.

CIVIL LAW

his own name with third persons are governed

by the provisions relating to co-ownership.

E. RIGHTS OF CO-OWNERS
E.1. RIGHT TO SHARE IN THE BENEFITS
AS WELL AS THE CHARGES [NCC 485]
Proportional to their interests;
Stipulation to the contrary is void;
Portion belonging to the co-owners is
presumed equal.

D.4. TESTAMENTARY DISPOSITION OR

DONATION INTER VIVOS
(1) When a donation is made to several persons
jointly, it is understood to be in equal
shares, and there shall be no right of
accretion among them, unless the donor
has otherwise provided. [NCC 753]
(2) A donor or testator may prohibit partition
for a period which shall not exceed 20
years.

E.2. RIGHT TO USE THE THING OWNED

IN COMMON [NCC 486]
Limitations
That he use the thing in accordance with the
purpose for which it is intended.
That he uses it in such a way as to not injure
the interest of the co-ownership or prevent
the other co-owners from using it.

D.5. BY FORTUITOUS EVENT OR BY

CHANCE

RIGHT TO BRING AN
EJECTMENT [NCC 487]

(1) Co-ownership between owners of 2 things

that are mixed by chance or by will of the
owners:

ORDER

IN

RIGHT TO COMPEL OTHER CO-OWNERS

TO CONTRIBUTE TO THE EXPENSES OF
PRESERVATION AND TO THE TAXES
[NCC 488]

[NCC 472] Each owner shall acquire a

right proportional to the part belonging to
him, bearing in mind the value of the
things mixed or confused.

(1) Any one of the other co-owners may

exempt himself by renouncing so much of
his undivided interest as may be
equivalent to his share of the expenses
and taxes.
(2) No waiver if it is prejudicial to the coownership

(2) Hidden Treasure [NCC 438]

When the discovery is made on the property
of another, or of the State or any of its
subdivisions, and by chance, one-half shall
be allowed to the finder.

D.6. BY OCCUPANCY

RIGHT TO REPAIR [NCC 489]

Harvesting and Fishing: Co-ownership by two

or more persons who have seized a res nullius
thing

(1) Repairs for preservation may be made at

the will of one of the co-owners but he
must first notify his co-owners.
(2) Expenses to improve or embellish, decided
upon by a majority.

D.7. BY ASSOCIATIONS AND SOCIETIES

WITH SECRET ARTICLES
Articles are kept secret among the members
and any one of the members may contract in

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RIGHT TO OPPOSE ALTERATIONS

[NCC 491]

CIVIL LAW

(2) If 2 or more co-owners wish to exercise

this right, redemption will be made in
proportion to their share in the thing

(1) Consent of all the others is needed to make

alterations, even if the alteration benefits
all.
(2) If the withholding of the consent is clearly
prejudicial to the common interest, the
courts may afford relief
(3) Reason for the rule: alteration is an act of
ownership, not of mere administration.

Note: Rules on Co-Ownership does not apply

to CPG or ACP.
(1) These are governed by the Family Code.
(2) Even void marriages and cohabitation of
incapacitated persons are governed by FC
50, 147, and 148.

F. RULES

RIGHT TO FULL OWNERSHIP OF HIS

PART AND OF THE FRUITS AND
BENEFITS PERTAINING THERETO
[NCC 493]

F.1. ON RENUNCIATION OF SHARE

(DIFFERENT FROM RENUNCIATION OF
CO-OWNERSHIP)
(1) Other co-owners may choose not to
contribute to the expenses by renouncing
so much of his undivided interest as may
be equivalent to his share of the necessary
expenses and taxes.
(2) Renunciation must be express; thus, failure
to pay is not a renunciation of the right.
(3) Requires the consent of other co-owners
because it is a case of dacion en pago
(cessation of rights) involving expenses
and taxes already paid. (J.B.L. Reyes)
(4) Cannot renounce his share if it will be
prejudicial to another co-owner.

(1) Therefore he may alienate, assign or

mortgage it, and even substitute another
person in its enjoyment except when
personal rights are involved.
(2) The effect of the alienation or the
mortgage, with respect to the co-owners,
shall be limited to the portion which may
be allotted to him in the division upon the
termination of the co-ownership.

RIGHT TO PARTITION [NCC 494]

(1) Each may demand at any time the partition
of the thing, insofar as his share is
concerned.
(2) An agreement to keep the thing undivided
for a certain period NOT exceeding 10
years is valid.
(3) Term may be extended by a new
agreement.
(4) Donor or testator may prohibit partition,
period NOT to exceed 20 years.
(5) No partition may be made if prohibited by
law.
(6) Right does not prescribe.

F.2. REPAIRS FOR PRESERVATION

(1) First, notify other co-owners, as far as
practicable.
(2) Co-owner may advance expenses for
preservation even without prior consent;
he is entitled to reimbursement.

F.3.
EMBELLISHMENTS
IMPROVEMENTS

OR

(1) Notify co-owners of improvements and

embellishments to be made.

RIGHT TO REDEMPTION [NCC 1619]

If no notification is made, the co-owner

who advanced the expenses will only have
the right to be reimbursed if he proves the

(1) May exercise this in case the shares of

other co-owners are sold to a third person

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necessity of such repairs and

reasonableness of the expenses.

the

Registration under the Torrens system is

constructive notice of title but it not sufficient
notice of the act of repudiation. [Adille v CA]

Exception: If proven that had there been a

notification, they could have hired another
who would charge less or that they know of
a store that sells the needed material at a
cheaper price
The reimbursement will be limited to the
amount that should have been spent had
he notified the others, and the difference
shall be borne by him alone.
(2) Decisions
followed.

by

the

majority

must

CIVIL LAW

G.4. PARTITION OR DIVISION

Procedure for Partition
Governing rule: Rule 69 of the Rules of
Court.
How: By agreement of parties or by judicial
decree.
Form: Oral or Written (Statute of Frauds
does not operate here because it is not a
conveyance of property but a mere
segregation or designation of which parts
belong to whom)
The Rules of Court do not preclude
agreements or settlements.

be

G. TERMINATION OR
EXTINGUISHMENT

Action for Partition will determine:

(1) Whether or not the plaintiff is indeed a coowner of the property
(2) How the property will be divided between
the plaintiff and defendant.

G.1. TOTAL DESTRUCTION OF THING OR

LOSS OF THE PROPERTY CO-OWNED
Is there still co-ownership if a building is
destroyed? Yes, over the land and the debris.

G.2. MERGER OF ALL INTERESTS IN ONE

PERSON

Effects
(1) Confers exclusive ownership of the
property adjudicated to a co-heir.
(2) Co-heirs shall be reciprocally bound to
warrant the title to and the quality of each
property adjudicated.
(3) Reciprocal obligation of warranty shall be
proportionate to the respective hereditary
shares of co-heirs.
(4) An action to enforce warranty must be
brought within 10 years from the date the
right accrues.
(5) The co-heirs shall not be liable for the
subsequent insolvency of the debtor of
the estate.

G.3. ACQUISITIVE PRESCRIPTION

By whom
(1) A third person. [NCC 1106]
(2) A co-owner against the other co-owners.
Requisites for acquisitive prescription against
co-owners [Adille v CA (1988)]:
(1) A co-owner repudiates the co-ownership;
(2) The act of repudiation is clearly made
known to other co-owners;
(3) The evidence thereon is clear and
conclusive; and
(4) The co-owner has been in possession thru
open, continuous, exclusive and notorious
possession of the property for the period
required by law.

Unless partition is effected, each heir cannot

claim sole ownership over a definite portion of
the land. Heirs become the undivided owner
of the whole estate. Until said partition, he
cannot alienate a specific part of the estate.

Note: there is a presumption that possession of

a co-owner is NOT adverse

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CIVIL LAW

Until then, they can only sell their successional

rights. [Carvaria v. CA]

The holding of a thing or the enjoyment of a

right. [NCC 523]

Rights against individual co-owners in case of

partition [NCC 497]
(1) The creditors are allowed to take part in
the partition.
Reason for the rule: They own part of the
interest of the co-owners who made the
assignment or alienation.

A. CONCEPT OF POSSESSION
To possess, in a grammatical sense, means
to have, to physically and actually occupy a
thing, with or without right. [Sanchez
Roman]
It is the holding of a thing or a right,
whether by material occupation or by the
fact that the thing or the right is subjected
to the action of our will. [Manresa]
Possession includes the idea of occupation.
It cannot exist without it. (Exceptions: NCC
537)
It is an independent right apart from
ownership.
Ownership
differs
from
possession in that an owner may validly
convey the property itself while a possessor
may not.

Intervention of creditors and assignees

General Rule: Creditors may take part in the
division. They need to establish the existence
of the credit during co-ownership.
Exception: If the partition was already executed
Exception to the exception: If there was fraud,
or a previous formal opposition to the partition.

Right of possession
(jus possessionis)
Independent right

Rules on notice to creditors and assignees:

(1) The law does not expressly require
previous notice to the creditors and
assignees before a partition, but the right
of creditors and assignees to take part in
the division presupposes the duty to notify.
(2) If notice is not given, the partition will not
be binding on them.
(3) Once notice has been given, it is the duty of
creditors and assignees to intervene and
make known their stand.
(a) If they fail, they cannot question the
division made, except in cases of fraud.
(b) If they formulate a formal question,
they can contest such partition

B. ESSENTIAL
POSSESSION

Right to possess
(jus possidendi)
Incident to ownership

REQUISITES

OF

(1) Corpus possessionis: Holding (actual or

constructive) of a thing or exercise of a
right, if right is involved.
(a) General Rule: Possession and
cultivation of a portion of a tract
under claim of ownership of all is a
constructive possession of all, if the
remainder is not in adverse
possession of another. [Ramos v.
Director of Lands (1918)]
(b) Doctrine of constructive possession
applies when the possession is under
title calling for the whole. It does not
apply where possession is without
title.

Partition in case co-owners cannot agree on the

partition of an indivisible thing (NCC 498)

(2) Animus possidendi: Intention to possess

(a) There is no possession if the holder
does not want to exercise the rights of
a possessor.

VII. Possession
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CIVIL LAW

NAME AND POSSESSION IN THE NAME

OF ANOTHER [NCC 524]

(b) Implied from the acts of the possessor.

(c) May be contradicted and rebutted by
evidence to prove that the person
who is in possession does not in fact
exercise power or control and does not
intend to do so.

(1) In ones own name the fact of possession

and the right to such possession is found
in the same person.
(2) In the name of another the one in actual
possession is without any right of his own,
but is merely an instrument of another in
the exercise of the latters possession.
Kinds of possession in the name of another
(1) Necessary arises by operation of law
e.g.
representatives
who
exercise
possession in behalf of a conceived child,
juridical persons, persons not sui juris and
the conjugal partnership

C. DEGREES OF POSSESSION
(1) Mere holding or possession without title
and in violation of the right of the owner
(a) possession of a thief or usurper of land
(b) Here, both the possessor and the
public know that the possession is
wrongful.
(2) Possession with juridical title but not that
of ownership
(a) e.g. possession of a tenant, depository
agent,
bailee
trustee,
lessee,
antichretic creditor.
(b) This possession is peaceably acquired.
(c) This degree of possession will never
ripen into full ownership as long as
there is no repudiation of concept
under which property is held.

(2) Voluntary effected through the mutual

consent of the parties
(a) e.g.
agents
or
administrators
appointed by the owner or possessor.
(b) Third person may also voluntary
exercise possession in the name of
another, but it does not become
effective unless ratified by the person
in whose name it is exercised.

(3) Possession with just title or title sufficient

to transfer ownership, but not from the
true owner
(a) e.g. possession of a vendee from a
vendor who pretends to be the owner.
(b) This degree of possession ripens into
full ownership by lapse of time.

D.2. POSSESSION IN THE CONCEPT OF

AN OWNER, AND POSSESSION IN THE
CONCEPT OF A HOLDER WITH THE
OWNERSHIP BELONGING TO ANOTHER
[NCC 525]
(1) Possession in Concept of Holder
(a) One who possesses as a mere holder,
not in the concept of owner,
acknowledges in another a superior
right which he believes to be
ownership, whether his belief be right
or wrong.
(b) e.g. tenant, usufructuary, borrower in
commodatum.

(4) Possession with a just title from the true

owner
(a) This is possession that springs from
ownership.

D. CASES OF POSSESSION

(2) Possession in Concept of Owner

(a) May be exercised by the owner
himself or one who claims to be so.

D.1. POSSESSION FOR ONESELF, OR

POSSESSION EXERCISED IN ONES OWN

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(b) When a person claims to be the owner

of a thing, whether he believes so or
not, acting as an owner, and
performing acts of ownership, and he is
or may be considered as the owner by
those who witness his exercise of
proprietary rights, then he is in the
possession of an owner. This is the kind
of possession that ripens into
ownership under Article 540, when
such possession is public, peaceful and
uninterrupted. [see Art. 1118].

CIVIL LAW

(c) The belief of a possessor that he is the

owner of the thing must be based
upon the title or mode of acquisition,
such as a sale, a donation, inheritance
or other means of transmitting
ownership; for without this, there can
be no real, well-grounded belief of
ones ownership.
(d) Error in the application of the law, in
the legal solutions that arise from
such application, in the appreciation
of legal consequence of certain acts,
and in the interpretation of doubtful
provisions or doctrines, may properly
serve as basis for good faith.
(e) A misconception of the law, no matter
how honest cannot have the effect of
making one a possessor in good faith
when he does not hold a title valid in
form or a deed sufficient in terms to
transfer property.

Effects of Possession in Concept of an Owner

(1) Converted into ownership by the lapse of
time necessary for prescription.
(2) Possessor can bring all actions necessary
to protect his possession, availing himself
of any action which an owner can bring,
except accion reivindicatoria which is
substituted by accion publiciana.
(3) He can ask for the inscription of possession
in the registry of property.
(4) Upon recovering possession from one who
has unlawfully deprived him of it, he can
demand fruits and damages.
(5) He can do on the thing possessed
everything that the law authorizes an
owner to do; he can exercise the right of
pre-emption and is entitled to the
indemnity in case of appropriation.

(2) Possessor in bad faith one who knows

his title is defective.
(a) Only personal knowledge of the flaw
in the title or mode of acquisition can
make him a possessor in bad faith for
bad faith is not transmissible from
one person to another.
(b) Mistake upon a doubtful or difficult
question of law as a basis of good
faith.
(c) Mistake or ignorance of the law, by
itself, cannot become the basis of
good faith. What makes the error or
ignorance a basis of good faith is the
presence of an apparent doubt or
difficulty in the law. In other words,
the law is complex, ambiguous, or
vague such that it is open to two or
more interpretations.
(d) When the ignorance of the law is
gross and inexcusable, as when a
person of average intelligence would
know the law, such ignorance cannot

D.3. POSSESSION IN GOOD FAITH AND

POSSESSION IN BAD FAITH [NCC 526]
(1) Possessor in good faith one who is
unaware that there exists a flaw in the title
or mode og acquisition which invalidates
his acquisition.
(a) Good faith consists in the possessors
belief that the person from whom he
received a thing was the owner of the
same and could convey his title.
(b) It implies freedom from knowledge and
circumstances which ought to put a
person on inquiry.

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be the basis of good faith. Otherwise,

the intendment of Article 3 which
states that, Ignorance of the law
excuses no one from compliance
therewith, will be defeated.

CIVIL LAW

(2) By subjection to the action of ones will

(a) This mode refers more to the right of
possession than to possession as a
fact. The action of our will must be
juridical, in the sense that it must be
according to law.
(b) It includes:
(i) Tradicion
symbolica

by
delivering some object or symbol
placing the thing under the
control of the transferee.
(ii) Tradicion longa manu by the
transferor pointing out to the
transferee the things that are
being transferred.

What Things May be Possessed [NCC 530]

Only things and rights which are susceptible of
being appropriated may be the object of
possession.
What May Not Be Possessed by Private Persons
(1) Res Communes
(2) Property of Public Dominion
(3) Right under discontinuous and/or nonapparent easement

(3) By execution of proper acts under legal

formalities
(a) This mode refers to juridical acts or
the acquisition of possession by
sufficient title evidenced by the
performance of required formalities.
(b) Examples:
(i) Donations;
(ii) Succession;
(iii) Contracts (like a sale with right to
repurchase);
(iv) Judicial possession;
(v) Execution of judgments;
(vi) Execution and registration of
public instruments;
(vii) Inscription
of
possessory
information titles.
(c) The execution of the required
formalities is equivalent to delivery of
the property.

E. ACQUISITION OF POSSESSION
E.1. WAYS OF ACQUIRING POSSESSION
[NCC 531]
(1) By material occupation
(a) Material occupation used in its
ordinary meaning and not in its
technical meaning under NCC 712,
which defines occupation as a mode of
acquiring ownership.
(b) Possession acquired by material
occupation is only possession as a fact,
not the legal right of possession.
(c) Constructive delivery is considered as
an equivalent of material occupation in
two situations where such occupation
is essential to the acquisition of
possession:
(i) Tradicion brevi manu takes place
when one who possess a thing by
title other than ownership,
continues to possess the same
under a new title, that of
ownership.
(ii) Tradicion
constitutum
possessorium takes place when
the owner alienates the thing, but
continues to possess the same
under a different title.

E.2. BY WHOM MAY POSSESSION BE

ACQUIRED [NCC 532]
(1)
(2)
(3)
(4)

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By the same person

By his legal representative
By his agent
By any person without any power
whatsoever but subject to ratification,

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without prejudice to proper case of

negotiorum gestio [Arts. 2144, 2149, 2150]
(5) Qualifiedly, minors and incapacitated
persons

CIVIL LAW

concerned to substitute him, if the

owner is in a position to do so.
(b) This juridical relation does not arise in
either of these instances:
(i) When the property or business is
not neglected or abandoned;
(ii) If in fact the manager has been
tacitly authorized by the owner.

(1) By the same person

Elements of personal acquisition
(a) Must have the capacity to acquire
possession;
(b) Must have the intent to possess; and
(c) The possibility to acquire possession
must be present.

(4) Qualifiedly, minors and incapacitated

persons [NCC 535]
(a) Incapacitated all those who do not
have the capacity to act (insane,
lunatic, deaf-mutes who cannot read
and write, spendthrifts and those
under civil interdiction).
(b) Object of possession things only, not
rights.
(c) Method of acquisition material
occupation; acquisition by means for
which the incapacitated person has
the capacity, such as acquisition by
succession, testate or intestate, or by
donations propter nuptias, pure and
simple donations.

(2) By his legal representative

Requisites of acquisition through another
(a) That the representative or agent has
the intention to acquire the thing or
exercise the right for another, and not
for himself; and
(b) That the person for whom the thing
has been acquired or the right
exercised, has the intention of
possessing such thing or exercising
such right,
Note
(a) Bad
faith
is
personal
and
intransmissible. Only the person who
acted in bad faith must suffer its
effects; his heir should not be saddled
with the consequences.
(b) Good faith can only benefit the person
who has it; and the good faith of the
heir cannot erase the effects of bad
faith of his predecessor.

F. WHAT DO NOT
POSSESSION [NCC 537]

AFFECT

F.1. ACTS MERELY TOLERATED

(1) Those which because of neighborliness or
familiarity, the owner of property allows
another person to do on the property;
(2) Those services or benefits which ones
property can give to another without
material injury or prejudice to the owner,
who permits them out of friendship or
courtesy;
(3) Acts of little disturbances, which a person,
in the interest of neighborliness or friendly
relations permits others to do on his
property, although continued for a long
time, no right will be acquired by
prescription.

(3) By any person without any power

whatsoever but subject to ratification,
without prejudice to proper case of
negotiorum gestio [NCC 2144, 2149, 2150]
(a) Whoever voluntarily takes charge of
the agency or management of the
business or property of another,
without any power from the latter, is
obliged to continue until the
termination of the affair and its
incidents, or to require the person

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Note: Permissive use merely tolerated by the

possessor cannot affect possession and cannot
be the basis of acquisitive prescription.
Possession to constitute the foundation of
prescriptive right must be possession under
claim of title; it must be adverse. [Cuaycong v.
Benedicto]

CIVIL LAW

(2) If there are two or more possessors, the

one longer in possession;
(3) If the dates of possession are the same,
the one who presents a title; or
(4) If all conditions are equal, the thing shall
be placed in judicial deposit pending
determination of possession or ownership
through proper proceedings.

F.2. ACTS
EXECUTED
CLANDESTINELY AND WITHOUT THE
KNOWLEDGE OF THE POSSESSOR
[NCC 1108]

G. EFFECTS OF POSSESSION
G.1. RIGHTS OF A POSSESSOR IN GOOD
FAITH
(1) Right to be protected and respencted in
possession; (NCC 539)
(2) Right to bring action to restore
possession;
(3) Right to the fruits already received;
(NCC. 544)
(4) Right to a share in pending fruits and the
production, gathering, and preservation
of such; (NCC. 545)
(5) Right to necessary expenses; (NCC. 546)
(6) Right to retain the thing until reimbursed;
(NCC. 546)
(7) Right to remove useful improvements
removable without damage to the
principal thing or to refund its value;
(upon election by the owner) (NCC. 547)
(8) Right to recover removable ornaments.
(NCC. 548)

Possession has to be in the concept of an

owner, public, peaceful and uninterrupted.

F.3. ACTS OF VIOLENCE AS LONG

AS THE POSSESSOR OBJECTS
THERETO (I.E. FILES A CASE)
[NCC 536]
(1) Possession cannot be acquired through
force or intimidation.
Includes forcibly taking away the property
from another and also when one occupied
the property in the property in the absence
of another, and repels the latter upon his
return.
(2) Effect on Possession
Acts mentioned do not constitute true
possession. They do not interrupt the
period of prescription nor affect the rights
to the fruits.

G.2. OBLIGATIONS OF A POSSESSOR IN

GOOD FAITH
(1) Pay in proportion to the charges,
expenses of cultivation and the net
proceeds upon cessation of good faith;
(NCC 545)
(2) Costs of litigation; (NCC 550)
(3) Liability to the deterioration/loss of a
thing possessed if acted through
fraudulent intent/negligence. (NCC 552)

RULES TO SOLVE CONFLICTS OF

POSSESSION [NCC 538]
General Rule: Possession cannot be recognized
in two different personalities, except in cases of
co-possession by co-possessors without
conflict of claims of interest.
In case of conflicting possession preference is
given to:
(1) Present possessor or actual possessor;

G.3. RIGHTS OF A POSSESSOR IN BAD

FAITH
(1) Right to be respected in possession;

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(NCC 539)
(2) Right to necessary expenses and the
production, gathering, and preservation of
fruits; (NCC. 545 and 546)
(3) Does not have right to reimbursement of
expenses for luxury but may remove them
as long as the principal thing suffers no
injury, or may sell them to the owner.

CIVIL LAW

after such unlawful deprivation (Rule

70)
(b) May ask for writ of preliminary
mandatory injunction within 10 days
from filing of complaint in forcible
entry (NCC 539).
(c) The same writ is available in unlawful
detainer actions upon appeal.
(NCC 1674)
(2) Accion Publiciana
(a) This action is based on the superior
right of possession; no issue of
ownership is settled.
(b) Action for the recovery of possession
of real property upon mere allegation
and proof of a better title.
(c) This must be instituted within 10/30
years (or else acquisitive prescription
will deny recovery).

G.4. OBLIGATIONS OF A POSSESSOR IN

GOOD FAITH
(1) Reimburse the value of the fruits received
and which the legitimate possessor could
receive; (NCC 549)
(2) Pay in proportion to the charges, expenses
of cultivation and the net proceeds upon
cessation of good faith; (NCC 545)
(3) Costs of litigation; (NCC 550)
(4) Liability to the deterioration/loss of a thing
possessed in every case, including
fortuitous events. (NCC 552)

(3) Accion Reivindicatoria

(a) This action is for the recovery of
possession based on a claim of
ownership.
(b) It is an action setting up title and the
right to possession.
(c) This action is not barred by a
judgment in an action for forcible
entry and unlawful detainer.

G.5. RIGHT TO BE PROTECTED IN HIS

POSSESSION [NCC 539]
(1) Every possessor has a right to be respected
in his possession; if disturbed, possessor
has a right to be protected in or restored to
said possession.
(2) Every possessor includes all kinds of
possession, from that of an owner to that
of a mere holder, except that which
constitutes a crime.
(3) Reason for the rule: To prevent anyone from
taking the administration of justice into his
own hands. Even the owner cannot forcibly
eject the possessor, but must resort to the
courts.

(4) Action for Replevin

This is a prayer to recover possession of
movable property

RULES
(1) Lawful possessor can employ self-help
(NCC 429)
(2) To consolidate title by prescription, the
possession must be under claim of
ownership, and it must be peaceful,
public and uninterrupted.
(3) It is only the conviction of ownership
externally manifested, which generates
ownership.

ACTIONS TO RECOVER POSSESSION

(1) Forcible Entry and Unlawful Detainer
(Summary proceedings)
(a) Action by a person deprived of the
possession of any land or building by
force, intimidation, strategy, threat, or
stealth (FISTS) at any time within 1 year

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(4) Acts of possessory character done by virtue

of a license or mere tolerance by the real
owner are not sufficient and will not confer
title by prescription or adverse possession.
(5) The following cannot acquire title by
prescription:
(a) Lessees, trustees, pledges, tenants on
shares or planters and all those who
hold in the name or representation of
another;
(b) Mere holders placed in possession of
the property by the owner, such as
agents, employees;
(c) Those holding in a fiduciary character,
like receivers, attorneys, depositaries
and antichretic creditors;
(d) Co-owner, with regard to common
property; Except: When he holds the
same adversely against all of them
with notice to them of the exclusive
claim of ownership.
(i) Possession of real property
presumes possession of the
movables therein (NCC 542);
(ii) Each co-owner is deemed to have
exclusive possession of the part
which may be allotted to him upon
the division, for the entire period
during which the co-possession
lasted.
(6) Interruption in the possession of the whole
or a part of a thing possessed in common
shall be to the prejudice of all the
possessors. (NCC 543)

CIVIL LAW

(3) Civil fruits are deemed to accrue daily and

belong to the possessor in good faith in
that proportion.
Provision is based on the following reasons of
equity:
The fruits received are generally used for
the consumption and livelihood of the
possessor, and his life and expenses may
have been regulated in view of such fruits.
The owner has been negligent in not
discovering or contesting the possession of
the possessor; it would be unjust after the
possessor has been thus allowed to rely on
the efficacy of the title, to require him to
return the fruits he has received on the basis
of that title.
Between the owner, who has abandoned his
property and left it unproductive, and the
possessor, who has contributed to the social
wealth, by the fruits he has produced, the
law leans toward the latter.

RIGHT OF THE POSSESSOR IN GOOD

FAITH
Only limited to the fruits of the thing. He must
restore the fruits received from the time such
good faith ceased. He has no rights to the
objects which do not constitute fruits.
Legal interruption of possession in good faith
Takes place when an action is filed against
himfrom the time he learns of the
complaint, from the time he is summoned to
the trial.

G.6. ENTITLEMENT TO FRUITS

POSSESSOR IN GOOD/BAD FAITH [NCC
544, 549]

Effect of cessation of good faith (NCC 545)

(a) If at the time the good faith ceases,
there should be any natural or
industrial fruits, the possessor shall
have a right to a part of the expenses
of cultivation, and to a part of the net
harvest, both in proportion to the time
of the possession.

(1) Possessor in good faith is entitled to the

fruits received before the possession is
legally interrupted.
(2) Natural and industrial fruits are considered
received from the time they are gathered or
severed.

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CIVIL LAW

(b) The charges divided on the same basis

by the two possessors.
Charges Those which are
incurred, not on the thing itself but
because of it
(e.g. taxes,
contributions in favor of the
government)
(c) The owner of the thing may give the
possessor in good faith the right to
finish the cultivation and gathering of
the growing fruits, as an indemnity for
his part of the expenses of cultivation
and the net proceeds.
The possessor in good faith who refuses
to accept this concession shall lose the
right to be indemnified in any other
manner.

surrounding an estate, an irrigation

system, planting in an uncultivated land,
a fishpond, an elevator in the building,
electric lighting system
(2) They are reimbursed only to the possessor
in GF as a compensation or reward for
him. A possessor in BF cannot recover
such expenses.
(3) If the useful improvements can be
removed without damage to the principal
thing, the possessor in good faith may
remove them, unless the person who
recovers the possession refunds the
expenses or pays the increase in value
which the thing may have acquired by
reason thereof.

When fruits are insufficient

There should only be reimbursement of
expenses; but each possessor should suffer a
proportionate
reduction
due
to
the
insufficiency of the harvest.

(1) They do not affect the existence or the

substance of the thing itself, but only the
comfort, convenience or enjoyment of the
possessor.
(2) They
are
not
the
subject
of
reimbursement, because the law does not
compensate personal whims or caprices,
e.g. Opening of a garden, placing
fountains and statues in it, adorning the
ceilings with paintings, and the walls with
reliefs.

D.3. EXPENSES FOR LUXURY

D. REIMBURSEMENT FOR EXPENSES

POSSESSOR IN GOOD/BAD FAITH
[NCC 546-552]
D.1. NECESSARY EXPENSES
(1) Imposed by the thing itself for its
preservation and have no relation to the
desire or purpose of the possessor.
(2) They are the cost of living for the thing
and must be reimbursed to the one who
paid them, irrespective of GF or BF.
(a) Only the possessor in GF may retain
the thing until he has been reimbursed
therefor.
(3) The expenses are not considered
improvements; they do not increase the
value of the thing, but merely prevent
them from becoming useless.

Useful Expenses

Expenses for Luxury

Those
which Those which merely
increased the income embellished
the
derived from the thing thing
Result: Increase in the
products,
either
absolutely, or because
Result: Benefit or
of greater facilities for
advantage is only
producing them
for the convenience
of
definite
Includes
expenses
possessors
resulting
in
real
benefit or advantage
to the thing

D.2. USEFUL EXPENSES

(1) Incurred to give greater utility or
productivity to the thing, e.g. Wall

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Useful Expenses

Expenses for Luxury

Possessor in GF

The utility is for the

Result:
Benefit or
possessor
or
advantage is only for
particular persons
the convenience of
alone
and
is
definite possessors
therefore accidental.
Notes
(1) Costs of litigation over the property shall
be borne by every possessor. [NCC 550]
(2) Improvements caused by nature or time
shall always inure to the benefit of the
person who has succeeded in recovering
possession [NCC 551]
Includes all the natural accessions
referred to by articles 457-465, and all
those that do not depend upon the will of
the possessor. (e.g. widening of the
streets, rising of fountains of fresh or
mineral water, increase of foliage of
trees)
Possessor in GF

CIVIL LAW

Possessor in BF

Charges
Must share with the
legitimate possessor, in
Same as with GF
proportion to the time
(545)
of the possession (545)
Necessary Expenses
Right to reimbursement
and retention in the
meantime (546)

Reimbursement
only (546)

Useful Expenses
Right of retention until
reimbursed;
Owners
option to reimburse him
either for expenses or
for increase in value
which the thing may
No
right
to
have acquired (546)
reimbursement
and no right of
Limited right of removal
removal (547)
should not damage
principal and owner
does not exercise option
of paying the expenses
or increase in value
(547)

Possessor in BF

Fruits Received
Entitled to the fruits
while possession is in GF Must
reimburse
and
before
legal the
legitimate
interruption (544)
possessor (549)
Pending Fruits
Entitled to part of the
expenses of cultivation,
and to a part of the net
harvest, in proportion to
the
time
of
the
possession.

Ornamental Expenses
Limited right of removal Limited right of
(548)
removal (549)
Deterioration or Loss

Must
reimburse
the
legitimate
Indemnity may be, at the
possessor (549)
owners option,
1. In money, OR
2. By allowing full
cultivation
and
gathering of the fruits
(545)

No liability unless due to

fraud or negligence Liable in
after becoming in BF case (552)
(552)

every

Costs of Litigation
Bears cost (550)

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Bears cost (550)

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CIVIL LAW

UNLAWFUL
A MOVABLE

(4) Movable properties possessed through a

crime can never be acquired through
prescription.

E.1.
POSSESSION
OF
MOVABLE
ACQUIRED IN GOOD FAITH (IN CONCEPT
OF OWNER) IS EQUIVALENT TO TITLE
[NCC 559]

E.3. FINDER OF LOST MOVABLE [NCC

719-720]

E.
LOSS
DEPRIVATION
PROPERTY

OR
OF

(1) Possessor has actual title

defeasible only by true owner.

which

(1) Whoever finds a movable, which is not a

treasure, must return it to its previous
possessor.
(2) If the previous possessor is unknown, the
finder shall immediately deposit it with
the mayor of the city or municipality
where the finding has taken place.
(3) The finding shall be publicly announced
by the mayor for two consecutive weeks in
the way he deems best.
(4) If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be
sold at public auction eight days after the
publication.
(5) Six months from the publication having
elapsed without the owner having
appeared, the thing found, or its value,
shall be awarded to the finder. The finder
and the owner shall be obliged, as the
case may be, to reimburse the expenses.
(6) If the owner should appear in time, he
shall be obliged to pay, as a reward to the
finder, one-tenth of the sum or of the price
of the thing found.

is

Requisites of Title
(a) Possession in GF;
(b) The owner has voluntarily parted with
the possession of the thing; and
(c) The possession is in the concept of an
owner.
(2) Nevertheless, one who has lost any
movable or has been unlawfully deprived
thereof may recover it from the person in
possession.
When the owner can recover
(a) Has lost the thing; or
(b) Has been unlawfully deprived thereof.
(3) If the current possessor has acquired it in
good faith at a public sale, owner must
reimburse the price paid in order to recover
the property.

E.2. PERIOD TO RECOVER [NCC 1140,

1132, 1133]

E.4. DISTINGUISHED FROM VOIDABLE

TITLE [NCC 1506]

(1) Actions to recover movable properties

prescribe after 8 years from the time the
possession thereof is lost, unless the
possessor has acquired the ownership by
prescription for a lesser period.
(2) Ownership
of
movable
properties
prescribes
through
uninterrupted
possession for 4 years in good faith.
(3) Ownership of personal property also
prescribes
through
uninterrupted
possession for 8 years, without need of any
other condition.

(1) A seller of goods with a voidable title not

avoided at the time of the sale: The buyer
acquires a good title to the goods,
provided he buys them in good faith, for
value, and without notice of the seller's
defect of title.
(2) A movable lost or which the owner has
been unlawfully deprived acquired by a
possessor in good faith at a public sale:
The owner can always recover the

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movable provided he reimburses the price

paid.

CIVIL LAW

authorizes the owner to do until he is

ousted by one who has a better right.
(7) This is whether possession is in good faith
or in bad faith [NCC. 528]

F. EFFECTS OF POSSESSION IN THE

CONCEPT OF AN OWNER

PRESUMPTION IN FAVOR OF THE

POSSESSORFOR
ACQUISITIVE
PRESCRIPTION

Possession may lapse and ripen into full

ownership.
General Rule: Presumption of just title and
cannot be obliged to show or prove it. [NCC
541]
Basis: Possession is presumed ownership,
unless the contrary is proved. This
presumption is prima facie and it prevails
until contrary is proved.
Just title: that which is legally sufficient to
transfer the ownership or the real right to
which it relates.
For the purposes of prescription, there is just
title when the adverse claimant came into
possession of the property through one of
the modes recognized by law for the
acquisition of ownership or other real rights,
but the grantor was not the owner or could
not transmit any right. [NCC 1129]

(1) Of good faith until contrary is proved

(NCC 527)
(a) Presumption is only juris tantum
because possession is the outward
sign of ownership. Unless such proof
of bad faith is presented, the
possessor will be held to be in good
faith.
(b) So long as the possessor is not
actually aware of any defect
invalidating his title, he is deemed a
possessor in good faith.
(2) Of continuity of initial good faith in which
possession was commenced; possession
in good faith does not lose this character
except in case and from the moment
possessor became aware or is not
unaware of improper or wrongful
possession
(NCC 528)
(a) Good faith ceases from the date of the
summons to appear at the trial.
[Cordero v Cabral (1983)]
(b) Good faith ceases when there is:
(i) Extraneous evidence; or
(ii) A suit for recovery of the property
by the true owner.

Exception For the purposes of prescription, just

title must be proved; it is never presumed.
[NCC 1131]
(1) Possessor may bring all actions necessary
to protect his possession except accion
reivindicatoria.
(2) May employ self-help under Art. 429.
(3) Possessor may ask for inscription of such
real right of possession in the registry of
property.
(4) Has right to the fruits and reimbursement
of expenses (assuming he is possessor in
good faith)
(5) Upon recovery of possession which he was
unlawfully deprived of, may demand fruits
and damages.
(6) Generally, he can do on the things
possessed everything that the law

(3) Of enjoyment of possession in the same

character in which possession was
required until contrary is proved [NCC
529]
(4) Of non-interruption of possession in favor
of present possessor who proves

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possession at a previous time until the

contrary is proved [NCC 554]
(a) Possession is interrupted for the
purposes of prescription, naturally or
civilly. [NCC 1120]
(b) Possession is naturally interrupted
when through any cause it should
cease for more than one year [NCC 1121]
(c) Old possession is not revived if a new
possession should be exercised by the
same adverse claimant [NCC 1121]
(d) If the natural interruption is for only
one year or less, the time elapsed shall
be counted in favor of the prescription
[NCC 1122]
(e) Civil interruption is produced by
judicial summons to the possessor.
[NCC 1123]
(f) Judicial summons shall be deemed not
to have been issued and shall not give
rise to interruption [NCC 1124]:
(i) If it should be void for lack of legal
solemnities;
(ii) If the plaintiff should desist from
the complaint or should allow the
proceedings to lapse;
(iii) If the possessor should be absolved
from the complaint
(g) In all these cases, the period of the
interruption shall be counted for the
prescription

CIVIL LAW

(i) Possession of hereditary property

is deemed transmitted to the heir
without interruption and from the
moment of the death of the
decedent
(c) Of just title in favor of possessor in
concept of owner (NCC 541)
(d) Exclusive Possession of Common
Property (NCC. 543)

G.
LOSS/TERMINATION
POSSESSION [NCC 555]

OF

(1) By the abandonment of the thing;

(2) By an assignment made to another either
by onerous or gratuitous title;
(3) By the destruction or total loss of the
thing, or because it goes out of
commerce;
(4) By the possession of another, subject to
the provisions of Art. 537, if the new
possession has lasted longer than 1 year.
But the real right of possession is not lost
till after the lapse of 10 years.

G.1. ABANDONMENT
Includes the giving up of possession, and
not necessarily of ownership by every
possessor.
It is the opposite of occupation. It consists of
the voluntary renunciation of all the rights
which the person may have in a thing, with
intent to lose such a thing. To be effective, it
is necessary that it be made by a possessor
in the concept of an owner.
It must be clearly appear that the spes
recuperandi is gone and the animus
revertendi is finally given up.

(5) Non-interruption of possession of property

unjustly lost but legally recovered
[NCC. 561]
(6) Other presumptions with respect to
specific properties of property rights
(a) Of extension of possession of real
property to all movables contained
therein so long as in is not shown that
they should be excluded (NCC 542)
(b) Non-interruption of possession of
hereditary property (NCC 553)

G.2.
ASSIGNMENT,
GRATUITOUS OR ONEROUS

EITHER

Complete transmission of ownership rights to

another person, gratuitously or onerously.

G.3. POSSESSION BY ANOTHER; IF

POSSESION HAS LASTED LONGER
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THAN ONE YEAR; REAL RIGHT OF

POSSESSION NOT LOST AFTER 10
YEARS SUBJECT TO NCC 537

CIVIL LAW

care of man; they are under the ownership

of man, and do not become res nullius
unless they are abandoned.

(1) Acts merely tolerated, and those executed

clandestinely and without the knowledge
of the possessor of a thing, or by violence,
do not affect possession.
(2) Possession that is lost here refers only to
possession as a fact (de facto), not the
legal right of possession (de jure). It is the
possession that the new possessor
acquires.
(3) Real right of possession is lost only after 10
years.
(4) After 1 year, the actions for forcible entry
and unlawful detainer can no longer be
brought. But accion publiciana may still be
instituted to recover possession de jure.

VIII. Usufruct
Usufruct gives a right to enjoy the property of
another with the obligation of preserving its
form and substance, unless the title
constituting it or the law otherwise provides.
[NCC 562]

A. OBJECTS OF USUFRUCT
(1) Independent Rights
A servitude which is dependent on the
tenement to which it attaches cannot be
the object of usufruct.
(2) Things
(a) Non-consumable things.
(b) Consumable things, but only as to
their value if appraised, or on an equal
quantity and quality if they were not
appraised.

H. RULES FOR LOSS OF MOVABLES

(1) The possession of movables is not deemed
lost so long as they remain under the
control of the possessor, even though for
the time being he may not know their
whereabouts. (NCC 556)
(2) Control judicial control or right, or that
the thing remains in ones patrimony.
(3) Wild animals are possessed only while they
are under one's control. (NCC 560)
(a) Domesticated or tamed animals if
they retain the habit of returning to the
premises of the possessor.

(3) Unproductive things

e.g. sterile or absolutely unproductive land,
or things for mere pleasure, such as
promenades, statues or paintings, even if
they do not produce any utility.

B. CHARACTERISTICS
(1) It is a real right;
(2) Of temporary duration;
(3) The purpose is to derive all advantages
from the thing due to normal exploitation.

I. KINDS OF ANIMALS
(1) Wild those which live naturally
independent of man.
(2) Domesticated those which, being wild by
nature, have become accustomed to
recognize the authority of man. When they
observe this custom, they are placed in the
same category as domestic and when they
lose it, they are considered as wild.
(3) Domestic or Tame those which are born
and reared ordinarily under the control and

B.1. NATURAL CHARACTERISTICS

(1) Includes only the right to use (jus utendi)
and the right to the fruits (jus fruendi).
(2) Usufructuary must preserve the form or
substance of the thing.
(a) Preservation is a natural requisite, not
essential because the title constituting
it or the law may provide otherwise.

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(b) Reasons for preserving form and

substance
(i) To
prevent
extraordinary
exploitation;
(ii) To prevent abuse, which is
frequent;
(iii) To prevent impairment.
(c) Exception: In an abnormal usufruct,
alteration is allowed.
(3) Usufruct is extinguished by the death of
the usufructuary.
(a) Natural because a contrary intention
may prevail.

CIVIL LAW

(i) If the usufructuary is authorized to

alienate the thing in case of
necessity, it is the usufructuary
who determines the question of
necessity.

C.2. BY PERSON ENJOYING THE RIGHT

OF USUFRUCT
(1) Simple: only one usufructuary enjoys the
property.
(2) Multiple: several usufructuaries enjoy the
property.
(a) Simultaneous: at the same time.
(b) Successive: one after the other.

C. CLASSIFICATION

Limitations On Successive Usufruct

(1) If usufruct is by donation, ALL donees
must be alive. [NCC 756]
(2) Fiduciary or first heir and the second heir
must be alive at the time of the death of
the testator. [NCC 863]
(3) If by testamentary succession, there must
be only 2 successive usufructuaries, and
both must be alive or at least already
conceived at the time of the testators
death. [NCC 869]

C.1. BY ORIGIN
(1) Voluntary: created by the will of private
persons
(a) By act inter vivos such as contracts
and donations:
(i) By alienation of the usufruct;
(ii) By retention of the usufruct;
(iii) Where a usufruct is constituted
inter vivos and for valuable
consideration, the contract is
unenforceable unless in writing.
(b) By act mortis causa such as
testament.

C.3. BY OBJECT OF USUFRUCT

Usufruct may be constituted on the whole or a
part of the fruits of the thing or on a right,
provided it is not strictly personal or
intransmissible. [NCC 564]

(2) Legal: as provided by law.

Usufruct of parents over the property of
unemancipated children. (now limited to
the collective daily needs of the family)
[(FC 26)]

RIGHTS
(1) Must not be strictly personal or
intransmissible.
(2) Usufruct over a real right is by itself a real
right.
(a) Right to receive present or future
support cannot be the object of the
usufruct.

(3) Mixed: created both by law and the acts of

persons.
(a) The rights and duties of the
usufructuary provided by law may be
modified or eliminated by the parties.
(b) The title constituting the usufruct may
validly authorize the usufructuary to
alienate the thing itself held in
usufruct.

THINGS

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(1) Normal: involves non-consummable things

where the form and substance are
preserved.
(2) Abnormal or irregular: when the usufruct
includes things which cannot be used
without being consumed.
(a) The usufructuary has right to make use
of them under the obligation of paying
their appraised value at the
termination of the usufruct, if they
were appraised when delivered.
(b) If they were not appraised, he has the
right to return the same quantity and
quality, or pay their current price at the
time the usufruct ceases. [NCC 574]
(c) In reality, the usufruct is not upon the
consumable things themselves, but
upon the sum representing their value
or upon a quantity of things of the
same kind and quality.
(d) The usufructuary, in effect, becomes
the owner of the things in usufruct,
while the grantor becomes a mere
creditor entitled to the return of the
value or of the things of the same
quantity and quality (as if converted
into a simple loan).

CIVIL LAW

the donor, if the clause does not contain any

declaration to the contrary, the former is
understood to be liable to pay only the debts
which appear to have been previously
contracted. In no case shall the donee be
responsible for the debts exceeding the value
of the property donated, unless a contrary
intention clearly appears.
NCC 759: There being no stipulation
regarding the payment of debts, the donee
shall be responsible therefor only when the
donation has been made in fraud of creditors.
The donation is always presumed to be in
fraud of creditors, when at the time thereof
the donor did not reserve sufficient property
to pay his debts prior to the donation.

C.5. BY THE TERMS OF THE USUFRUCT

(1) Pure: no terms or conditions.
(2) Conditional:
either
suspensive
or
resolutory.
(3) With a term or period
(a) Ex die: from a certain day.
(b) In diem: up to a certain day.
(c) Ex die in diem: from a certain day up
to a certain day.

D. RIGHTS AND OBLIGATIONS OF

USUFRUCTUARY

C.4. BY THE EXTENT OF THE USUFRUCT

AS TO THE FRUITS

D.1. RIGHTS AS TO THE THING AND ITS

FRUITS

(1) Total: all consumed by the usufruct.

(2) Partial: only on certain aspects of the
usufructs fruits.

RIGHT TO ENJOY THE PROPERTY

AS TO THE OBJECT

Right to enjoy the property to the same extent

as the owner, but only with respect to its use
and the receipt of its fruits.
(1) Usufructuary cannot extract products
which do not constitute fruits because he
is bound to preserve the form and
substance of the thing.
(2) Usufructuary rights may be transferred,
assigned or otherwise disposed of by the
usufructuary.

(1) Singular: only on particular property of the

owner.
(2) Universal: pertains to the whole property;
A universal usufructuary must pay the
debts of the naked owner, if stipulated.
Article 758 and 759 on donations apply.
NCC 758: When the donation imposes upon
the donee the obligation to pay the debts of

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CIVIL LAW

(3) Not exempt from execution and can be

sold at public auction.

possessor
and
usufructuary

HIDDEN TREASURE

Fruits already matured at the time of the

termination of the usufruct, which ordinarily
would have already been gathered by the
usufructuary, may remain ungathered for no
fault imputable to him, but because of malice
or an act imputable to the naked owner or a
3rd person, or even due to force majeure or
fortuitous event.

As to hidden treasure, usufructuary is

considered a stranger without a right to a
share, unless he is also the finder of the
treasure
(1) With respect to hidden treasure which may
be found on the land or tenement, he shall
be considered a stranger.
(2) Hidden treasure belongs to the owner of
the land, building, or other property on
which it is found.
(3) Nevertheless, when the discovery is made
on the property of another, or of the State
or any of its subdivisions, and by chance,
one-half thereof shall be allowed to the
finder.

RIGHT TO CIVIL FRUITS

(1) Civil fruits deemed to accrue daily, and
belong to the usufructuary in proportion
to the time the usufruct may last.
(2) Whenever a usufruct is constituted on the
right to receive a rent or periodical
pension, whether in money or in fruits, or
in the interest on bonds or securities
payable to bearer, each payment due
shall be considered as the proceeds or
fruits of such right.
(3) Whenever it consists in the enjoyment of
benefits accruing from a participation in
any industrial or commercial enterprise,
the date of the distribution of which is not
fixed, such benefits shall have the same
character.
(a) In either case, they shall be
distributed as civil fruits.

RIGHT TO FRUITS PENDING AT THE

BEGINNING OF USUFRUCT
Fruits pending at the
beginning of the usufruct
Belong
to
usufructuary

the

Fruits pending at the

termination of the
usufruct

the Belong to the naked

owner

Without
need
to The owner shall
reimburse the expenses reimburse to the
to the owners
usufructuary
ordinary cultivation
expenses from the
proceeds of the
fruits (not to exceed
the value of the
fruits)

*Note: If the usufruct is constituted only on

the land and not the building built thereon
then the right to the fruits by the usufructuary
would not extend to the building. The
building is considered as a separate and
distinct prinicipal which produces its own
fruits. [Gabuya v Cui (1971)]

Without prejudice to the Rights of innocent

right of 3rd persons e.g. if 3rd parties should
the fruits had been not be prejudiced.
planted by a possessor in
good faith, the pending
crop
expenses
and
charges
shall
be
prorated between said

RIGHT TO ENJOY ANY INCREASE

THROUGH
ACCESSIONS
AND
SERVITUDES, INCLUDING PRODUCTS
OF HUNTING AND FISHING.
RIGHT TO LEASE THE THING

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General rule: The usufructuary may lease the

thing to another but this shall terminate upon
the expiration of the usufruct, saving leases of
rural lands, which shall be considered as
subsisting during the agricultural year.

CIVIL LAW

(a) As corollary to the right of the

usufructuary to all the rent, to choose
the tenant, and to fix the amount of
the rent, she necessarily has the right
to choose herself as the tenant
thereof; and, as long as the
obligations she had assumed towards
the owner are fulfilled. [Fabie v.
Gutierrez David (1945)]
(6) A lease executed by the owner before the
creation of the usufruct is not
extinguished by such usufruct.

Exceptions
(1) Legal usufructs cannot be leased.
(2) Caucion juratoria (lease would show that
the usufructuary does not need the
property badly)
Effect of the transfer of right:
(1) The transfer or lease of the usufruct does
NOT terminate the relation of the
usufructuary with the owner.
(2) Death of the transferee does not terminate
the usufruct but it terminates upon the
death of the usufructuary who made the
transfer.

Limitations on the Right to Lease the Property

(1) Usufructuary cannot alienate a thing in
usufruct:
(a) Cannot alienate or dispose of the
objects included in the usufruct;
(b) Cannot renounce a servitude;
(c) Cannot mortgage or pledge a thing.
(d) EXCEPT:
(i) When the right of usufruct is
converted into the right of
ownership;
(ii) When the things are consumable;
(NCC 574);
(iii) When the things by their nature
are intended for sale, such as the
merchandise in a commercial
establishment; and
(iv) When the things, whatever their
nature, are delivered under
appraisal as equivalent to their
sale.
(2) Future crops may be sold but such sale
would be void if not ratified by the owner.
(a) The buyers remedy is to recover from
the usufructuary.
(3) Only voluntary usufruct can be alienated.
(4) The usufructuary-lessor is liable for the
act of the substitute.
(a) A usufructuary who alienates or
leases his right of usufruct shall
answer for any damage which the
things in usufruct may suffer through

RULES AS TO LEASE
(3) The property in usufruct may be leased
even without the consent of the owner.
(4) The lease should be for the same period as
the usufruct.
(a) EXCEPT: leases of rural lands
continues for the remainder of the
agricultural year.
(b) A lease executed by the usufructuary
before the termination of the usufruct
and subsisting after the termination of
the usufruct must be respected, but
the rents for the remaining period will
belong to the owner.
(c) If the usufructuary has leased the lands
or tenements given in usufruct, and the
usufruct should expire before the
termination of the lease, he or his heirs
and successors shall receive only the
proportionate share of the rent that
must be paid by the lessee.
[NCC, 568]
(5) It is the usufructuary and not the naked
owner who has the right to choose the
tenant.

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CIVIL LAW

D.2. RIGHTS AS TO THE LEGAL RIGHT

OF USUFRUCT ITSELF

the fault or negligence of the person

who substitutes him. [NCC, 590]

RIGHT TO IMPROVE THE THING, BUT

IMPROVEMENT
INURES
TO
THE
BENEFIT OF THE NAKED OWNER

RIGHT TO
USUFRUCT

MORTGAGE

RIGHT

OF

(1) The usufructuary may alienate his right of

usufruct, even by a gratuitous title; but all
the contracts he may enter into as such
usufructuary shall terminate upon the
expiration of the usufruct. [NCC. 572]
(2) Does not include parental usufruct
because of personal and family
considerations.

(1) Usufructuary
is
not
entitled
to
reimbursement.
(2) Whenever the usufructuary can remove the
improvements without injury to the
property in usufruct, he has the right to do
so, and the owner cannot prevent him from
doing so even upon payment of their value.
(3) This right does not involve an obligation
if the usufructuary does not wish to
exercise it, he cannot be compelled by the
owner to remove the improvements.
(4) This right to remove improvements can be
enforced only against the owner, not
against a purchaser in good faith to whom
a clean title has been issued.
(5) Usufructuary may set off the improvements
against any damage to the property.
(a) The improvements should have
increased the value of the property,
and that the damages are imputable to
the usufructuary.
(b) Increase in value and the amount of
damages are set off against each
other.
(c) If the damages exceed the increase in
value, the difference should be paid by
the usufructuary as indemnity.
(d) If the increase in value exceeds the
damages, and the improvements are of
such nature that they can be removed
without injury to the thing in usufruct,
the settlement of the difference must
be agreed upon by the parties.
(e) If the improvements cannot be
removed without injury, the excess in
value accrues to the owner.
(6) Registration of improvements to protect
usufructuary against 3rd persons

RIGHT TO ALIENATE THE USUFRUCT

EXCEPT
IN
PURELY
PERSONAL
USUFRUCTS
OR
WHEN
TITLE
CONSTITUTING IT PROHIBITS THE
SAME
Parental usufruct is inalienable.

D.3. OBLIGATIONS AT THE BEGINNING

OF THE USUFRUCT OR BEFORE
EXERCISING THE USUFRUCT
(1) To make, after notice to the owner or his
legitimate representative, an inventory of
all the property, which shall contain an
appraisal of the movables and a
description of the condition of the
immovables; and
(2) To give security, binding himself to fulfill
the obligations imposed upon him in
accordance with this Chapter.
Note: These requirements are NOT conditions
precedent to the commencement of the right
of the usufruct but merely to the entry upon
the possession and enjoyment of the property.

TO MAKE AN INVENTORY
(1) Requisites
(a) Immovables must be described; and
(b) Movables must be appraised because
they are easily lost or deteriorated.

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(2) Concurrence of the owner in the making of

the inventory.
(3) Expenses for the making of the inventory
are borne by the usufructuary.
(4) The inventory may be in a private
document, except when immovables are
involved. (a public instrument is prescribed
to affect 3rd persons)
(5) Failure to make an inventory does not
affect the rights of the usufructuary to
enjoy the property and its fruits.
(a) A prima facie presumption arises that
the property was received by the
usufructuary in good condition.
(b) Even if he is already in possession, he
may still be required to make an
inventory.
(6) Exception to the requirement of inventory
(a) When no one will be injured, the
usufructuary may be excused from this
obligation.

CIVIL LAW

(iii) Approval of the court; and

(iv) Sworn promise.
(b) A usufructuary under this can neither
alienate his right nor lease the property,
for that would mean that he does not
need the dwelling or the implements
and furniture.
(4) Effect of filing a bond
(a) Retroactivity: upon giving the security,
the usufructuary will be entitled to all
the benefits accruing since the time
when he should have begun to receive
them.
(5) Effect of failure to give bond: [NCC 586]
(a) The owner may demand that the
immovable properties be placed
under administration;
(i) That the movable properties be
sold;
(ii) That
the
public
bonds,
instruments of credit payable to
order or to bearer be converted
into registered certificates or
deposited in a bank or public
institution; and
(iii) That the capital or sums in cash
and the proceeds of the sale of
the movable property be invested
in safe securities.
(b) The owner may, until the usufructuary
gives security, retain in his possession
the property in usufruct as
administrator,
subject
to
the
obligation to deliver to the
usufructuary the net proceeds, after
deducting the sums, which may be
agreed upon or judicially allowed him
for such administration.

TO GIVE A BOND FOR THE FAITHFUL

PERFORMANCE
OF
DUTIES
AS
USUFRUCTUARY
(1) Any kind of sufficient security is allowed,
e.g. cash, personal bond, mortgage.
(2) No bond is required in the following:
(a) No prejudice would result; [Art. 585]
(b) Usufruct is reserved by a donor; [Art.
584]
(i) Gratitude on the donees part
demands that the donor be
excused from filing the bond.
(c) Title constituting usufruct excused
usufructuary.
(3) A usufructuary may take possession under
a caucion juratoria (bond by oath) [Art. 587]
(a) It is only by way of exception that a
caucion juratoria is allowed, and only
under the special circumstances:
(i) Proper court petition;
(ii) Necessity for delivery of furniture,
implements or house included in
the usufruct;

D.4. DURING THE USUFRUCT

(1) To take care of the thing like a good father
of a family;
(2) To undertake ordinary repairs;
(3) To notify owner of need to undertake
extraordinary repairs;

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(4) To pay for annual charges and taxes on the

fruits;
(5) To notify owner of any act detrimental to
ownership;
(6) To shoulder the costs of litigation
regarding the usufruct; and
(7) To answer for fault or negligence of
alienee, lessee or agent of usufructuary.

CIVIL LAW

(3) If the defects are caused by the ordinary

use of the thing, the usufructuary may
exempt himself from making the repairs
by returning to the owner the fruits
received during the time that the defects
took place.
Except: When the ordinary repairs are due
to defects caused by the fault of the
usufructuary

TO TAKE CARE OF THE THING LIKE A

GOOD FATHER OF A FAMILY
(1) When damages are caused to the property
by the fault or negligence of the
usufructuary, the naked owner need not
wait for the termination of the usufruct
before bringing the action to recover
proper indemnity.
(2) The bad use of a thing, which causes
considerable injury, entitles the owner to
demand the delivery and administration of
the thing.
(3) The exercise of this remedy does NOT
extinguish the usufruct.

(4) If the usufructuary fails to make the

repairs even after demand, the owner may
make them at the expense of the
usufructuary

TO NOTIFY OWNER OF NEED TO

UNDERTAKE
EXTRAORDINARY
REPAIRS
(1) Extraordinary repairs
(a) Those
caused
by
exceptional
circumstances, whether or not they are
necessary for the preservation of the
thing; or
(b) Those caused by the natural use of the
thing, but are not necessary for its
preservation.

TO UNDERTAKE ORDINARY REPAIRS

The usufructuary is obliged to make the
ordinary repairs needed by the thing given in
usufruct. [NCC 592]
(1) Ordinary repairs:
(a) Such as are required by the wear and
tear due to the natural use of the thing
and are indispensable for its
preservation;
(b) Deteriorations or defects arise from the
natural use of the thing;
(c) Repairs are necessary for the
preservation of the thing.

(2) General Rule: Naked owner must make the

extraordinary repairs.
The usufructuary is obliged to pay legal
interest on the amount while usufruct
lasts.
(3) If the extraordinary repairs are
indispensable, and the naked owner fails
to undertake them, the usufructuary may
make such repairs.
(4) Requisites:
(a) There must be due notification to the
naked owner of the urgency if it is
not urgent, there is no obligation to
give notice;

(2) The usufructuary is bound to pay only for

the repairs made during the existence of
the usufruct.
(a) If the defects existed already at the
time the usufruct began, the obligation
to defray the ordinary repairs falls
upon the owner.

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(i) The naked owner failed to make

them; and
(ii) The repair is needed for
preservation.
(b) The usufructuary that has made the
extraordinary repairs necessary for
preservation is entitled to recover from
the owner the increase in value, which
the tenement acquired by reason of
such works.
(c) Usufructuary may retain until he is
paid.

To deliver the thing in usufruct to the owner in

the condition in which he has received it, after
undertaking ordinary repairs.
Exception: Abnormal usufruct A thing of the
same kind, quantity and quality is returned; if
with appraised value, must return value
appraised.

E. SPECIAL CASES OF USUFRUCT

E.1. USUFRUCT OVER A PENSION OR A
PERIODICAL INCOME [NCC 570]
(1) Each payment due shall be considered as
the proceeds or fruits of such right.
(2) The usufruct shall be distributed as civil
fruits.

TO PAY FOR ANNUAL CHARGES AND

TAXES ON THE FRUITS
It is well settled that a real tax, being a burden
upon the capital, should be paid by the owner
of the land and not by a usufructuary. There is
no merit in the contention of distinguishing
public lands into alienable and indisposable. All
properties owned by the government, without
any distinction, are exempt from taxation.
[Board of Assessment Appeals of Zamboanga
del Sur v. Samar Mining Company, Inc.(1971)]

TO NOTIFY OWNER OF ANY

DETRIMENTAL TO OWNERSHIP
(NCC 601)

CIVIL LAW

E.2. USUFRUCT OF PROPERTY OWNED

IN COMMON [NCC 582]
(1) The usufructuary takes the place of the
owner as to:
(a) Management;
(b) Fruits; and
(c) Interest.
(2) Effect of partition:
(a) The right of the usufructuary is not
affected by the division of the property
in usufruct among the co-owners.
(b) After partition, the usufruct is
transferred to the part allotted to the
co-owner.

ACT

TO SHOULDER THE COSTS OF

LITIGATION
REGARDING
THE
USUFRUCT (NCC 602)

E.4. USUFRUCT CONSTITUTED ON A

FLOCK OR HERD OF LIVESTOCK
[NCC 591]

TO
ANSWER
FOR
FAULT
OR
NEGLIGENCE OF THE ALIENEE, LESSEE
OR AGENT OF THE USUFRUCTUARY
(NCC 590)

(1) On sterile stock: same rules on

consumable property govern. (i.e.
replacement upon termination)
(2) On fruitful stock:
(a) Must replace ordinary losses of the
stock with the young if:
(i) Some animals die from natural
causes; or
(ii) Some animals are lost due to
rapacity of beasts of prey.

The usufructuary is made liable for the acts of

the substitute. While the substitute answers to
the usufructuary, the usufructuary answers to
the naked owner.

D.5. AT THE TIME OF THE TERMINATION

OF THE USUFRUCT

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(b) No obligation to replace if:

(i) There is a total loss of animals
because of some unexpected or
unnatural loss (like contagious
disease or any other uncommon
event, provided the usufructuary
has no fault); or
If all perish, the usufructuary
should deliver the remains to
the owner.
(ii) There is a partial loss.
If a part of the stock perishes,
the usufruct subsists on the
remainder.

E.8. USUFRUCT OVER AN ENTIRE

PATRIMONY [NCC 598]
Applies when:
(1) The usufruct is a universal one
(2) And the naked owner Has debts or is
obliged to make periodical payments
(whether or not there be known capital)
General rule: The usufructuary is not liable for
the owners debts.
Exceptions:
(1) When it is so stipulated; in which case the
usufructuary shall be liable for the debt
specified;
(2) If there is no specification, he is liable only
for debts incurred by the owner before the
usufruct was constituted; or
(3) When the usufruct is constituted in fraud
of creditors.

E.5. USUFRUCT OVER FRUIT BEARING

TREES AND SPROUT AND WOODLANDS
[NCC 575-576]
The usufructuary can:
(1) Use dead trunks and those cut off or
uprooted by accident;
(2) Make usual cuttings that owner used to do;
and
(3) Cut the trees that are not useful.

In no case shall the usufructuary be

responsible for debts exceeding the benefits
under the usufruct. (except when the contrary
intention appears)

E.6. USUFRUCT ON A RIGHT OF ACTION

[NCC 578]

E.9. USUFRUCT OVER DETERIORABLE

PROPERTY

(1) The action may be instituted in the

usufructuarys name. As the owner of the
usufruct, he is properly deemed a proper
party-in-interest.
(2) If the purpose is the recovery of the
property or right, he is still required under
Art. 578 to obtain the naked owners
authority.
(3) If the purpose is to object to or prevent
disturbances over the property, no special
authority from the naked owner is needed.

E.7. USUFRUCT ON
PROPERTY [NCC 600]

CIVIL LAW

(1) The usufructuary shall have the right to

make use thereof in accordance with the
purpose for which they are intended.
(2) It is sufficient if the usufructuary returns
the things in the condition in which they
may have been found at the time of the
expiration of the usufruct despite ordinary
defects caused by use and deterioration
produced by age and time.
Except: when such defects were caused
through the usufructuarys fraud and
negligence.
(3) If the usufructuary does not return the
things upon the expiration of the usufruct,
he should pay an indemnity equivalent to
the value of the things at the time of such
expiration.

MORTGAGED

(1) When the usufruct is universal and some

objects are mortgaged, apply Art. 598.
(2) If the usufructuary mortgaged the usufruct
himself, he is liable to pay his own debt.

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E.10. USUFRUCT OVER CONSUMABLE

PROPERTY [NCC 574]

G.1. DEATH OF USUFRUCTUARY

Exceptions
(1) In multiple usufructs: it ends at the death
of the last survivor (NCC 611)
(a) If simultaneously constituted: all the
usufructuaries must be alive (or at
least conceived) at the time of
constitution.
(b) If successively constituted:
(i) If by virtue of donation all the
donees-usufructuaries must be
living at the time of the donation;
(ii) If by will there should only be 2
successive usufructuaries and
both must have been alive at the
time of testators death.

(1) The usufructuary shall have the right to

make use of them under the obligation of
paying their appraised value at the
termination of the usufruct, if they were
appraised when delivered.
(2) If not appraised, he shall have the right to
return at the same quantity and quality, or
pay their current price at the time the
usufruct ceases.

F. RIGHTS OF THE OWNER

(1) At the beginning of the usufruct
See obligations of usufructuary at the
beginning of the usufruct)
(2) During the usufruct
(a) Retains title to the thing or property.
(b) He may alienate the property: he may
not alter the form or substance of the
thing; nor do anything prejudicial to
the usufructuary.
(c) He may construct buildings, make
improvements and plantings, provided:
(i) The value of the usufruct is not
impaired; and
(ii) The rights of the usufructuary are
not prejudiced.

G.
EXTINGUISHMENT
TERMINATION [NCC 603]

CIVIL LAW

(2) If the period is fixed by reference to the life

of another or there is a resolutory condition.
Death does not affect the usufruct and the
right is transmitted to the heirs of the
usufructuary until the expiration of the
term or the fulfillment of the condition.
(3) When a contrary intention clearly
appears:
(a) If the usufructuary dies before the
happening of a resolutory condition,
the usufruct is extinguished.
(b) Usufruct is personal and it CANNOT
be extended beyond the lifetime of
the usufructuary. [Sanchez Roman
and SC]

(1) By the death of the usufructuary, unless a

contrary intention clearly appears;
(2) By the expiration of the period for which it
was constituted, or by the fulfillment of any
resolutory condition provided in the title
creating the usufruct;
(3) By merger of the usufruct and ownership in
the same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the
person constituting the usufruct; or
(7) By prescription.

G.2. EXPIRATION OF PERIOD OR

FULFILLMENT
OF
RESOLUTORY
CONDITION IMPOSED ON USUFRUCT
BY PERSON CONSTITUTING USUFRUCT
(1) In favor of juridical persons [NCC. 605]
(a) Usufruct cannot be constituted in
favor of a town, corporation, or
association for more than fifty years.
(b) If before the expiration of such period
the town is abandoned, or the

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corporation or association is dissolved,

the usufruct shall be extinguished.
(2) Time that may elapse before a 3rd person
attains a certain age. [NCC. 606]
(a) Usufruct subsists for the number of
years specified, even if the 3rd person
should die before the period expired
unless the usufruct has been expressly
granted only in consideration of the
existence of the person.

Situation

Illustration: H was the usufructuary of land

owned by X. x dies, leaving in his will, the
naked ownership of the land to H. the usufruct
is extinguished because now H is both the
naked owner and the usufructuary.

Art. 608
If destroyed property is insured before
termination of the usufruct

G.4. RENUNCIATION OF USUFRUCT

(1) Waiver: A voluntary surrender of the rights
of the usufructuary, made by him with the
intent to surrender them.

(2) Limitations:
(a) Must be express: tacit renunciation is
not sufficient;
(b) Does not need the consent of naked
owner; and
(c) If made in fraud of creditors, they may
rescind the waiver through an action
under Article 1381 (accion pauliana).

Situation

LOSS

When
insurance
premium paid by
owner
and
usufructuary (par. 1)

If
owner
rebuilds,
usufruct subsists on
new building.
If owner does not
rebuild, interest upon
insurance
proceeds
paid to usufructuary.

When the insurance

taken by the naked
owner only because
usufructuary refuses
to contribute to the
premium (par. 2)

Owner
entitled
to
insurance money (no
interest
paid
to
usufructuary).
If he does not rebuild,
usufruct continues over
remaining land and/or
owner may pay interest
on value of both
materials and land
(607).
If
owner
rebuilds,
usufruct
does
not
continue
on
new
building, but owner
must pay interest on
value of land and old
materials.

OF

Effect

Art. 607
If destroyed property is not insured
If the building forms
part
of
an
immovable under
usufruct

Effect

If usufruct is on the Usufruct continues over

building only
the land and materials
(plus interests), if owner
does not rebuild.
If
owner
rebuilds,
usufructuary
must
allow owner to occupy
the land and to make
use of materials; but
the owner must pay
interest on the value of
both the land and the
materials.

G.3. MERGER OF RIGHTS OF USUFRUCT

AND NAKED OWNERSHIP IN ONE
PERSON

G.5. EXTINCTION OR
PROPERTY [NCC 608]

CIVIL LAW

Usufruct continues over

the land and materials
(plus interests), if owner
does not rebuild.

When

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PROPERTY

Situation

Effect

taken
by
usufructuary
only
depends on value of
usufructuarys
insurable interest

to the usufructuary.
No
obligation
to
rebuild.
Usufruct continues on
the land.
Owner has no share in
insurance proceeds.

CIVIL LAW

(3) If usufructuary alone was given the

indemnity, he must give it to the naked
owner and compel the latter to return
either the interest or to replace the
property. He may even deduct the interest
himself, if the naked owner fails to object.

H.2. BAD USE OF THING IN USUFRUCT

[NCC 610]
Bad use does not extinguish the usufruct but:
(1) Entitles the owner to demand delivery and
administration of the thing.
(2) The bad use must cause considerable
injury not to the thing, but to the owner.

G.6. TERMINATION OF THE RIGHT OF

PERSON CONSTITUTING THE USUFRUCT
Example: usufructs constituted by a vendee a
retro terminate upon redemption.

G.7. PRESCRIPTION

IX. Easement

(1) Adverse possession against the owner or

the usufructuary.
(2) It is not the non-use which extinguishes the
usufruct by prescription, but the use by a
3rd person.
(3) There can be no prescription as long as the
usufructuary receives the rents from the
lease of the property, or he enjoys the price
of the sale of his right.

(1) An encumbrance imposed upon an

immovable for the benefit of another
immovable belonging to a different
owner. [NCC. 613]
(2) A real right which burdens a thing with a
prestation of determinate servitudes for
the exclusive enjoyment of one who is
NOT an owner of a tenement.
(3) A real right by virtue of which the owner
has to ABSTAIN from doing or ALLOW
somebody else to do something to his
property for the benefit of another.
Dominant Estate the immovable in favor of
which the easement is established.

H. CONDITIONS NOT AFFECTING

USUFRUCT
H.1. EXPRORPIATION OF THING IN
USUFRUCT [NCC 609]

Servient Estate the immovable which is

subject to the easement .

3 SITUATIONS
(1) If naked owner alone was given the
indemnity, he has the option:
(a) To replace with equivalent thing; or
(b) To pay to the usufructuary legal
interest on the indemnity. This requires
a security to be given by the naked
owner for the payment of the interest.
(2) If both the naked owner and the
usufructuary were separately given
indemnity, each owns the indemnity given
to him, the usufruct being totally
extinguished.

A. CHARACTERISTICS
A.1. ESSENTIAL FEATURES:
(1) It is a real right it gives an action in rem
or real action against any possessor of the
servient estate
(a) Owner of the dominant estate can file
a real action for enforcement of right
to an easement

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PROPERTY

(b) Action in rem: an action against the

thing itself, instead of against the
person.

CIVIL LAW

patendo), but not in the right to demand

that the owner of the servient do
something (servitus in faciendo) except if
such act is an accessory obligation to a
praedial servitude (obligation propter rem)
Servient owner merely allows something
to be done to his estate.

(2) It is a right enjoyed over another property

(jus in re aliena) it cannot exist in ones
property (nulli res sua servit)
When the dominant and the servient
estates have the same owner, the
easement is extinguished. Separate
ownership is a prerequisite to an
easement.

Exceptions: Praedial servitudes

(a) Right to place beams in an adjoining
wall to support a structure.
(b) Right to use anothers wall to support
a building.

(3) It is a right constituted over an immovable

by nature (land and buildings), not over
movable properties. [NCC 613]
Immovable: used in its common and not in
the legal sense, meaning only property
immovable BY NATURE can have
easements.

(7) It is inherent or inseparable from estate to

which they actively or passively belong
(NCC 617)
(a) Easements are merely accessory to
the tenements, and a quality
thereof. They cannot exist without
tenements.
(b) Easements exist even if they are not
expressly stated or annotated as an
encumbrance on the titles.
(8) It is intransmissible it cannot be
alienated separately from the tenement
affected or benefited
Any alienation of the property covered
carries with it the servitudes affecting said
property. But this affects only the portion
of the tenement with the easement,
meaning the portions unaffected can be
alienated without the servitude.

(4) It limits the servient owners right of

ownership for the benefit of the dominant
estate.
(a) Right of limited use but no right to
possess the servient estate.
(b) There exists a limitation on ownership:
the dominant owner is allowed to enjoy
or use part of the servient estate, or
imposes on the owner a restriction as
to his enjoyment of his own property.
(i) Being an abnormal limitation of
ownership, it cannot be presumed.
(5) It creates a relation between tenements
There is no transfer of ownership, but a
relationship is created, depending on the
type of easement.

(9) It is indivisible (NCC 618)

(a) If the servient estate is divided
between two or more persons, the
easement is not modified, and each of
them must bear it on the part that
corresponds to him.
(b) If the dominant estate is divided
between two or more persons, each of
them may use the easement in its
entirety, without changing the place

(6) Generally, it may consist in the owner of the

dominant estate demanding that the owner
of the servient estate refrain from doing
something (servitus in non faciendo) or that
the latter permit that something be done
over the servient property (servitus in

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of its use, or making it

burdensome in any other way.

PROPERTY

more

CIVIL LAW

apparent easements can be created by

prescription.

B.4. AS INDICATION OF ITS EXISTENCE

(10) It has permanence once it attaches,

whether used or not, it continues and may
be used anytime
Perpetual: exists as long as property exists,
unless it is extinguished.

(1) Apparent: Made known and continually

kept in view by external signs that reveal
the use and enjoyment of the same.
(2) Non-apparent: No external indication of
their existence.

B. CLASSIFICATION

Note: Also important

prescription.

B.1. AS TO RECIPIENT OF BENEFITS

(1) Real or Praedial: exists for the benefit of a
particular tenement.
(2) Personal: exists for the benefit of persons
without a dominant tenement e.g. usus
habitatio (right to reside in a house) and
operae servorum (right to the labor of
slaves) in Roman law.

for

purposes

of

B.5. BY THE OBJECT OR OBLIGATION

IMPOSED [NCC 616]
(1) Positive: Imposes upon the owner of the
servient estate the obligation of allowing
something to be done, or doing it himself.
(2) Negative: Prohibits the owner of the
servient estate from doing something that
he could lawfully do if the easement did
not exist.
e.g. Negative Easement of Light and View:
An opening is made on the wall of the
dominant estate, and the easement
consists of imposing upon the servient
estate the obligation to not build anything
that would obstruct the light.

B.2. AS TO CAUSE OR ORIGIN

(1) Legal: created by law, whether for public
use or for the interest of private persons.
Once requisites are satisfied, the owner
of the dominant estate may ask the
Court to declare that an easement is
created.
Example: Natural drainage of waters,
Abutment of land, Aqueduct, etc.
(2) Voluntary: Created by the will of the
owners of the estate through contract.

Note: Prescription starts to run from service of

notarial prohibition.

Note: There is no such thing as a JUDICIAL

EASEMENT. The Courts cannot create
easements, they can only declare the existence
of one, if it exists by virtue of the law or will of
the parties.

C. GENERAL RULES
(1) Nulli res sua servi: No one can have a
servitude over ones own property.
(2) Servitus in faciendo consistere nequit: A
servitude cannot consist in doing.
(a) Although some easements seem to
impose a positive prestation upon the
owner of the servient estate, in reality,
the primary obligation is still negative.
(b) Illustration: Under Article 680: the
owner of a tree whose branches
extend over to a neighboring property
is required to cut off the extended

B.3. AS TO ITS EXERCISE [NCC 615]

(1) Continuous: Use is or may be incessant,
without the intervention of any man
(2) Discontinuous: Used at intervals, and
dependent upon the acts of man.
Note: This classification is important in
determining prescription: only continuous and

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PROPERTY

branches, but the real essence of the

easement is the obligation NOT TO
ALLOW the branches of the tree to
extend beyond the land.
(3) Servitus servitutes esse non potes: There can
be no servitude over another servitude.
(4) A servitude must be exercised civiliter in a
way least burdensome to the owner of the
land.
(5) A servitude must have a perpetual cause

CIVIL LAW

easement, commenced to exercise it upon

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

D.4. DETERMINES HOW EASEMENT IS

LOST BY PRESCRIPTION [NCC 631 (2)]

D. RELEVANCE OF CLASSIFICATIONS
D.1. DETERMINES WHAT EASEMENTS
CAN BE ACQUIRED BY PRESCRIPTION

By nonuser for 10 years:

(1) With respect to discontinuous easements,
this period shall be computed from the
day on which they ceased to be used.
(2) With respect to continuous easements,
from the day on which an act contrary to
the same took place.

Continuous and apparent easements may be

acquired by prescription of 10 years [NCC. 620]

D.2. DETERMINES WHAT EASEMENTS

CAN BE ACQUIRED BY TITLE
(1) Continuous nonapparent easements, and
discontinuous ones, whether apparent or
not, may be acquired only by virtue of a
title. [NCC. 622]
(2) The existence of an apparent sign of
easement
between
two
estates,
established or maintained by the owner of
both, shall be considered, as a title in order
that the easement may continue actively
and passively.

E. CREATION
E.1. BY TITLE
(1) Continuous and apparent easements may
be acquired by virtue of a title. [NCC 620]
(2) Continuous nonapparent easements, and
discontinuous ones, whether apparent or
not, are acquired only by virtue of a title.
[NCC 622]
(3) The absence of a document or proof
showing the origin of an easement which
cannot be acquired by prescription may
be cured by a deed of recognition by the
owner of the servient estate or by a final
judgment. [NCC 623]
(4) The existence of an apparent sign of
easement
between
two
estates,
established or maintained by the owner of
both, shall be considered as a title in
order that the easement may continue
actively and passively.

Unless: At the time the ownership of the

two estates is divided, the contrary should
be provided in the title of conveyance of
either of them, or the sign aforesaid should
be removed before the execution of the
deed. This provision shall also apply in
case of the division of a thing owned in
common by two or more persons.
[NCC. 624]

Unless: at the time the ownership of the

two estates is divided, the contrary should
be provided in the title of conveyance of
either of them, or the sign aforesaid
should be removed before the execution
of the deed. This provision shall also

D.3. DETERMINES HOW TO COMPUTE

THE PRESCRIPTIVE PERIOD [NCC 621]
(1) In positive easements, from the day on
which the owner of the dominant estate, or
the person who may have made use of the

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apply in case of the division of a thing

owned in common by two or more persons.
[NCC 624]

(b) By the provisions of Chapter 2, title

VII, Book II.

F. VOLUNTARY EASEMENTS

E.2. BY LAW (LEGAL EASEMENTS)

(1) Every owner of a tenement or piece of

land may establish thereon the
easements which he may deem suitable,
and in the manner and form which he may
deem best. [NCC 688]
(2) The owner of a thing, the usufruct of
which belongs to another, may impose,
without the consent of the usufructuary,
any servitudes which will not injure the
right of usufruct. [NCC 689]
(3) Whenever the naked ownership belongs
to one person and the beneficial
ownership to another, no perpetual
voluntary easement may be established
thereon without the consent of both
owners. [NCC 690]
(4) Consent of all co-owners is required to
impose an easement on an undivided
tenement. [NCC 691]

(1) Easements imposed by law have for their

object either public use or the interest of
private persons. [NCC 634]
(2) These easements may be modified by
agreement of the interested parties,
whenever the law does not prohibit it or no
injury is suffered by a third person.
[NCC 636]

E.3. BY WILL OF THE

(VOLUNTARY EASEMENTS)

OWNERS

Every owner of a tenement or a piece of land

may establish the easements that he may
deem suitable and best. [NCC 688]
Note: If an owner constitutes an easement over
his own property and makes such easement
available to the general public, said owner may
not arbitrarily discriminate against certain
persons by not letting them use the easement.
[Negros Sugar Company v Hidalgo (1936)]

H. RIGHTS AND OBLIGATIONS OF

OWNERS OF DOMINANT AND
SERVIENT ESTATES

E.4. BY PRESCRIPTION
Continuous and apparent easements may be
acquired by prescription of 10 years. [NCC 620]

H.1. RIGHTS OF DOMINANT ESTATE

OWNER

G. LEGAL EASEMENTS
G.1.
LAW
EASEMENTS

GOVERNING

CIVIL LAW

(1) To use the easement and exercise all

rights necessary for it [NCC 625, 626]
(a) The owner of the dominant estate is
granted the right to use the principal
easement,
and
all
accessory
servitudes.
(b) Example: Easement of drawing water
carries with it the easement of right of
way to the place where water is
drawn.
(c) Limitation: Only for the original
immovable and the original purpose.

LEGAL

(1) For public easements

(a) Special laws and regulations relating
thereto. (ex: PD 1067 and PD 705)
(b) By the provisions of Chapter 2, Title VII,
Book II, NCC.
(2) For private legal easements
(a) By agreement of the interested parties
whenever the law does not prohibit it
and no injury is suffered by a 3rd
person.

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(2) In a right of way, to ask for change in width

of easement sufficient for needs [NCC 651]

(a) The contribution is in proportion to

the benefits which each may derive
from the work.
(b) Anyone who does not wish to
contribute may exempt himself by
renouncing the easement for the
benefit of the others.
(c) If the owner of the servient estate
should make use of the easement in
any manner whatsoever, he shall also
be obliged to contribute to the
expenses in the proportion stated,
saving an agreement to the contrary.

(3) To renounce totally the easement, if he

desires to be exempt from contributing to
the expenses.
The needs of the dominant property ultimately
determine the width of the passage. And these
needs may vary from time to time.
[Encarnacion v. Court of Appeals]

H.2. OBLIGATIONS
ESTATE OWNER

OF

CIVIL LAW

DOMINANT

(1) To use the easement for the benefit of

immovable and in the manner originally
established [NCC 626]
If established for a particular purpose, the
easement cannot be used for a different
one. However, if established in a general
way, without specific purpose, the
easement can be used for all the needs of
the dominant estate.

(5) To do at his expense all necessary works

for the use and preservation of the
easement [NCC 627]
The necessity of the works determines
extent of such works.

H.3. RIGHTS OF THE SERVIENT ESTATE

OWNER
(1) To retain ownership and use of his
property
(a) The owner of the servient estate
retains the ownership of the portion
on which the easement is established,
and may use the same in such a
manner as not to affect the exercise of
the easement. [NCC 630]
(b) The servient owner must respect the
use of the servitude, but retains
ownership and use of the same, in a
manner not affecting the easement.

(2) To notify the owner of the servient estate

before making repairs and to make repairs
in a manner least inconvenient to the
servient estate [NCC 627(2)]
(3) Not to alter the easement or render it more
burdensome
(a) The owner of the dominant estate may
make repairs at his expense, but he
cannot alter the easement or make it
more burdensome. [NCC 627]
(b) Making
the
easement
more
burdensome means widening the
easement. [Valderrama v. North Negros
Sugar Co. (1925)]

(2) To change the place and manner of the

use of the easement [NCC 629]
General rule: The owner of the servient
estate cannot impair the use of the
servitude.
Exceptions:
(a) By reason of either:
(i) The place/manner originally
assigned, the use of such

(4) To contribute to expenses of works

necessary for use and preservation of
servitude, if there are several dominant
estates, unless he renounces his interest
[NCC 628]

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easement has become VERY

INCONVENIENT to the owner; or
(ii) The easement should prevent him
from making any important works,
repairs or improvements thereon;
(b) The change must be done at his
expense;
(c) He offers another place or manner
equally convenient; and
(d) he change is done in such a way that
no injury is caused to the dominant
owner or to those who may have a right
to use the easement.

(13) Lateral and subjacent support

[NCC 684-687]

I.1. NATURAL DRAINAGE

(1) Lower estates are obliged to receive the
waters which naturally and without the
intervention of man descend from the
higher estates (as well as the stones or
earth which they carry with them).
(2) The owner of the lower estate cannot do
any works that will impede this easement.
(3) The owner of the higher estate cannot do
any works that will increase the burden.

I.2. RIPARIAN BANKS

(3) To use the easement

May use the easement but must also
contribute proportionately to the expenses.

H.4. OBLIGATIONS
ESTATE OWNER

OF

CIVIL LAW

(1) The banks of rivers and streams are

subject throughout their entire length and
within a zone of 3 meters along their
margins, to the easement of public use in
the general interest of navigation,
floatage, fishing, and salvage.
(2) Estates adjoining the banks of navigable
or floatable rivers are subject to the
easement of towpath for the exclusive
service of river navigation and floatage.
(3) If it be necessary to occupy lands of
private ownership, the proper indemnity
shall first be paid.

SERVIENT

(1) Not to impair the use of the easement [NCC

629 (1)]
(2) To contribute proportionately to expenses if
he uses the easement [NCC 628(2)]
Unless there is an agreement to the
contrary

I.3. DRAINAGE OF BUILDINGS

(3) To pay for the expenses incurred for the

change of location or form of the easement

(1) The owner of a building is obliged to

construct its roof or covering in such
manner that the rain water shall fall on
his own land or on a street or public place,
and NOT on the land of his neighbor, even
though the adjacent land may belong to
two or more persons, one of whom is the
owner of the roof.
(2) Even if it should fall on his own land, the
owner shall be obliged to collect the
water in such a way as not to cause
damage to the adjacent land or tenement.

I. KINDS OF LEGAL EASEMENTS

(1) Natural drainage [NCC 637]
(2) Riparian banks [NCC 638]
(3) Drainage of buildings [NCC 674]
(4) Dam [NCC 639]
(5) Drawing water [NCC 640-641]
(6) Aqueduct [NCC 642-646]
(7) Sluice gate [NCC 647]
(8) Right of way [NCC 649-657]
(9) Party wall [NCC 658-666]
(10) Light and view [NCC 667-681]
(11) Intermediate distances [NCC 677-681]
(12) Nuisance [NCC 682-683]

I.4. DAM

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Whenever it should be necessary to build a

dam, and the person who is to construct it is
not the owner of the banks, or lands which
must support it, he may establish the
easement of abutment of a dam, after
payment of the proper indemnity.

CIVIL LAW

courtyards, annexes, or outhouses, or on

orchards or gardens already existing.
(4) This easement does not prevent the
owner of the servient estate from closing
or fencing it, or from building over the
aqueduct in such manner as not to cause
the latter any damage, or render
necessary
repairs
and
cleanings
impossible.
(5) This easement is considered as
continuous and apparent, even though the
flow of the water may not be continuous,
or its use depends upon the needs of the
dominant estate, or upon a schedule of
alternate days or hours.

I.5. DRAWING WATER

(1) Compulsory easements for drawing water
or for watering animals can be imposed
only for reasons of public use in favor of a
town or village, after payment of the proper
indemnity.
(2) Easements for drawing water and for
watering animals carry with them the
obligation of the owners of the servient
estates to allow passage to persons and
animals to the place where such
easements are to be used, and the
indemnity shall include this service.
(3) The width of the easement must not
exceed 10 meters.

I.7. SLUICE GATE

(1) The construction of a stop lock or sluice
gate in the bed of the stream from which
the water is to be taken, for the purpose of
improving an estate.
(2) Such person may demand that the owners
of the banks permit its construction, after
payment of damages, including those
caused by the new easement to such
owners and to the other irrigators.

I.6. AQUEDUCT
(1) Any person who may wish to use upon his
own estate any water of which he can
dispose shall have the right to make it flow
through the intervening estates, with the
obligation to indemnify their owners, as
well as the owners of the lower estates
upon which the waters may filter or
descend.
(2) Person desiring to make use of this right is
obliged to:
(a) To prove that he can dispose of the
water and that it is sufficient for the
use for which it is intended;
(b) To show that the proposed right of way
is the most convenient and the least
onerous to third persons; and
(c) To indemnify the owner of the servient
estate in the manner determined by
the laws and regulations
(3) Easement of aqueduct for private interest
cannot be imposed on buildings,

I.8. RIGHT OF WAY

Who may demand
(1) The owner of the dominant estate; or
(2) Any person with the real right to cultivate
or use the dominant estate e.g. a
usufructuary.
Note: a lessee cannot demand such
easement, because the lessor is the one
bound to maintain him in the enjoyment of
the property.
Requisites
(1) The dominant estate is surrounded by
other immovables owned by other
persons;
(2) There must absolutely be no access to a
public road or highway;

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(a) Even if there is access, it is difficult or

dangerous to use, or grossly
insufficient;
(b) Mere inconvenience in the use of an
outlet does not render the easement a
necessity;
(c) An adequate outlet is one that is
sufficient for the purpose and needs of
the dominant owner, and can be
established at a reasonable expense;
(d) Does not necessarily have to be by land
an outlet through a navigable river if
suitable to the needs of the tenement
is sufficient;
(3) The isolation of the immovable is NOT due
to the dominant owners own acts e.g. if he
constructs building to others obstructing
the old way; and
(4) There is payment of indemnity;
(a) If right of way is permanent and
continuous for the needs of the
dominant estate = value of the land +
amount of damage caused to the
servient estate;
(b) If right of way is limited to necessary
passage for cultivation of the estate
and for gathering crops, without
permanent way = damage caused by
encumbrance.
Rules for establishing Right of Way
(1) Must be established at the point least
prejudicial to the servient estate.
[NCC 650]
(2) Insofar as consistent with the first rule,
where the distance from the dominant
estate to a public highway is shortest.
(a) The criterion of least prejudice to the
servient estate must prevail over the
criterion of shortest distance although
this is a matter of judicial
appreciation. While shortest distance
may ordinarily imply least prejudice, it
is not always so as when there are
permanent structures obstructing the
shortest distance; while on the other

CIVIL LAW

hand, the longest distance may be free

of obstructions and the easiest or
most
convenient
to
pass
through. [Quimen v. CA (1996)]
(b) The fact that LGV had other means of
egress to the public highway cannot
extinguish the said easement, being
voluntary and not compulsory. The
free ingress and egress along
Mangyan Road created by the
voluntary agreement between the
parties is thus legally demandable
with the corresponding duty on the
servient estate not to obstruct the
same. [La Vista Association v. CA]
(3) The width of the easement of right of way
shall be that which is sufficient for the
needs of the dominant estate, and may
accordingly be changed from time to
time. [NCC 651]
Obligations In Permanent And Temporary
Easements Of Right Of Way
Temporary
Permanent right of way
right of way
Indemnity
Consists of the damages and
the value of the land.

Consists of
the damages
only.

Necessary repairs
Dominant owner to spend on Servient
such.
owner
spend
such.

to
on

Share in taxes
The dominant owner shall
reimburse a proportionate
share of taxes to the
proprietor of the servient
estate.

152

Servient
owner
spend
such.

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Rules on indemnity for estates enclosed

through a sale, exchange, partition or donation.
Sale, exchange or
partition

building, to carry materials through

the estate of another, or to raise
therein scaffolding or other objects
necessary for the work, the owner of
such estate shall be obliged to permit
the act, after receiving payment of the
proper indemnity for the damage
caused him. [NCC 656]
(3) Right of way for the passage of livestock
known as animal path, animal trail,
watering places, resting places, animal
folds. [NCC 657]
(a) Easements of the right of way for the
passage of livestock known as animal
path, animal trail or any other, and
those for watering places, resting
places and animal folds, shall be
governed by the ordinances and
regulations relating thereto, and, in
the absence thereof, by the usages
and customs of the place.
(b) Without prejudice to rights legally
acquired, the animal path shall not
exceed in any case the width of 75
meters, and the animal trail that of 37
meters and 50 centimeters.
(c) Whenever it is necessary to establish a
compulsory easement of the right of
way or for a watering place for
animals, the provisions of this Section
and those of Articles 640 and 641
shall be observed. In this case the
width shall not exceed 10 meters

Donation

Buyer, grantee or donee

as dominant owners
The buyer or grantee
The donee shall pay
shall grant the right of the donor indemnity.
way without indemnity.
Seller, grantor or donor
as dominant owners
The seller or grantor
shall pay indemnity.

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The donee shall

grant the right of
way without
indemnity.

Extinguishment of Right of Way

(1) The owner has joined the dominant estate
to another abutting the public road.
(2) A new road is opened giving access to the
isolated estate.
Notes on extinguishment
(1) Extinguishment is NOT automatic. The
owner of the servient estate must ask for
such extinguishment.
(2) Indemnity paid to the servient owner must
be returned:
(a) If easement is permanent: value of the
land must be returned
(b) If easement is temporary: nothing is to
be returned

I.9. PARTY WALL

Special Rights of Way

(1) Right of way to carry materials for the
construction,
repair,
improvement,
alteration or beautification of a building
through the estate of another.
(2) Right of way to raise on anothers land
scaffolding or other objects necessary for
the work.
(a) If it be indispensable for the
construction, repair, improvement,
alteration or beautification of a

Refers to all those mass of rights and

obligations emanating from the existence and
common enjoyment of wall, fence, enclosures
or hedges, by the owners of adjacent
buildings and estates separated by such
objects.
Nature
(1) A common wall which separates two
estates, built by common agreement at

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the dividing line such that it occupies a

portion of both estates on equal parts.
(2) A party wall is a special form of coownership (a kind of compulsory coownership).
(a) Each owner owns part of the wall but it
cannot be separated from the other
portions belonging to the others. A
party wall has a special characteristic
that makes it more of an easement as
it is called by law.
(b) An owner may use a party wall to the
extent of the portion on his property.
Co-Ownership

Party Wall

Before division of
shares, a co-owner
cannot point to any
definite portion of the
property as belonging
to him.

Shares of the coowners cannot be

physically segregated
but they can be
physically identified.

None of the co-owners There is

may
use
the limitation
community property
for
his
exclusive
benefit because he
would be invading the
rights of the others.

no

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(3) In fences, walls and live hedges dividing

rural lands.
Note: A title or an exterior sign, or any other
proof showing that the entire wall in
controversy belongs exclusively to one of the
adjoining property-owners may rebut these
presumptions.
When Existence Of An Exterior Sign Is
Presumed [NCC 660]
(1) Whenever in the dividing wall of buildings
there is a window or opening.
(2) Whenever one side is straight and plumb
on all its facement, and on the other, it
has similar conditions on the upper part,
but the lower part slants or projects
outward.
(3) Whenever the entire wall is built within
the boundaries of one of the estates.
(4) Whenever the dividing wall bears the
burden of the binding beams, floors and
roof frame of one of the buildings, but not
those of the others.
(5) Whenever the dividing wall between
courtyards, gardens, and tenements is
constructed in such a way that the coping
sheds the water upon only one of the
estates.
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at
certain intervals project from the surface
on one side only, but not on the other.
(7) Whenever lands enclosed by fences or live
hedges adjoin others that are not
enclosed.

such

In a co-ownership, Any owner may free

partial renunciation is himself
from
allowed.
contributing to the
cost of repairs and
construction of a party
wall by renouncing all
his rights thereto.

Note: The deposit of earth or debris on one

side alone is an exterior sign that the owner of
that side is the owner of the ditch or drain.
The presumption is an addition to those
enumerated in NCC 660.

When Existence Of Easement Of Party Wall Is

Presumed
(1) In dividing walls of adjoining buildings up
to the point of common elevation.
(2) In dividing walls of gardens or yards
situated in cities, or towns, or in rural
communities.

Right Of Owners Of A Party Wall

(1) Generally, part-owners may use the wall
in proportion to their respective interests,
provided that:
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(a) The right to use by the other party is

not interfered with;
(b) The consent by the other owner is
needed if a party wants to open a
window; and
(c) The condition of the building is
determined by experts.
(2) To increase the height of the wall.
He does this at his expense, including the
thickening of the wall on his land.
He shall indemnify the other party for
any damages.
(3) To acquire a half-interest in any increase in
height or thickness of the wall, paying a
proportionate share in the cost of the work
and the value of the land covered.
Note that the value of the land must be
appraised at the time of acquisition.
(4) To renounce his part ownership of a party
wall if he desires to demolish his building
supported by the wall.
He shall bear all the expenses of repairs
and work necessary to prevent any
damage which the demolition may cause
to the party wall.

CIVIL LAW

(e) Bear the increased expenses for

preservation

I.10. EASEMENT OF LIGHT AND VIEW

Definition
(1) Easement of light (jus luminum) is the
right to admit light from the neighboring
estate by virtue of the opening of a
window or the making of certain
openings.
(2) Easement of view (jus prospectus) is the
right to make openings or windows, to
enjoy the view through the estate of
another and the power to prevent all
constructions or works which would
obstruct such view or make the same
difficult.
(a) Necessarily includes the easement of
light.
(b) It is possible to have light only without
a view.
Nature
(1) Positive: Opening a window through a
party wall
(a) When a part owner of a party wall
opens a window therein, such act
implies the exercise of the right of
ownership by the use of the entire
thickness of the wall.
(b) The easement is created only after the
lapse of the prescriptive period.
(2) Negative: Formal prohibition upon the
owner of the adjoining land or tenement.
Formal means that the prohibition has
been notarized [Cortes v Yu-Tibo (1903)]
(a) When a person opens a window on his
own building, he is exercising his right
of ownership on his property, which
does not establish an easement.
(b) Coexistent is the right of the owner of
the adjacent property to build on his
own land, even if such structures
cover the window.
(c) If the adjacent owner does not build
structures to obstruct the window,

Obligations Of Owners Of A Party Wall

(1) To contribute proportionately to the repair
and maintenance of the party wall unless
he renounces his part-ownership.
(a) This includes the renunciation of the
share in the wall + the land
(b) He cannot renounce his part if his
building is being supported by the
party wall
(2) If he raises the height of the wall, he must:
(a) Bear the cost of maintenance of the
additions;
(b) Bear the cost of construction, if the
wall cannot support the additional
height;
(c) Give additional land, if necessary to
thicken the wall;
(d) Pay for damages, if necessary, even if
temporary; and

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such is considered mere tolerance and

NOT a waiver of the right to build.
(d) An easement is created only when the
owner opens up a window and
subsequently prohibits or restrains the
adjacent owner from doing anything
that may tend to cut off or interrupt the
light and the prescriptive period has
lapsed.

CIVIL LAW

(iii) The dividing line between the two

properties in cases of oblique
views.
Effect If Distances Are Not Complied With
(1) Windows are considered unlawful
openings and may be ordered by the
Court to be closed.
(2) Even if the adjoining owner does not
object to the construction of such
structures at first, he cannot be held to be
in estoppel, unless the 10-year period of
acquisitive prescription has passed.

Rules And Restrictions On Openings And

Structures
Openings for light
(1) When the wall is 2 meters or more away
from anothers tenement:
(a) An owner may build any kind of
opening without restriction.
(2) When the wall is contiguous (less than 2
meters) to anothers tenement:
(a) Openings are made at the height of the
ceiling joists (horizontal beams) or
immediately under the ceiling;
(b) Size: 30 cm square;
(c) With iron grating imbedded in the wall;
(d) With a wire screen.

Note:
(1) In buildings separated by a public way or
alley, not less than 3 meters wide, the
distances required (2 m, 60 cm) do not
apply.
(2) If an easement is acquired to have direct
views, balconies or belvederes, the owner
of the servient estate must not build at
less than 3 meters from the boundary line
of the two tenements.
(a) The distances may be stipulated by
the parties, but should not be less
than what is prescribed by the law (2
meters and 60 cm).

Openings for view

(1) The following structures cannot be built
without following the prescribed distances:
(a) Window, apertures, balconies and
other projections with a direct view
upon or towards an adjoining land
must have a distance of 2 meters
between the wall and the contiguous
property.
(b) For structures with a side or oblique
view (at an angle from the boundary
line), there should be a distance of 60
centimeters.
(c) Measured from:
(i) The outer line of the wall if the
openings do not project.
(ii) The outer line of the openings if
they project.

Notes on the Acquisition of the Easement

(1) Period of acquisitive prescription will only
start to run from the time the owner
asserting the servitude has forbidden the
owner of the adjoining tenement from
doing something he could lawfully do.
(2) THUS, although the action to compel the
closure might have prescribed, the owner
of the adjoining estate may still build on
his own land a structure that might
obstruct the view.

I.11. INTERMEDIATE DISTANCES

[NCC 677]

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NCC 677, in effect, establishes an easement in

favor of the State. The general prohibition is
dictated by the demands of national security.

(1) The proprietor is prohibited from making

dangerous excavations upon his land as
to deprive any adjacent land or building of
sufficient lateral or subjacent support.
(2) Easement of lateral and subjacent
support is deemed essential to the
stability of buildings.
(3) Support is lateral when a vertical plane
divides the supported and supporting
lands.
(4) Support is subjacent when the supported
land is above the supporting land.

The following must comply with the

regulations or customs of the place:
(1) Construction of aqueduct, well, sewer, etc.
(NCC 678)
Constructions, which by reason of their
nature or products are dangerous or
noxious.
(2) Planting of trees (NCC 679)
(a) No trees shall be planted near a
tenement or piece of land belonging to
another except at the distance
authorized by the ordinances or
customs of the place.
(b) In the absence of regulations:
(i) At least 2 meters from the dividing
line of the estates if tall trees are
planted.
(ii) At least 50 centimeters if shrubs or
small trees are planted.
(c) In case of violation, a landowner shall
have the right to demand the
uprooting of the plant even if it has
grown spontaneously.

J.
MODES
EASEMENT

ACQUIRING

A juridical act which gives rise to the servitude

(e.g. law, donations, contracts or wills)
(1) If the easement has been acquired but no
proof of existence of easement available,
and the easement is one that cannot be
acquired by prescription, the defect may
be cured by:
(a) Deed of recognition by owner of
servient estate: By an affidavit or a
formal deed acknowledging the
servitude; or
(b) By final judgment: Owner of the
dominant estate must file a case in
Court to have the easement declared
by proving its existence through other
evidence.

(1) If the branches of any tree should extend

over a neighboring estate, tenement,
garden or yard, the owner of the latter
shall have the right to demand that they be
cut-off.
(2) If it be the roots of a neighboring tree,
which should penetrate into the land of
another, the latter may cut them off
himself within his property.
(3) Fruits naturally falling upon adjacent land
belong to the owner of said land.

AND

OF

J.1. BY TITLE

BRANCHES, ROOTS AND FRUITS

I.12.
LATERAL
SUPPORT

CIVIL LAW

(2) The existence of an apparent sign is

considered as title.
Illustration: The presence of 4 windows
was considered an apparent sign that
created a negative easement of light and
view (altius non tollendi) i.e. not to build a
structure that will cover the windows.
[Amor v. Florentino (1943)].

SUBJACENT

J.2. BY PRESCRIPTION
Requisites

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(1) The easement must be continuous and

apparent;
(2) The easement must have existed for 10
years; and
(3) There is NO NEED for good faith or just
title.

(1) Owner of dominant estate does not

exercise right over easement.
(2) This is inaction, and not outright
renunciation.
(3) This is due to the voluntary abstention by
the dominant owner, and not due to a
fortuitous event.
(4) Computation of the period:
(a) Discontinuous easements: counted
from the day they ceased to be used.
(b) Continuous easements: counted from
the day an act adverse to the exercise
of the easement took place.
(i) E.g. in an easement of light and
view, the erection of works
obstructing the servitude would
commence
the
period
of
prescription.
(5) The use by a co-owner of the dominant
estate bars prescription with respect to
the others.
(6) Non-user cannot extinguish servitudes
not yet exercised. [Francisco v Paez
(1930)]

Note
Mere passage which was permitted and is
under an implied license cannot be a basis of
prescription [Archbishop of Manila v Roxas
(1912)]

K.
EXTINGUISHMENT
EASEMENTS

CIVIL LAW

OF

(1) By merger in the same person of the

ownership of the dominant and servient
estates;
(2) By non-user for ten years;
(3) When either or both of the estates fall into
such condition that the easement cannot
be used;
(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; or
(6) By the redemption agreed upon between
the owners of the dominant and servient
estates.

K.3. BY IMPOSSIBILITY OF USE

(1) Impossibility referred to must render the
entire easement unusable for all time.
(2) Impossibility of using the easement due to
the condition of the tenements (e.g.
flooding) only suspends the servitude until
it can be used again.
(3) Except: If the suspension exceeds 10 years,
the easement is deemed extinguished by
non-user.

K.1. MERGER
Must be absolute, perfect and definite, and not
merely temporary.
(1) Absolute: Ownership of the property must
be absolute, thus not applicable to lease,
usufruct, etc.
(2) Perfect: Merger must not be subject to a
condition.
(3) If the merger is temporary, there is at most
a suspension of the easement, but no
extinguishment.

K.4. EXPIRATION OF THE TERM OR

FULFILLMENT
OF
RESOLUTORY
CONDITION
Applicable only to voluntary easements.

K.5. RENUNCIATION OF THE OWNER

OF THE DOMINANT ESTATE

K.2. BY A NON-USER FOR 10 YEARS

Must be specific, clear, express (distinguished

from non-user).

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(a) Owner of the dominant estate has

joined to another abutting on a public
road.
(b) A new road is opened giving access to
the isolated estate.
(c) Requisite: the public highway must
substantially meet the needs of the
dominant estate in order that the
easement may be extinguished
(d) Owner of the servient estate may
demand that the easement be
extinguished.
(e) Owner of the servient estate must
return indemnity he received (value of
the land)

K.6. OTHER CAUSES NOT MENTION IN

NCC 631
(1) Annulment and rescission of the title
constituting the voluntary easement;
(2) Termination of the right of grantor of the
voluntary easement;
(3) Abandonment of the servient estate;
(a) Owner of the servient estate gives up
ownership of the easement (e.g. the
strip of land where the right of way is
constituted) in favor of the dominant
estate.
(b) The easement is extinguished because
ownership is transferred to the
dominant owner, who now owns both
properties.
(4) Eminent domain; or
(a) The governments power to expropriate
property for public use, subject to the
payment of just compensation.
(5) Special cause for extinction of legal rights
of way; if right of way no longer necessary.
(a) NCC 655
(i) If the right of way granted to a
surrounded estate ceases to be
necessary because its owner has
joined it to another abutting on a
public road, the owner of the
servient estate may demand that
the easement be extinguished,
returning what he may have
received by way of indemnity. The
interest on the indemnity shall be
deemed to be in payment of rent
for the use of the easement.
(ii) The same rule shall be applied in
case a new road is opened giving
access to the isolated estate.
(iii) In both cases, the public highway
must substantially meet the needs
of the dominant estate in order
that the easement may be
extinguished.
(6) Right of way ceases to be necessary:

X. Nuisance
A nuisance is any act, omission,
establishment, business, condition of
property, or anything else which:
(1) Injures or endangers the health or safety
of others;
(2) Annoys or offends the senses;
(3) Shocks, defies or disregards decency or
morality;
(4) Obstructs or interferes with the free
passage of any public highway or street,
or any body of water; or
(5) Hinders or impairs the use of property.
Note: To constitute a nuisance there must be
an arbitrary or abusive use of property or
disregard of commonly accepted standards
set by society.
A municipal body has the power to declare
and abate nuisances. BUT it has no power to
find as fact that a particular thing is a
nuisance. The determination of whether or
not a nuisance exists is a judicial function,
because to declare something a nuisance is to
deprive its use. [Iloilo Cold Storage v Mun.
Council of Iloilo (1913)]

A. NUISANCE V. TRESPASS
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Nuisance

Trespass

Use of ones own property in

such a manner as to cause
injury to the property or right
or interest of another, and
generally results from the
commission of an act beyond
the limits of the property
affected.

Direct
infringement of
anothers right
of property.

Injury is consequential.

Injury
immediate.

An act, occupation or structure which is a

nuisance at all times and under any
circumstances, regardless of location or
surroundings.
(2) Nuisance per accidens or in fact
(a) One that becomes a nuisance by
reason
of
circumstances
and
surroundings.
(b) It is not a nuisance by its nature but it
may become so by reason of the
locality, surrounding, or the manner in
which it is conducted, managed, etc.
Note:
Dams or fishponds on noavigable waters are
not nuisance per se. (Monteverde v Generoso
[1928])

is

B. NUISANCE V. NEGLIGENCE
Nuisance

Negligence

Whether
it
was
unreasonable for the
defendant to act as he
did in view of the
threatened danger or
harm
to
one
in
plaintiffs position.

Whether
the
defendants use of
his property was
unreasonable as to
plaintiff,
without
regard
to
foreseeability
of
injury.

Per se

Per accidens

The
wrong
is Proof of the act and
established by proof of its consequences
the mere act. It are necessary.
becomes a nuisance as
a matter of law.

Liability
for
the Liability is based on
resulting
injury
to a want of proper
others regardless of the care
degree of care or skill
exercised to avoid such
injury.
Principles
ordinarily
apply where the cause
of
action
is
for
continuing harm caused
by
continuing
or
recurrent acts which
cause discomfort or
annoyance to plaintiff in
the use of his property.

CIVIL LAW

C.2. ACCORDING TO
INJURIOUS EFFECTS

SCOPE

OF

Test: not the number of persons annoyed but

the possibility of annoyance to the public by
the invasion of its rights the fact that it is in
a public place and annoying to all who come
within its sphere.

Principles ordinarily
apply where the
cause of action is for
harm resulting from
one
act
which
created
an
unreasonable risk of
injury.

(1) Public
The doing of or the failure to do
something that injuriously affects the
safety, health or morals of the public.
It causes hurt, inconvenience or injury to
the public, generally, or to such part of
the public as necessarily comes in
contact with it.

C. CLASSES
C.1. ACCORDING TO NATURE
(1) Nuisance per se or at law

(2) Private

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He who creates a nuisance is liable for the

resulting damages and his liability continues
as long as the nuisance continues.
(1) There must be a breach of some duty on
the part of the person sought to be held
liable for damages resulting from a
nuisance before an action will lie against
him.
(2) No one is to be held liable for a nuisance
which he cannot himself physically abate
without legal action against another for
that purpose.
(3) Where
several
persons,
acting
independently, cause damage by acts
which constitute a nuisance, each is liable
for the damage which he has caused or for
his proportionate share of the entire
damage.

One which violates only private rights

and produces damages to but one or a
few specific persons.
(3) Mixed

D. DOCTRINE
NUISANCE

OF

CIVIL LAW

ATTRACTIVE

One who maintains on his premises dangerous

instrumentalities or appliances of a character
likely to attract children in play, and who fails to
exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable
to a child of tender years who is injured
thereby, even if the child is technically a
trespasser in the premises. [Jarco Marketing
Corp. v. CA (1999)]
Basis of liability The attractiveness is an
invitation to children. Safeguards to prevent
danger must therefore be set up.

E.3. LIABILITY OF TRANSFEREES

The grantee of land upon which there exists a
nuisance created by his predecessors in title is
NOT responsible therefore merely because he
becomes the owner of the premises, or merely
because he permits it to remain.

Note: A swimming pool or water tank is not an

attractive nuisance, for while it is attractive, it
cannot be a nuisance, being merely an
imitation of the work of nature. [Hidalgo
Enterprises v. Balandan (1952)]

He shall be liable if he knowingly continues

the nuisance. Generally, he is not liable for
continuing it in its original form, unless he has
been notified of its existence and requested to
remove it, or has actual knowledge that it is a
nuisance and injurious to the rights of others.

E. LIABILITY IN CASE OF NUISANCE

E.1 WHO ARE LIABLE
Every successive owner or possessor of
property who fails or refuses to abate a
nuisance in that property started by a former
owner or possessor is liable therefor in the
same manner as the one who created it.
(NCC. 696)

If the transferee cannot physically abate the

nuisance without legal action against another
person, then he shall not be liable for such
nuisance.

E.4. NATURE OF LIABILITY

E.2. LIABILITY
NUISANCE

OF

CREATOR

All persons who participate in the creation or

maintenance of a nuisance are jointly and
severally liable for the injury done.

OF

If 2 or more persons who create or maintain

the nuisance act entirely independent of one

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another, and without any community of

interest, concert of action, or common design,
each is liable only so far as his acts contribute to
the injury.

CIVIL LAW

Action for Abatement

(1) The district health officer shall take care
that one or all of the remedies against a
public nuisance are availed of.
(2) If a civil action is brought by reason of the
maintenance of a public nuisance, such
action shall be commenced by the city or
municipal mayor.
(3) The district health officer shall determine
whether or not abatement, without
judicial proceedings, is the best remedy
against a public nuisance.
(4) A private person may file an action on
account of a public nuisance if it is
especially injurious to him.

For solidary liability, there must be some joint

or concurrent act or community of action or
duty, or the several wrongful acts done at
several times must have concurred in their
effects as one single act to produce the injury
complained of.

E.5. RIGHT TO RECOVER DAMAGES

The abatement of a nuisance does not
preclude the right of any person injured to
recover damages for its past existence. [NCC
697]

General rule: An individual has no right of

action against a public nuisance. The
abatement proceedings must be instituted in
the name of the State or its representatives.

Abatement and damages are cumulative

remedies.

Exception: An individual who has suffered

some special damage different from that
sustained by the general public may maintain
a suit in equity for an injunction to abate it, or
an action for damages which he has
sustained.

NO PRESCRIPTION
The action to abate a public or private
nuisance is NOT extinguished by prescription.
[NCC. 1143(2)]

F. REGULATION OF NUISANCES
F.1. PUBLIC NUISANCE

The action becomes a tort if an individual has

suffered particular harm, in which case the
nuisance is treated as a private nuisance with
respect to such person.

Remedies
The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any
local ordinance;
(2) A civil action; or
(3) Extrajudicial abatement.
(a) It must be reasonably and efficiently
exercised
(b) Means employed must not be unduly
oppressive on individuals, and
(c) No more injury must be done to the
property or rights of individuals than is
necessary
to
accomplish
the
abatement.
(d) No right to compensation if property
taken or destroyed is a nuisance.

Requisites of the right of a private individual to

abate a public nuisance
(1) That demand be first made upon the
owner or possessor of the property to
abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the
district health officer and executed with
the assistance of the local police; and
(4) That the value of the destruction does not
exceed P3000.
Rules

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(1) The right must be exercised only in cases of

urgent or extreme necessity. The thing
alleged to be a nuisance must be existing
at the time that it was alleged to be a
nuisance.
(2) A summary abatement must be resorted to
within a reasonable time after knowledge
of the nuisance is acquired or should have
been acquired by the person entitled to
abate.
(3) The person who has the right to abate
must give reasonable notice of his
intention to do so, and allow thereafter a
reasonable time to enable the other to
abate the nuisance himself.
(4) The means employed must be reasonable
and for any unnecessary damage or force,
the actor will be liable. The right to abate is
not greater than the necessity of the case
and is limited to the removal of only so
much of the objectionable thing as actually
causes the nuisance.
(5) The property must not be destroyed unless
it is absolutely necessary to do so.

CIVIL LAW

(2) To enjoin the sale or destruction of the

property;
(3) An action for the proceeds of its sale and
damages if it has been sold; or
(4) To enjoin private parties from proceeding
to abate a supposed nuisance.

XI. Modes of Acquiring

Ownership
(1)
(2)
(3)
(4)
(5)
(6)
(7)

Occupation
By operation of Law
Donation
Tradition
Intellectual Property
Prescription
Succession

Mode is a specific cause which produces

dominion and other real rights as a result of
the co-existence of special status of things,
capacity and intention of persons and
fulfillment of the requisites of law.
Title is every juridical right which gives a
means to the acquisition of real rights but in
itself is insufficient to produce them.

F.2. PRIVATE NUISANCE

Remedies
The remedies against a private nuisance are:
(1) A civil action; or
(2) Extrajudicial abatement.
(a) The procedure for extrajudicial
abatement of a public nuisance by a
private person will also be followed.
(b) The person extrajudicially abating a
nuisance liable for damages if:
(i) If he causes unnecessary injury; or
(ii) If an alleged nuisance is later
declared by the courts to be not a
real nuisance.

It is not by contract but by delivery that the

ownership of property is transferred (Non
nudis pactis, dominia rerum transferentur).
Contracts only constitute titles or rights to
transfer or acquisition of ownership, while
delivery is the mode of accomplishing the
same.
Mode

Title

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

Remedies of the property owner

A person whose property is seized or destroyed
as a nuisance may resort to the courts to
determine whether or not it was in fact a
nuisance.
(1) An action for replevin;

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Proximate cause

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CIVIL LAW

The owner of a swarm of bees shall have a

right to pursue them to anothers land,
indemnifying the possessor of the latter for
the damage.

Title

Essence of the right, Means whereby that

which is to be created essence
is
or transmitted.
transmitted.

If the owner has not pursued the swarm, or

ceases to do so within 2 consecutive days, the
possessor of the land may occupy or retain
the same.

A. OCCUPATION
Note: Ownership of land cannot be acquired by
occupation.

A.1. REQUISITES

The 20 days to be counted from their

occupation by another person. This period
having expired, they shall pertain to him who
has caught and kept them.

(1) The property must be a corporeal personal

property susceptible of appropriation;
(2) The property is either res nullius (no owner)
or res derelict (abandoned property);
(3) There is seizure or apprehension with the
intent to appropriate; and
(4) There is an observance of requisites or
conditions prescribed by law.

OCCUPATION
ANIMALS

OF

DOMESTICATED

Wild animals are possessed only while they

are under one's control; domesticated or
tamed animals are considered domestic or
tame if they retain the habit of returning to
the premises of the possessor.

A.2. KINDS
Of Animals
(1) Wild or feral animals seizure
(hunting/fishing) in open season by means
NOT prohibited.
(2) Tamed/domesticated animals General
Rule: belong to the tamer, but upon
recovering freedom, are susceptible to
occupation UNLESS claimed within 20
days from seizure by another.
(3) Tame/domestic animals not acquired by
occupation EXCEPT when ABANDONED.

PIGEONS AND FISH

Pigeons and fish which from their respective
breeding places pass to another pertaining to
a different owner shall belong to the latter,
provided they have not been enticed by some
artifice or fraud.

HIDDEN TREASURE
He who by chance discovers hidden treasure
in anothers property: shall be allowed to
the finder.

Of Other Personal Property

(1) Abandoned may be acquired
(2) Lost
(3) Hidden treasure finder gets by
occupation; landowner gets by
accession; EXCEPT in CPG system, share
goes to the partnership.

If the finder is a trespasser, he shall not be

entitled to any share of the treasure.
If the things found be of interest to science or
the arts, the State may acquire them at their
just price, which shall be divided in conformity
with the rule stated.

A.3. SPECIAL RULES

OCCUPATION OF A SWARM OF BEES

LOST MOVABLES; PROCEDURE AFTER

FINDING LOST MOVABLES

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CIVIL LAW

Whoever finds a movable, which is not

treasure, must return it to its previous
possessor.
If unknown, the finder shall immediately
deposit it with the mayor of the city or
municipality where the finding has taken place.

(1) Bilateral contract creating unilateral

obligations on the donors part.
(2) Requires CONSENT of BOTH donor and
donee though it produces obligations only
on the side of the DONOR, unless it is an
onerous donation.

The finding shall be publicly announced by the

mayor for two consecutive weeks in the way he
deems best.

B.3. REQUISITES
(1)
(2)
(3)
(4)
(5)

If the movable cannot be kept without

deterioration, or without expenses which
considerably diminish its value, it shall be sold
at a public auction eight days after the
publication.

Consent and capacity of the parties;

Animus Donandi (intent to donate);
Delivery of thing donated;
Form as prescribed by law; and
Impoverishment of donors patrimony and
enrichment on part of donee.

B.4. WHAT MAY BE DONATED

All present property or part thereof of the
donor
(1) Provided he reserves, in full ownership or
usufruct, sufficient means for support of
himself and all relatives entitled to be
supported by donor at the time of
acceptance.
(2) Provided that no person may give or
receive by way of donation, more than he
may give or receive by will (NCC 752);
also, reserves property sufficient to pay
donors debts contracted before donation,
otherwise, donation is in fraud of creditors
(NCC 759, 1387).
(3) If donation exceeds the disposable or free
portion of his estate, the donation is
inofficious.
(4) EXCEPTIONS:
(a) Donations provided for in marriage
settlements between future spouses
must be not more than 1/5 of present
property.
(b) Donation propter nuptias by an
ascendant consisting of jewelry,
furniture or clothing not to exceed
1/10 of disposable portion.

Six months from the publication having

elapsed without the owner having appeared,
the thing found, or its value, shall be awarded
to the finder. The finder and the owner shall be
obliged, as the case may be, to reimburse the
expenses.
If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, onetenth of the sum or of the price of the thing
found.

B. DONATION
Donation is an act of liberality whereby a
person disposes gratuitously of a thing or right
in favor of another, who accepts it.

B.1. OTHER INSTANCES CONSIDERED AS

DONATION
(1) When a person gives to another a thing or
right on account of the latter's merits or of
the services rendered by him to the donor,
provided they do not constitute a
demandable debt.
(2) When the gift imposes upon the donee a
burden that is less than the value of the
thing given.

B.5. WHAT MAY NOT BE DONATED

FUTURE PROPERTY

B.2. NATURE
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(1) Donations cannot comprehend future

property.
(2) Future property is understood as
anything which the donor does not
currently own although the donor may or
may not own it later. (Osorio v Osorio [1921])
(3) Inheritance is NOT considered as future
property. (Osorio v Osorio [1921])

As to minors
Cant be made by
minors

May be made by
minors (FC 78)

As to future property
Cannot include future
property

C. KINDS OF DONATIONS
C.1. AS TO ITS TAKING EFFECT

May include future

property (same rule
as wills)

Limit as to donation of present property

(1) Donation Inter Vivos [NCC 729]

Donation which shall take effect during the
lifetime of the donor, though the property
shall not be delivered till after the donor's
death.

No limit to donation of
present property
provided legitimes are
not impaired.

If present property is
donated and
property regime is
ACP, limited to 1/5.

Grounds for revocation

Irrevocable EXCEPT for the ff grounds:

(a) Subsequent birth of the donors
children;
(b) Donors failure to comply with imposed
conditions;
(c) Donees ingratitude; or
(d) Reduction of donation by reason of
inofficiousness.

Law on donations

See below (FC 86)

Causes for revocation of donation propter

nuptias:
(1) If the marriage is not celebrated or
judicially declared void ab initio, except
donations made in the marriage
settlements;
(2) When the marriage takes place without
the consent of the parents or guardian, as
required by law;
(3) When the marriage is annulled, and the
donee acted in bad faith;
(4) Upon legal separation, the one being the
guilty spouse;
(5) If it is with a resolutory condition and the
condition is complied with; or
(6) When the donee has committed an act of
ingratitude as specified by the provisions
of the Civil Code on donations in general.

(2) Donation by Reason of Marriage/ Donation

Propter Nuptias [FC 86]
Requisites
(a) Must be made BEFORE the celebration
of marriage;
(b) Made in CONSIDERATION of the
marriage; and
(c) Made in FAVOR of ONE or BOTH of the
future spouses.

Ordinary Donations v. Donations Propter

Nuptias
Ordinary
Propter Nuptias

Donation between spouses

General Rule: Every donation or grant of
gratuitous advantage, direct or indirect,
between the spouses during the marriage
shall be VOID. The prohibition applies to

Express acceptance
Necessary

CIVIL LAW

Not required

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persons living together as husband and wife

without a valid marriage.

CIVIL LAW

Inter vivos

Mortis causa
premature
and
ineffective because there
can be no contract
regarding
future
inheritance.

Exception: Moderate gifts which the spouses

may give each other on the occasion of any
family rejoicing.

As to transfer of ownership for right of

disposition

(3) Donation Mortis Causa [NCC 728]

(a) It only becomes effective upon the
death of the donor.
(b) The donors death ahead of the donee
is a suspensive condition for the
existence of the donation.

Ownership
is
immediately
transferred.
Delivery
of
possession
is
allowed
after
death.

Characteristics:
(a) The transferor retains ownership and
control of the property while alive;
(b) The transfer is revocable at will before
his death; and
(c) The transfer will be VOID if the
transferor
should
survive
the
transferee.

As to revocation
Irrevocable may Revocable upon
be revoked only for exclusive will of
the
reasons donor.
provided in CC
760, 764, 765.

Inter Vivos v. Mortis Causa

Inter vivos
Mortis causa

the
the

As to reduction or suppression
When
it
is When it is excessive or
excessive
or inofficious, it is reduced
inofficious, being first, or even suppressed.
preferred, it is
reduced only after
the
donations
mortis causa had
been reduced or
exhausted.

As to formalities
Executed
and
accepted
with
formalities
prescribed by CC.

Upon acceptance by the

donee, but the effect of
such retroacts to the
time of death of the
donor.

Must be in the form of a

will,
with
all
the
formalities for the validity
of wills.

As to effectivity
Effective during the
Effective after the death
lifetime of the
of the donor.
donor.

Notes
The NATURE of the act, whether its one of
disposition
or
of
execution,
is
CONTROLLING to determine whether the
donation is mortis causa or inter vivos.
What is important is the TIME of TRANSFER
of ownership even if transfer of property
donated may be subject to a condition or a
term.

As to acceptance
Acceptance must be
made after the death of
Acceptance must
the donor, the donation
be made during
being effective only after
the lifetime of the
the death of donor.
donor.
Acceptance during the
donors
lifetime
is

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(1) Must be made in a public instrument

specifying the donated property and the
burdens assumed by the donee.
(2) The acceptance must be either:
(a) In the same instrument; or
(b) In another public instrument notified
to the donor in authentic form and
noted in both deeds.
(3) Exceptions:
(a) Donations propter nuptias need no
express acceptance.
(b) Onerous donations form governed
by the rules of contracts.

Whether the donation is inter vivos or mortis

causa depends on whether the donor
intended to transfer ownership over the
properties upon the execution of the deed.
[Gestopa v. CA (2002)]

C.2. AS TO CAUSE OR CONSIDERATION

(1) Simple - made out of pure liberality or
because of the merits of the donee.
(2) Remuneratory - made for services already
rendered to the donor.
(3) Onerous - imposes a BURDEN inferior in
value to property donated.
(a) Improper - burden EQUAL in value to
property donated
(b) Sub-modo or modal - imposes a
prestation upon donee as to how
property donated will be applied.
(c) Mixed donations e.g. sale for price
lower than value of property.

C.3.
AS
TO
EXTINGUISHMENT

EFFECTIVITY

CIVIL LAW

D.2. PERFECTION
Acceptance
(1) Donation is perfected upon the donors
learning of the acceptance.
(2) Acceptance may be made during the
lifetime of both donor and donee.
(3) A document merely correcting the deed of
donation does not constitute a new deed
of donation so there is no need for a new
acceptance (Osorio v Osorio [1921])

OR

(1) Pure donation is without conditions or

periods
(2) Conditional donation is subject to
suspensive or resolutory conditions.
(3) With a term

Who May Accept

Donee: must accept personally or through an
authorized person with special power for the
purpose. [NCC 745]

D. FORMALITIES REQUIRED

Note:
A joint donation (donation to two or more
persons) could not be accepted by a done,
independently of the other donee/s. (Genato v
Lorenzo [1968])

D.1. HOW MADE AND ACCEPTED

Movable properties [NCC 748]
(1) The donation of a movable may be made
orally or in writing.
(2) Oral donation: requires the simultaneous
delivery of the thing or of the document
representing the right donated.
(3) If the value of the movable donated
exceeds P5,000, the donation and the
acceptance should be in writing, otherwise,
the donation is void.

Time Of Acceptance
Acceptance must be done during the lifetime
of the donor and the donee.

D.3. QUALIFICATIONS OF DONORS AND

DONEES

Immovable properties [NCC 749]

Who May Give Donations

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CIVIL LAW

All persons who may contract and dispose of

their property may make a donation. [NCC 735]
(b)
Note:
(1) Donors capacity shall be determined as of
the time of the making of the donation.
[NCC 737]
(2) Capacity to donate is required for
donations inter vivos and NOT in donations
mortis causa.
(3) Donors capacity is determined as of the
time of the donation. Subsequent
incapacity is immaterial.

(c)

(d)

Who May Receive Donations

(1) All who are not specially disqualified by
law. (NCC 738)
(2) Minors and others who cannot enter into a
contract: acceptance may be made
through
their
parents
or
legal
representatives. [NCC 741]
(3) Donations made to conceived and unborn
children: those who would legally
represent them if they were already born
may accept the donations. [NCC 737]

(e)

(f)

Who May Not Give or Receive Donations

(1) By reason of public policy (NCC 739)
(a) Those made between persons guilty of
adultery or concubinage at the time of
the donation;
(b) Those made between persons guilty of
the same criminal offense if the
donation is made in consideration
thereof; or
(c) Those made to a public officer, his
spouse,
descendants,
and/or
ascendants by reason of the office.

(g)

(h)

lead a corrupt or immoral life, or

attempted against their virtue;
Any person who has been convicted of
an attempt against the life of the
testator, his or her spouse,
descendants, or ascendants;
Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for six years
or more, if the accusation has been
found groundless;
Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month,
unless the authorities have already
taken action; this prohibition shall not
apply to cases wherein, according to
law, there is no obligation to make an
accusation;
Any person convicted of adultery or
concubinage with the spouse of the
testator;
Any person who by fraud, violence,
intimidation, or undue influence
should cause the testator to make a
will or to change one already made;
Any person who by the same means
prevents another from making a will,
or from revoking one already made, or
who supplants, conceals, or alters the
latters will;
Any person who falsifies or forges a
supposed will of the decedent.

NCC 1027:
(a) The priest who heard the confession
of the testator during his last illness,
or the minister of the gospel who
extended spiritual aid to him during
the same period;
(b) The relatives of such priest or minister
of the gospel within the fourth degree,
the
church,
order,
chapter,
community,
organization,
or

(2) By reason of the donees unworthiness [NCC

1032 and 1027 except (d)]

NCC 1032:
(a) Parents who have abandoned their
children or induced their daughters to

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institution to which such priest or

minister may belong;
(c) A
guardian
with
respect
to
testamentary dispositions given by a
ward in his favor before the final
accounts of the guardianship have
been approved, even if the testator
should die after the approval thereof;
nevertheless, any provision made by
the ward in favor of the guardian when
the latter is his ascendant, descendant,
brother, sister, or spouse, shall be
valid;
(d) Any physician, surgeon, nurse, health
officer or druggist who took care of the
testator during his last illness; or
(e) Individuals,
associations
and
corporations not permitted by law to
inherit.

(b) When the donation to husband and

wife is joint with the right of accretion
UNLESS
the
donor
provides
otherwise.
(7) Donations by a person to his non-heirs
are collationable. (Liguez v CA)
(8) Donations made to ones heirs must
expressly prohibit collation to be
exempted from collation. (De Roma v CA
[1987])

E.2. SPECIAL PROVISIONS

(1) Reservation by donor of power to dispose
(in whole or in part) or to encumber
property donated [NCC 755]
The donor may reserve the right to
dispose of some things donated, or of
some amount, which shall be a charge
thereon.
But if he should die without having made
use of this right, the property or amount
reserved shall belong to the donee.

(3) By reason of prejudice to creditors or heirs

(voidable)

E. EFFECTS
LIMITATIONS

OF

DONATION

CIVIL LAW

(2) Donation of naked ownership to one donee

and usufruct to another [NCC 756]
The naked ownership and the usufruct
may be donated separately, provided
that all the donees are living at the time
of the donation.

E.1. IN GENERAL
(1) The donee may demand actual delivery of
thing donated;
(2) The donee is SUBROGATED to the rights of
the donor in the property donated;
(3) The donor is NOT obliged to warrant the
things donated EXCEPT in onerous
donations where the donor is liable for
eviction up to the extent of the burden;
[NCC 754]
(4) The donor is liable for EVICTION or
HIDDEN DEFECTS in case of bad faith on
his part; [NCC 754]
(5) In donation propter nuptias, the donor
must RELEASE the property donated from
mortgages and other encumbrances
UNLESS the contrary has been stipulated;
(6) Donations to several donees jointly: NO
right of accretion EXCEPT:
(a) When the donor provides otherwise; or

(3) Conventional reversion in favor of donor or

other person [NCC 757]
If made in favor of the donor: Reversion
may be for any case and circumstance.
If made in favor of other persons: Such
persons must be living at the time of
the donation.
If the rule is violated, the stipulation on
reversion is void but the donation is still
valid.
(4) Payment of donors debt [NCC 758]
If expressly stipulated: the donee must
pay only the debts contracted before the
donation unless specified otherwise. But

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in no case shall the donee be responsible

for debts exceeding the value of the
property donated unless clearly intended.
If theres no stipulation the donee will be
answerable only for the donors debt only
in case the donation is in fraud of
creditors.

CIVIL LAW

illegitimate children, even though

they be posthumous;
(b) If the child of the donor, whom the
latter believed to be dead when he
made the donation, should turn out to
be living; or
(c) If the donor subsequently adopt a
minor child.

(5) Illegal or impossible conditions [NCC 1183]

Impossible conditions: those contrary to
good customs or public policy and those
prohibited by law shall annul the
obligation, which depends upon them.
If the obligation is divisible, that part
thereof which is not affected by the
impossible or unlawful condition shall be
valid.
The condition not to do an impossible
thing shall be considered as not having
been agreed upon.

The donation shall be revoked or reduced

insofar as it exceeds the portion that may be
freely disposed of by will, taking into account
the whole estate of the donor at the time of
the birth, appearance or adoption of a child.
(8) Inofficious Donations
(a) The donation shall be reduced with
regard to the excess.
(b) But this reduction shall not prevent
the donations from taking effect
during the life of the donor, nor shall
it bar the donee from appropriating
the fruits.
(c) Only those who, at the time of the
donor's death, have a right to the
legitime and their heirs and
successors-in-interest may ask for the
reduction or inofficious donations.
(d) If, there being two or more donations,
the disposable portion is not sufficient
to cover all of them, those of the more
recent date shall be suppressed or
reduced with regard to the excess.

(6) Double donations

Rule: Priority in time, priority in right.
If movable: one who first took possession
in good faith.
If immovable: one who recorded in registry
of property in good faith
o If there is no inscription, the one who
first took possession in good faith.
o If there is no possession, one who can
present the oldest title.
(7) Excessive/Inofficious Donations
A type of donation in which a person gives or
receives more than what he may give or receive
by will. [NCC 752]

(9) Scope of amount [NCC 750-752]

(a) The donations may comprehend all
the present property of the donor, or
part thereof.

Donation inter vivos, made by a person having

no children or descendants, legitimate or
legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced by the
happening of any of these events:
(a) If the donor, after the donation, should
have legitimate or legitimated or

Provided he reserves, in full ownership

or in usufruct, sufficient means for the
support of himself, and of all relatives
who, at the time of the acceptance of
the donation, are by law entitled to be
supported by the donor

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(b) Donations cannot comprehend future

property.

CIVIL LAW

Revocation

Reduction

Total withdrawal of
Amount is only insofar
amount, whether
as the legitime is
the legitime is
prejudiced
impaired or not

Future property is understood anything

which the donor cannot dispose of at
the time of the donation.
(10) In fraud of creditors [NCC 759]
(a) Donation is always presumed to be in
fraud of creditors, when at the time
thereof the donor did not reserve
sufficient property to pay his debts
prior to the donation.
(b) The donee shall be responsible
therefor only when the donation has
been made in fraud of creditors.

Benefits the donor

Benefits the donors

heirs (except when
made on the ground of
the appearance of a
child)

G.1. GROUNDS FOR REDUCTION

(1) Inofficiousness
A donation where a person gives or
receives more than what he may give or
receive by will is inofficious. [NCC 752]
(2) Subsequent birth, reappearance of child or
adoption of minor by donor

F. VOID DONATIONS [NCC 739-740,

1027]
F.1. THOSE MADE BETWEEN PERSONS
WHO WERE GUILTY OF ADULTERY OR
CONCUBINAGE AT THE TIME OF THE
DONATION

Effects of subsequent birth, reappearance or

adoption:
(a) A donation is VALID if it does not
exceed the free part computed as of
the birth, adoption or reappearance of
the child.
(b) The donee must return the property or
its value at the time of the donation.
(c) The fruits must be returned from the
filing of the action.
(d) Mortgages by the donee are valid but
may be discharged subject to
reimbursement from the donee.

NOTE: The spouse of the donor or donee may

bring the action for declaration of nullity and
the guilt of the donor and donee may be
proved by preponderance of evidence in the
same action.

F.2. THOSE MADE BETWEEN PERSONS

FOUND GUILTY OF THE SAME CRIMINAL
OFFENSE, IN CONSIDERATION THEREOF
F.3. THOSE MADE TO A PUBLIC OFFICER
OR HIS WIFE, DESCENDANTS AND
ASCENDANTS, BY REASON OF HIS
OFFICE

Extent of revocation: only to the extent of the

presumptive legitime of the child.
(a) Insufficient means of support
(b) In fraud of creditors
(c) Prescription 4 years from either:
(i) Birth of first legitimate child;
(ii) Legitimation,
adoption,
recognition of first child;
(iii) Judicial declaration of filiation; or

F.4. THOSE MADE TO PERSONS

INCAPACITATED TO SUCCEED BY WILL.
[NCC. 1027]

G. REVOCATION V. REDUCTION

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(iv) Knowledge of information on the

existence of a child believed to be
dead.

Effect as to fruits [NCC 768]

When the donation is revoked for any of the
causes stated in NCC 760, or by reason of
ingratitude, or when it is reduced because it is
inofficious, donee shall not return the fruits
except from the filing of the complaint.

REVOCATION
(1) Failure to comply with any of the
conditions imposed by the donor upon the
donee
(2) For additional legitime for subsequent
birth, reappearance or adoption
(3) Ingratitude
The following cases are forms of
ingratitude:
(1) If the donee should commit some offense
against the person, the honor or the property
of the donor, or of his wife or children under his
parental authority;
(2) If the donee imputes to the donor any criminal
offense, or any act involving moral turpitude,
even though he should prove it, unless the
crime or the act has been committed against
the donee himself, his wife or children under
his authority; or
(3) If he unduly refuses him support when
the donee is legally or morally bound
to give support to the donor.

If the revocation is based upon

noncompliance with any of the conditions
imposed in the donation, the donee shall
return not only the property but also the
fruits thereof which he may have received
after having failed to fulfill the condition.

Applies to all donations EXCEPT:

(1)
Mortis causa
(2)
Propter nuptias
(3)
Onerous donations
Notes:
(1) Founded on moral duty: one who received
a donation must be grateful to his
benefactor.
(2) Conviction is NOT necessary.
(3) Time to file action for revocation within
1yr from knowledge of the offense.
Who may file
Donor must bring action
transmissible to his heirs.

himself;

CIVIL LAW

not

Effect of revocation on alienations and

encumbrances [NCC 766]
(1) Alienations and mortgages effected
before the notation of the complaint for
revocation in the Registry of Property shall
subsist.
(2) Later ones shall be void.

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CIVIL LAW

What may be donated

All present property of the donor or part thereof

Limitation:
(1) He reserves in full ownership or in usufruct,
sufficient means for his support and for all
relatives who are at the time of the acceptance
of the donation are, by law, entitled to be
supported
Effect of non-reservation: reduction of the
donation
(2) He reserves sufficient property at the time of
the donation for the full settlement of his debts
Effect of non-reservation: considered to be a
donation in fraud of creditors, and donee may
be liable for damages

What may not be donated

(1) Future property; those which the donor cannot
dispose of at the time of the donation [NCC 751]
(2) More than what he may give or receive by will
[NCC 752]
If exceeds: inofficious
Donations made to several persons jointly
No accretion one donee does not get the share Exception: those given to husband and wife,
of the other donees who did not accept (Article except when the donor otherwise provides
753)
Donor
Who are allowed: All persons who may contract (of Who are not allowed:
legal age) and dispose of their property [NCC 735] (1) Guardians and trustees with respect to the
property entrusted to them [NCC 736]
Donors capacity is determined at the time of the (2) Made between person who are guilty of
making of donation [NCC 737]
adultery or concubinage [NCC 739]
Made between persons found guilty of the same
criminal offense, in consideration thereof [NCC
739]
Donee
Who are allowed to accept donations: Those who Who are not allowed:
are not specifically disqualified by law (Article 738) (1) Made between person who are guilty of
adultery or concubinage [NCC 739]
Those who are allowed, with qualifications:
(2) Made between persons found guilty of the
(1) Minors and others who are incapacitated (see
same criminal offense, in consideration thereof
Article 38), provided that their acceptance is
[NCC 739]
done through their parents or legal (3) Made to a public officer or his wife, descendant
representatives [NCC 741]
and ascendants, by reason of his office [NCC

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CIVIL LAW

(2) Conceived and unborn children, provided that

739]
the donation is accepted by those who would (4) Those who cannot succeed by will [NCC 740]
legally represent them if they were already
born
Those made to incapacitated persons, although
simulated under the guise of another contract
[NCC 743]
Acceptance of the donation
Who may accept [NCC 745]
When to accept: during the lifetime of the donor or
(1) Donee personally
donee [NCC 746]
(2) Authorized person with a special power for the
purpose or with a general sufficient power
What the donee acquires with the thing
He shall be subrogated to all the rights and
actions that would pertain to the donor in case of
eviction [NCC 754]
Obligation of the donor
No obligation to warrant [NCC 754]

Exception: when the donation is onerous

Obligation of the donee

If the donation so states, the donee may be Exception: when contrary intention appears
obliged to pay the debts previously contracted by
the donor and in no case shall he be responsible
for the debts exceeding the value of the thing
donated [NCC 758]
What may be reserved by the donor
Right to dispose of some of the things donated, or If the donor dies without exercising this right
of some amount which shall be a charge thereon
Reversion
The property donated may be restored or returned Limitation to (2): the third person would be living
to
at the time of the donation
(1) Donor or his estate; or
(2) Another person
Revocation/Reduction
Time of Action

Transmissibility

Effect

Liability (Fruits)

Birth, appearance, adoption

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

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Time of Action

Transmissibility

CIVIL LAW

Effect

Liability (Fruits)

recover the amount from

the donee
Non-compliance with condition
Within 4 years from non- May be transmitted to
compliance
donors heirs and may
be exercised against
donees heirs

Property
returned, Fruits received after
alienations
and having failed to fulfill
mortgages void subject condition returned
to rights of third persons
in good faith

Ingratitude
Within 1 year after Generally
not
knowledge of the fact transmitted to heirs of
and it was possible for donor/ donee
him to bring the action

Property returned, but Fruits received from the

alienations
and filing of the complaint
mortgages
effected returned
before the notation of
the
complaint
for
revocation in the registry
of property subsist

Failure to reserve sufficient means for support

At any time, by the
donor
or
relatives Not transmissible
entitled to support

Reduced to the extent Donee entitled

necessary to provide
support

Inofficiousness for being in excess of what the donor can give by will
Within 5 years from the Transmitted to donors Donation takes effect on Donee entitled
death of the donor
heirs
the lifetime of donor.
Reduction only upon his
death with regard to the
excess
Fraud against creditors
Rescission within 4 Transmitted to creditors Returned for the benefit Fruits
returned/
if
years
from
the heirs or successors-in- of the creditor who impossible, indemnify
perfection of donation/ interest
brought the action
creditor for damages
knowledge
of
the
donation

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alienates a thing but remains in

possession in another concept as lesee
or depositary.
(3) Quasi tradition: delivery of incorporeal
things or rights by the use by the grantee
of his rights with the grantors consent.
(4) Tradicion by operation of law: delivery
which is not included in the foregoing
modes of delivery and where the delivery is
effected solely by virtue of an express
provision of law.

C. TRADITION
It is a derivative mode of acquiring ownership
and other real rights by virtue of which, there
being intention and capacity on the part of the
grantor and grantee and the pre-existence of
said rights in the estate of the grantor, they are
transmitted to the grantee through a just title.
REQUISITES
(1) Pre-existence in the estate of the grantor
of the right to be transmitted;
(2) Just cause or title for the transmission;
(3) Intention on the part of the grantor to
grant and on the part of the grantees to
acquire;
(4) Capacity to transmit and to acquire; and
(5) An act that gives it outward form,
physically, symbolically, or legally.

Prescription
DEFINITION
By prescription, one acquires ownership and
other real rights through the lapse of time in
the manner and under the conditions laid
down by law.

PURPOSE
(1) Ownership is transferred, among other
means, by tradition.
(2) The delivery of a thing constitutes a
necessary and indispensable requisite for
the purpose of acquiring the ownership of
the same by virtue of a contract.
KINDS
(1) Real Tradition: physical delivery
(2) Constructive Tradition: when the delivery of
the thing is not real or material but
consists merely in certain facts indicative of
the same
(a) Symbolical Tradition: done through the
delivery of signs or things which
represent that which is being
transmitted. (e.g. keys or title itself)
(b) Tradition by public instrument: consists
in the substitution of real delivery of
possession by a public writing with the
delivery of a document which
evidences the transaction.
(c) Tradicio longa manu: made by the
grantor pointing out to the grantee the
thing to be delivered.
(d) Tradicio brevi manu: takes place when
the grantee is already in possession of
the thing. (e.g. when the lessee buys
the thing leased to him)
(e) Tradicion constitutum possessorium:
similar to brevi manu but in the
opposite sense when the owner

CIVIL LAW

In the same way, rights and conditions are lost

by prescription.
It is a means of acquiring ownership and other
real rights or losing rights or actions to enforce
such rights through the lapse of time.
RATIONALE
It is purely statutory in origin. It is founded on
grounds of public policy which requires for the
peace of society, that juridical relations
susceptible of doubt and which may give rise to
disputes, be fixed and established after the
lapse of a determinate time so that ownership
and other rights may be certain for those who
have claim in them.
KINDS OF PRESCRIPTION
(1)
Acquisitive prescription
(2)
Extinctive prescription
ACQUISITIVE PRESCRIPTION
(1) The acquisition of ownership and other real
rights through possession of a thing in the
manner and condition provided by law.
(2) May be ordinary or extraordinary:
(a) Ordinary: requires possession of things in good
faith and with just title for the time fixed by
law.

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(b) Extraordinary: acquisition of ownership and

other real rights without need of title or of
good faith or any other condition.

ownership and other of rights, whether real

real rights
or personal
Vests the property and Vests the property and
raise a new title in the raise a new title in the
occupant
occupant

Prescription where possession in good faith

converted into possession in bad faith:
Ordinary
(1)
Movable properties - 4 years
(2)
Immovable properties - 10 years
Extraordinary:
(1)
Movable properties - 8 years
(2)
Immovable properties - 30 years
As a mode of acquisition, prescription requires
existence of following:
(1) Capacity of the claimant to acquire by
prescription;
(2) A thing capable of acquisition by
prescription;
(3) Adverse possession of the thing under
certain conditions; and
(4) Lapse of time provided by law.

Merely results in the

loss of a real or
personal right, or bars
the cause of action to
enforce said right

Can be proven under

the general issue
without
its
being
affirmatively pleaded

Should
be
affirmatively pleaded
and proved to bar the
action or claim of the
adverse party

BY OFFENDER
The offender can never acquire, through
prescription, movable properties possessed
through a crime.
REGISTERED LANDS
PD 1529 (AMENDING AND CODIFYING THE
LAWS RELATIVE TO REGISTRATION OF
PROPERTY AND FOR OTHER PURPOSES)
No title to registered land in derogation of the
title of the registered owner shall be acquired
by prescription or adverse possession.

Note:
For extraordinary prescription, only first 4 are
required
Possession has to be in the concept of an
owner, public, peaceful, and uninterrupted.

RIGHTS
NOT
EXTINGUISHED
BY
PRESCRIPTION [NCC 1143]
(1) To demand a right of way, regulated by
NCC 649;
(2) To bring an action to abate a public or
private nuisance.

EXTINCTIVE PRESCRIPTION
The loss or extinguishment of property rights
or actions through the possession by another
of a thing for the period provided by law or
through failure to bring the necessary action to
enforce ones right within the period fixed by
law.

ACTION TO QUIET TITLE IF PLAINTIFF IS IN

POSSESSION
(1) When plaintiff is in possession of the
property: the action to quiet title does not
prescribe.
(2) The reason is that the owner of the property
or right may wait until his possession is
disturbed or his title is assailed before
taking steps to vindicate his right.

Acquisitive Prescription Extinctive Prescription

Applicable

Results
in
the
acquisition
of
ownership or other
real rights in a person
as well as the loss of
said ownership or real
rights in another

NO PRESCRIPTION APPLICABLE

The following are only required in ordinary

prescriptions:
(1)
Good faith of the possessor; and
(2)
Proof of just title

Requires
positive
action of the possessor
(a claimant) who is not
the
Owner

CIVIL LAW

Requires inaction of
the owner out of
possession or neglect
of one with a right to
bring his action

to Applicable to all kinds

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VOID CONTRACTS
(1) The action or defense for the declaration of
the inexistence of a contract does not
prescribe. [NCC 1410]
(2) The title is susceptible to direct as well as
to collateral attack. [Ferrer v. Bautista,
1994]

(1) The action rescribes in 8 years from the

time the possession thereof is lost. [NCC
1140]
(2) However, the action shall not prosper if it is
brought after 4 years when the possessor
has already acquired title by ordinary
acquisitive prescription. [NCC 1132]
(3) If the possessor acquired the movable in
good faith at a public sale, the owner
cannot obtain its return without
reimbursing the price paid.

ACTION TO DEMAND PARTITION

No prescription shall run in favor of a co-owner
or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes
the co-ownership. [NCC 494]

TO RECOVER IMMOVABLES
(1) Real actions prescribe after 30 years [NCC
1141]
(2) UNLESS the possessor has acquired
ownership of the immovable by ordinary
acquisitive prescription through possession
of 10 years. [NCC 1134]
(3) Action for reconveyance
(a) Based on fraud: Prescribes 4 years from
the discovery of fraud.
(b) Based on implied or constructive trust:
10 years from the alleged fraudulent
registration or date of issuance of
certificate of title over the property.

PROPERTY OF PUBLIC DOMINION

Prescription, both acquisitive and extinctive,
does not run against the State in the exercise
of its sovereign function to protect its interest
EXCEPT with respect to its patrimonial
property which may be the object of
prescription. (NCC 1113)
PRESCRIPTION
LACHES

DISTINGUISHED

Prescription

FROM

Laches

Concerned with the Concerned with the

fact of delay
effect of delay

OTHER ACTIONS
(1) Action to foreclose mortgage: prescribes
after 10 years from the time the obligation
secured by the mortgage becomes due and
demandable
(2) Actions that Prescribe in 10 Years [NCC
1144]
(a) Upon a written contract
(b) Upon an obligation created by law
(c) Upon a judgment

A question or a matter Principally a question

of time
of
inequity
of
permitting a claim to
be
enforced,
this
inequity being founded
on some subsequent
change
in
the
condition
or
the
relation of the parties
Statutory

NOT statutory

Applies at law

Applies at equity

The computation of the period of

prescription of any cause or right of action,
which is the same as saying prescription of
the action, should start from the date the
cause of action accrues or from the day the
right of the plaintiff is violated. [Nabus v.
CA, 1991]

Cannot be availed of Being a defense of

unless it is especially equity, need not be
pleaded
as
an specifically pleaded
affirmative allegation
Based on a fixed time

CIVIL LAW

NOT based on a fixed

time

PRESCRIPTION OR LIMITATION OF ACTIONS

(3) Actions that Prescribe in 6 Years [NCC 1145]

(a) Upon an oral contract
(b) Upon a quasi-contract

TO RECOVER MOVABLE PROPERTIES

(4) Actions that Prescribe in 4 Years [NCC 1145]

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(a) Upon an injury to the rights of the

plaintiff
(b) Upon a quasi-delict
BUT when the action arises from any act of
any public officer involving the exercise of
powers arising from Martial Law including
the arrest, detention and/or trial of the
plaintiff, the same must be brought within
1 year.

CIVIL LAW
starts anew the prescriptive period [The
Overseas Bank of Manila v. Geraldez, (1979)]
Not all acts of acknowledgement of a debt
interrupt prescription. To produce such
effect, the acknowledgment must be
written, so that the payment, if not
coupled with the communication signed by
the payor would interrupt the running of
the period of prescription [PNB v. Osete
(1968)]

(5) Actions that Prescribe in One Year or Less

[NCC 1147]
(a) For forcible entry or unlawful detainer
(b) For defamation
(6) Other Actions that Prescribe in 1 Year under
the Civil Code
(a) To recover possession de facto [NCC
554 (4)]
(b) To revoke a donation on the ground of
ingratitude [NCC 769]
(c) To rescind or recover damages if
immovable is sold with non-apparent
burden or servitude [NCC 1560 (3,4)]
(d) To enforce warranty of solvency in
assignment credits [NCC 629]
(7) Where Periods of Other Actions Not Fixed in
the Civil Code and in Other Laws
All other actions whose periods are not
fixed in the Civil Code or in other laws must
be brought within 5 years from the time
the right of action accrues. [NCC 1149]
(8) Interruption [NCC 1155]
The prescription of actions is interrupted
when:
(a) They are filed before the court
(b) When there is a written extrajudicial
demand by the creditors
(c) When
there
is
any
written
acknowledgment of the debt by the
debtor
Civil actions are deemed commenced from
the date of the filing and docketing of the
complaint with the Clerk of Court. [Cabrera
v. Riano (1963)]
A written extrajudicial demand wipes out
the period that has already elapsed and

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OBLIGATIONS

CIVIL LAW

CIVIL LAW

OBLIGATIONS

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OBLIGATIONS

I. DEFINITION

CIVIL LAW

Classification of Obligations
AS TO SANCTION
(1) CIVIL OBLIGATION (or perfect obligation)
give a right of action to compel their
performance; the sanction is judicial
process
(2) NATURAL OBLIGATION midway
between civil and purely moral
obligations; there is a juridical tie, but
performance is left to the will of the
debtor; after voluntary fulfillment by the
obligor, the sanction is the law
(3) MORAL OBLIGATION (or imperfect
obligation) the sanction is conscience or
morality

Art. 1156. An obligation is a juridical necessity

to give, to do or not to do.
Elements of an Obligation
(1) ACTIVE SUBJECT (Obligee/Creditor): The
person who has the right or power to
demand the prestation.
(2) PASSIVE SUBJECT (Obligor/Debtor): The
person bound to perform the prestation.
(3) PRESTATION (Object): The conduct
required to be observed by the
debtor/obligor (to give, to do, or not to
do).
(4) VINCULUM JURIS (Juridical or Legal Tie;
Efficient Cause): That which binds or
connects the parties to the obligation. (De
Leon)

Natural Obligations
Art. 1423. Obligations are civil or natural.
Civil obligations give a right of action to
compel
their
performance.
Natural
obligations, not being based on positive law
but on equity and natural law, do not grant
a right of action to enforce their
performance, but after voluntary fulfillment
by the obligor, they authorize the retention
of what has been delivered or rendered by
reason thereof. Some natural obligations are
set forth in the following articles.

Different Kinds of Prestations

(1) TO GIVE: real obligation; to deliver either
(a) a specific or determinate thing, or (b) a
generic or indeterminate thing.
(2) TO DO: positive personal obligation;
includes all kinds of work or service.
(3) NOT TO DO: negative personal obligation;
to abstain from doing an act; includes the
obligation not to give.

Natural obligations are midway between civil

obligations and purely moral obligations. It is
distinguished from moral in that it produces
some juridical effects (ex. Right to retention),
but is distinguished from moral in that it does
not give rise to an action to compel its
performance [Tolentino].

Requisites of a Prestation:
(1) Must be possible, physically and
juridically;
(2) Must be determinate, or at least,
determinable;
(3) Must have a possible equivalent in
money.

Payment is voluntary when the debtor knows

that the obligation is a natural one.

Art. 1156 provides the definition of civil

obligations only; it does not cover natural
obligations.

Fulfillment does not refer only to the delivery

of things, but also to the performance of an
act, the giving of security, and the execution of
a document.

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Rules:
(1) The promise to perform a natural
obligation is as effective as performance
itself, and converts the natural obligation
to a civil obligation.
(2) Partial payment of a natural obligation
does not make it civil; the part paid
cannot be recovered, but payment of the
balance cannot be enforced. The
exception would be if the natural
obligation is susceptible of ratification.
(3) Guaranties for the performance of a
natural obligation are valid.
(4) Payment of a natural obligation is not
subject to reduction by reason of
inofficiousness, appearance of children or
ingratitude.

CIVIL LAW

Requisites under Art 1424

(1) There is a civil obligation
(2) The right to sue upon it has already
lapsed by extinctive prescription
(3) Obligor performs contract voluntarily
Consequence: Obligor cannot recover what he
has delivered or value of the service he
rendered.
Art. 1425. When without the knowledge or
against the will of the debtor, a third person
pays a debt which the obligor is not legally
bound to pay because the action thereon
has prescribed, but the debtor later
voluntarily reimburses the third person, the
obligor cannot recover what he has paid.
Requisites under Art 1425
(1) There is a debt
(2) Action upon the debt has prescribed
(3) A third person, without the knowledge or
against the will of the debtor, pays the
debt
(4) Debtor voluntarily reimburses the third
person

The contractor builds additional works, but is

paid the additional cost of such works. Payor
characterizes the payment as a "mistake," and
not a "voluntary" fulfillment under Art. 1423 of
the Civil Code. Hence, it urges the application
of the principle of solution indebiti. However, it
is not enough to prove that the payments
made by payor to contractor were "not due"
because there was no prior authorization or
agreement with respect to additional works.
There is a further requirement that the
payment by the debtor was made either
through mistake or under a cloud of doubt. In
short, for the provisions on solution indebiti to
apply, there has to be evidence establishing
the frame of mind of the payor at the time the
payment was made [Uniwide v Titan-Ikeda,
2006].

Consequence: Obligor cannot recover what he

has paid.
Art. 1426. When a minor between eighteen
and twenty-one years of age who has
entered into a contract without the consent
of the parent or guardian, after the
annulment of the contract voluntarily
returns the whole thing or price received,
notwithstanding the fact that he has not
been benefited thereby, there is no right to
demand the thing or price thus returned.

Examples of Natural Obligations

Art. 1424. When a right to sue upon a civil
obligation
has
lapsed
by
extinctive prescription, the obligor who
voluntarily performs the contract cannot
recover what he has delivered or the value of
the service he has rendered.

Art. 1427. When a minor between eighteen

and twenty-one years of age, who has
entered into a contract without the consent
of the parent or guardian, voluntarily pays a
sum of money or delivers a fungible thing in
fulfillment of the obligation, there shall be
no right to recover the same from the
obligee who has spent or consumed it in
good faith.

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Art 1426 and 1427 Distinguished

1426
1427
Presupposes a prior No prior annulment
annulment
is involved
Refers to any object
Refers to money or
fungible things
Consumption
in Requires
good faith is not consumption in good
required
faith

law, but one of the intestate heirs, after the

settlement of the debts of the deceased,
pays a legacy in compliance with a clause in
the defective will, the payment is effective
and irrevocable.
Requisites under Art 1430
(1) There is a will providing for a legacy
(2) The will is declared void because it was
not executed in accordance with the
formalities required by law
(3) Heir pays legacy

Art. 1428. When, after an action to enforce a

civil obligation has failed the defendant
voluntarily performs the obligation, he
cannot demand the return of what he has
delivered or the payment of the value of the
service he has rendered.
Requisites under Art 1428
(1) There is a civil obligation
(2) An action to enforce such has failed
(3) Defendant voluntarily performs
obligation

CIVIL LAW

Consequence:
irrevocable.

Payment

is

effective

and

As to Subject Matter
(1) REAL obligation to give
(2) PERSONAL obligation to do or not to do
the
As to the Affirmativeness or Negativeness of the
Obligation
(1) POSITIVE/AFFIRMATIVE obligation to
give or to do
(2) NEGATIVE: obligation not to give or not
to do

Consequence: Defendant cannot demand

return of what he has delivered or the payment
of the value of the service
Art. 1429. When a testate or intestate heir
voluntarily pays a debt of the decedent
exceeding the value of the property which he
received by will or by the law of intestacy
from the estate of the deceased, the
payment is valid and cannot be rescinded by
the payer.

As to Persons Obliged
(1) UNILATERAL only one of the parties is
bound
(2) BILATERAL both parties are bound
a. Reciprocal performance by one is
dependent on the performance by the
other
b. Non-reciprocal performance by one
is independent of the other [Paras]

Requisites under Art 1429

(1) Decedent incurred in debt during his
lifetime
(2) Heir voluntarily pays debt
(3) Value of debt exceeds value of heirs
inheritance

Sources of Obligations
Art. 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts.

Consequence: Payment is valid and heir cannot

rescind it.
Art. 1430. When a will is declared void
because it has not been executed in
accordance with the formalities required by

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