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Paternity and Filiations

Paternity and Filiations are two concepts that go together. However, they do not mean
the same thing. Paternity refers to the relation of parents with respect to their children.
Filiations refer to the relation of children with respect to their parents. It is under the concept
of filiations where one speaks of legitimate, illegitimate and legitimated children. There is no
such thing as legitimate and illegitimate parents.
2 types of filiations:
1. filiations by nature there is a blood relation. Filiations by nature may be
legitimate and illegitimate.
2. filiations by fiction of law there may be no blood relation. Filiations by fiction
of law are created by adoption.
Types of Children:
1. Legitimate children
a.) children who are conceived or born during a valid marriage
b.) children who are born out of artificial insemination
Requisites:
i. donor may be the husband, a third party, or a mixture of both
ii. consent of both husband and wife must be in writing
iii. consent must be given before the birth of the child
If the requisites for artificial insemination are not complied with, the child shall be
considered as illegitimate, notwithstanding the fact that the child was conceived or born
during the subsistence of a valid marriage.
For purposes of determining filiations, the time when conception occurred would
matter when the child is posthumous. To determine the time of conception, count 300 days
backwards from the date of birth, and then count 3 months forward.
For marriages which were annulled, the children shall be considered legitimate if
they were conceived or born before the judicial decree of annulment was issued.
For void marriages, the general rule is that the children born thereof are considered as
illegitimate. The exceptions are when the marriage is declared null and void on the ground of
psychological incapacity under Article 36, or for failure to liquidate the conjugal properties
and distribute the presumptive legitimes to the children under Article 52.
2. Illegitimate children are those conceived and born outside of the marriage.
3. Legitimated children, like illegitimate children, are conceived and born outside of the
marriage. At the time of the conception of the child, the parents were not disqualified
by any impediment to marry each other. The marriage of the parents is the act which
legitimizes the status of the child, and such retroacts to their date of birth. Upon
legitimation, entries in the birth certificate shall be changed to reflect the legitimation
of the child.
Rules governing the status of a child if the mother contracted a subsequent marriage:

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1.

If the child is born within 180 days from the celebration of the second
marriage, and within 300 days from the termination of the first marriage the
child is that of the first marriage
2.
If the child is born after 180 from the second marriage the child is that of the
second marriage
The rules are subject to proof to the contrary.
Termination of the first marriage refers to termination by:
1. death
2. nullity but a different rule governs, since the child is considered illegitimate.
Article 168 covers legitimate children of either the first or second marriage.
3. annulment
Actions involving filiations:
1. to impugn legitimate status
applies when the child is born legitimate (conceived or born during a valid
marriage)
does not apply if the child is born illegitimate (conceived and born outside
a valid marriage)
there is no such thing as an action to impugn an illegitimate status
Who can file an action to impugn the legitimate status of the child and what are the periods
for filing the action?
As a general rule, only the husband can file the action to impugn the legitimate status
of a child. The prescriptive periods to file action to impugn legitimate status:
a.) if residing in the municipality or city where the child was born 1 year from
knowledge of birth or recording
b.) if residing in the Philippines 2 years from knowledge of birth or recording
c.) if residing abroad 3 years from knowledge of birth or recording
d.) for concealed or unknown birth 1, 2, or 3 years counted from the knowledge of
the birth of the child or from its recording, whichever is earlier
In actions to impugn filiation, the recording of the birth does not give rise to constructive
knowledge on the part of the father. There must be actual knowledge of the birth or recording
before the periods start to run.
An exception to the general rule would be the heirs of the husband (other legitimate
children, parents, brothers and sisters), who may file the action in the following cases:
a.) husband dies before the expiration of the period the heirs have the remaining
period to file the action
b.) posthumous birth of the child 1, 2, or 3 years from the knowledge of the birth or
recording
c.) husband dies and the heirs continue the action filed by the husband
The wife cannot bring an action to impugn the legitimacy of the child, even if she is
sentenced as an adulteress. An exception would be in case of artificial insemination where

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the consent of the wife was obtained through fraud, violence, mistake, intimidation or undue
influence.
A child who is born legitimate cannot bring an action to impugn his legitimacy (Liyao
v. Liyao). When a child is born to a married woman, the child is deemed to be a legitimate
child of the marriage. The child cannot claim illegitimate status as against his or her
biological father without impugning his legitimate status, for a child cannot have two status
under the law. The only person who can impugn the legitimate status of the child is the
husband of the childs mother.
Grounds to impugn legitimacy:
a.)
physical impossibility of access

does not refer to actual contact, only to physical impossibility of

access

if there is a showing that access was possible, the action will fail

the enumeration of the Family Code is not exclusive

examples are:
impotency
living separately
serious illness
b.)
biological or scientific reasons

Blood Grouping Test conclusive as to non-paternity

D. N. A. Test acceptance of the test has not yet been ruled

upon by the Supreme Court
c.)
mistake, fraud, violence, intimidation, or undue influence in obtaining
consent for artificial insemination
2. to claim legitimate or illegitimate filiation
When can an action to claim legitimate filiation be brought?
It can be brought only when a child is born without any status as when:
a.) the child is born after 300 days following the termination of the marriage of his
parents
b.) the child is born following the celebration of the second marriage of the parents
Other than the two scenarios, there is no other way of applying the provisions on actions to
claim legitimate filiation.
Who can bring the action to claim legitimacy or illegitimacy?
Legitimacy
General Rule: the child during his lifetime, regardless of whether the father
is still alive or not.
Purpose: succession and surname

Exception: the heirs of the child in case the child dies during minority, or
dies during insanity, within five years counted from the death of the child.

Illegitimacy
The child (1) during his lifetime, if he is presenting primary evidence; (2)
during the lifetime of the child and his parents, if he is presenting secondary
evidence.
There is no exception to this rule. The heirs of the child cannot bring the
action. The reference to Article 173 is only as to the period to bring the action.
Under the Civil Code, minors have until four years from attaining the age of majority
to bring an action to claim illegitimate status. The rule applies when the child was born
during the effectivity of the Civil Code and was still a minor upon the effectivity of the
Family Code. (Bernabe v. Alejo)
Evidence to prove filiation, whether legitimate or illegitimate status
1. primary evidence - record of birth appearing in the civil register, a final judgment,
an admission of legitimate filiation in a public instrument or a private handwritten
instrument and signed by the parent concerned
Record of birth
appears in the civil registry
only prima facie evidence of filiation, not conclusive evidence of filiation
in the absence of contrary evidence, it becomes conclusive
Birth certificate
primary evidence of record of birth and of filiation of the child
public record
Final judgment
deals with filiation of the child
occurs when the filiation of the child is dealt with as a collateral issue in
the court proceeding
the principle of res judicata applies
filiation can be collaterally attacked
Admission of the parents
in a public instrument or in a private handwritten instrument
similar to attested or holographic wills
the signature of the father in the birth certificate is deemed an admission
of filiation
Baptismal certificate
evidence of the administration of the sacrament of baptism

not considered as evidence of birth

not in the same degree of evidence as birth certificates

2. Secondary evidence open and continuous possession of the status of a legitimate

or illegitimate child, or other means allowed by the Rules of Court and special
laws.
the plaintiff must show to court why primary evidence cannot be presented
Open and continuous possession of the status of a child, whether legitimate or
illegitimate
open means it must not be clandestine in character
continuous means consistency; there must be no denial in any point in
time
spontaneity means it must come directly from the alleged father
Pictures alone do not establish filiation. Such evidence must be supported by other
pieces of evidence.
Other means allowed by the Rules of Court and Special laws
Rules of Court:
a. acts and declarations involving pedigree
from somebody already dead or out of the country
present something which the person, who is unable to testify, did
while still alive or in the country which would relate him to the
person filing the action
b. family tradition
c. common reputation considered as the weakest of the types of evidence
Impugning legitimation of a child
Parties: those who are prejudiced in their rights (this involves only the heirs, and
excludes economic creditors)
Time: five years from accrual of the cause of action from the time of the death of
the parents.
Grounds:
a. not a natural child
b. the child is not a child of both the husband and the wife
c. invalidity of the marriage
If the marriage is void, legitimation is deemed not completed. In this case, any can
question the validity of the marriage if he has property rights involved.
Adoption
Adoption

a judicial process that grants legitimate status to a child who may or may not
be related to the person adopting
the process is for the benefit of the child, not for the benefit of the parents
grants reciprocal rights to the parents and child
the adopters must be financially capacitated to support the adoptee and his
children, and must be fit

There are two laws which govern adoption, the Domestic Adoption Act, and the InterCountry Adoption Act.
Qualifications of the adopter:
Domestic Adoption Act
Residency:
Filipino citizen
Resident Alien (resident for 3 years)
Except:
1. alien is the spouse of a Filipino citizen
who seeks to jointly adopt with his
spouse a relative within the fourth
degree of consanguinity or affinity of
the Filipino spouse
2. former Filipino citizen who seeks to
adopt a relative within the fourth
degree of consanguinity or affinity
3. one who seeks to adopt the legitimate
son or daughter of his or her Filipino
spouse
16 years older than the adoptee, unless the
adopter is the biological parent of the
adoptee, or the spouse of the adoptees
parent
No conviction of a crime involving moral
turpitude
Financially, emotionally, psychologically
capable of caring for the child
Good moral character
At least 18 years of age
For aliens country of his own nationality
confers reciprocal rights to the adoptee

Inter-Country Adoption Act

Residency:
Non-resident alien
Filipino citizen permanently residing in a
foreign country

16 years older than the adoptee, unless the

adopter is the biological parent of the
adoptee, or the spouse of the adoptees
parent
No conviction of a crime involving moral
turpitude
Financially, emotionally, psychologically
capable of caring for the child
Good moral character
At least 27 years of age
Diplomatic relations with the Philippines

Under the law, preference is given to domestic adoption. If no one will adopt the child
under the Domestic Adoption Act, he will then be matched for adoption under the InterCountry Adoption Act. In both the Domestic and Inter-Country Adoption Act, the adoptee is
a Filipino child.

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For Inter-Country Adoption Act, the adopters cannot identify a specific child to be
adopted, except in the case of adoption of relatives. However, the adopters can provide for a
general criterion such as male or female, 2 years of age, etc.
In Domestic Adoption Act, it is the prospective adopters that institute the adoption
proceedings. In Inter-Country Adoption Act, it is the child placement agency or the
Department of Social Welfare and Development that institutes the judicial proceedings for
inter-country adoption.
Procedure for institution of judicial proceedings for adoption:
present qualification for adoption
trial custody period period of assimilation, whether the child will fit in a
certain family and environment. For inter-country adoption, the child shall be
sent to the foreign country.
Can the parents by nature stop an adoption proceeding?
Yes. If the biological parents can still perform their obligations, they will be protected
and adoption will not be considered.

Consent:
a.
biological parents
if the child is legitimate consent of both parents
if the child is illegitimate consent of both parents, if known
b.
the child adopted if 10 years old or over
c.
legitimate children of the adopter if 10 years old or over
d.
illegitimate children of the adopter if living with the adopter,
and 10 years old or over
e.
spouses of both adopter and adoptee

A married person should jointly adopt with his or her spouse, except:
a.
the person adopts the legitimate child of his spouse
b.
the person adopts his illegitimate child to improve
the childs status
c.
the spouses are legally separated from each other
Is it possible to adopt a married person?
Generally, no. The law requires that the prospective adoptee is below 18 (domestic
adoption) or 15 (inter-country adoption) years of age. The exceptions are:
a. the person is of legal age and, prior to adoption, said person has been
considered and treated by the adopters as his or her own child
b. adoption of ones own illegitimate child
c. adoption of the legitimate child of ones spouse
Rules for rescission of adoption:
a. adoption is artificial and can be rescinded even if the adoptee is no longer a child
b. only the adoptee is allowed to rescind the adoption

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c. the adopter cannot rescind the adoption but can only disinherit the adoptee
Grounds to rescind adoption:
1. repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling
2. attempt on the life of the adoptee
3. sexual assault or violence
4. abandonment and failure to comply with parental obligations
Parental Authority
Parental authority
sum total of all the rights and obligations of parents over their unemancipated
children
subsists during the minority of the child
covers the following:
a. authority to discipline, to grant permission to go out
b. obligation for obedience and respect
c. custody
d. supervision, guidance, provide for an environment conducive to growing
up
e. responsibility and liability for damages caused by minor children under
parental authority defense is the exercise of due diligence
Persons involved:
1. legitimate or legitmated children father and mother (joint; act in unison)
fathers decision prevails in case of conflict
mother cannot go to court to reverse the fathers decision unless there is a
legal ground to do so
2. illegitimate children mother
3. adopted children adopter
4. abandoned children or foundlings - orphanages
During the trial custody period, the adopting parents have temporary parental
authority over the prospective adoptee
Substitute parental authority
in default of parents (both are dead, absentees, or courts have suspended or
deprived parental authority)
order:
a.
grandparents no preference in the lines
b.
oldest brother or sister, at least 21 years of age,
inless unfit or disqualified
c.
actual custodian, over 21 years of age, unless unfit
or disqualified can be the childs yaya

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Court proceedings are unnecessary, unless there is a conflict in the exercise of substitute
parental authority.
Special parental authority
concurrent with parental authority
persons covered:
a. schools, its administrators and teachers
b. institutions engaged in child case
special parental authority is only with respect to minors
special parental authority extends to activities in or out of school premises
principally and solidarily liable for damages caused by the minors under their
special parental authority
defense of exercise of due diligence may be raised
liability of the school cannot be waived by the parents of the minor
in default of the administrators, teachers and the school, the parents are
subsidiarily liable
Parental authority over property
no substitute or special authority subject to guardianship proceedings
covers legal guardianship over properties while the children are still minors
can exercise only acts of administration, not ownership
if the property is below P50,000 (based on market value or annual income),
can exercise acts of administration
if the property is P50,000 or above, must ask for court appointment in a
summary proceeding and post a bond not less than 10% of the value of the
property or annual income
Use of property owned by minors:
1. principal
exclusively for the support and the education of the child who is the owner
cannot be used for family expenses
2. fruits
primarily for the support of the child
secondarily, if there are still earnings, for the collective needs of the family
If the children are asked to manage the family business, they are to be paid with:
1. income equal to what would be paid if a stranger managed the business; or
2. the entire proceeds that the principal property earns, which will not be deducted
from their legitime
Court appointment is necessary if one seeks to be a guardian over the property of
minors. The law does not set any preference as to who should be appointed guardian over the
property of minors.

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Once a person reaches the age of 18 years, parental authority ceases.
Support
Support

not only between parents and children

subsists even after minority

2 factors to consider in giving support:

1.
resources of the giver
2.
needs of the recipient
There must be a balance of the two factors.
Legal support (mandatory)
given in accordance with the financial resources of the family and the needs of
the recipient
covers:
f. sustenance food and sustenance for living
g. dwelling
h. medical attendance
i. education those necessary for professional upliftment or vocational
j. transportation
k. clothing
Persons obliged to support each other:
1. spouses
2. legitimate ascendants and descendants
3. parents and their legitimate children, and the legitimate and illegitimate children
of the latter
4. parents and their illegitimate children, and the legitimate and illegitimate children
of the latter
5. legitimate brothers and sisters, whether full or half blood
6. illegitimate brothers and sisters, whether full or half blood
In the enumeration above, spouses take priority in receiving support, except in case of
conflict between a spouse and a child under parental authority, in which case the child will be
given preference.
For illegitimate brothers and sisters, support will be required of them. The exception
is when the need for support of the brother or sister, being of age, is due to a cause imputable
to the claimants fault or negligence.
The amount of support received does not vary. What differs is the right to receive
support in case of illegitimate brothers or sisters. So if:
a. illegitimate brothers or sisters are minors always entitled to support in all
circumstances

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b. illegitimate brothers or sisters are of age not entitled to support if the need for
support is through his or her own fault
Right of spouses to receive support:
a. in case of annulment or nullity no support
b. legal separation guilty spouse may be required by the court to support the
innocent spouse
c. support pendente lite shall be taken from the absolute or conjugal property, and
may be denied in accordance with the Rules of Court
If an action for support is filed against the spouse, the spouse must give support,
unless he or she raises as a defense:
a. abandonment or separation de facto
b. unjustified refusal to live in the conjugal dwelling
Infidelity is not a defense to deny support to a spouse. In such a case, the aggrieved spouse
should file a case for legal separation and ask the court to deny support to the erring spouse.
Support may be given by:
a. giving allowance
b. maintaining in the dwelling the person entitled to support, unless there is a legal
or moral obstacle to do so
Priority of support:
1. spouse except if concurrent with children under parental authority
2. descendants of the nearest degree
3. ascendants of the nearest degree
4. brothers and sisters
If there are several people who are obliged to give support, support may be
demandable from each of them, and they shall give support pro rata to their income.
The legal obligation to give support is not subject to attachment and execution. The
contractual obligation to give support, to the extent that it exceeds the legal obligation, is
subject to attachment and execution. Support under a will is also subject to attachment and
execution.
The amount of legal support is relative. It may be increased or decreased, depending
on the income of the giver and the needs of the recipient. The amount of contractual support
is not relative. It may not be increased or decreased. The obligor must comply with his
obligation under the contract, except if he can invoke the principle of rebus sic stantibus.
Emancipation
Emancipation
occurs upon reaching the age of 18 years
capacitated for all acts of life

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Retroactivity of the Family Code
Retroactivity
the Family Code expressly provides for retroactive effect
exception: if there are vested rights (rights concurrently enjoyed by the
persons), the Family Code will not retroact
Examples of non-retroactivity of provisions of the Family Code
a. constitution of the Family homes
b. actions for recognition of illegitimate children
c. adoption commenced before the Family Code
Care and Education of Children
The Civil Code provisions on Care and Education of Children have been repealed by
Section 3 of Presidential Decree No. 603, or the Child and Youth Welfare Code.
Funerals
Corpses

the corpse is not considered as a property

the corpse is sacred, and is not to be sold nor to be experimented

Who has the right to make funeral arrangements?

The legal family is preferred.
Surname
The State has a legal interest in the name of a person for the following reasons:
1. to prevent possibilities of confusion in identity
2. to prevent possibilities that it will be used to conceal the commission of crimes
The legal name of a person appears in the birth certificate. Whatever is the legal name
of a person is carried until his death, unless there is a court order authorizing its change.
Rule 103 of the Rules of Court on Change of Name provides the following grounds for the
change thereof:
1. ridiculous name, causes laughter or embarrassment
2. extremely difficult to pronounce or to spell
3. legal causes for change (child is adopted, legitimated)
For legitimation, there is a need to get a court order for the change of surname. For adoption,
the court decrees an order for a change of name. In both cases, only a change of surname is
allowed. The parties must show cause if there is a need to change ones name.
Use of surnames for children:
1. legitimate children
use the surname of the father (obligation)
use the surname of the mother as middle name (optional)

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some people are allowed to use the surname of their mother because they
have been using it since childhood, and to change it would create more
confusion
2. illegitimate children
use the surname of the mother, regardless of whether the child is
recognized, acknowledged, or has filed an action for compulsory
recognition as such
3. adopted
use the surname of the adopter
in case of joint adoption, use the surname of the husband
Use of surname for married women optional; not required to use the surname of the
husband
1. maiden name and surname
2. maiden name and surname plus surname of the husband
3. maiden name plus surname of the husband
4. full name of the husband plus attach the prefix Mrs.
Once the option has been exercised, one cannot change it thereafter since it will cause
confusion.
Use of surname for women in case of termination of marriage by annulment or declaration of
nullity:
the woman must revert to her maiden surname if she is the guilty spouse
if she is the innocent spouse, she can still maintain the surname of her
husband, except:
a. if there is a court order providing otherwise, or
b. the wife or the husband remarries
Use of surname for women in case of termination of marriage by death:
1. the woman can continue using the husbands surname;
2. the woman can revert to her maiden surname; or
3. the woman can use Vda. De.
Use of surnames for women in case of divorce authorized by the Philippines during the
Japanese occupation:
1. use maiden surname; or
2. use husbands surname. (Tolentino v. CA)
In case of identity of names and surnames:
use identifying names to prevent confusion
Jr. used for sons only
for grandsons and other direct male descendants:
a. add a middle name or mothers surname
b. add Roman numerals

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Screen names can be used without need of court approval, as long as it is not for
illegal purposes. The law requires the registration of aliases, not screen names.
A person can file an action to prevent the use of a screen name if the use thereof is
prejudicial to him.
Absence
Absence occurs where it is not known whether a person is still alive or dead.
Stages:
1st stage
provisional absence
no administrator appointed yet
legal representatives may be appointed
appointment of legal representatives ad hoc for 1 specific transaction as the
need arises
2nd stage
declaration of absence
2 years if no administrator, agent, or power of attorney was left
5 years if an administrator, agent, or power of attorney was left
the appointment of the administrator is for the management of the assets
3rd stage
declaration of presumptive death
court proceeding is not necessary, except for remarriage
Ordinary absence
ordinarily disappears and there is no danger to absentees life
presumed dead from the time the period ends
general rule 7 years for all purposes except succession
10 years for purposes of succession
5 years if the absentee is over 75 years of age
4 years for purposes of remarriage
Extraordinary absence
4 years in the following instances:
a. ship is lost or airplane is missing, and body is not found
b. person is in the armed forces, and he took part in the war
c. in other circumstances where there is danger to life
2 years for purposes of remarriage
presumed dead from the time of disappearance

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Civil Registry
The Civil Registry is the repository of all information from the time of birth until the
time of death.
Entries in the civil registry or the birth certificate are prima facie evidence of what
has been recorded. Change of entries in birth certificates shall be made in a summary
proceeding, if it involves non-substantial changes, and in an adversarial proceeding, if it
involves substantial changes.
Property
Property

there is no definition of Property under the Civil Code

the Civil Code merely enumerates the kinds of immovable and movable
property
covers all things which are or may be the object of appropriation

Classification:
1. immovable
2. movable
Reasons for the classification
1. prescription
a. movable 4 years if good faith; 8 years if bad faith
b. immovable 10 years if good faith; 30 years if bad faith
2. documentation requirements
Types of immovable property under Article 415 (exclusive enumeration)
1. by nature
paragraphs 1, 8
2. by incorporation
paragraphs 2, 3, 4, 5, 6
the property is permanently adhered to the soil or another immovable,
such that it cannot be removed without destroying the immovable to which
it is attached
ownership of the land to which the structure is attached in immaterial in
classifying the property as immovable
can treat land and building differently if both are owned by different
persons
3. by destination
paragraphs 4, 5, 6, 7, 9
essentially movable but are immovable because of the purpose to which
they are attached
determine:

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a. the specific purpose for which the property is placed
b. the ownership of the building or tenement and the property attached
thereto
Tom placed several machineries inside his garments factory. If the machinery is cemented to
the floor, is it an immovable by incorporation or by destination?
It is an immovable by incorporation because it cannot be removed without destroying
the immovable to which it is attached.
What if Tom placed the machinery inside the factory and merely bolted it to the floor? Is it an
immovable by incorporation or an immovable by destination?
It is an immovable by destination.
Sewing machines placed to meet the needs of the garment industry by the owner of
the tenement are immovable property by destination.
4. by law/analogy paragraph 10
Ships are normally considered as movable properties. If the ship does not move and
the owner intends not to move it, it thereby becomes an immovable property.
Growing crops are immovable properties by incorporation, if it is attached to the land
or forms an integral part of an immovable. If it is harvested or cut, it becomes chattel. For
purposes of the chattel mortgage law, growing crops are considered chattel.
Types of movable property
1. test of exclusion (not found under Article 415)
2. real property which by any special provision of law is considered as personalty
3. forces of nature brought under the control of man, like electricity
4. all things which can be transported from place to place without impairment of real
property to which they are attached
5. by analogy examples of which are obligations and actions which have for their
object movabels or demandable sums
Differentiate fungible from consumable.
Fungible property depends upon the intention of the owner. If the property cannot be
replaced, it is not fungible. Consumable property depends on the nature of the property. If the
property cannot be used without consuming it, it is not consumable.
Classification of property according to ownership
1. public dominion
owned by the Government
types of public dominion:
a. public use indiscriminately used by the people or constituents
who inhabit the place
b. public service used by the State or political subdivision to
render public service; cannot be used without permission

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c. patrimonial property owned by the State in its private character
2. private ownership
owned by private individuals or corporations
Reclaimed land is owned by the government under the Regalian doctrine. It is
considered as properties for public service, as the government exerts effort to reclaim the
lands. Reclaimed land cannot be used without permission. It cannot be sold under the law. It
can only be leased through public bidding.
To sell properties for public service, a legislative act is required to sell it to private
individuals. Properties for public service can be sold to political subdivisions. However, there
must be a declaration that property for public service is no longer required for public service
before it may be sold. The Executive makes such declaration.
Ownership
Ownership

a juridical relation by virtue of which a thing pertaining to one person is

completely subjected to his will in everything not prohibited by public law or
the concurrence with the rights of others
in relation to a specific property
right to use or possess certain property which may be appropriated

Rights incidental to ownership

1. right to enjoy
a.
right to possess
b.
right to use
c.
right to abuse
d.
right to fruits
2. right to dispose
3. right to recover property if unlawfully taken
Right of ownership is not absolute
1. use property in a manner as not to injure the rights of others
2. subject to police power or general welfare clause
3. subject to eminent domain
4. subject to easements
5. may be abated if considered a nuisance
What is the doctrine of incomplete privilege?
The doctrine states that the owner of a property cannot prevent a person from entering
into his property to prevent an imminent danger if the threatened damage is greater than the
damage to the owner of the property. In such a case, the owner of the property is entitled to
receive compensation from the person who benefited from the same.
What is the doctrine of self-help?

18
The doctrine of self-help states that the owner of a property has the right to exclude
any person from the enjoyment and disposal thereof. He may use reasonable means necessary
to prevent or repel an actual or threatened unlawful physical invasion or usurpation of his
property. The doctrine requires the existence of a threat to ones property and that the
property has not yet been taken. In other words, the aggression is still taking place.
Once the aggression has been completed and the property has already been taken, the
doctrine of self-help ceases to apply. In such a case, court relief must be sought.
With possession, ownership is presumed. To claim ownership, court proceeding is
required to destroy the presumption of ownership arising from possession by presenting
evidence.
If one is in possession, one is presumed to be the owner. He shall not be required to
prove his ownership over the property.
Ownership of land includes (1) surface, (2) above the surface, and (3) beneath the
surface. A person owns the airspace above his property, subject to the reasonable
requirements of aerial navigation.
Elements of a hidden treasure:
1.
it must be hidden or unknown
2.
it must be treasure money, jewelry, other precious objects, those which
are finished objects
3.
the lawful owners are unknown
Division of hidden treasure found in ones property
Half will go to the owner of the lot and the other half will go to the finder.
If the owner or finder is married, his or her share in the hidden treasure will go to the
absolute or conjugal property, even if the property where it is found is separate property.
Requisites to be a finder:
1. must not be a trespasser (intrusion without authority)
2. must have found the treasure by chance (does not exclude cases where there is a
deliberate search for treasure)
If a person is hired to search treasure, he is not considered a finder. The person who
hired him is the finder.
Accession
Accession

not a mode of ownership

incident of ownership
must acquire ownership first before the right of accession follows

19

2 types of accession:
1. as to the produce (fruits) accession discreta
internal
comes from the property itself
2. attached to or incorporated (attachments) accession continua
cannot be removed without causing damage to the property
may be artificial or natural
external
Types of fruits / accession discreta
1. natural
spontaneous products of the soil
the young of animals (need not be spontaneous)
other products of animals
2. industrial
produced by lands through cultivation or labor
other products of the land do not apply here
3. civil
synthetic fruits
pertain to income, earnings arising from rentals, dividends, use of property
accrue on a daily basis
can be pro rated
Who owns the fruits?
As a general rule, the owner of the property owns the fruits.
Instances where a third person is entitled to the fruits
1. usufruct
2. lease
3. builder, planter or sower in good faith
4. antichresis
He who receives the fruits has the obligation to pay the expenses made by a third
person in their production, gathering and preservation. (Article 443)
If another person legally entitled to the fruits, he must reimburse the person who
spent for their production, gathering and preservation.
Che cultivated, harvested, and gathered fruits in Chuis land in bad faith. Chui got
hold of the fruits planted by Che. Is Che entitled to reimbursement?
Yes, if the fruits are already gathered. The basis would be Article 443. In Article 443,
there is already a finished product.
No, if the fruits are still pending. The basis would be Article 449. In Article 449, there
is no certainty that the fruits may be gathered.

20

Types of accession continua

For immovables
1.
building, planting or sowing

building form of construction

planting plant once, and able to gather or harvest fruits on a

regular basis. Ex. Trees

sowing seasonal crops, planting done on a regular basis

2.
natural by natural forces
a. alluvium
b. avulsion
c. change in river course
d. formation of islands
For movables
1. adjunction or conjunction
a. inclusion (engravement)
b. soldadura (attachment)
c. tejido (weaving)
d. pintura (painting)
e. escritura (writing)
2. mixture
a. confusion liquids
b. commixtion solids
3. specification
Why distinguish planting and sowing?
In planting, the planter may be required to buy the land. In sowing, the sower may be
required to pay rents.
In building, planting or sowing, whatever is built, planted or sown over a land is
presumed to be owned by the owner of the land, subject to contrary proof.
Rules governing relationship between Land Owner who is also the Builder, Planter or Sower
and the Owner of the Materials
The rules shall govern if accession has occurred. If not, the rules do not apply, and the
owners may take what each owns.
Land Owner and Builder, Planter or
Owner of the Materials
Sower
Good Faith (preferred right)
Good Faith
reimburse the owner of the materials for
1.
can remove the
the value of the materials
materials, provided there is no
damage to the immovable property
2.
receive payment;

21

Bad Faith

Good Faith
need not pay for the materials used
Bad Faith
consider as good faith (in pari delicto)

if not paid, can institute action for

collection, but does not have the
right of retention
Good Faith (preferred right)
1. can remove the materials, even if it
causes damage to the immovable,
plus recover damages
2. demand reimbursement for the
value of the materials used, plus
recover damages
Bad Faith
Loses his materials
Bad Faith
consider as good faith (in pari delicto)

Rules governing relationship between Land Owner and Builder, Planter or Sower who is also
the Owner of the Materials
Land Owner
Good Faith (preferred right)
1. acquire what has been built, planted
or sown; pay indemnity: necessary
expenses (actual cost), useful
expenses (actual cost or increase in
value plus value), luxurious
expenses (if appropriated)
2. compel builder or planter to buy the
land, and sower to pay the rentals;
if not paid, can force the removal of
improvements
Except: value of the land considerably
more than the value of what is built,
planted or sown:
a. compel builder or planter to
pay rent through a voluntary
or forced lease; or
b. acquire what has been built
Good Faith (preferred right)
1.
acquire what is
built, planted, sown, pay the
necessary expenses if the building
is still standing or the fruits are still
pending, and luxurious expenses if
appropriated, and recover damages
2.
compel
the

Builder, Planter, or Sower and Owner of

the Materials
Good Faith
1.
if what is built, planted
or sown is acquired, right to receive
payment; if not paid, can exercise
right of retention and cannot be made
to pay rentals
2.
for builder or planter,
pay the purchase price (fair market
value of the land); for sower, pay
rentals

Bad Faith
receive payment for necessary expenses;
cannot receive payment for useful
expenses;
can
remove
luxurious
improvements if it can be done so without
injury

22
builder or planter to buy the land or
the sower to pay rentals, and
recover damages
3.
require
removal and recover damages
Bad Faith
Good Faith
cannot ask the builder or planter to buy
1.
can effect removal,
the land or the sower to pay rentals
whether there is injury to the
property or not, and recover damages
2.
ask payment for
what is built, planted or sown, and
recover damages

can
ask
payment of necessary and useful
expenses

can remove
luxurious improvements, whether
it will cause damage or injury to
the property, if owner does not
wish to acquire it
Bad Faith
Bad Faith
consider as good faith (in pari delicto)
consider as good faith (in pari delicto)
Types of expenses:
Necessary for preservation
Useful adds value to the land
Luxurious for ornamental purpose
Sarmiento v. Agana
Evangelista built a house on a lot, thinking his mother-in-law owned it. Its true
owners sold the lot to Sarmiento. Sarmiento asked Evangelista to remove the house and
refused to exercise his option. The CFI ruled Sarmiento should exercise his option. Since
Sarmiento did not exercise his option, Evangelista deposited the price of the lot with the
court.
The Supreme Court found no grave abuse of discretion on the part of the CFI judge.
Evangelista here was a builder in good faith, as he thought he would own the land over which
the house was built upon. In such a case, Sarmiento has two options: (1) buy the
improvement, or (2) sell the lot to Evangelista. Only when Evangelista cannot buy the lot can
Sarmiento exercise the option to have the improvement removed.
Depra v. Dumlao
If the value of the land is considerably more than the value of the building, the owner
has two options:
1.
acquire the improvements
2.
ask for the payment of rentals

23

The Courts should not immediately force the lease of the

property. The parties should be allowed to negotiate a voluntary lease. If
the parties cannot voluntarily agree to the terms of the lease, the court may
fix the term, subject to:
a. the value of the property
b. fair rental
c. period of possession
rentals charged shall start from the time of occupation
lower rate shall be charged when the builder, planter or sower
occupied the land without knowing that he did not own the property
market rate shall be charged when the builder, planter or sower
already knew that he didnt own the property occupied
the period of lease shall be commensurate to that which would
allow one to recover his investments

Rules governing relationship between the Land Owner, the Builder, Planter or Sower and the
Owner of the Materials
The right of action of the land owner extends only to the builder, planter or sower.
The right of action of the owner of the materials extends only to the builder, planter or
sower.
The relationship between the land owner and the builder, planter, or sower, and the
owner of the materials and the builder, planter, or sower are separate.
Land Owner
Builder, Planter, or Sower
Owner of the Materials
Good Faith
Good Faith
Good Faith
1. acquire what is built,
1. receive
payment
1. receive payment of
planted or sown
from land owner; if
materials from the
not paid, exercise
builder, planter or

if the builder,
right
of
retention
sower; if not paid,
planter, or sower
2. builder or planter
can go after the
does not pay the
buys
lot
and
what
is
land owner and
owner
of
the
built or planted;
hold
him
materials,
pays
the
owner
of
subsidiarily
liable
becomes
the materials
2. receive payment; if
subsidiarily liable
builder or planter
to the owner of the
cannot pay, cannot
materials
go after the land
2. require builder or
owner to hold him
planter to buy lot, or
subsidiarily liable
sower to pay rentals
Good Faith
Good Faith
Bad Faith
no subsidiary liability
loses all his materials, and
becomes liable to the
builder, planter, or sower for
damages
Good Faith
Bad Faith
Bad Faith

24
1. acquire what is built,
planted, or sown
2. sell lot to builder or
planter,
or
ask
rentals from sower
3. removal
Damages in all three
instances

1. receive
payment
from the builder,
planter, or sower;
cannot go after the
land owner and hold
him
subsidiarily
liable
2. receive
payment
from the builder,
planter, or sower
3. receiver
payment
from
builder,
planter, or sower

Subsidiary liability of the land owner occurs when:

1. the owner of the materials is in good faith
2. the land owner chooses option number 1 (acquires what is built, planted or sown)
3. builder, planter, or sower must be in good faith
Good faith or bad faith of the land owner is immaterial.
The builder, planter, or sower is principally liable to the owner of the materials (who
must be in good faith), regardless if the land owner acquires what is built, planted, or sown.
The owner of the materials can remove what is built, planted, or sown if the builder,
planter, or sower acquires the land. If the builder, planter, or sower does not acquire the land,
the owner of the materials cannot remove the materials used therein.
Accession natural
1. alluvium
elements:
a. gradual deposit of soil does not happen overnight;
imperceptible
b. along the river banks (includes creeks, lakes, streams)
c. due to natural current of the river not man-made
ownership of the accretion automatically goes to the owner whose estate
adjoins the river bank (riparian owner)
does not include deposits in beach (public property), in seas, in esteros
(man-made)
must ask for a retitling and resurvey of the property, as the additional land
is not covered by the Transfer Certificate of Title immediately
2. Avulsion
a known portion of land is transferred to another estate
elements:
a. not gradual; drastic
b. must be a known portion of land transferred to another estate

25

The original owner owns the portion of land transferred, provided he

removes it within 2 years
If the original owner does not remove it within 2 years, the process of
accession sets in, and the owner of the lot where the portion of land
attaches owns said portion
If the land has trees, the 2 year period still applies.
If the trees are uprooted, the owner thereof has 6 months to claim it.
3. Change in the course of the river
Abandoned bed ipso facto belongs to the owners whose lands are occupied
by the new course in proportion to the area lost. The phrase in proportion
to the area lost applies if two or more owners are affected by the change in
the course of the river. If only one lot owner is affected by the change in
the course of the river, he acquires the entire area of the old bed.
The adjoining owners may acquire the old bed by paying the value of the
old bed, the value of which shall not exceed the value of the area occupied
by the new bed. The option to acquire is with the adjoining owners.
If the river branches itself, leaving a piece of land or a part thereof
isolated, the owner of the land retains ownership. The same rule applies if
the land is separated from the estate by the current.
4. Formation of islands
If formed in the seas, interpret according to the law of the seas. If formed
in the high seas, international law applies
If formed in rivers, distinguish:
a. if river is navigable (useful for commerce, vessels may navigate
through it) goes to the State
b. if river is non-navigable belongs to the owners of the margins
or banks nearest to each of them, or to the owners of both if the
island is in the middle, in which case it will be divided
longitudinally in half
Accession in movable property
Adjunctions

2 or more movable properties united in such a way that they form a single
object
cannot separate the 2 movables
can identify the 2 movables
the movables belong to 2 different owners
ex. Varnish on a wooden table

Determining accessory from principal:

1. attachment test (which attaches to what?)
the property which clings to another is the accessory
the property to which the other hinges is the principal

26

exception: if the property that attaches is considerably more than the

property to which it attaches to, the owner of the accessory is entitled to
segregation, whether it causes injury to the principal or not. The person
who pays the segregation is the person who caused the union in the first
place.

2. value
whatever is more valuable is the principal
applied if attachment test fails to determine which is the principal and
which is the accessory
3. volume
whichever has the greater volume is the principal
applied if both are of equal value
exclude intellectual creation, in which case the paintings and sculpture,
writings, printed matters, engravings and lithographs are considered the
principals, and the board, metal, stone, canvass, paper, parchment are
considered the accessories
Owner of the principal pays for the value of the accessory if the accessory follows the
principal.
If one is in bad faith:
a.
owner of accessory is in bad faith he loses his property to the principal
and becomes liable for damages
b.
if the principal is in bad faith the owner of the accessory has 2 options:
i.
ask for indemnification of the value of the accessory and payment for
damages
ii.
ask for removal of the accessory, whether there is injury or not, and
payment for damages
Indemnification

reimburse the value of the property, which may consist in the

appraised value, or the same property in kind and quality

person entitled to indemnification chooses the type of

indemnification to be paid

expert appraisers determine the value of the movable property

Mixture

types:
1. commixtion involves solids
2. confusion involves liquids
elements:
a. 2 or more movables
b. belong to 2 or more owners
c. cannot identify the 2 movables

27

ex. 2 types of rice joined together, toyo and patis mixed

together
rules on ownership:
mixture by will of the owners
co-ownership occurs
ownership in accordance with the agreement of the

1.
o
o
owners
2.

mixture by chance
pro-rata in proportion to the value of the goods
in the absence of any valuation, consider the goods as equal in
value
3.
mixture done by 1 person
o
in good faith pro rata to the value of the properties
that are part of the mixture
o
in bad faith the person who caused the mixture loses
his property and becomes liable for damages
o
o

Specification
raw material transformed into a finished object by labor
ex. Piece of cloth made into a dress by a seamstress
Labor is considered as principal while the raw material is considered as an
accessory.
If the worker is in good faith he acquires the product, and pays the value of
the materials. Exception: if the finished product is worth less than the value of
the raw materials the owner may ask for the value of the materials or may
ask for the work product and pay for the labor.
If the worker is in bad faith owner may ask for the return of the material or
payment of the value thereof plus recover damages. Exception: if the work
product is valuable for scientific or artistic reasons the worker pays the
value of the material plus damages and gets to keep the work product.
Co-ownership
Co-ownership

Ownership of an undivided thing or right belongs to different owners

Subject 2 or more persons
Object one indivisible object
Right aliquot share (not yet physically divided) in fractions or ratios

How does co-ownership exist?

1. by law
2. by contract
3. by chance or fortuitous event
4. by succession
5. by occupation

28

Rights of a co-owner:
1. to use and possess the thing owned in common (Article 486)
restrictions:
i. use it according to the use intended thereof
ii. cannot prevent others from using it according to their rights
2. to bring an action in ejectment (Article 487)
3. to compel the other co-owners to contribute to the necessary expenses and taxes
(Article 488)
4. to exercise full ownership over his aliquot share (Article 493)
need not acquire the consent of the other co-owners if he intends to sell,
mortgage, pledge, encumber his aliquot share
other co-owners may exercise the right of redemption post sale in
proportion to their share by paying the same amount paid by the stranger
who acquires the aliquot share
the right of redemption is exercised against a third party who is not a coowner prior to the sale
other co-owners not granted the right of first refusal
the right to redeem cannot be contracted away, as public policy favors
ownership in 1 person rather than in many
Emma, Thel and Che co-owned a property. Emma sold her 1/3 aliquot share to Chui,
the wealthy owner of a Honda plant in Laguna, for P40,000. Thel wants to redeem the 1/3
share sold to Chui. Can Chui demand more than P40,000 as purchase price?
No.
Can Thel pay less than P40,000?
Yes. Thel can pay less than P40,000 if the price for the 1/3 share is unreasonably
high, in which case the co-owner pays a reasonable price. (Article 1620)

Time to exercise the right of redemption: 30 days from notice in

writing by the prospective vendor, or by the vendor

Ranma, Ryoga and Mousse co-owned a parcel of land in Makati. Ryoga sold his 1/3
share to Shampoo. Ranma bought the entire 1/3 share from Shampoo. Does Ranma own the
entire 1/3 share?
No. Ranma is only advancing Mousses contribution to the purchase price for the 1/3
share sold to Shampoo. Ranma holds the property in trust for Mousse. Mousse has 10 years
to recover his share from Ranma, counted from the time of repudiation by Ranma of the
constructive trust.

Sale of the entire property must be with the consent of the other coowners. Absent such consent, the transaction is valid up to the aliquot
share of the co-owner. The rest shall be considered as an unenforceable
contract.

29
5. right to fruits and benefits

share of a co-owner to the extent of his share in the co-owned property

stipulations to the contrary are void

Carlo, Gerik and Migo agreed to enter into a co-ownership. Carlo contributed
P200,000, Gerik contributed P50,000, and Migo contributed P200,000. Can the three agree
on equal interest and share in the co-ownership?
Yes. It is considered as a valid stipulation.
Carlo, Gerik and Migo agreed on equal interest and share in the co-ownership. Can
the three later on contract for a different share in the co-ownership?
No. Once the share is agreed upon, the parties cannot contract for a greater share in
the fruits, benefits and charges, nor change the share in the fruits, benefits and charges.
6. to demand at any time the partition of the thing owned in common (Article 494)

any act which puts an end to the co-ownership is considered as

partition

no prescriptive period for the exercise of the right to partition

Prohibition to partition may be allowed, subject to the following

limitations:
a.
by agreement of the co-owners valid for 10 years
only, extendible indefinitely
b.
by the testator in a will valid for 20 years only, nonextendible

if the prohibition to partition extends beyond the

limitation provided for the law (as where it is for 50 years), it shall be
valid only up to the extent of the period of limitation provided for by law
(10 years by agreement or 20 years in a will).

If a co-owner does not want to extend the

agreement not to partition, he may ask for partition of the thing co-owned.

If the property is rendered unserviceable if

partitioned, the co-owners may ask that it be sold, the proceeds to be
divided among the co-owners.
7. right of management
co-owners can manage and administer co-owned property (inherent right)
can transfer management or administration to a 3rd person (contract of
agency)
voting:
i. majority for acts of administration or management
ii. unanimous for acts of alteration
acts of ownership considered acts of alteration
change in use of property considered acts of alteration
acts of disposition of property considered acts of alteration
lease over 1 year considered acts of alteration
lease less than 1 year considered acts of administration

30
construction over property considered acts of alteration
if built without the consent of the other co-owners, not entitled to
reimbursement
co-owners may appropriate the construction or ask for its destruction
without the benefit of reimbursement
Necessary improvements or expenses
may be done by any co-owner
consent of other co-owners not required
notice must be given to the other co-owners, if this is practicable; if not, notify
after making the necessary improvements or expenses
includes payment of taxes
co-owners must reimburse according to their pro rata share
payment shall be by cash or by renouncing a portion a portion of his coownership to the person who incurred the expenses
A, B, and C each owns 1/3 of a property worth P30,000. A incurred necessary
expenses in the amount of P6,000. Can A seek reimbursement from B and C?
Yes. B and C are obliged to reimburse P2,000 (1/3 of P6,000) each to A. If B and C
do not pay, A can file an action against them and enforce the judgment debt on their property.
C has no money and decides to renounce a portion of his share of the co-owned
property to A. How much will he renounce?
Cs share in the co-owned property is P10,000 (1/3 of P30,000). C will give up 1/5 of
his 1/3 share (1/5 of P10,000 equals to P2,000) to A who incurred the expenses.
6 modes of terminating co-ownership
1. partition
main mode of terminating co-ownership
extrajudicial no creditors, or creditors are in agreement
2. merger
3. loss of thing
4. acquisitive prescription
termination of trust
a co-owner repudiates the co-ownership
5. expropriation
6. renunciation
Possession
Possession the holding of a thing or the enjoyment of a right
2 kinds of possession:
1. right to possession
inherent in ownership
jus possidendi

31
2. possession independent of ownership rights
right of possession
jus possessionis
How to acquire possession
1. modes of possession
a. material possession
b. subjecting to ones will ex. tradition longa manu or tradition simbolica
c. constructive delivery
2. intention to possess
3. possession in ones own right, and not in behalf of another
Different categories of possession
1. possession without any legal right
possession de facto
no legal right or title
no legal possession legal possession is recognized in somebody else
does not ripen into ownership
relate to Articles 536 and 537
i. Article 536. In no case may possession be acquired through force
or intimidation as long as there is a possessor who objects thereto.
He who believes that he has an action or a right to deprive another
of the holding of a thing, must invoke the aid of the competent
court, if the holder should refuse to deliver the thing.
ii. Article 537. Acts merely tolerated, and those executed
clandestinely and without the knowledge of the possessor of a
thing, or by violence, do not affect possession.
2. possession with juridical title

possession not in the concept of an owner, such as

usufructuary or lease

recognition of legal possession in another

recognition of ownership by the possessor in another

person

does not ripen into ownership

3. possession with just title
there is possession with just title mode of acquiring ownership
there is a flaw in said title the transferor did not have any legal title
colorable title available for acquisitive prescription and can ripen into
ownership
4. possession with just title and without any flaw
possession of an owner
need not ripen into ownership

32
If the owner abandons his property, it becomes res nullius (except in case of
immovable property, in which case it becomes part of the property of the State under the
Regalian doctrine). Ownership may be acquired not through acquisitive prescription, but
through occupation.
Elements of possession which can ripen into ownership:
1. there must be just title which is flawed
2. hold it in the concept of an owner (open, public, continuous, adverse, to the
exclusion of others) except in the case of co-ownership
Time needed for possession to ripen into ownership
Good faith
ordinary acquisitive prescription
movables 4 years
immovables 10 years
Bad Faith
extraordinary acquisitive prescription
movables 8 years
immovables 30 years
Counting of possession in 1 person:
Yuffie bought a lot and possessed it in good faith for 3 years. After 3 years, Yuffie found out
that her title was flawed. Yuffie possessed the lot for another 3 years. How much longer must
Yuffie possess the lot to acquire it?
good faith
3 years x 3 =
9 years
bad faith
3 years
=
3 years
12 years
Yuffie must possess it for another 18 years (30 years 12 years)
Tacking

adding the possession of one to the possession of another

there must be privity of relations between the persons involved (no break in
the chain)
add the possession of the predecessor-in-interest

A sold his lot to B, who sold it to C, who sold it to D, and who sold it to E. Can E tack
A, B, C and Ds possession to his possession? Yes.
A sold his car to B. B lost the car to a carnapper. C acquired the stolen car and sold it
to D. D sold the car to E. Can E tack A and Bs possession to his possession?
No, because there was a break in the chain (carnapping).
Immovable

33
A (good faith) - possession for 3 years x 3 =
B (bad faith) possession for 3 years =

9 years
3 years
12 years
How much longer must B possess the immovable property to acquire it?
18 years (30 years 12 years = 18 years)
Can B divide his possession by 3 years, add A possession, and claim that he needs to possess
it for another 6 years to acquire it under ordinary prescription?
No, because B is in bad faith.
Immovable
A (bad faith) possession for 3 years / 3 =
B (good faith) possession for 3 years =

1 year
3 years
4 years
How much longer must B possess the immovable property to acquire it?
1st view: 6 years (10 years 4 years = 6 years)
2nd view: 7 years. As possession should be disregarded in the number of years of
possession, since As possession is tainted with bad faith.
Possession acquired by succession:
if the heir accepts the inheritance, the heirs possession is counted from the
date of the predecessors death
if the heir repudiates the inheritance, the heir is deemed never to have
possessed the same
Interruption of possession
1. physical or actual interruption
loss of possession of property for a period of more than 1 year
failure to recover possession within 1 year, the previous possession shall
be deemed lost
remedies to recover possession:
a. movables replevin
b. immovables ejectment, unlawful detainer, accion publiciana
Cloud possessed the lot for 3 years. He is dispossessed of the lot by Sephiroth. Cloud files a
case which lasts for 10 months and wins. Is the 10 month period credited in Clouds favor?
Yes.
2. legal

a case is instituted by a person who claims title over the property

interruption occurs from the time of receipt of summons
if the plaintiff wins, possessor loses possession and the years credited in
his favor
if the plaintiff loses, possessor enjoys the benefit of possession\

34
Co-possession
2 or more persons buy a property when there is a flaw in the title
the buyers are not co-owners, but co-possessors
Interruption for co-possession:
A, B and C co-possess a lot. X claims of the property co-possessed by A, B and C. What is
the effect of the interruption?
The interruption affects everybody.
Possession prior to partition is credited to ones possession after partition. If there is
co-possession among A, B and C for 10 years, and after partition, A possessed his part for 3
years, A is deemed to have possessed his part for 13 years.
If there is legal interruption after partition, such interruption will affect everybody
because the other co-possessors have to do mutual accounting for his fellow co-possessors
against eviction. If ownership has ripened, each co-possessor must look out for his share, in
which case he cannot go after his co-possessors in case of eviction.
Can there be co-possession if 2 persons are claiming possession over the same property?
No. There is no co-possession. The law does not recognize legal possession in 2
persons who do not have the same legal interest.
How to resolve in case 2 persons claim possession over the same property:
person preferred present possessor
if no present possessor person who possessed the longest
if both possessed for the same period of time person who presents just title
(mode of acquisition)
if both have present title deposit the subject matter in court
Rules governing ownership of fruits during possession
Good Faith
Civil Fruits
Entitle to civil fruits which
accrue to him during his period
of possession

Natural or Industrial fruits

Gathered
Keeps what is gathered
(Article 443)

Pending
(Article 545)

Option of the owner:

1. allow
possessor
to
continue harvesting and
gathering of fruits, after

Bad Faith
all fruits earned must be
accounted for, plus interest,
profits, and income
pay rentals

must turn over what is

gathered
entitled to reimbursement
for gathering, planting,
sowing
Loses everything

35
which the possessor
leaves
2. sharing of proceeds of
the harvest based on the
period of possession
Mel possessed and planted rice over a parcel of land for 2 months. Trish, the owner of the
parcel of land, dispossessed Mel and took possession of the land for 4 months, culminating
into the harvest of the rice planted. How will Mel and Trish share in the harvest of the rice?
Mel and Trish will share in the net harvest in the ratio of 1:2
Supposing the Gross Harvest is P7,500. Expenses amounted to P1,500. How much will Mel
and Trish get?
Gross Harvest
P7,500
Expenses
P1,500
Net Harvest
P6,000
Mel will get P2,000 (1/3 of P6000) while Trish will get P4,000 (2/3 of P6000).
Rules governing Expenses and Improvements
same as builder in good faith and builder in bad faith
when owner succeeds in possession, he is required to pay for improvements
existing at the time of his acquisition of possession
Loss of possession:
1. abandonment give up hope of recovery of the property, or relinquish any right
over the property
for movables becomes res nullius
for immovables goes to the State
2. sale or assignment
3. interruption
Usufruct
Usufruct

real right (attaches to the property until such time as the period of usufruct
ends) to enjoy the property belonging to another person
obligation to preserve the property
covers use, fruits and possession
does not cover jus disponendi and jus abutendi
possession and use are not essential elements
right to the fruits is an essential element

Usufruct covers both movable and immovable property. Easement covers immovable
property only.

36
For consumables, it is considered as a quasi-usufruct. If there is an appraisal, return
the value of the property. If there is no appraisal, return the same thing of the same kind and
quality.
For non-consumables, it is considered as usufruct. The obligation of the usufructuary
is to return the same thing which is the subject of the usufruct without alteration to its
character except its normal wear and tear.
The only person who can constitute a usufruct over a property is the owner of the
property. This is different in the case of lease, where the person who can constitute a contract
of lease need not be the owner himself, such as in the case of lessees and sub-lessees.
A usufruct can be constituted notwithstanding the fact that the property is already
subject to a mortgage. A contract of usufruct is a principal contract. A mortgage contract is an
accessory contract. Once the principal obligation becomes due and demandable, and there is
default on the part of the debtor, the mortgagee may foreclose the mortgage notwithstanding
the existence of a usufruct or the obligations of the usufructuary. The mortgagee must respect
the usufruct even after the foreclosure. The usufructuary has nothing to do with the principal
obligation.
Can a usufruct be granted to an object subjected to a pledge?
No. In such a case, there would be conflict. Usufruct and pledge require possession
on the part of the usufructuary and pledgee respectively. Usufruct and pledge cover the fruits
of the object.
Can a usufruct be granted over a leased property?
Yes. Possession is not essential in usufruct. Usufruct deals with fruits.
Can the usufructuary construct improvements over the property subject of a usufruct?
Yes. This is not considered a breach of the usufructuarys obligation, provided the
usufructuary can restore the property to its former condition without injury to the property.
How to constitute usufruct?
1. legal usufruct
by law, not by the will of the parties
almost non-existent in todays laws
2. act inter vivos
by contract
by donation follow the formalities for donations
by will follow the formalities for wills
For usufructs constituted by contract involving immovable property, the
contract must be in writing. Otherwise, the usufruct is unenforceable as it
falls under the Statute of Frauds.
3. by prescription
Can a usufruct be constituted over rights?

37
Yes, except rights which are purely personal.
The grant of usufructuary rights may be total or partial, may be given to one or more
persons, whether successive or simultaneous.
Simultaneous
as long as one of the usufructuaries is still alive, the usufruct will still continue
to subsist
the usufructuary rights of the others who died will accrue to the usufructuaries
who are still alive
Substitution follow the rule on fideicommissary substitution, which requires that it be 1
degree of substitution
Usufruct created other than by law
parties may agree to the terms of the usufruct, provided the essential elements
are present
provisions of law regulating usufructs apply in the absence of a contrary
stipulation
Elements of a contract of usufruct:
1. right to enjoy the fruits and income of the property
2. obligation to preserve the form and substance of the property
Fruits:
1. Civil
accrue daily
those which accrue when the usufruct subsists goes to the usufructuary
2. natural or industrial
a.
gathered those gathered during the usufruct belongs to the
usufructuary
b.
standing
i. those standing at the start of the usufruct goes to the usufructuary
ii. for those standing after the usufruct, there is a sharing of the fruits
Hidden treasure the usufructuary is a stranger, and is entitled to of the share in the hidden
treasure if he finds it.
The usufructuary has the right to possession over the property to the exclusion of
others, including the owner of the property, subject to a contrary stipulation.
The usufructuary right belongs to the usufructuary, who may alienate, sell, or transfer
it even without the owners consent, unless there is a stipulation to the contrary
Can the usufructuary transfer the possession of the property to another by way of lease?

38
If the usufructuary is given the right of possession, he may transfer possession by way
of a lease contract, subject to the condition that the lease is for the duration of the usufruct.
If the lease extends beyond the usufruct, what happens?
If the owner consents, the lease is binding to the owner/
If the owner did not consent, the lease is binding if the lease of the property becomes
a real right, as when the lease is registered or is for more than 1 year. In such a case, the
owner will be entitled to the rentals
Obligations of the usufructuary
1. Article 583 (getting in the usufruct)
a. to make an inventory after notice to the owner
appraisal of the movables
description of the CONDITION of the immovables
Exceptions:
can be waived
when there will be no 3rd person who will be prejudiced (Article 585)
b. give security (such as bonds and the like)
Exceptions:
can be waived
legal usufruct
donor reserves the usufruct of the property donated (Article 584)
parents who are usufructuaries of their childrens property, except when
the parents contract a 2nd marriage (Article 584)
when there will be no 3rd persons injured (Article 585)
E.g. rent given to the usufructuary (no need to give security and to make
inventory)
In usufructs of land, the usufructuary shall make an inventory of the condition of the
land so that at termination, the parties have a standard to go by to see if the usufructuary is
returning the same thing. The usufructuary shall provide a security to answer for his
obligations.
The Civil Code does not provide an express provision on the effects of failure to
make an inventory by the usufructuary. The failure to make an inventory gives a prima facie
presumption that the usufructuary received the thing in usufruct in good condition (comments
of some annotators).
The usufruct is not affected on account of failure to give security. The usufructuary
cannot be placed in possession of the property, but he is still entitled to the fruits and income.
Article 587
Caucion juratoria is a promise under oath to deliver:
a. furniture necessary for the usufructuarys use

39
b. house included in the usufruct
c. implements, tools, and other movables necessary for the vocation or industry of
the usufructuary
The oath serves as security because the usufructuary does not have the means to give
one.
If the usufructuary fails to perform a particular obligation in this situation, the
usufructuary is liable for damages.
The only difference with caucion juratoria and with one wherein a security is given is
that in the latter case, the payment of damages is set by the security, and so the owner runs
after the security given.
2. to preserve the form and substance of the thing (during the usufruct)
Expenses:
necessary for the preservation of the thing
useful for the account of the owner; usufructuary can incur them and can
remove them after the usufruct
luxurious for the account of the owner; usufructuary can incur them and can
remove them after the usufruct
ordinary repairs
preserve and keep the property preserved against ordinary wear and tear
obligation of the usufructuary to pay for them
if the usufructuary does not pay for them, the owner may seek
reimbursement from the usufructuary
elements:
a. the deterioration arose from the natural use of the thing
b. the repairs are necessary for the preservation of the thing
extraordinary repairs
the owner is the one who shoulders the extraordinary repairs
2 classes of extraordinary repairs:
a. caused by extraordinary causes or events
b. caused by the natural use of the thing but are not needed for the
preservation of the thing

usufructuary shall notify the owner, who will incur the expense

If the owner makes the extraordinary repairs, the usufructuary pays

interest. If the usufructuary makes the extraordinary repairs, the owner pays
the increase in value which the immovable acquired, which is equal to the
current value minus the previous value of the immovable.

In case of emergency, the usufructuary may incur the expense and notify
the owner later, if it is not practicable to notify the owner. The usufructuary
shall have the right to reimbursement for the expenses and the increase in
value of the property due to the improvement and the right to retention at the
end of the usufruct.

40
3. usufructuary to pay annual taxes and charges and of those constituting a lien on
the fruits (during the usufruct)
on the principal obligation of the owner
on the fruits obligation of the usufructuary
4. take care of the thing with the diligence of a good father of a family (during the
usufruct)
5. to return the thing in usufruct to the owner (end of the usufruct)
return the property in its original form at the time the usufruct started
right to the fruits and income terminates
pay reimbursement, expenses and damages
right of retention if the owner has yet to pay reimbursement, expenses and
damages
Insurance

not an obligation of the usufructuary, but it is to his benefit to insure the

property subject of the usufruct

A usufruct is constituted over an immovable and the building constructed on it. The building
is destroyed.
a.
If the usufructuary shares in the insurance, he share in the benefits
If the building is reconstructed, the usufructuary continues his right of
usufruct over the building newly constructed
If the building is not reconstructed, he receives interest with respect to the
civil fruits of the insurance proceeds (interest)
b. If the usufructuary does not share in the insurance,
Building is rebuilt the usufructuary does not enjoy usufructuary rights over
the building, but he continues to enjoy interest over the land
Building is not reconstructed usufructuary continues to enjoy interest over
the immovable and the materials that are of value and would remain
Termination of usufruct:
1. end of the period of usufruct or expiration of the term of the usufruct
grant of 99 year usufruct may be considered in the same way as a grant of
a 99 year lease considered a transfer of ownership
2. death of the usufructuary, unless a contrary intention appears
if there are several usufructuaries, the death of the last usufructuary
terminates the usufruct
death of the owner does not terminate the usufruct
3. fusion or merger of the usufruct and ownership in the same person
4. renunciation of the usufructuary of the usufruct
5. total loss of the thing in usufruct, except if the usufruct is over a land and
building, in which case determine if the usufructuary shares in the payment of the
insurance and if the building is rebuilt
Easements and Servitudes

41

Easement or servitude
encumbrance imposed over immovable property only
for the benefit of:
i. another immovable belonging to a different owner (real easement)
ii. a person or group of person, or a community (personal easement)

cannot institute an easement over another easement

Classes of easement:
1. real (praedial) v. personal
a. real in favor of another immovable belonging to another
b. personal in favor of a community or of one or more person to whom the
encumbered estate does not belong; does not require that they have an interest
over the immovable which is contiguous to the dominant estate
2. continuous v. discontinuous
a. continuous - use of which IS or MAY BE incessant, without the intervention
of any act of man
E.g. easement of light and view
b. discontinuous used at intervals and depends upon the acts of man
E.g. right of way
3. apparent v. non-apparent
a. apparent made known and are continually kept in view by external signs that
reveal the use and enjoyment of the same
E.g. the road itself
b. non-apparent shows no external indication of its existence
E.g. the road is grassy, no footpath exists, but a right of way exists
4. positive v. negative
a. positive - owner of servient estate obliged to allow something to be done, or to
do it himself
b. negative owner of servient estate prohibited from doing something which he
could lawfully do if the easement did not exist
5. legal v. voluntary
a. legal established by law
b. voluntary established by the will of the parties; does not have to be a
contract
Why determine whether the easement is continuous, discontinuous, apparent or nonapparent?
Continuous and apparent easements can be acquired by title or by prescription. All
other types of easement can only be acquired by title.
Can an easement of light and view be acquired by prescription?
Yes. It is a continuous and apparent easement.
Title

42

juridical act that creates the easement (voluntary act between the parties)
more or less the same as just title, except that what is passed is an
encumbrance, not ownership

Juridical act covers donation, testate succession, contracts

Prescription

not the same as acquisitive prescription

refers to the use of a certain portion of a property
10 years (for continuous and apparent easements only)
for positive easement
o
allow something to be done on ones property
o
prescription counted from the time easement is actually
used
for negative easements
o
notification to the servient estate of a prohibition by
way of a notarial act
o
prohibit something to be done which would have been
lawfully done by the owner were it not for the easement
o
involves mostly non-apparent easements

General characteristics of easements:

1. involves immovable property
2. element of permanence

if there is no period, will continue until a mode of extinguishment

occurs

if there is a period, easement extinguishes upon expiration of the

period
3. use or non-use is not an essential element of easement
non-use for 10 years is a mode of extinguishing an easement
if the easement is discontinuous in character, start counting from the time
there is discontinuation of use
if the easement is continuous in character, start counting from the time an
act is done which is contrary to the use of the easement
4. inseparability of easement from the immovable
easement cannot be sold or transferred without selling or transferring the
immovable to which it is attached
registration of the servient estate without making an annotation therein of
the easement extinguishes the easement
registration of the dominant estate without annotating the easement therein
does not extinguish the easement
5. indivisibility once easement is created, it is created on the entire property
6. perpetual

43
Form of creation of easements:
1. legal easements no form, as it is imposed upon the parties by law
2. voluntary easements
i.
donation
the donation must create the easement, not pass on the easement
form for donation
ii.
succession

succession must create the easement, not pass on the easement

form for wills

iii.
contract

must be in writing, as it creates a real right, thereby falling

under the coverage of the Statute of Frauds

acknowledgement by the owner of the servient estate creates

the easement
Rights of the dominant owner
1. Article 625 exercise all the rights necessary for the use of the subject easement
E.g. right to draw water for animals includes right of way for passage of animals
2. Article 627 (2nd paragraph) right to make any works necessary for the use and
preservation of the servitude
Must not make it more burdensome
If there are several owners of the dominant estate, they must contribute to
the expenses pro rata
If the owner does not wish to contribute to the expenses, he must give up
or renounce his right in favor of the other owners of the dominant estate
The owner of the servient estate also contributes to the expenses if he uses
the easement, unless there is a contrary stipulation
3. use in accordance with the purpose for which the easement was created
Obligations of the dominant owner
1. Article 627 (2nd paragraph) to notify the servient owner of the construction of
works for use and preservation
2. Articles 627 (1st paragraph) & 628 (1st paragraph) to pay for the expenses of
such works and to renounce the easement in favor of others if he doesnt wish to
contribute to the expenses
3. cannot impose added burden on the easement
4. cannot change the use of the easement
Rights of the servient owner
1. Article 630 right to retain ownership of the portion on which the easement is
established, and may use it in such a manner as not to affect the exercise of the
easement
Payment of indemnity does not transfer ownership from the servient estate to
the dominant estate

44
2. Article 629 (2nd paragraph) right to change the easement if it becomes very
inconvenient
Must not impose an added burden to the dominant estate
3. Right to use the property subject of the easement in a manner as not to affect the
exercise of the easement
Obligations of the servient owner
1. Article 628 (2nd paragraph) contribute to the payment of the expenses when he
uses the easement
2. Article 629 (2nd paragraph) expenses for the change in easement
3. Article 629 (last sentence) and Article 630 (last clause) not to do anything in his
tenement which will impugn the easement or cause injury to the dominant estate
Modes of terminating easements:
1. merger in the same person of the ownership of the dominant and servient estate
The dominant estate need not acquire the entire servient estate. But, he must
acquire that part where the easement falls for the easement to extinguish.
2. prescription by nonuser for ten years
If somebody (not a co-owner) uses the discontinuous easement, such use will
not benefit the dominant estate and will not toll the running of the prescriptive
period. However, if the easement was constituted for the community, then it
doesnt matter who uses it as long as somebody uses it, and the running of the
prescriptive period is tolled. (Article 633)
3. either or both estates fall into such condition that the easement cannot be used
4. expiration of the term
5. performance of a resolutory condition
6. renunciation of the owner of the dominant estate
Modes of Acquiring Ownership
Modes of acquiring ownership the manner or cause by which ownership is transferred
Modes of acquiring ownership
1. occupation
2. intellectual creation product of intellect and skill (newly created)
3. succession transfer from predecessor to successor
4. law
5. donation
6. tradition delivery
7. prescription requires a certain number of years
All types of mode grant ownership upon its occurrence.
Execution of a public instrument is considered as constructive delivery.
Tradition as a mode of acquiring ownership is a result of delivery coupled with title
(contracts). It is tradition which transfers ownership, not the contract.

45

Title

Mode

not sufficient to convey ownership

gives cause for the occasion of delivery
only grants personal right to compel delivery

grants real rights over the property

once there is mode, one can exercise dominion over the property

Is donation title or mode?

For donation of real property, it is mode as the donation is executed in a public
instrument.
For donation of movable property, if the property is P5,000 or less, it is mode as
simultaneous delivery is required. If the property is more than P5,000, it becomes a problem
because what is required is the donation to be in writing. Simultaneous delivery is not
required for the validity of the donation.
Original Mode of acquiring ownership
does not necessarily mean the object was without a previous owner
ownership not derived from a previous owner
Derivative Mode of acquiring ownership
ownership derived from another person
Occupation
Occupation acquisition of things appropriable by nature which are without an owner
3 requisites for occupation:
1. actual physical possession
2. must involve corporeal properties
lands cannot be acquired by occupation
animals can be acquired by occupation
if the animals are in cages or animal houses, they cannot be acquired by
occupation since (1) they are considered as real property and (2) they have
owners
3. subject must have the intention to acquire ownership
4. object must be appropriable by nature and without an owner (res nullius)
5. compliance with other special requirements of law
Wild animals
do not have owners
born in the wilderness
acquired by occupation

46

Regalian doctrine does not apply as these are not natural resources

Domesticated animals
caught in the wilderness and brought into the control of man
important element: acquired the habit of going home to their owners
once domesticated, the person domesticating them becomes the owner
if lost, owner has 20 days to recover them
Domestic animals
without an owner only if abandoned by the owner
no time frame for recovery
Fish, pigeons and birds once they pass to the property of others, it is owned by the property
owner, so long as they are not enticed by some artifice or fraud
Swarm of bees owner has 2 consecutive days to run after them
Lost movables
obligation to return it to the owner (if known)
if unknown, bring it to the mayor and deposit it with him
2 week publication
if deteriorates, sold at public auction 8 days after publication
wait for 6 months after publication for owner to claim it
if no one claims it, finder can appropriate it for himself
Donation
Elements of Donation
1. an act of liberality
2. disposition of a right or an object
may be real or personal
must be within the commerce of man
must be transmissible
3. acceptance by the donee
no one is compelled to accept the liberality of another
Different kinds of donation:
1. simple or pure
without any strings attached
requires nothing from the donee
2. remunatory
reward for past services which does not constitute a demandable debt
3. onerous
governed by the law on contracts

47

4. modal

consideration is paid for the thing donated

imposes a burden, charge or application on the property (modes)

governed by the law on donations
ex. I will donate this land, which shall be used for educational purposes
only
5. conditional
condition is imposed for the donation to take effect
condition may be suspensive or resolutory
ex. I will give you P1 million if you pass the bar
Article 764 talks of revocation of the donation if the conditions are not fulfilled. Does Article
764 speak of modal or a conditional donation? Modal.
Effectivity
Formality

Intent

Inter Vivos
During the lifetime of the
donor
Real property public
instrument
Personal property:
a.
mo
re than P5,000 in
writing
b.
P5
,000 or less oral or
writing plus delivery
Transfer ownership during
donors lifetime

Mortis Causa
After the death of the donor
For wills

Transfer
ownership
donors death

upon

Element of death is very important in donations mortis causa. There must be a

showing that the donor intended to transfer ownership upon his death
Actual physical delivery of the thing donated is not an indicator that the donation is
inter vivos or mortis causa.
Imposition of a suspensive condition which will not happen during the donors
lifetime does not mean it is a donation mortis causa. Imposition of a resolutory condition
dependent on the donor survival does not mean it is a donation mortis causa.
All doubts should be resolved in favor of a donation inter vivos.
If the donor reserved the right to revoke the donation at any time, it is a donation
mortis causa, since a donation inter vivos is essentially irrevocable.
Object of donations
property or right

48

cannot donate future property (must have the property at the time of the
making of the donation), except in donations mortis causa

When is the donation perfected?

There must be acceptance of the donation by the donee and the donor has notice of
the acceptance by the donee.
If the donation and acceptance are contained in 1 and the same document, the
donation is perfected upon the execution of the instrument.
If the donation and acceptance are contained in 2 different instruments, the donation
is perfected once the donor knows of the acceptance in writing.
Qualifications:
1. donor

2. donee

18 years of age
not insane
not under civil interdiction
capacity must be present:
i. for donation inter vivos upon making of the donation, which is
the perfection of the donation, and perfection occurs when the
donation is accepted and the acceptance is made known to the
donor
ii. for donation mortis causa upon the making of the donation,
which occurs upon the execution of the will
alive or conceived at the time of the making of the donation
i.
for donations inter vivos upon perfection of the donation
ii.
for donations mortis causa at the time the succession opens\
Court approval is not necessary if the guardian accepts the
donation on behalf of his ward, unless the donation imposes a burden,
charge or obligation.

Disqualifications no absolute disqualifications, only relative disqualifications

1. between spouses, during the marriage to protect creditors
2. between persons who are guilty of adultery or concubinage at the time of the
making of the donation need not be in consideration of the relationship
3. those found guilty of the same criminal offense, in consideration thereof may be
made before or after the commission of the crime, but conviction is required
4. those made to a public officer or his wife, descendants or ascendants by reason of
his office
5. disqualified from inheriting by will witnesses of a will who are disqualified to
receive legacies or devices in a will are not disqualified to receive donations,
since donations do not require witnesses
Revocation
Donations inter vivos irrevocable in character

49
Donations mortis causa revocable at will
Grounds for revocation
1. Birth, Adoption, Reappearance of a child
At the time the donation was made, the donor did not have any child or did
not know that he had a child
After the donation, the donor has a child, whether legitimate, illegitimate
or legitimated
Period of 4 years from the time of birth, adoption or reappearance to
revoke the donation
Transmissible to the heirs of the donor if the donor died within the 4 year
period, in which case the remaining period shall apply to the donors heirs
Reduction shall be based on the inofficiousness of the donation
2. non-fulfillment of the conditions
3. ingratitude
purely personal to the donor and the donee for failure of the donee to show
loyalty to the donor
cannot be passed to the donors heir
period of 1 year from knowledge of the act of ingratitude, and it was
possible for him to bring the action
grounds:
i.
commission of an offense against the person, honor, or
property of the donor, the spouse or children under the
donors parental authority
ii.
imputation to the donor of 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 parental
authority
- occurs when the donee acts as plaintiff or witness against
the donor
- truth is not a defense
iii.
donee unduly refuses to render support to the donor when the
donee is legally or morally bound to give support to the
donor
- refusal must be justified