Property Notes A.Y. 2011-2012 Atty.

Lopez-Rosario Lectures

VI. Possession Ways of Acquiring Possession:

- Material holding or control of a thing 1. Material Occupancy – includes constructive
(Possession proper) delivery.
- Exercise of a right (quasi-possession)
- Holding of a thing or of a right whether by  Traditio Brevi Manu (TBM) –
material occupation or by the fact that the transferee already had the property in
thing or right is subjected to the action of our his possession for any other reason.
will. Ex. Juan, lessee of property of Maria, decides
to buy the property upon hearing that Maria
Possession in Property – does not intends to sell it. After buying the property, Juan
automatically refer to actual physical continues/ remains to be in possession of the
possession, because there is such a thing as: property - from lessee to owner.
a) Possession in the concept of holder
b) Possession in the concept of owner  Constitutum Possessorium
(CP) – take place when the owner of the
Example: property alienates it but continues to be
Lessee – possession in the concept of holder. in possession in the concept of a tenant
Lessor – although not in the actual possession, or other subordinate right =
in the concept of holder of a right. Possession lessee/usufruct.
in concept of owner. Ex. Owner sells property to another person
subject to the condition that he is allowed to
Jus Possidendi continue to possess the property.
- The right to possess
- Right exercised by the owner of the property. 2. By the subjection to the action of our will
according to law even without physical
Different Types of Credit Transactions seizure
1. Commodatum
2. Usufruct  Tradicion Symbolica (TS) –
3. Antichresis delivery of the keys of the place or
4. Lease – Lessee – holder depository where the thing is stored or
Lessor – owner kept.
rd
*Right of possession is transferred to a 3 OBLICON – contract of sale
person but not the other rights of an owner. Stages: 1. Preparation
2. Perfection
Q: What can be objects of possession? 3. Consummation
A: Only things and rights susceptible of - Real property by nature that cannot be
appropriation actually transferred or delivered.
Res Nullius – Nobody owns them so - The only way to deliver it is through symbols.
you cannot be charged of robbery. Ex. Delivery of a title or key – no actual
Res Alicujus – unless in relation to transfer of object.
different kinds of transactions, owner delvers
rd
possession to a 3 person which shows that  Traditio Longa Manu (TLM) –
the object is not res nullius, subject that there is thing cannot be manually transferred to
consent in the transfer of the possession. the transferee at the time of agreement
but there is no legal obstacle to the
Q: What are excluded? transfer of possession.
A: Res Communes Q: Is tradition longa manu applicable in
Property of Public Dominion REAL property or is it limited to personal
Discontinuous Servitudes property only?
Non-apparent- servitudes. A: It is limited to personal property only
because if you are just pointing to a parcel of
land, how will you be able to identify the lot
area? In the sale of land, there must be a
survey to properly identify the meets and
bounds of the lot, therefore TLM not applicable.

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 Property Notes A.Y. 2011-2012 Atty. Lopez-Rosario Lectures

3. By proper acts and legal formalities Q: What if there is a dispute between 2

 Clandestine possession – persons regarding possession of property?
hidden or disguised, as distinguished A: Rules:
from open or public possession. 1) Preference, shall be given to
 Possession by tolerance – one in actual possession – the law
does not give rise to ownership. presumes that if you are in
Ex. Squatter (Informal Settlers) living in possession you are the owner.
Rizal Park. 2) If 2 or more possessors –
Oldest or Longer possessor
 Acts merely tolerated, and those executed 3) If the same, the one who can
clandestinely and without knowledge of the show title
possessor of a thing or by violence, do not *If all conditions are equal, determined in
affect possession. (Art. 537) proper proceedings (Art. 538).
 *Rule #1-3 must first be resorted to before
Ex. Public Dominion – cannot be acquired by going to Rule # 4.
acquisitive prescription. It cannot ripen into
ownership. Different kinds of action to recover
possession of real property:
Right of Possession ≠ Right to Possession 1) Summary (Accion Interdictal)
- Forcible Entry
Jus Possessionis Jus Possidendi - MTC
Right of possession is Right to possession
independent and apart is a mere incident of  Sampayan vs. CA
from ownership ownership SC: In an action for forcible entry,
Who enjoys? : Who Enjoys? : plaintiff must prove that he was in
- - Usufructuary previous possession of the land/building
- -Bailiee in and he was deprived thereof by means
Commodatum of fraud, intimidation, threat, strategy
- -Pledgee or stealth (FISTS). Absence of prior
- -Lessee physical/actual possession by plaintiff
warrants the dismissal of his complaint.
Possession with juridical title ≠ Complainant must prove that:
Possession with just title 1. he is in ACTUAL possession
Possession with Possession with 2. he is deprived of possession through
FISTS
Juridical Title Just Title
- Predicated on a- Possession of an
2) Unlawful detainer – originally defendant was
juridical relation adverse claimant
in lawful possession of property, however,
existing between the whose title is
because of expiration of the period that has
possessor and the sufficient to transfer
been leased/violation/breach of conditions
owner of the thing but ownership but is
stipulated, possession of that defendant
not in the concept of defective as when
becomes unlawful.
owner, such as that of the seller is not the
Steps:
lease, usufructuary, true owner.
1) Demand for defendant to vacate
depositary etc.
premises (15-30 days)
- Connect with right of- Connect with right 2) Letter must be given which was
possession to possession
made by a lawyer for an action of unlawful
- Refers to owner of detainer.
Ex.Usufructuary, property Ocampo vs. Tiroma
Depositary, pledge,
SC: Elements to be proved in unlawful
lessee – in possession
detainer:
but not in the concept
1. There was lawful possession first - this
of an owner.
may be in a lease or usufruct
2. The contract is expired already or there
was a violation of the contract.

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 Property Notes A.Y. 2011-2012 Atty. Lopez-Rosario Lectures

Remedies: - Art. 1678 – allows reimbursement of lessees up

- Recovery of possession to ½ of the value of their improvements if the
- Accion Publiciana – Issue: Possession lessor elects.
- Accion Reinvidicatoria – Issue: Ownership
- RTC Possessor in Good Faith
 Oblicon: For a person to be in default, you must Art. 546 – entitled to demand
make a demand. necessary expenses.
- Within 1 year from the date of?
- Answer: Demand to vacate the premises Right of Retention
- Injunction, against continuation of trespass Sps. Nuguid vs. CA
Under Art. 448, the owner is given the option:
Q: What is the proper remedy to get rid of a) To appropriate the improvement
informal settlers? as his own upon payment of the proper
A: Demand first that they should vacate the amount of indemnity; or
property. Then 1 year from date of demand to b) To sell the land to the possessor
vacate if still stubborn, file accion publiciana in in good faith
the RTC. Relatedly, Art. 546 provides:
 “that a builder in good faith is entitled to full
Q: What if property is not real but personal? reimbursement for all necessary and useful
A: File an action for REPLEVIN. expenses incurred”.
Replevin : Go back to Art. 415 – real/personal  “Also gives builder/possessor in good faith
property. the right of retention until full
reimbursement is made”.
Proper action for recovery of personal property
- Rule 60 ROC Kinds of Action to Recover Possession of
Real Property
Q: What is the principle of Irrevindicability? 1) Summons – (Accion Interdictal) – forcible
Art. 559 entry/unlawful detainer.
A: General Rule – Under acquisitive - MTC
prescription; if you are in possession of
property in good faith, you can acquire it after 2) Accion Publiciana – action for the recovery of
10 years. possession.
- If you are in possession of a movable/personal - Based on superior right of plaintiff to
property and you acquired it in good faith, possession (in concept of holder)
acquisition of which is equivalent to a just title. - RTC
Ex. - Issue: On possession NOT ownership
1) If owner of that property lost it
- No finders keepers under the civil code. It 3) Accion Reinvindicatoria – Issue: Based on
should be surrendered to proper authorities. ownership
- Connect with modes of acquiring. - RTC
2) If owner has been illegally deprived of it
 Under Criminal Law – Antifencing Act. 4) Injunction – against continuation of trespass.

Jimenez vs. Patricia 5) Interpleader – a suit to determine a right to

- Lessees, much less sub-lessees are not
possessors or builders in good faith over rented
land because they know that their occupancy of
the premises continues only during the life of
the lease or sublease as the case may be.
- They cannot as a matter of right recover the
value of their improvements from the lessor,
much less retain the premises until they are
reimbursed.
rd
property held by a disinterested 3 party, who
is in doubt about the ownership and who
therefore deposits the property with the Court
to permit interested parties to litigate
ownership.
- Purpose:
1) Who should receive property;
2) avoid multiple liabilities.

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Property Notes A.Y. 2011-2012
VII. Usufruct
- Right to enjoy the property of another
with the obligation of preserving its form
and substance unless the title
constituting it or the law otherwise
provides.
- “uso” – use
- “fructo” – fruits/enjoy
- A real right (of a temporary nature)
- May involve real or personal property.
Usufruct ≠ Lease ≠ Commodatum
Distinction: “right to enjoy fruits”
Lease: Rights:
1. Possess
2. Use
3. Enjoy – it depends, if there is
express prohibition against a
sublease, then no right to enjoy the
fruits.
- If allowed, lessee can
sublease property, hence
can enjoy the fruits.
- b) To prevent abuse w/c is
Parties: Lessor and Lessee
Usufruct: Rights:
1. Possess
2. Use
3. Enjoy
Parties: Naker owner and Usufructuary.
Commodatum: Rights:
1. Possess
2. Use
3. No transfer of right to enjoy
Parties: Bailor and Bailee
Object: real/personal; sterile/productive;
may be rented as a right.
Q: Is there consideration involved in
Usufruct? Lease? Commodatum?
A: 1. Lease – there is consideration.
- “rentals”
- Lessee cannot sublease
without the consent of
lessor – Rental Law
2. Commodatum – essentially gratuitious
3. Usufruct – civil code is silent.
Accdg. To Castan - 1890 Spanish Civil Code
- Provision of property was retained
unlike in FC (marriage)
Atty. Lopez-Rosario Lectures
- There can be considerationMay be
gratuitous/onerous
Characteristics/Elements:
A. Essential – without which it is not a
usufruct.
1) Real right
2) Temporary in nature
3) Purpose: To enjoy the benefits
B. Natural – ordinarily is absent
- GR: to preserve it
- XPN: when the title/law provides that it
is OK not to preserve.
C. Accidental
Difference between Usufruct ≠ Lease
 Lease – consideration is regular,
weekly, monthly
 Usufruct – consideration is only ONCE,
not a regular basis
Reason:
a) To prevent exploitation
frequent
c) To prevent impairment
Q: May a usufructuary lease the object?
A: NHA vs CA – Art. 565, 572
- Usufructuary may lease the object, has
the right to enjoy the fruits
- Has the right to choose tenants
- Usufructuary allowed to administer and
manage the property
-
Q: What happens to the contract of lease
entered into by the usufructuary in relation
to the stipulated period agreed upon by the
naked owner and usufructuary?
A: The lease contract entered into by the
rd
usufructuary with a 3 person will be terminated
upon the termination of the contract of usufruct.
- Upon termination of usufruct, it is also
termination of contract of lease.
- Usufructuary/heirs/succession
Similar analogy shall only recover
proportionate share of the rent.
 If lessee sublease the property under
lease, original contract of lease is
terminated, the sublease contract
automatically terminated.
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Property Notes A.Y. 2011-2012
Q: Can money be an object of usufruct?
A: Yes. Alunan vs. Veloso
- Money is a consumable because you
will not be able to return the same
money bearing the same serial number
that was given by the naked owner, but
there can still be a usufruct, this is called
abnormal usufruct.
- Quasi-usufruct
- Because it refers to a usufruct wherein
the object is a consumable property.
- More of an exception, because the
nature of the usufruct, it is the obligation
of the usufructuary upon the termnation
of the usufruct that he will deliver back
the same property that he received in
the same condition.
Q: What will be returned/delivered back?
A: The appraised value so the usufructuary
will now have to pay the appraised value of
that consumable property that was used and
enjoyed by the usufructuary. The appraised
value could be the current value from the
time the usufruct ceases.
- Connect with Art. 547.
- In relation to hidden treasure: HT
discovered by the a usufructuary on the
property under usufruct, it is by chance,
to the owner of that object considered
as a stranger therefore he is entitled to
½ of the hidden treasure, other half
belongs to the owner.
- In relation to expenses:
- Necessary – usufructuary may
demand reimbursement because it
will redound to the benefit of the
owner.
- Ordinary – usufructuary will
shoulder
- Extraordinary – souldered by the
naked owner.
- - Take care of the thing as a good father
Q: What are the obligations of a usufructuary
before entering upon the enjoyment of
property?
A: 1. To make an inventory of all the property;
2. To give a security
Reason: the law wants to protect the interest of
the naked owner considering that the
possession, right to use and enjoy the fruits are
entrusted to the usufructuary.
 Growing crops – goes to the naked
owner, reimburse the usufructuary.
Atty. Lopez-Rosario Lectures
If naked owner is insolvent, usufructuary
may recover fruits from naked owner –
dation.
 The abovementioned obligations are
connected with the obligation of the
usufructuary to return the object under
the same condition when it was
delivered to him. That is why before he
enters the property he has to give an
inventory of the property at the same
time a security.
Q: Is it possible that a usufructuary can still
take possession of the property without
giving a security?
A: Yes, in lien of that, what he can give is a
caucion juratoria.
Caucion Juratoria – an undertaking, an oath,
“palabra de onor”.
- Bond by oath if usufructuary cannot give
a security.
Q: What if there is refusal of giving security/
caucion juratoria? What are the remedies of
the naked owner?
A: Remedies:
 Ask for the administration of the
property, instead of giving it to the
usufructuary, in which case it would
defeat the purpose of the usufruct. It is
one way to pressure the usufructuary to
either give the security/ if not a caucion
juratoria.
 Death of usufructuary may create doubt
as to who is the owner, put a provision
in the contract.
OBLIGATION OF A USUFRUCTUARY
DURING THE EXISTENCE OF A
USUFRUCT
- To make an inventory of the property to
protect the naked owner
of a family
- Give a bond/security – cash/surety
- Make ordinary repairs at his expense.
Extraordinary expense – owner.
- Pay taxes and charges
- Notify owner of urgent need for
extraordinary repairs (Art. 593) and acts
detrimental to ownership (Art. 601)
- Bear cost of litigation over the usufruct
(Art. 602)
- Answer for fault of lessee/agent
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Property Notes A.Y. 2011-2012
Ordinary diligence - in OBLICON Art. 1163 –
ordinary diligence of a good father of a family is
required in ordinary contracts.
- In usufruct – (contract of Usufruct) same
diligence is required because it is
incumbent upon the usufructuary to
preserve the property in its condition
when it was delivered to him.
To shoulder all ordinary expenses
- Under the provisions in usufruct, the law
uses the terms ordinary expenses and
extraordinary expenses
Q: Why not useful and necessary?
A: The definition of extraordinary expenses
pertains to the repairs needed to restore the
property in its original condition, more or less it
is similar to that of a necessary expense.
- It is the same sole responsibility of the
usufructuary to shoulder the ordinary
expenses because he is the one in
possession of the property.
- Ordinary expenses = expenses incurred
through the ordinary wear and tear of
the property.
Q: Who will shoulder the extraordinary
expenses?
A: The naked owner because he will be the one
who will be benefited.
- If the usufruct would advance the
extraordinary expenses, he has the right
to demand for reimbursement from the
naked owner.
Causes for Extinguishment of Usufruct:
- Waiver
- Expiration/loss of property
- Resolution/termination of the right to
constitute usufruct
- Expropriation
- Prescription
- Merger
- Expiration of period/fulfilment of the
resolutory condition
- Death
-
Q: Can a usufructuary alienate his rights to
the usufruct?
A: Yes. He can alienate his right to the
usufructuary. In accordance with Art. 577.
Atty. Lopez-Rosario Lectures
Obligations of a usufructuary at the
expiration of the usufruct
1. To return the property unless there is
right of retention = extraordinary
expenses
2. To pay interest or the amount spent by
the owner of extraordinary repairs (Art.
594) or taxes on the capital (Art. 597).
3. To indemnify owner for loss due to
negligence of usufructuary or transferee.
XPN:
Right of Retention – given to a BPS in good
faith (Necessary Expenses)
- In this kind of contract it does not
involve necessary expenses but
extraordinary which should be
shouldered by the naked owner.
- The same right is given to a
usufructuary, he has the right of
retention which will serve as security
that the naked owner will reimburse him
of the extraordinary expenses that he
incurred.
- Although he has the obligation to return
the property of the same kind, that
obligation will not be immediately
complied with if he exercises the right of
retention in relation to the extraordinary
expenses he incurred.
To pay interest in the amount spent by
the owner for the extraordinary repairs
and to indemnify owner for losses due to
negligence of usufructuary.
Q: What is the reckoning point where the
usufructuary is entitled to the fruits of the
property? (Art. 567)
A: growing fruits at the time the usufruct begins
= belongs to usufructuary
- At the moment of the commencement of
the usufruct.
Q: What about if usufruct already
terminated?
A: Will go to the naked owner
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Property Notes A.Y. 2011-2012 Atty. Lopez-Rosario Lectures

Q: What are the obligations of the naked Q: What will happen to the contract of lease
owner? if the contract of usufruct is already
A: Naked owner must return to usufructuary all terminated?
the ordinary expenses incurred for the seeds, A: The contract of lease will terminate upon the
the preparation of those fruit bearing trees. termination of the contract of usufruct.
- Refund/reimbursement of the naked
owner only at the time of expiration Q: We said that a usufruct is extinguished upon
the death of the usufructuary, is it automatic
Reason: because at the time the
usufruct ceases, if trees do not bear fruit extinguishment?
A: As a Gen. Rule - Death of the usufructuary
but only flowers, the one who is
will not terminate the usufruct because as we all
benefited is naked owner.
know, is it a REAL RIGHT. It attaches to
- Principle of unjust enrichment
property, therefore death of the usufructuary will
- The naked owner is the one who eats
no automatically extinguish the usufruct.
the fruits, he needs to pay whatever
XPN: if there is a contrary stipulation in the
expenses incurred by the usufructuary.
contract.
- That is the only time when usufructuary
can demand reimbursement for the
ordinary expense.
- But generally, ordinary expenses should
be shouldered by the usufructuary.

Moralidad vs. Pernez

SC: Usufructuary is nothing else but simply
allowing one to enjoy another’s property
temporarily
- Right to use
- Right to enjoy
- Right to possess
- With the owner retaining the right to
dispose/power to alienate.

Art. 579-580-BPS-usufructuary
- Do not have the right for reimbursement
for the improvement he had introduced
in the property – usufructuary might
depose owner of his property.
e.g. usufructuary, builds a building in the
first place he knows that it is not his,
according to SC, he is not entitled to
reimbursement.

Q: What can the usufructuary do?

A: He may remove them without damage to
property

Q: Is usufructuary builder in Good faith?

A: No. He knows from the start that he does not
own the property. He cannot be considered a
builder in Good faith.

Q: If the usufructuary wants to have the

property leased, is consent from the Naked
Owner necessary?
A: NO CONSENT needed. One of the rights of a
usufruactuary is to enjoy the fruits.

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