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Civil Code Book II PROPERTY Review

Ownership in General
Article 427. Ownership may be exercised over things or rights.
Ownership is the independent and general right of a person to control a thing particularly in his
possession, enjoyment, disposition, and recovery, subject to no restrictions except those imposed by the
state or private persons, without prejudice to the provisions of the law.
Kinds of ownership

Full ownership (dominium or jus in re propia) this includes all the rights of an owner.


Naked ownership (nuda proprietas) ownership where the right to the use and the fruits has
been denied.


Naked ownership plus usufruct equals full ownership


Usufruct equals full ownership minus naked ownership


Naked ownership equals full ownership

A usufrucuarys right may be called jus in re aliena because he possesses a right over a
thing owned by another.


Sole ownership where the ownership is vested in only one person.


Co-ownership (or Tenancy in Common) when the ownership is vested in two or more owners.

An informacion possessoria (processor information) duly recorded in the Registry of Property is prima
facie evidence that the registered processor is also the owner of the land involved.
Article 428. The owner has the right to enjoy and dispose of a thing, without other limitations than those
established by law. The owner has also a right of action against the holder and possessor of the thing in order to
recover it.
Owner has:

Right to enjoy


Right to dispose


Right to recover or vindicate

Right to enjoy includes:


Right to possess


Right to use


Right to the fruits

Civil Code Book II PROPERTY Review

Right to dispose includes:


Right to consume or destroy or abuse


Right to encumber or alienate

Rights of an owner under Roman Law

a) Jus Possidendi right to possess means the right to hold a thing or to enjoy a right. In either
case, it means that the thing or right is subject to the control of my will.
b) Jus Utendi the right to use includes the right to exclude any person, as a rule, from the
enjoyment and disposal thereof.

Jus Fruendi right to the fruits includes the right to three kinds of fruits --- natural, industrial,
and civil fruits (such as rents from buildings).

d) Jus Abutendi right to consume, transform or abuse.

e) Jus Disponendi right to dispose includes the right to donate, sell, to pledge or mortgage.
However, a seller need not be the owner at the time of perfection of the contract of sale. It is
sufficient that he be the owner at the time of delivery (Art.1459).

Jus Vindicandi right to recover is given expressly in Art. 428.

Actions to Recover

Recovery of Personal Property

Replevin as an action or provisional remedy where the complainant prays for the
recovery of the possession of personal property.

Recovery of Real Property

a) Forcible entry or unlawful detainer
b) Accion publiciana (the plenary action to recover the better right of possession)

Accion reivindicatoria (reivindicatory action)

Forcible entry a summary action to recover material or physical possession of real property when a
person originally in possession was deprived thereof by force, intimidation, strategy, or stealth. The
action must be brought within one year from the dispossession.

In case of strategy or stealth, better rule would be to count the period of one year from
the time of discovery of such strategy or stealth.

Issue involved is mere physical possession (possession de facto) and not juridical

Unlawful detainer the action that must be brought when possession by a landlord, vendor, vendee,
or other person of any land or building is being unlawfully withheld after the expiration or termination of
the right to hold possession, by virtue of any contract, express or implied. Note: prior physical
possession is not required

Action must be brought within one year from the possession becomes unlawful, (pg.109)

Civil Code Book II PROPERTY Review

Right of ownership is not absolute. (pg.140)

Limitations on Ownership

Those given by the State or the law

Those given by the owner (or grantee) himself

Those given by the person (grantor) who gave the thing to its present owner

Police power is the right of the State to regulate and restrict personal and property rights for the
common welfare. It is based on the Latin maxim --- salus populi est suprema lex (the welfare of the
people is the supreme law) and sic utere tuo ut alienum non laedas (so use your own as not to injure
anothers property)
Article 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical invasion or usurpation of his property.
Doctrine of Self-Help

The right to counter, in certain cases, force with force

Article 430. Every owner may enclose or fence his land or tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to servitudes constituted thereon.

A person may fence off his house and lot unless he denies others a right of way to which
the latter may be entitled.

Article 431. The owner of a thing cannot make use thereof in such manner as to injure the rights of a third
Article 432. The owner of a thing has no right to prohibit the interference of another with the same, if the
interference is necessary to avert an imminent danger and the threatened damage, compared to the damage
arising to the owner from the interference, is much greater. The owner may demand from the person benefited
indemnity for the damage to him.

Refers to a state of necessity

Rule under Criminal Law: any person who, in order to avoid an evil or injury, does an act
which causes damage to another does not incur criminal liability provided that the
following requisites are present:

That the evil sought to be avoided actually exists;


That the injury feared be greater than that done to avoid it;


That there be no other practical and less harmful means of preventing it.

Civil Code Book II PROPERTY Review

Article 433. Actual possession under claim of ownership raises disputable presumption of ownership. The true
owner must resort to judicial process for the recovery of the property.
Two requirements to raise a disputable (rebuttable) presumption of ownership


Actual possession


Claim of ownership

This is similar to Art. 541 which provides that a possessor in the concept of owner has in his favor the
legal presumption that he possesses with a just title and he cannot be obliged to show or prove it.

Article 434. In an action to recover, the property must be identified, and the plaintiff must rely on the strength
of his title and not on the weakness of the defendant's claim.
Requisites in an Action to Recover

Property must be identified


Reliance on title of the plaintiff (and not on the weakness of defendants title or claim)

Evidence which may be presented to show ownership

Torrens certificate

Titles granted by the Spanish Government, like those effected by royal cedula

Long and actual possession

Occupation of a building for a long time without paying rentals therefor

Testimony of adverse and exclusive possession of ownership corroborated by tax declaration of

properties, payment of taxes, and deeds of mortgage

Article 435. No person shall be deprived of his property except by competent authority and for public use and
always upon payment of just compensation. Should this requirement be not first complied with, the courts shall
protect and, in a proper case, restore the owner in his possession.
Eminent domain or the superior right of the State to own certain properties under certain conditions is
a limitation on the right of ownership, and may be exercised even over private properties of cities and
municipalities, and even over lands registered with a Torrens title.
Expropriation usually refers to the procedure, thru which the right is exercised. It is the act of taking of
privately owned property by a government to be used for the benefit of the public.
Essential Requisites of Eminent Domain

Taking by competent authority


Observance of due process of law


Taking for public use


Payment of just compensation

Civil Code Book II PROPERTY Review

Article 436. When any property is condemned or seized by competent authority in the interest of health, safety
or security, the owner thereof shall not be entitled to compensation, unless he can show that such
condemnation or seizure is unjustified. (n) ARTICLE 437. The owner of a parcel of land is the owner of its surface
and of everything under it, and he can construct thereon any works or make any plantations and excavations
which he may deem proper, without detriment to servitudes and subject to special laws and ordinances. He
cannot complain of the reasonable requirements of aerial navigation.

Based on police power, which in turn is based on the maxim that the welfare of the people is the
supreme law of the land.

Unlike eminent domain which requires the giving of just compensation, police power needs no giving of
a financial return before it can be exercised.

Police power can refer not merely to condemnation and seizure, but also to total destruction itself,
provided that a) the public interest is served and b) the means used are not unduly harsh, abusive or