Civ Reviewer (Part 2) Transcript For Recit

CIVIL LAW POST MIDTERMS REVIEWER
Civil Law Review class under Dean Del Castillo

4C AND 4D AY 2006-2007
through the joint efforts of:
Merlin Ang
Joyce Briones
Felix Cabral
Paul Cervantes
Din Din Cruz
JC De Veyra
Fritzzie Espaol
Janina Fernando
Trina Ilarde
Michelle Lama
Jew Lao
Michael Mate
Ding Dong Poquiz
Nad Pugeda
Bunny Quiroz
Eeza Ramos
Victor Ramos
Franco Sarmiento
Clif Sawit
Inx Singson
Christine Trinidad
Mace Wong
This reviewer contains codal provisions, notes and case digests from the Civil Law reviewer of
4A 94-95, and notes and case digests of 4C and 4D 2006-2007.
CIVIL LAW REVIEW 4C and 4D 2006-2007

POST MIDTERMS REVIEWER
E.
Property Relations of Union without Marriage
ARTICLE 147.
When a man and a woman who are capacitated to marry
each other, live exclusively with each other as husband and wife without the
benefit of marriage or under a void marriage, their wages and salaries shall be
owned by them in equal shares and the property acquired by both of them
through their work or industry shall be governed by the rules on coownership.
In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work
or industry, and shall be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by the other party of
any property shall be deemed to have contributed jointly in the acquisition
thereof if the former's efforts consisted in the care and maintenance of the
family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share
in the property acquired during cohabitation and owned in common, without
the consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of
the party in bad faith in the co-ownership shall be forfeited in favor of their
common children. In case of default of or waiver by any or all of the common
children or their descendants, each vacant share shall belong to the respective
surviving descendants. In the absence of descendants, such share shall belong
to the innocent party. In all cases, the forfeiture shall take place upon
termination of the cohabitation. (144a)
ARTICLE 148.
In cases of cohabitation not falling under the preceding
Article, only the properties acquired by both of the parties through their
actual joint contribution of money, property, or industry shall be owned by
them in common in proportion to their respective contributions. In the
absence of proof to the contrary, their contributions and corresponding shares
are presumed to be equal. The same rule and presumption shall apply to joint
deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the coownership shall accrue to the absolute community or conjugal partnership
existing in such valid marriage. If the party who acted in bad faith is not
validly married to another, his or her shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are
in bad faith. (144a)
1.
When both capacitated to marry and living together exclusively
a.
b.
man and woman with no legal impediment to marry live exclusively

together
man and woman live together under a void marriage
Q: What does the above second scenario contemplate?

This situation applies to void marriages where the parties or either one of them
does not have an existing valid marriage with anyone else (accdg. to SempioDiy). So, bigamous marriages would not fall under here. This article will apply
to the other void marriages other than bigamous marriages.
Q: Does Art 147 confer any personal status?
NO, the parties involved are not legally married.
Q: What does Art 147 provide for?
It regulates property relations between couples falling under the 2 instances
mentioned above. It covers two groups of properties:
a. Salaries and wages
b. Properties acquired during the cohabitation
Q: How does the rule in Art. 147 apply to wages and salaries?
Wages and salaries earned by either spouse during the cohabitation shall be
owned by the parties in equal shares and will be divided equally between them,
even if only one party earned the wages and salaries and the other did not
contribute thereto.
Q: How does the rule in Art 147 apply to properties acquired during the
cohabitation?
Such properties shall be governed by the rules on co-ownership. In the absence
of proof to the contrary, they are presumed to have been acquired through the
joint effort of the man and woman and are to be owned in equal shares.
If the properties were not acquired through their joint work or industry, but was
acquired by either party through donation or succession or as exchange for
exclusive properties, this Article does not apply. Fruits and income of the
properties are not covered b Art. 147.
Q: How can the presumption of equal shares of the parties over the properties
acquired during the marriage be overcome?
The presumption may be overcome upon proof that either party contributed
more for the acquisition of the property, then the presumption of equal
ownership will not apply.
Q: When does Art. 147 of the Family Code apply?

Article 147 of the Family code is applicable only in two (2) instances namely:

For example, Marife and happy, during their sinful union, bought Aboitiz
shares from the upcoming IPO worth P1-M. In the absence of any proof to the
contrary, the shares are deemed co-owned in equal share. But if Happy can
present proof that he paid P 700,000 for the acquisition of the shares, the shares
would still be co-owned by both lovers. But the proportionate share of Happy
will be 70% while Marife will own 30% of the shares.
Q: Under a void marriage, what liquidation process will you follow?
The liquidation process will have to be governed by the rules of co-ownership.
NOTE: Sempio-Diy outlines the following special rules applicable to void
marriages under Art. 147:
If only one party is in good faith, the other party having been aware of
the ground that renders their marriage void but did not communicate it to the
other party, the latters share in the properties owned in common shall be
forfeited as follows:
a.) in favor of common children;
b.) in case of predecease of common children, in favor of descendants
of said child, who take the vacant share left by the deceased child;
c.) the right of representation of the descendants applies even in case
of repudiation by a common child of his or her share in the
forfeited property, since this is transmission !nntteerr vv!vvooss and not
mmoorrtt!ss ccaauussaa (i.e., the transmission takes place upon the termination
of the cohabitation of the parties and not upon the death of either),
so that the legal principles governing this kind of transmission are
different.
d.) If the descendant dies ahead of the common child of whom he is a
descendant, there will be no transmission between the two.
In case of cohabitation not failing under the preceding Article, only the
properties acquired by both of the parties through actual joint
contribution of money, property, or industry shall be owned by them
in common in proportion to their respective contributions. In the
absence of proof to the contrary, their contributions and corresponding
shares are presumed to be equal. The same rule and presumption shall
apply to joint deposits of money and evidences of credit. If one of the
parties is validly married to another, his or her share in the coownership shall accrue to the absolute community or conjugal
partnership existing in such valid marriage. If the party who acted in
bad faith is not validly married to another, his or her share shall be
forfeited in the manner provided in the last paragraph of the preceding
Article. The foregoing rules on forfeiture shall likewise apply even if
both parties are in bad faith.
2.
Either not capacitated to marry or not living together exclusively
Q: When does Art. 148 Apply?

Art. 148 applies when a man and a woman live with each other, but the parties
involved are under legal impediment to marry each other. This article would
contemplate the ff. situations:
a. bigamous marriages;
b. adulterous relationships
c. relationships in a state of concubinage
d. relations where both man and woman are married to other persons
and
e. multiple alliances of the same married man; & other impediments
covered by the Family Code.
Q: What properties are covered by Art. 148?
Similar to Art. 147 namely:
a. salaries and wages;
b. property acquired during the union.
NOTE: Only properties acquired by the parties through their actual joint
contribution of money, property, or industry shall be owned in common in
proportion to their respective contributions. In the absence of proof of actual
joint contributions, equal sharing is applied. Note, too, that the same rule
applies to joint deposits of money and to evidences of credit.
Q: How does Art 148 govern the property relation?
With respect to salaries they are deemed to be owned in equal share. For
example: A earns P 10,000 while B has no work, the P 10,000 would still be
owned in equal share by both A and B despite the fact that B has no work.
Thus, A will get P 5,000 and B will get the other P 5,000. With respect to
properties acquired during the existence of the union, they are to be deemed to
be owned in common in proportion to their actual joint contribution.
Q: Illustrate how Art. 148 work with respect to properties acquired during the
union? You only consider actual joint contributions.
For example: Marife is legally married to Mandy. But Marife has a kept man
Happy. She separated ddee ffaaccttoo from Mandy because of his manong attitude. She
then cohabited already with her kept man. During said cohabitation with
Happy, she acquired a Volkswagen Jetta GLX VR6 which they used in going to
her Anilao beach house to conduct monthly full moon escapades. Clearly,
Marife would own the whole car. However, if Happy were to contribute 1/3 of

the value of the VW Jetta, then the proportion of co-ownership would be based
on their actual contributions 2/3, 1/3. If Happy were to act only as a butler to
Marife, dapper in his blue ring-bearer suit, taking care of household chores, he
would still not be able to claim a pprroo--!nndd!vv!ss share in the VW jetta since the
situation here is covered by Art. 148 not Art 147, and the Maxey case does not
apply to cases covered by Art 148.
Q: What happens when on party is validly married to another?
The party who is validly married to another will get his/her share in the coownership and let this accrue to the absolute community or conjugal
partnership of his /her existing valid marriage. If he party who acted in bad
faith is not validly married to another, then his /her share shall be forfeited in a
similar manner as mentioned previously in this discussion. The same rules on
forfeiture will apply even if both parties are in bad faith. The !nn ppaarr! ddeell!ccttoo rule
resulting to good faith rules will not apply here.
Q: Under Art 148. is actual contribution necessary?
Yes, the difference between Art. 147 and 148 is that in the former, household
chores are deemed as contributions (see Maxey case), while in the latter
household chores are not to be deemed as contributions during the coownership
Agapay v. Palang
FACTS: Miguel Palang was first married to Carlina Vallesterol. Around 20
years later, after a failed attempt to divorce Carlina in Hawaii, Miguel refused to
live w/ the Carlina and stayed elsewhere. He then married Erlinda Agapay. 2
months prior to such 2nd marriage, however, Miguel and Erlinda purchased a
parcel of agricultural land which was titled in their names. Some years after,
Erlinda purchased a house and lot for w/c a title was issued in her name.
Miguel subsequently died. The 2 properties acquired during his cohabitation
with Erlinda was awarded in favor of Carlina and their common child.
ISSUE: To which marriage do the 2 questioned lands belong?
HELD: To the first marriage, the one w/ Carlina.
The provision of law applicable here is Article 148 of the Family Code
providing for cases of cohabitation when a man and a woman who are nnoott
capacitated to marry each other live exclusively with each other as husband
and wife without the benefit of marriage or under a void marriage. While
Miguel and Erlinda contracted marriage, said union was patently void
because the earlier marriage of Miguel and Carlina was still subsisting and
unaffected by the latter's ddee ffaaccttoo separation.
Under Article 148, only the properties acquired by both of the parties through
their aaccttuuaall jjoo!nntt ccoonnttrr!bbuutt!oonn ooff mmoonneeyy,, pprrooppeerrttyy oorr !nndduussttrryy shall be owned by
them in common in proportion to their respective contributions. It must be

stressed that actual contribution is required by this provision, in contrast to
Article 147 which states that efforts in the care and maintenance of the family
and household, are regarded as contributions to the acquisition of common
property by one who has no salary or income or work or industry. If the
actual contribution of the party is not proved, there will be no co-ownership
and no presumption of equal shares.
Erlinda tried to establish that she had a ssaarr!--ssaarr! store business but failed to
persuade the court that she actually contributed money to buy the subject
riceland. Worth noting is the fact that on the date of conveyance, Erlinda was
only around 20 years of age and Miguel Palang was already 64 and a
pensioner of the U.S. Government. Considering her youthfulness, it is
unrealistic to conclude that she contributed P3,750.00 as her share in the
purchase price of subject property, there being no proof of the same.
Erlinda also claims that the riceland was bought 2 months before Miguel and
Erlinda actually cohabited. Even assuming that the subject property was
bought before cohabitation, the rules of co-ownership would still apply and
proof of actual contribution would still be essential.
With respect to the house and lot, it was properly a donation made by Miguel
to Erlinda, but one which was clearly void and inexistent by express
provision of law because it was made between persons guilty of adultery or
concubinage at the time of the donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly provides that the
prohibition against donations between spouses now applies to donations
between persons living together as husband and wife without a valid
marriage, for otherwise, the condition of those who incurred guilt would turn
out to be better than those in legal union.
Tumlos v. Fernandez
FACTS: Mario Fernandez was first married to Lourdes Fernandez. The
spouses filed an action for ejectment against petitioner Guillerma Tumlos for
a property owned by them. In her answer, petitioner claimed as a defense
that there was no cause of action, for she was a co-owner of the subject
premises as evidenced by a contract to sell wherein it was stated that she was
a co-vendee of the property together with Mario.
ISSUE: WON petitioner is a co-owner of the disputed property.
HELD: NO.
FF!rrssttllyy,, even considering the evidence presented (contract to sell indicating
that petitioner is the spouse of Mario), petitioner's submission that she is a
co-owner of the disputed property pursuant to Article 144 of the Civil Code
cannot be accepted, for the reason that the applicable law is not Article 144
of the Civil Code, but Article 148 of the Family Code.

Art. 144 of the Civil Code applies only to a relationship between a man and
a woman who are not incapacitated to marry each other, or to one in which
the marriage of the parties is void from the beginning. It does not apply to
a cohabitation that amounts to adultery or concubinage, for it would be
absurd to create a co-ownership where there exists a prior conjugal
partnership or absolute community between the man and his lawful wife.
In this case, Mario was incapacitated to marry petitioner because he was
legally married to Lourdes. It is also clear that, as readily admitted by
petitioner, she cohabited with Mario in a state of concubinage. Therefore,
Article 144 of the Civil Code is inapplicable.
Justice Alicia V. Sempio-Diy points out that "[t]he Family Code has filled
the hh!aattuuss in Article 144 of the Civil Code by expressly regulating in its
Article 148 the property relations of couples living in a state of adultery or
concubinage.
Petitioners argument that the Family Code is inapplicable because the
cohabitation and the acquisition of the property occurred before its
effectivity deserves scant consideration. Suffice it to say that the law itself
states that it can be applied retroactively if it does not prejudice vested or
acquired rights. In this case, petitioner failed to show any vested right
over the property in question. Moreover, to resolve similar issues, we
have applied Article 148 of the Family Code retroactively.
SSeeccoonnddllyy,, another consideration militating against petitioners claim that she is
a co-owner of the property is the fact that, under Article 148, only the
properties acquired by both of the parties through their aaccttuuaall jjoo!nntt
ccoonnttrr!bbuutt!oonn ooff mmoonneeyy, pprrooppeerrttyy oorr !nndduussttrryy shall be owned by them in common
in proportion to their respective contributions. It must be stressed that the
actual contribution is required by this provision, in contrast to Article 147
which states that efforts in the care and maintenance of the family and
household, are regarded as contributions to the acquisition of common
property by one who has no salary or income or work or industry. IIff tthhee aaccttuuaall
ccoonnttrr!bbuutt!oonn ooff tthhee ppaarrttyy !ss nnoott pprroovveedd, tthheerree ww!llll bbee nnoo ccoo--oowwnneerrsshh!pp and no
presumption of equal shares. Petitioner failed to present any evidence of
actual contribution on her part, merely anchoring her claim of co-ownership
on her cohabitation w/ Mario.
Likewise, her claim of having administered the property during the
cohabitation is unsubstantiated. In any event, this fact by itself does not justify
her claim, for nothing in Article 148 of the Family Code provides that the
administration of the property amounts to a contribution in its acquisition.
Valdes v. RTC QC
FACTS: The marriage of Antonio Valdez and Consuelo Gomez was declared
null and void on the ground of the psychological incapacity of both parties.
ISSUE: How should the family home be distributed; what provision of law shall
govern?
HELD: Article 147 of the FC applies, not Arts. 50, 51 & 52, in relation to Arts. 102
and 129 thereof. In a vvoo!dd mmaarrrr!aaggee, regardless of the cause thereof, the property
relations of the parties during the period of cohabitation is governed by the
provisions of Article 147 or Article 148, as the case may be, of the Family Code.
The family home is distributed to the spouses in equal shares.
This particular kind of co-ownership applies when a man and a woman,
ssuuffffeerr!nngg nnoo !lllleeggaall !mmppeedd!mmeenntt ttoo mmaarrrryy eeaacchh ootthheerr, so exclusively live together as
husband and wife under a void marriage or without the benefit of marriage.
The term "capacitated" in the provision (first paragraph) refers to the lleeggaall
ccaappaacc!ttyy of a party to contract marriage, !.ee., any "male or female of the age of
eighteen years or upwards not under any of the impediments mentioned in
Articles 37 and 38" of the Code.
Under this property regime, property acquired by both spouses through their
work and industry shall be governed by the rules on equal co-ownership.
Any property acquired during the union is pprr!mmaa ffaacc!ee presumed to have been
obtained through their joint efforts. A party who did not participate in the
acquisition of the property shall be considered as having contributed thereto
jointly if said party's "efforts consisted in the care and maintenance of the
family household." Unlike the conjugal partnership of gains, the fruits of the
couple's separate property are not included in the co-ownership.
On the other hand, wwhheenn tthhee ccoommmmoonn--llaaww ssppoouusseess ssuuffffeerr ffrroomm aa lleeggaall !mmppeedd!mmeenntt ttoo
mmaarrrryy oorr wwhheenn tthheeyy ddoo nnoott ll!vvee eexxcclluuss!vveellyy ww!tthh eeaacchh ootthheerr ((aass hhuussbbaanndd aanndd ww!ffee)),
only the property acquired by both of them through their actual joint
contribution of money, property or industry shall be owned in common and
in proportion to their respective contributions. Such contributions and
corresponding shares, however, are pprr!mmaa ffaacc!ee presumed to be equal. The
share of any party who is married to another shall accrue to the absolute
community or conjugal partnership, as the case may be, if so existing under a
valid marriage. If the party who has acted in bad faith is not validly married
to another, his or her share shall be forfeited in the manner under Art. 147.
Homeowners Savings v. Miguela
FACTS: The spouses Miguela Dailo (respondent) and Marcelino Dailo, Jr.
purchased a house and lot during their marriage. The Deed of Absolute
Sale, however, was executed only in favor of Marcelino as vendee, to the
exclusion of his wife. Subsequently, Marcelino executed an SPA in favor of
Lilibeth Gesmundo, authorizing the latter to obtain a loan from petitioner
bank, with the house and lot used as security therefor. The property was
foreclosed in favor of petitioner.

ISSUE: WON the property was properly foreclosed. (WON the property
was conjugal.)
HELD: NO. The property was the conjugal property of the Dailo spouses.
Art. 124 of the FC applies, to the exclusion of Art. 493 of the CC.
The sale of a conjugal property requires the consent of both the husband
and wife. Applying Article 124 of the Family Code, the absence of the
consent of one renders the entire sale null and void, including the portion
of the conjugal property pertaining to the husband who contracted the
sale. And there is no legal basis to construe Article 493 of the Civil Code
as an exception to Article 124 of the Family Code.
Respondent and the late Marcelino Dailo, Jr. were married on August 8,
1967. In the absence of a marriage settlement, the system of relative
community or conjugal partnership of gains governed the property
relations between respondent and her late husband. With the effectivity
of the FC on August 3, 1988, Chapter 4 on CCoonnjjuuggaall PPaarrttnneerrsshh!pp ooff GGaa!nnss in
the FC was made applicable to conjugal partnership of gains already
established before its effectivity unless vested rights have already been
acquired under the CC or other laws.
The rules on co-ownership do not even apply to the property relations of
respondent and the late Marcelino even in a suppletory manner. Unlike
the absolute community of property wherein the rules on co-ownership
apply in a suppletory manner, the conjugal partnership shall be governed
by the rules on contract of partnership in all that is not in conflict with
what is expressly determined in the chapter (on conjugal partnership of
gains) or by the spouses in their marriage settlements. Thus, the property
relations of respondent and her late husband shall be governed,
foremost, by Chapter 4 on CCoonnjjuuggaall PPaarrttnneerrsshh!pp ooff GGaa!nnss of the FC and,
suppletorily, by the rules on partnership under the CC. In case of conflict,
the former prevails because the CC provisions on partnership apply only
when the FC is silent on the matter.
The basic and established fact is that during his lifetime, without the
knowledge and consent of his wife, Marcelino constituted a real estate
mortgage on the subject property, which formed part of their conjugal
partnership. By express provision of Article 124 of the Family Code, in the
absence of (court) authority or written consent of the other spouse, any
disposition or encumbrance of the conjugal property shall be void.
Art. 124 FC does not qualify with respect to the share of the spouse who
makes the disposition or encumbrance in the same manner that the rule on
co-ownership under Article 493 of the Civil Code does. Where the law does
not distinguish, courts should not distinguish.
3.
Co-ownership
Maxey v. CA
FACTS: Melbourne Maxey and Regina Morales started living together in 1903.
They had 6 children who are the petitioners in this case. The children claim that
their parents were uited in 1903 in a marriage performed in military fashion.
Both the trial court and the applellate court, however, rejected such a claim of a
military fashion marriage. All the kids were born before the disputed
properties were acquired. Said properties were acquired in 1911 and 1912.
There was a church marriage between Melbourne and Regina in 1919. Regina,
however, died in 1919 after the church wedding. Melbourne remarried and had
Julia Pamatluan Maxey as his second wife. Julia, through the power of attorney,
sold the disputed properties to the spouses Macayra. The kids, upon discovery
of the sale in 1961, seek to annul the sale alleging that the properties were
common properties of their parents, having been acquired during their lifetime
and through their joint effort and capital, and that the sale was executed
without their knowledge and consent. The trial court ruled in favor of the kids
declaring the sale as null and void. The CA, however, ruled otherwise, and
declared the properties to be the exclusive properties of Melbourne on the
ground that there were no CLEAR showing that Regina contributed to the
acquisition of the properties, that the evidence indicates that it was through
Melbournes efforts alone that the properties were acquired.
ISSUE: Whether the properties must be treated as co-owned properties of the
Melbourne and Regina.
HELD: Yes. The New Civil Code provides then (before the Family Code) that
properties acquired by either or both cohabitants through their work or industry
are governed by the rules of co-ownership even if it is only the man who works,
the property acquired during the cohabitation belongs through a fifty-fifty
sharing to the two of them. This case recognized that even if the woman
cohabitant does not work, the real contribution to the acquisition of the
property by the cohabitants, as enunciated in Yaptinchay v. Torres (26 SCRA
489), must include not only the earnings of a woman from a profession,
occupation, or business but also her contribution to the familys material and
spiritual goods through caring for the children, administering the household,
husbanding scarce resources, freeing her husband from household tasks, and
otherwise performing the traditional duties of a housewife. Regina, therefore, is
deemed to have contributed to the acquisition of the properties. Furthermore,
the properties were sold in 1953 when the NEW Civil Code was already in
effect. Therefore, the respondents cannot argue that provisions of the new Civil
code cannot apply.

Q: How does the doctrine laid down in the Maxey case apply to Art 147?
Applying the Maxey case, a party who did not participate in the actual
contribution of any property acquired during the union would still be
considered as a co-owner of such property as long as she ahs contributed in the
maintenance of the household. For example, Marife and Happy, during their
union bought a TV set worth P 10,000. Even if Marife did not participate in
paying for the TV set but instead took care of the household (true to form) while
Happy was working, then Marife and Happy would still co-own the TV set,
following the doctrine laid down in the Maxey case.
Q: In sum, what are the similarities between Art. 147 and Art 148?
1. The parties must be cohabiting as husband and wife
2. No absolute community or conjugal partnership is formed
3. Common property is governed by the rules on co-ownership
4. Property not in co-ownership (e.g. money before the cohabitation,
fruits from separate properties) shall belong to each party separately
and exclusively.
5. Bad faith of a party results in forfeiture
Q: What are the differences between Art. 147 and Art 148?
Article 147
1.) parties are capacitated to marry but
are not married; or are married but the
marriage is void
2.) parties live with each other
exclusively
3.) wages and salaries of the parties,
and property acquired thru their work
or industry are owned in common in
equal shares
4.)
property
acquired
during
cohabitation is presumed to be thru
joint effort, work or industry
5.) care and maintenance of household
and
family
are
regarded
as
contributions to the acquisition of
common property
6.) it is the acquisition of property that
is presumed to be by joint efforts
Article 148
1.) parties may have no capacity to
marry or are suffering under some
legal impediment to marry
2.) one or both parties may have a
valid existing marriage
3.) there must be actual contribution
of money, properly or industry in the
acquisition of property in order that
such property may be owned in
common, and the share of each party
be in proportion to his or her
contribution
4.) there is no such presumption
because there has to be actual point
contribution
5.) such care and maintenance are not
recognize
because
actual
joint
contribution is required (Maxey case
inapplicable)
6.)
it is only the equality of
contributions that is presumed
7. proof of actual contributions is not

necessary (if property is acquired
during cohabitation)
7. if no such proof, no co-ownership

and no presumption of equal shares
Cario v. Cario 02/02/01

FACTS:
During the lifetime of the late SPO4 Santiago S. Cario, he contracted two
marriages, the first was with petitioner Susan Nicdao Cario, with whom he
had 2 offsprings; and the second was with respondent Susan Yee Cario, with
whom he had no children. Upon his death, both petitioner and respondent
filed claims for monetary benefits and financial assistance pertaining to the
deceased from various government agencies. Petitioner was able to collect a
total of P146K while respondent only P21K.
Respondent filed a case for collection of sum of money against petitioner,
praying that the latter be ordered to give respondent at least of the amount
collected. Respondent admitted that her marriage to the deceased took place
during the subsistence of, and without first obtaining a judicial declaration of
nullity of, the 1st marriage. She, however, claimed that she had no knowledge
of the previous marriage and that she became aware of it only at the funeral
of the deceased, where she met petitioner who introduced herself as the wife
of the deceased. She further contended that the marriage of petitioner and the
deceased is void aabb !nn!tt!oo because the same was solemnized without the
required marriage license. In support thereof, respondent presented: 1) the
marriage certificate of the 1st marriage which bears no marriage license
number; and 2) a certification from the Local Civil Registrar stating that said
office had no record of the marriage license. TC ruled in favor of respondent.
ISSUE: To which marriage does the P146K pertain?
HELD: goes to petitioner (wife #1) and the other to the legal heirs of the
deceased (kids of wife #1)
The 1st marriage does not fall within the marriages exempt from the license
requirement. A marriage license, therefore, was indispensable to the validity
of their marriage. The certification of the LCR is adequate to prove the nonissuance of a marriage license. Absent any circumstance of suspicion, as in
the present case, the certification enjoys probative value, it being issued by the
officer charged under the law to keep a record of all data relative to the
issuance of a marriage license.
Such being the case, the presumed validity of the 1st marriage has been
sufficiently overcome. It then became the burden of petitioner to prove that
their marriage is valid and that they secured the required marriage license,
w/c petitioner failed to do. Hence, the presumed validity of their marriage
cannot stand. Therefore, the 1st marriage is void aabb !nn!tt!oo.

It does not follow from the foregoing disquisition, however, that since the 1st
marriage is declared void aabb !nn!tt!oo, the death benefits under scrutiny would
now be awarded to respondent. Under Article 40 of the Family Code, for
purposes of remarriage, there must first be a prior judicial declaration of the
nullity of a previous marriage, though void, before a party can enter into a
second marriage, otherwise, the second marriage would also be void.
Accordingly, the declaration in the instant case of nullity of the 1st marriage
does not validate the 2nd marriage.
One of the effects of the declaration of nullity of marriage is the separation of
the property of the spouses according to the applicable property regime.
Considering that the two marriages are void aabb !nn!tt!oo, the applicable property
regime would not be absolute community or conjugal partnership of
property, but rather, be governed by the provisions of Articles 147 and 148 of
the Family Code on Property Regime of Unions Without Marriage.
In the property regime under Art. 148 FC, w/c is applicable to bigamous
marriages, adulterous relationships, relationships in a state of concubine,
relationships where both man and woman are married to other persons,
multiple alliances of the same married man, the properties acquired by the
parties through their actual joint contribution shall belong to the coownership. Wages and salaries earned by each party belong to him or her
exclusively. Then too, contributions in the form of care of the home, children
and household, or spiritual or moral inspiration, are excluded in this regime.
The disputed P146K was earned by the deceased as a police officer. Unless
respondent presents proof to the contrary, it could not be said that she
contributed money, property or industry in the acquisition of these monetary
benefits. Hence, they are not owned in common by respondent and the
deceased, but belong to the deceased alone and respondent has no right
whatsoever to claim the same. By intestate succession, the said death
benefits of the deceased shall pass to his legal heirs. And, respondent, not
being the legal wife of the deceased is not one of them.
As to the property regime of petitioner and the deceased, Art. 147 FC
governs. This article applies to unions of parties who are legally capacitated
and not barred by any impediment to contract marriage, but whose marriage
is nonetheless void for other reasons, like the absence of a marriage license.
In contrast to Article 148, under the foregoing article, wages and salaries
earned by either party during the cohabitation shall be owned by the parties
in equal shares and will be divided equally between them, even if only one
party earned the wages and the other did not contribute thereto.
Conformably, even if the disputed death benefits were earned by the
deceased alone as a government employee, Article 147 creates a co-ownership
in respect thereto, entitling the petitioner to share one-half thereof. As there is
no allegation of bad faith in the present case, both parties of the first marriage
are presumed to be in good faith. Thus, one-half of the subject death
benefits under scrutiny shall go to the petitioner as her share in the property
regime, and the other half pertaining to the deceased shall pass by, intestate
succession, to his legal heirs, namely, his children with petitioner.
F.
The Family
ARTICLE 149.
The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or agreement
destructive of the family shall be recognized or given effect. (216a, 218a)
ARTICLE 150.
Family relations include those:
(1)
Between husband and wife;
(2)
Between parents and children;
(3)
Among other ascendants and descendants; and
(4)
Among brothers and sisters, whether of the full or half-blood. (217a)
Q. Who are the members of the family?
The FC provides for an extended list of members of the family. It includes the
husband, wife, children, ascendants, descendants, brothers and sisters.
The obligation of the husband and wife to provide education and care is limited
only to their own kids. But in all other cases, including the obligation to give
support and the procedural requirement of earnest efforts to compromise in a
suit among family members, the obligation extends to all members of the
family.
Q. Are they required to live together?
No. Family relations exist among them even if they dont live together.
Q. Are household helps considered part of the family?
No. Part of the household, but not part of the family. Unless you get your maid
pregnant and have to marry her. But dont worry, Chris Gerona, we wont tell.
Q. Are adopted children included in family relations? Yes.
Q. Are illegit kids included in family relations? No.
ARTICLE 151.
No suit between members of the same family shall prosper
unless it should appear from the verified complaint or petition that earnest
efforts toward a compromise have been made, but that the same have failed.
If it is shown that no such efforts were in fact made, the case must be
dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code. (222a)

Q. What is required in order that a suit b/w members of the same family may
prosper?
It must be alleged in the verified complaint or petition that earnest efforts for a
compromise have been made and that theyre unsuccessful. This is a
jurisdictional requirement and if the petitioner fails to comply with this, the
court may dismiss the case for lack of jurisdiction. Furthermore, the allegation
must be true, otherwise, the case will also be dismissed.
Q. What happens if during the pre-trial, it appears that the allegations made in
the petition are not true?
The case must be dismissed.
Q. What happens if during the pre-trial, it appears that the case can be
compromised?
The case must be dismissed. After all, the compromise will end the litigation.
Q. What are the cases that may not be compromised?
1. civil status of persons
2. validity of marriage or of a legal separation
3. any ground for legal separation
4. future support
5. jurisdiction of courts
6. future legitime (art. 2035, CC)
Q. Trina and her children (Dang, Vang, Krang, 2Chang and the oldest, este
eldest, Alex Rivera) sought support from her husband, Oscar, on the ground
that the latter abandoned them and was maintaining an illicit relation with Paul.
Oscar sought the dismissal of the case on the ground that the complaint did not
state that earnest efforts have been made towards a compromised. Decide, with
reasons. (10%)
The case should be allowed to continue on the ground that the case involves
future support, for which there can be no compromise. Hence, there is no
necessity of alleging in the complaint that there were earnest efforts to arrive at
a compromise.
Q. What court has jurisdiction to (dis)approve the compromise agreement?
The trial court and not the SC. (Though not sure how this works with the Family
Courts now around. Its probably there now.)
Guerrero v. RTC, 01/10/94
FACTS:
Guerrero filed an aacccc!oonn ppuubbll!cc!aannaa against private respondent. Respondent

judge dismissed it on the ground that the complaint should have alleged that
earnest efforts towards compromise were first exerted since the parties were
brothers-in-law. Judge Bello gave Guerrero 5 days to file his motion and
amended complaint to allege that the parties were very close relatives, their
respective wives being sisters, and that the complaint to be maintained should
allege that earnest efforts towards a compromise were exerted but failed.
Guerrero moved to reconsider and claimed that since brother by affinity are not
members of the same family, he was not required to exert efforts towards
compromise. The judge denied and warned that unless the complaint was
amended within 5 days the case would be dismissed. The 5-day period expired
and the judge dismissed the case without prejudice.
ISSUES:
1. WON brothers by affinity are considered members of the same family
contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as
under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts
towards a compromise before a suit between them may be instituted and
maintained
2. WON the absence of an allegation in the complaint that earnest efforts
towards a compromise were exerted, which efforts failed, is a ground for
dismissal for lack of jurisdiction
HELD:
1. No, brothers by affinity are not considered members of the same family under
the said provisions. Consequently, the court aa qquuoo erred in ruling that petitioner
Guerrero, being a brother-in-law of private respondent Hernando, was required
to exert earnest efforts towards a compromise before filing the present suit.
The reason for this requirement is that a lawsuit between close relatives
generates deeper bitterness than between strangers.
The enumeration of "brothers and sisters" as members of the same family
does not comprehend "sisters-in-law". (Gayon v. Gayon )
2. The attempt to compromise as well as the inability to succeed is a condition
precedent to the filing of a suit between members of the same family, the
absence of such allegation in the complaint being assailable at any stage of the
proceeding, even on appeal, for lack of cause of action.
A review of the assailed orders does not show any directive which Guerrero
supposedly defied. The first order merely gave Guerrero 5 days to file his
motion and amended complaint with a reminder that the complaint failed to
allege that earnest efforts were exerted towards a compromise. The second
order which denied Guerrero's MR, simply stated that "Plaintiff !ff !tt (sic) ssoo
ddeess!rree must amend the complaint otherwise, the court will have to dismiss the
case. The order dismissing the case without prejudice only made reference to

an earlier order "admonishing" counsel for Guerrero to amend the complaint,
and an "admonition" is not synonymous with "order".
Since the assailed orders do not find support in our jurisprudence but, on the
other hand, are based on an erroneous interpretation and application of the
law, petitioner could not be bound to comply with them.
G. The Family Home
a. Manner of Constitution
ARTICLE 152.
The family home, constituted jointly by the husband and
the wife or by an unmarried head of a family, is the dwelling house where
they and their family reside, and the land on which it is situated. (223a)
ARTICLE 153.
The family home is deemed constituted on a house and lot
from the time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides therein,
the family home continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the extent of the
value allowed by law. (223a)
Q. What is the importance of constituting a family home (FH)?
A FH is established to exempt the property from execution, forced sale or
attachment from the moment of its constitution, except with respect to the
creditors provided in art. 155.
Q. When does the exemption of the FH start and up to when does it last? Read
the code.
Q. How was the FH constituted under the Civil Code?
Judicially by filing a petition in the proper court; or extra-judicially by the
recording of a public instrument in the proper registry of property declaring the
establishment of a family home.
Q. What about under the FC? A FH is constituted by occupying it as a family
home.
Q. So, is judicial constitution still necessary? Obviously not.
Q. How will the creditors know whether a house and lot is a family home?
Investigation, silly.
Q. Is actually occupancy necessary to constitute the FH?
Yes. You need actual occupancy of the FH with the intention of dedicating the
premises for such purpose.
Q. What does the unmarried head of the family mean?
Follow the tax definition an unmarried person who has

ascendant/descendants, brother, sisters or kids living with him, or are
dependent on him for supot, este support.. Also, it includes a widow or
widower.
Q. May the beneficiaries constitute a family home? No.
Q. If Jay and Marlon are separated, may either of them constitute a family
home?
No. If the husband and wife are separated, each one of them cannot constitute a
family home because the law requires that the FH be constituted jointly by the
husband and wife.
Q. Is there any instance where the FC allows a spouse to constitute it separately
from his spouse? Nope.
Q. Vis--vis the effectivity of the FC, when is a FH deemed constituted?
1. If its been constituted bbeeffoorree the effectivity of the FC, its constituted
from the time of its (extra)judicial constitution.
2. If the family occupied the house aafftteerr the effectivity of the FC, its
constituted the moment its occupied.
3. If the family was already occupying the house before the effectivity of
the FC, but has not (extra)judicially constituted it yet, the constitution
takes place upon the effectivity of the FC.
Q. Why is it important to determine when the constitution took place?
This becomes material w/ respect to those creditors who can legally execute
upon the FH. Under art. 155(2), the FH may be subject to execution, forced sale
or attachment for debts incurred prior to the constitution. For example, if the
family first occupied the house before Aug. 3/88, and the debt was incurred
before then the creditor can subject the FH to execution for non-payment of the
obligation.
Q. What are the limitations on the constitution of the FH?
1. Each family can only have one (1) family home.
2. The FH can constituted only on the dwelling place, and therefore, in
the locality where the family has its domicile.
3. The value of FH exempt from seizure cannot exceed the limits set by
law.
Q. X constituted his family home on land belonging to Y. Is the constitution
valid?
Yes, the Constitution is always valid as it is the expression of the sovereign will
of the people, who implore the help of almighty God

But, the constitution of the FH is not valid. A FH cannot be constituted on land

belonging to another because by definition, the FH includes the land on which it
stands.
Q. X constituted his family home on a lot he rented from B. Is the constitution
valid?
No. A FH should be permanent in character, hence a home constructed on
rented land or through mere tolerance of the owner cannot be a FH.
Q. May a FH be constituted on premises used primarily for business purposes if
the family lives on such premises? No.
Q. Alex lives in bungalow that he owns. He uses 2/3 of the bungalow as a joke
shop. Can he constitute the bungalow as his FH?
No. A FH must be exclusively as a bboonnaaff!ddee residence of the family. Premises
used primary for business cannot be a family home.
However, in case one floor is used for business and another is used exclusively
for residence, then the floor for residence can be constituted. (Check this daw,
sabi ng reviewer.)
Q. Are there any exceptions to the inability to constitute the FH on land you
dont own?
Yes. Under art. 156(2), property that is the subject of a conditional sale on
installments where ownership is reserved by the vendor only to guarantee
payment of the purchase price may be constituted as a family home.
ARTICLE 154.
The beneficiaries of a family home are:
(1)
The husband and wife, or an unmarried person who is the head of a
family; and
(2)
Their parents, ascendants, descendants, brothers and sisters, whether
the relationship be legitimate or illegitimate, who are living in the family
home and who depend upon the head of the family for legal support. (226a)
Q. Are the in-laws (parents in-law, brothers/sisters in-law) beneficiaries of the
FH?
Yes. The in-laws are beneficiaries because the FH is constituted jointly by the
husband and wide; however, the in-laws must actually reside in the FH and
depend upon the head of the family for support.
Modequillo v. Breva, 05/31/90
FACTS:
In January 29, 1988, a judgment was rendered by the CA concerning a case

involving a vehicular accident wherein petitioner Modequillo was held liable
for damages to the Salinas spouses. The said judgment having become final and
executory, a writ of execution was issued to satisfy the said judgment on the
goods and chattels of the defendants, one of them being Modequillo. The sheriff
then levied on a parcel of land owned by Modequillo. The latter, however, filed
a motion to quash and/or to set aside the levy of execution alleging that the said
land is where his family home stands, and hence is exempt from execution
under arts. 152-153 FC. TC denied the motion.
ISSUE: WON the land is exempt from execution.
HELD: NO.
Under the FC, a family home is deemed constituted on a house and lot from
the time it is occupied as a family residence. There is no need to constitute the
same judicially or extrajudicially as required in the Civil Code. If the family
actually resides in the premises, it is, therefore, a family home as
contemplated by law. Thus, the creditors should take the necessary
precautions to protect their interest before extending credit to the spouses or
head of the family who owns the home. There are, however, exemptions
provided under art. 155 FC wherein the family home could be subjected to
execution, forced sale or attachment, which become effective from the time of
the constitution of the family home as such, and lasts so long as any of its
beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under the
Civil Code. It became a family home by operation of law only under Article
153 of the Family Code. It is deemed constituted as a family home upon the
effectivity of the Family Code on August 3, 1988 not August 4, one year after
its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap
year).
The contention of petitioner that it should be considered a family home from
the time it was occupied by petitioner and his family in 1969 is not welltaken. Art. 162 FC could not be construed to mean that Arts. 152 and 153 have
a retroactive effect such that all existing family residences are deemed to have
been constituted as family homes at the time of their occupation prior to the
effectivity of the FC and are exempt from execution for the payment of
obligations incurred before the effectivity of the FC. Art. 162 simply means
that all existing family residences at the time of the effectivity of the FC are
considered family homes and are prospectively entitled to the benefits
accorded to a family home under the FC.
The family home of petitioner is not exempt because the debt or liability
which was the basis of the judgment arose or was incurred at the time of the
vehicular accident on March 16, 1976 and the money judgment arising
10

therefrom was rendered by the appellate court on January 29, 1988. Both
preceded the effectivity of the FC. And this case does not fall under the
exemptions from execution provided in the FC.
Manacop v. CA, 11/13/92
FACTS:
Respondent FF Cruz & Co. was able to obtain a writ of preliminary attachment
against a parcel of land owned by Manacop Construction President Florante F.
Manacop, herein petitioner. Petitioner insists that the attached property is a
family home, having been occupied by him and his family since 1972, and is
therefore exempt from attachment.
ISSUE: WON the property is a family home exempt from attachment.
HELD: NO
The exemption provided in Art. 155 FC is effective from the time of the
constitution of the family home as such, and lasts so long as any of its
beneficiaries actually resides therein. In this case, the residential house and
lot of petitioner was constituted as a family home whether judicially or
extrajudicially under the Civil Code. It became a family home by operation of
law under Article 153 of the Family Code. It is deemed constituted as a family
home upon the effectivity of the Family Code on August 3, 1988 not August 4,
one year after its publication in the Manila Chronicle on August 4, 1987 (1988
being a leap year).
The contention of petitioner that it should be considered a family home from
the time it was occupied by petitioner and his family in 1969 is not well-taken.
Under Article 162 of the Family Code, it is provided that "the provisions of
this Chapter shall also govern existing family residences insofar as said
provisions are applicable." It does not mean that Articles 152 and 153 of said
Code have a retroactive effect such that all existing family residences are
deemed to have been constituted as family homes at the time of their
occupation prior to the effectivity of the Family Code and are exempt from
execution for the payment of obligations incurred before the effectivity of the
Family Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family homes
and are prospectively entitled to the benefits accorded to a family home under
the Family Code. Article 162 does not state that the provisions of Chapter 2,
Title V have a retroactive effect.
Verily, according to petitioner, his debt was incurred in 1987 or prior to the
effectivity on August 3, 1988 of the Family Code. Hence, since the debt was
incurred prior to the home being considered as a Family Home under the FC,
it does not fall w/in the exemptions under Art. 155 and is, therefore, subject
to attachment.
Taneo v. CA, 03/09/99

A ffaamm!llyy hhoommee is the dwelling place of a person and his family. It is said,
however, that the family home is a real right, which is gratuitous, inalienable
and free from attachment, constituted over the dwelling place and the land on
which it is situated, which confers upon a particular family the right to enjoy
such properties, which must remain with the person constituting it and his
heirs. It cannot be seized by creditors except in certain special cases.
CCIIVVIILL CCOODDEE ((AARRTTSS.. 222244--225511))
A family home may be constituted in 2
ways:
Judicially by the filing of the petition
and with the approval of the proper
court; and
Extrajudicially by the recording of a
public instrument in the proper
registry of property declaring the
establishment of the family home. The
operative act is the registration.
Applies until before the effectivity of
the FC on August 3, 1988.
b.
FFAAMMIILLYY CCOODDEE ((AARRTT.. 115533))

A family home is deemed constituted
on a house and lot from the time it is
occupied by the family.
Applies only from August 3, 1988

onwards.
Does not have a retroactive effect such
that all existing family residences are
deemed to have been constituted as
family homes at the time of their
occupation prior to the effectivity of
the FC and henceforth, are exempt
from execution for the payment of
obligations incurred before such
effectivity. Consequently, a home not
constituted as a family home under
the CC but only upon the effectivity of
the FC is not exempt from debts
incurred prior to the latter. The
applicable law, in such case, is still the
Civil Code.
Qualified Property
ARTICLE 156.
The family home must be part of the properties of the
absolute community or the conjugal partnership, or of the exclusive
11

properties of either spouse with the latter's consent. It may also be constituted
by an unmarried head of a family on his or her own property.
Nevertheless, property that is the subject of a conditional sale on installments
where ownership is reserved by the vendor only to guarantee payment of the
purchase price may be constituted as a family home. (227a, 228a).
Q. Why do you need consent of your spouse if youre going to constitute the FH
on exclusive property?
Because the FH must be constituted jointly.
Installment Purchases
Q. Nad and Paul, lovers, bought a house and lot on installment, and mortgaged
it to secure full payment. Can Nad and Paul constitute the house and lot as their
FH?
Yes. This was a contract of sale! Thus, theyre already considered owners even if
the not fully paid. As owners, they can legally constitute the house.
Q. Christine and Frankie, not lovers, just friends, entered into a contract with
Fritzzie where Fritzzie agreed to sell a specific house and lot to Christine and
Frankie. It was stated that they may immediately occupy the house and lot, but
ownership remains with Fritzzie until the purchase price is fully paid. May they
constitute the house and lot as their FH?
Yes. This is a contract to sell, where ownership doesnt transfer to the buyer
until full payment. In this case, the 2nd par. of art. 156 applies.
Q. May a FH be constituted over leased property?
No. The only purpose of constituting is to exempt the FH from execution. So, if
Frankie is the lessee and Fritzzie is the lessor, the property cant be executed
upon for Frankies debt for the simple reason that hes not the owner (duh!). It
can, however, be subject to execution for Fritzies debts because she is the
owner. Thus, the basis for saying you cant constitute a FH over leased property
is because youre not the owner.
Q. JC owns a house and lot in QC. He moved to the States because no one in the
Philippines understood his accent and because everyone here called him an
Amboy. Before he left, he asked his brother, Nad to look over the house. When
Nad got married to Paula, they decided to live in JCs house. Can Nad and
Paula constitute a FH over JCs property?
No. They are not the owners. But that doesnt stop them from making sweet,
sweet lovin inside the house. In any room. At any time.
Yes. The FC doesnt make a distinction b/w separate houses and condo unit, so
long as the person constituting it is the owner of the property.
ARTICLE 157.
The actual value of the family home shall not exceed, at the
time of its constitution, the amount of three hundred thousand pesos in
urban areas, and two hundred thousand pesos in rural areas, or such amounts
as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption of this
Code, the value most favorable for the constitution of a family home shall be
the basis of evaluation.
For purposes of this Article, urban areas are deemed to include chartered
cities and municipalities whose annual income at least equals that legally
required for chartered cities. All others are deemed to be rural areas. (231a)
Q. May every house be constituted as a FH?
No. See the above article. The reasons is that the protection is only given to
those families that need it the most i.e., the middle class. Those who can afford
expensive homes dont need the protection.
Q. How is the value of the FH computed?
Consider the value at the time of its constitution.
So, if the family already lived in the house prior to the effectivity of the FC, the
value is the value of the property on August 3, 1988, since the FH is deemed
constituted on that date.
If the family first occupied the house after the effectivity of the FC, the value is
the value at the time of occupation.
Q. What is included in the determination of the value of FH?
It includes the value of the house and the land. But not the furnishings.
Q. May the limits be changed? Of course yes, but why not? Congress may
change.
Q. Whats the meaning of the 2nd par. of art. 157? Who cares!
But if you do care, theres actually no clear answer. The problem is that there is
no comparison point for the change in currency valuation mentioned in art. 157.
It does not refer to fluctuations in the exchange rate, since it refers to value of
the currency. The Dean has no answer to this problem either. Which means that
she wont ask it in the test. So sayang naman, you had to read this whole
paragraph without getting a straight answer.
Q. May a FH be constituted over a condom, este a condo, unit?
12

If theres any change in the currency valuation, go to the courts since theyre
the most competent to determine an actual change in currency valuation.
Q. May creditors enforce their claim against the FH in excess of the maximum if:
a) The increase is due to improvements? Yes.
b) If the increase is due to increments (the natural increase in value that
comes with the passage of time)? No. The FH remains exempt.
Q. Brothers, Alex and Chris Cherona, are co-owners of a house in Makati. Both
their families live in the same house. Can either of them constitute the property
as a FH?
Yes. But the exemption from execution, etc., is limited to the extent of the
interest of each co-owner. So, if they own it 50-50, then 50% is exempt from
execution by Chris creditors, and so on and so forth.
Q. How is the value of the property computed if its owned in common?
If owned in common, the entire house and lot will have to be within the limits
set by law.
Q. Does the same rule apply to a duplex?
No. If the house is a duplex that can be physically segregated, the value of each
unit will have to be within the limits of 300K and 200K.
Q. What is the rule with respect to condominiums?
The value of each unit must be taken separately. And each must be within the
limits.
Q. If the house and lot is owned in common, may the creditors of each co-owner
execute upon the whole property?
No. As mentioned earlier, they can only executed up to the extent of the interest
of each co-owner.
c.
Exemption from execution
ARTICLE 155.
The family home shall be exempt from execution, forced
sale or attachment except:
(1)
For nonpayment of taxes;
(2)
For debts incurred prior to the constitution of the family home;
(3)
For debts secured by mortgages on the premises before or after such
constitution; and
(4)
For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or furnished material for
the construction of the building. (243a)
Q. What are included, by implication, in the exemptions from art. 155?

a) A money judgment, whether already final or still on appeal, against the
head of the family or the spouses, before the constitution of the FH.
b) Claims of persons who supply services of materials for the repairs and
improvements of the FH after its constitution.
Q. May the FH be subject to execution for non-payment of any kind of tax?
Yes. Unlike in concurrence and preference of credit, this provision doesnt refer
to taxes on the home itself. It only says for non-payment of taxes. So, if the
spouses fail to pay their income tax, the govt can go after the FH for the
purpose of executing on it, selling it, and applying the proceeds to the unpaid
taxes.
Q. What is meant by debt incurred prior to the constitution?
a) Incurred after the effectivity of the FC, but before the family actually
occupied the property as a residence; or,
b) If the family had been living there even before the FC, this refers to
credits due and owing before the FCs effectivity.
Q. What is meant by debts secured by mortgages on the premises before or
after its constitution?
This refers to a specific mortgage on the property itself. The provisions on the
FH were never meant to disturb the right of creditors to foreclose on mortgaged
property regardless of whether the mortgage was meant to secure a debt
before or after constitution.
Q. Mang Nats hired the services of builders for the repair and improvements of
his FH. He was not able to pay them because it was the summertime and no one
buys books from the bookstore during the summer. Can his family home be
attached?
Yes. Construction as used in the exemptions should be liberally interpreted so
as to include repairs and improvements.
Q. A criminal case for misappropriation of public funds was filed against Mr.
Kho Pit. After the filing, he constituted his family home. Much later, he was
convicted. May the FH be attached to pay for the civil indemnity?
Yes. This debt was not incurred at the time of the conviction, but at the time that
the misappropriation occurred. The fact of conviction did not cause the debt to
arise; it merely established the fact of appropriation beyond reasonable doubt.
13

ARTICLE 160.
When a creditor whose claims is not among those
mentioned in Article 155 obtains a judgment in his favor, and he has
reasonable grounds to believe that the family home is actually worth more
than the maximum amount fixed in Article 157, he may apply to the court
which rendered the judgment for an order directing the sale of the property
under execution. The court shall so order if it finds that the actual value of
the family home exceeds the maximum amount allowed by law as of the time
of its constitution. If the increased actual value exceeds the maximum allowed
in Article 157 and results from subsequent voluntary improvements
introduced by the person or persons constituting the family home, by the
owner or owners of the property, or by any of the beneficiaries, the same rule
and procedure shall apply.
At the execution sale, no bid below the value allowed for a family home shall
be considered. The proceeds shall be applied first to the amount mentioned
in Article 157, and then to the liabilities under the judgment and the costs.
The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)
Q. What are the requisites for applying the above article?
a) The creditor must be a jjuuddggmmeenntt creditor not just a mere creditor.
b) His claim doesnt fall under art. 155.
c) He has reasonable grounds to believe that the value of the FH is more
than the max amount allowed.
Q. What happens if the value of the house and lost is within the limits?
Exempt! Except with respect to the creditors named in art. 155.
Q. Alex obtained a judgment against Chris, an unmarried head of a family, for
usurping his rightful position as class dinosaur. Alex suspects that at the time of
the constitution of Chris FH, the value is more than the limit. What can he do?
a) Alex can prove that, at the time of the constitution, the value of the FH
was more than 300K (if in Manila). If hes successful, he can execute on
the property.
b) If he finds that, at the time of the constitution, the value was within the
limit, but has since then increased because of improvements, then he
can avail of art. 160.
Q. What is meant by increased valuation?
If refers to the increase in the value due to additional improvements made on
the property. It does not refer to the increase by reason of natural appreciation
of the value of the property.
Q. At the time of its constitution, the value of the FH was within the limits. 10
years later, its value increased to P1M. No additional improvements were made.
Will art. 160 apply?
No. This is not the increased valuation referred to. The property is still
exempt!
Q. In 1988, Vics house in Makati was worth 300K. In 1992, he added an indoor
shrine dedicated to his seminal Mr. Law School win, and widened the
doorframes so his gigantic bird would not get caught on the edges. At present,
the house is already worth P2M. Will art. 160 apply? Yes.
Q. Can you say that only the additional improvements are not exempt from
execution and the original structure is exempt?
No. Its impossible to divide the house into two. According to DSound, its all
or nothing.
Q. As between creditors falling under art. 155, those falling under this article,
and those falling, falling fast again, who are preferred?
Creditors in art. 155 must be paid first before those in art. 160. For those falling,
falling fast again, the Code has no answer.
Q. How are the proceeds of the sale of the FH to be distributed?
Follow this order:
a)
b)
c)
The max amount allowed by law (300K or 200K) shall be reserved for
the family since its exempt from execution (subject to art. 155)
The excess over the max amount is given to the judgment creditor to
the extent of his credit, plus all costs of execution.
The remainder, if any, shall be given to the judgment debtor (the
owner of the FH).
Q. Xs house in Pasay was sold at public auction. The highest bid was 350K.
How will the 350K be distributed?
The proceeds are first applied to the amount mentioned in art. 157. So, 300K is
set aside. If there are no creditors who are preferred (art. 155), such 300K goes to
the owner. But, if there are creditors who are preferred, theyre not bound by
the foreclosure or execution, and hence they can legally execute over the 300K.
But, theyll still need to institute the necessary proceedings for execution.
Absent such proceedings, the 300K goes to the owners.
Only the balance goes to the judgment creditor. In this case, he only gets 50K.
Obviously, this may or may not be sufficient to satisfy the debt. If its sufficient,
and there is, in fact, even an excess, then the excess goes to the judgment debtor.
If theres a deficiency, the judgment creditor can ask for a deficiency judgment,
14

but he can no longer execute on the same property because its already been
sold. Thus, he has to go after the other properties of the judgment debtor.
Q. The FH of Henry is located in Makati. At the time of the execution sale, its
value was 400K. But, Henry still owes Merlyn (with a Y) the architect, 125K.
Boobs, the judgment creditor, filed a motion to have the FH executed. Decide!!!
Boobs cannot execute the family home. Once all claims under art. 155 are paid,
the value of the FH is less than the max amount. (400 125 = 275)
d.
Sale
ARTICLE 158.
The family home may be sold, alienated, donated, assigned
or encumbered by the owner or owners thereof with the written consent of
the person constituting the same, the latter's spouse, and a majority of the
beneficiaries of legal age. In case of conflict, the court shall decide. (235a)
Q. Dingdong and Mimi are married. Dingdongs 90-year old father, Chris, lives
with them. Mimis brothers, Boobs and Merlyn (with a Y), aged 18 and 18.3,
respectively, live with them. Are Chris, Boobs and Merlyn (with a Y)
considered beneficiaries of the FH for the purposes of applying art. 158? Yes!
Q. If Dingdong and Mimi want to sell or mortgage the FH, do they need the
consent of Chris, Boobs and Merlyn (with a Y)?
Yes! They are all of legal age. But, note that only the consent of a majority of
such beneficiaries, of legal age, is necessary. And no cumulative voting.
Termination of the Family Home
ARTICLE 159.
The family home shall continue despite the death of one or
both spouses or of the unmarried head of the family for a period of ten years
or for as long as there is a minor beneficiary, and the heirs cannot partition
the same unless the court finds compelling reasons therefor. This rule shall
apply regardless of whoever owns the property or constituted the family
home. (238a)
Q. After the death of his parents, Ken and Barbie, may Winnie the Pooh
constitute the FH established by his parents as his own FH?
Yes. Weenie became the owner of the property when Ken and Barbie died
(through succession). Being the owner, Weiner the Pooh can now constitute the
property as a FH, by allowing his own family to live there; or, if he is unmarried
(and prefers screwing Piglet on the DL), he may constitute it as an unmarried
head of the family.
Q. Captain Barbell and Darna died. Their only child, Ogie Alcasid, inherited the
family home. Upon liquidation of the properties of Captain and Darna, may the
creditors execute upon the FH?
No. The liquidation and partition of the properties of the deceased spouses (for
purposes of succession) involve the payment of the creditors. The creditors of
the spouses, however, cannot execute upon the FH as it is exempt from
execution.
Q. In this case, may Ogies creditors subject the property to execution?
No. The FH has not been terminated yet, hence it is still exempt from execution.
Q. If the marriage between Captain Barbell and Darna is annulled, who shall
have the better right to possess the FH?
Under art. 102 of the FC, in the liquidation of the ACP or CPG, the FH shall be
adjudicated to the spouse with whom the majority of the kids choose to remain.
Children below the age of seven are deemed to have chosen the mother, unless
the court decides otherwise.
ARTICLE 161.
For purposes of availing of the benefits of a family home as
provided for in this Chapter, a person may constitute, or be the beneficiary of,
only one family home. (n)
ARTICLE 162.
The provisions in this Chapter shall also govern existing
family residences insofar as said provisions are applicable. (n)
H. Paternity and Filiation
Q. What is paternity? The civil status of the father with respect to the child.
Q. What is maternity? The civil status of the mother with respect to the child.
Q. What is eternity?
Q. What is filiation? The status of the child in relation to the father or the
mother.
But, according to the good Dean, dont bother with the above. Paternity is
simply the relation of the parent to the children (i.e., it includes maternity).
Filiation is the relation of the children to the parent.
Q: What are the kinds of filiation?
1. Natural the relation between parent and child arising from nature or
from the childs birth
2. Artificial the relation that arises between parent and child by fiction
of law or in imitation of nature, as in adoption
15

1.
Kinds of Filiation
ARTICLE 163.
The filiation of children may be by nature or by adoption.
Natural filiation may be legitimate or illegitimate. (n)
Q. What can be the basis of filiation of children?
Filiation can be based on:
1. blood relationship (filiation by nature)
2. Legal fiction (filiation by adoption)
2.
a.
Children by Nature
Legitimate Children
ARTICLE 164.
Children conceived or born during the marriage of the
parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the
sperm of the husband or that of a donor or both are likewise legitimate
children of the husband and his wife, provided, that both of them authorized
or ratified such insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be recorded in the
civil registry together with the birth certificate of the child. (55a, 258a)
Q: What are the kinds of legitimate children?
1. Those conceived oorr born during the marriage of the parents
a) those conceived during the marriage but born after the
marriage
b) those conceived before the marriage but born during the
marriage
c) those conceived and born during the marriage
2. Those children conceived out of artificial insemination
3. Adopted children
NOTE: Under the FC, there are no more disputable or conclusive presumptions.
The only question to be asked is when was the child conceived and when was
he born.
Q: At the time of the celebration of the marriage, Portia, the bride, was three
months pregnant by Mon, the groom. Two months after the wedding, Mon
died. Subsequently, Portia gave birth. What is the status of the child?
DEAN DEL: Theoretically, the child was conceived before the marriage and
born after the marriage. This being the case, the child failed to meet the
requirement of the law in order to be considered legitimate. But we should
always answer this in favor of legitimacy of the child because otherwise, it
would be really unfair to the child. In this case, we should not be literal in
interpreting the law. But of course, I am open to other legal opinion. Let us just
wait for a court decision regarding this.
Q: Are children of parents whose marriage has been declared null and void
legitimate or illegitimate?
They are illegitimate except hose falling under Article 36 (psychological
incapacity) and 52 (subsequent valid marriage where the first spouse has been
declared presumptively dead).
Q: What is artificial insemination?
It is a process whereby the sperm is placed into the reproductive system of the
wife without carnal knowledge between the husband and the wife.
Q: What are the conditions in order to make children conceived out of artificial
insemination legitimate?
1. that the insemination is done on the wife;
2. that what was used was the sperm of either the husband or a donor, or
both;
3. that the insemination was with the written authorization or ratification
by the husband and the wife in a written instrument executed and
signed before the birth of the child; and
4. that the written instrument aforementioned is recorded in the civil
registry together with the birth certificate of the child
Q: How is the authorization/ratification done?
It must be:
1. in writing
2. done before the birth of the child; and
3. recorded in the civil registry
DEAN: If mixed spermatozoa or the sperm of a donor is used and there is no
consent, the child will be illegitimate as the only certainty is that the child is that
of the mother
NOTE: Children conceived through artificial insemination are included under
children by nature because of the blood relations.
Thus the following are not the same as artificial insemination within
the contemplation of law:
1. test tube babies (where fertilization takes place outside of the mothers
womb)
2. surrogate motherhood (where artificial insemination is done on
another woman, not the wife)
16

3.
While there may be a biological link to either the husband or the wife,
children born under these are still considered illegitimate. If the intention of the
law was to consider these kinds of artificial conception as ones that confer
legitimate status, then the law should have included them but it did not.
Q: Other important points to remember in connection with children born of
artificial insemination:
1. the fact that the child was born of artificial insemination should not
appear in the birth certificate of the child, so that the child would not
know that he or she was born of artificial insemination
2. in case of conflict between the secrecy of the artificial insemination and
a determination of the childs status, secrecy should be sacrificed in
order to settle the status of the child
NOTE: If a donors sperm was used and no consent was obtained, the husband
is not entitled to a decree of legal separation.
Q: Why are adopted children considered legitimate children?
The reason is that adoption confers upon the adopted child all the rights and
obligations of a legitimate child.
ARTICLE 168.
If the marriage is terminated and the mother contracted
another marriage within three hundred days after such termination of the
former marriage, these rules shall govern in the absence of proof to the
contrary:
(1)
A child born before one hundred eighty days after the solemnization
of the subsequent marriage is considered to have been conceived during the
former marriage, provided it be born within three hundred days after the
termination of the former marriage;
(2)
A child born after one hundred eighty days following the celebration
of the subsequent marriage is considered to have been conceived during such
marriage, even though it be born within the three hundred days after the
termination of the former marriage. (259a)
declaration of nullity of the first marriage
Q: Why do we use 300 days as a yardstick?

Its because 300 days (10 months) is really the longest period of gestation of a
fetus in the mothers womb. In other words, its the maximum period of
pregnancy.
Q: What are the rules in determining the legitimacy of a child in case of two
succeeding marriages?
a) For a child to be considered the child of the first husband, the
following requisites must concur:
1. the mother must have married again within 300 days from the
termination of her first marriage;
2. the child was born within the same 300 days after the
termination of the former marriage of its mother; and
3. the child was born before 180 days after the solemnization of
the mothers second marriage
b) For a child to be considered the child of the second husband, the
following requisites must concur:
1. the mother must have married against within 300 days from
the termination her first marriage;
2. the child was born within the same 300 days after the
termination of its mothers first marriage; and
3. the child was born after 180 days following the solemnization
of its mothers second marriage
Q: What periods must be considered for a child to fall under the first marriage?
For the child to be considered a child of the first marriage, we have to consider
two periods: the child must be born within 180 days following the celebration of
the second marriage and within 300 days following the termination of the first
marriage.
Q: What if the child is born after the 300 day period but within the 180 day
period? The child belongs to the second marriage.
Q: When do we apply Article 168?

We apply this article when a mother enters into a subsequent marriage within
300 days after the termination of her first marriage in order to determine
whether the child born is a child of the first marriage or the subsequent
marriage.
Q: What is the status of a child born after 300 days following the termination of
the first marriage? The law does not confer on that child any status.
Q: What could be the reason for the termination of the first marriage?
1. death of the first husband
2. annulment of the first marriage
Q: Does the phrase in the absence of proof to the contrary creates a

presumption of legitimacy?
Q: Is Article 168 conclusive? No. Article 168 only establishes a presumption that
may be overcome by proof to the contrary.
17

DEAN: I have to venture that this is a presumption of legitimacy because

precisely the FC uses the word the child is considered a child of either of the
first or second marriage. This means that were not talking of presumptions
here. Were talking of a status already conferred to the child at the time of birth
and if one has proof to the contrary, he will have to prove that in a procedure
recognized by the FC which is either an action to claim legitimacy or action to
impugn legitimacy.
ARTICLE 169.
The legitimacy or illegitimacy of a child born after three
hundred days following the termination of the marriage shall be proved by
whoever alleges such legitimacy or illegitimacy. (261a)
Q: Article 169 does not confer status. Why is this so?
The law does not give a status to a child born after 300 days following the
termination of the marriage of the mother because the birth of the child is
already beyond said period of 300 days which the law considers the longest
period of gestation of a fetus in the mothers womb. Thus, it is up to the person
who alleges the legitimacy or illegitimacy of a child or to the child
himself/herself to prove the true status of said child.
Q: What is the difference between Articles 168 and 169?
In Article 168, there are two marriages involved while in Article 169, there is
only one marriage. In other words, the child is a posthumous child. Also. Article
169 confers no status.
Liyao v. Liyao, 03/07/02
FACTS:
Corazon Garcia was married to Ramon Yulo. During such marriage, w/o any
legal separation between the spouses, Corazon cohabited w/ William Liyao.
The TC declared that William Liyao, Jr. was the illegitimate son of William
Liyao. On the other hand, the CA reversed, holding that the law favors
legitimacy rather than the illegitimacy of the child and the presumption of
legitimacy is thwarted only on ethnic ground and by proof that marital intimacy
between husband and wife was physically impossible at the period cited in
Article 257 in relation to Article 255 of the Civil Code. The appellate court gave
weight to the evidence that Corazon and Ramon, were seen in each others
company during the supposed time that Corazon cohabited with the deceased
William Liyao.
ISSUE: May petitioner impugn his own legitimacy to be able to claim from the
estate of his supposed father, William Liyao?
HELD: NO
Under the New Civil Code, a child born and conceived during a valid
marriage is presumed to be legitimate. The presumption of legitimacy of
children does not only flow out from a declaration contained in the statute
but is based on the broad principles of natural justice and the supposed virtue
of the mother. The presumption is grounded in a policy to protect innocent
offspring from the odium of illegitimacy.
The presumption of legitimacy of the child, however, is not conclusive and
consequently, may be overthrown by evidence to the contrary. (Article 255 of
the New Civil Code)
The fact that Corazon had been living separately from her husband, Ramon,
at the time petitioner was conceived and born is of no moment. While
physical impossibility for the husband to have sexual intercourse with his
wife is one of the grounds for impugning the legitimacy of the child, it bears
emphasis that the grounds for impugning the legitimacy of the child
mentioned in Article 255 of the Civil Code may only be invoked by the
husband, or in proper cases, his heirs under the conditions set forth under
Article 262 of the Civil Code. Impugning the legitimacy of the child is a
strictly personal right of the husband, or in exceptional cases, his heirs for the
simple reason that he is the one directly confronted with the scandal and
ridicule which the infidelity of his wife produces and he should be the one to
decide whether to conceal that infidelity or expose it in view of the moral and
economic interest involved. It is only in exceptional cases that his heirs are
allowed to contest such legitimacy. Outside of these cases, none - even his
heirs - can impugn legitimacy; that would amount to an insult to his memory.
It is therefore clear that the present petition initiated by Corazon as guardian
aadd ll!tteemm of the then minor William Jr., to compel the latters recognition as the
illegitimate son of the late William Liyao cannot prosper. It is settled that a
child born within a valid marriage is presumed legitimate even though the
mother may have declared against its legitimacy or may have been sentenced
as an adulteress. We cannot allow William Jr. to maintain his present petition
and subvert the clear mandate of the law that only the husband, or in
exceptional circumstances, his heirs, could impugn the legitimacy of a child
born in a valid and subsisting marriage. The child himself cannot choose his
own filiation. If the husband, presumed to be the father does not impugn the
legitimacy of the child, then the status of the child is fixed, and the latter
cannot choose to be the child of his mothers alleged paramour. On the other
hand, if the presumption of legitimacy is overthrown, the child cannot elect
the paternity of the husband who successfully defeated the presumption.
Moreover, it is settled that the legitimacy of the child can be impugned only
in a direct action brought for that purpose, by the proper parties and within
the period limited by law.
b.
Illegitimate Children
18

ARTICLE 165.
Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code. (n)
Q: Who is an illegitimate child?
An illegitimate child is one conceived and born outside of marriage. He/she
need not be recognized by the parents.
Q: Examples of illegitimate children.
1. children born of couples who are not legally married, or of commonlaw marriages
2. children born of incestuous marriages
3. children born of bigamous marriages
4. children born of adulterous relations between the parents
5. children born of marriages void for reasons of public policy under
article 38
6. children born of couples below 18, whether they are married or not
7. children of other void marriages under Article 35, except where the
marriage of the parents is void for lack of authority on the part of the
solemnizing officer but the parties believed in good faith that the
former had authority, in which case the marriage will be considered
valid and the children will be considered legitimate.
Q: If a girl was three months pregnant and the culprit acceded to the marriage,
but one day before the scheduled celebration of the marriage, the culprit died,
what would be the status of the child when he/she is born?
The child would be illegitimate.
NOTE: We do not have illegitimate parents. You do not refer to parents
illegitimate. Instead, call them parents of illegitimate children.
c.
Legitimated Children
ARTICLE 177.
Only children conceived and born outside of wedlock of
parents who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other may be legitimated.
(269a)
Q: What is legitimation?
Legitimation is a remedy by means of which hose who in fact were not born in
wedlock and should therefore be considered illegitimate are, by fiction,
considered legitimate if being supposed that they were born when their parents
were already validly married.
Q: Who are legitimated children?

Legitimated children are illegitimate children who, because of the subsequent
marriage of the parents are by legal fiction, considered legitimate.
Q: Who can be legitimated?
1. conceived and born outside of wedlock; and
2. of parents who, at the time of the childs conception, were not
disqualified by any impediment to marry each other
Q: Aleli, then 17 years old, gave birth to a baby boy. Upon reaching the age of 18
years, she married the father of her child. What is the status of the child? The
child is illegitimate.
ARTICLE 178.
Legitimation shall take place by a subsequent valid
marriage between parents. The annulment of a voidable marriage shall not
affect the legitimation. (270a)
Q: How does legitimation take place?
Legitimation takes place only by the subsequent marriage of the parents of the
child. As long as the child complies with the requisites of Article 177, he is !ppssoo
ffaaccttoo legitimated, upon the subsequent marriage of his parents no matter how
long a period of time has elapsed from the birth of said child to the time of the
marriage of the parents.
Q: Does the annulment of the marriage of the parents affect the legitimation of
the child?
No, by express provision of Article 178. IT is different, however, if the marriage
of the parents is void ab initio, in which case there can be no legitimation since
the marriage does no exist at all.
ARTICLE 180.
The effects of legitimation shall retroact to the time of the
child's birth. (273a)
ARTICLE 181.
The legitimation of children who died before the
celebration of the marriage shall benefit their descendants. (274)
NOTE: Legitimation retroacts to the time of the birth of the child. That is why
even if the child dies, benefits of subsequent legitimation may be claimed by his
heir (children) because of successional rights.
3.
a.
Actions regarding filiation

To claim filiation (illegitimate/illegitimate)
ARTICLE 173.
The action to claim legitimacy may be brought by the child
during his or her lifetime and shall be transmitted to the heirs should the
19

child die during minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute the action.
The action already commenced by the child shall survive notwithstanding the
death of either or both of the parties. (268a)
Q: Who can file the action to claim legitimacy?
1. generally, the child who is not considered as legitimate, that is, one
who has not been conferred any status; or
2. by way of exception, the heirs of a child who is not considered as
legitimate when the child dies during minority or when the child dies
in a state of insanity
NOTE If a child is conceived and born outside of marriage, therefore,
illegitimate, this action to claim legitimacy will not prosper despite the fathers
admission that the child is legitimate. It is not the father who confers status
upon the child but the law. No amount of action can convert the status to one of
legitimacy.
Q: What if the parents of the child are already dead, can the child still bring an
action to claim legitimacy? Yes
Q: What could be the reason for the child to bring such action?
A child usually brings this action to protect his successional rights.
Q: What are the prescriptive periods for bringing the action?
1. If the child files the action, it must be done dduurr!nngg tthhee ll!ffeett!mmee ooff tthhee cchh!lldd
whether the parents are still living or already dead. In the latter case,
the defendant would be the estate of the parents as represented by the
other heirs.
2.
If the childs heirs file the action, it must be done ww!tthh!nn ff!vvee ((55)) yyeeaarrss
ffrroomm tthhee ddeeaatthh ooff tthhee cchh!lldd ccllaa!mm!nngg lleegg!tt!mmaaccyy wwhhoo dd!eedd dduurr!nngg mm!nnoorr!ttyy oorr !nn
aa ssttaattee ooff !nnssaann!ttyy.. This period need not coincide with the lifetime of the
parents of the child.
Q: Suppose the child reached the age of 18. He did not file an action to claim
legitimacy. Upon reaching the age of 30 years, he died. Can his heirs bring the
action?
NO. The heirs of the child may only bring the action if the child dues during
minority or in a state of insanity.
Q: Assume that the child is normal. Then he became insane at the age of 28 and
subsequently died. Can the heirs of such child file an action to claim legitimacy?
YES, on the basis of the wording of the law. It does not seem right, however,
because the child did not, while sane, file an action for 27 years.
NOTE: It is the sole right of the child to bring the action during his lifetime, and
if he did not bring the action while he was still alive and could have brought the
same, to allow the heirs to bring the action for him would be contrary to the rule
on waiver of the right of succession. The action to claim ones legitimacy is conextensive with his right to claim his successional rights. If the child refuses to
claim his legitimacy, he is in effect repudiating his inheritance from his parents.
IF the child dies after commencing the action, the action will survive and the
heirs of the child will be substituted for him. This action is among those that
survive under the Revised Rules of Court.
Q: What proceeding is required in an action to claim legitimacy?
An action to claim legitimacy need not be in a direct action. It may be settled as
a collateral issue in partition or settlement of estate proceedings.
Q: What is the reason why people like to claim legitimacy?
It is because a legitimate child has more successional rights that an illegitimate
child.
ARTICLE 175.
Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent. (289a)
Q: Who can bring an action to claim illegitimate filiation?
Only the illegitimate child can bring the action. The illegitimate childs heirs are
not accorded the same privilege to file an action to claim illegitimacy a
illegitimate childs heirs.
Q: But Article 175 makes a reference to Article 173. Can the heirs of an
illegitimate child invoke the rights granted by that provision?
NO. In the case of a legitimate child, his heirs can bring an action to claim
legitimacy if the child dies during minority or in a state of insanity. The heirs of
an illegitimate child cannot, however, invoke the same rights because we have
to treat legitimate and illegitimate children on different levels. The rights of an
illegitimate child cannot be more than those of a legitimate child. And granting
that right to the heirs will in fact confer more rights on illegitimate children.
20

If we look at Article 175, the reference made therein to Article 173 does not refer
to the entire provision of the article. It only refers to the period granted to a
child to claim legitimacy. It does not refer to the transmission of the right to the
heirs to make a claim.
Q: What is the prescriptive period for bringing the action?
The illegitimate child must bring the action dduurr!nngg hh!ss ll!ffeett!mmee whether the
alleged parents are still living or already dead. But when the action is based on
the secondary evidence (second paragraph of Article 172), the action must be
brought during the lifetime of the alleged parents.
NOTE: The illegitimate child can establish his filiation in the same manner and
on the same evidence as legitimate children.
Q: In most cases of this character, the defendants are the fathers. Why is it that
there is no action to claim legitimacy or illegitimacy against the mother?
Q: Suppose the birth certificate in the civil registry states that the child is
legitimate, is that conclusive?
NO, because anybody can just put there legitimate when in fact the child is
not. It may therefore be contested.
2)
a final judgment declaring the status of the child

the final judgment refers to a case where the filiation of a child is
decided as a collateral issue
a child need not file an action claiming legitimacy when there is
already a final judgment declaring his legitimacy; the final
judgment by itself is rreess jjuudd!ccaattaa
3)
admission of legitimate filiation which must be either in:

a) a public document
this is the equivalent of the authentic document; obviously signed
by the parents otherwise, the notary will not notarize it
b) a private handwritten instrument signed by the parents
concerned
the note must be entirely handwritten and signed by the
parent making the admission; this is the equivalent of the
authentic writing
a typewritten note in itself is not sufficient evidence of
legitimate filiation for purposes of the Family Code even if the
note is signed by the parent (Verceles case); to be admissible,
said note must comply with the requirements of a public
instrument e.g. it must be notarized
there is substantial compliance if the document is typewritten
but the part containing the admission is handwritten and the
instrument is signed
B.
Secondary Evidence
1) open and continuous possession of the status of a legitimate child
The reason is that the mother cannot deny the fact that the child came from her
womb. In the case of the father, it is difficult to prove that he is indeed the father
of the child.
i)
Proof of filiation
ARTICLE 172.
The filiation of legitimate children is established by any of
the following:
(1)
The record of birth appearing in the civil register or a final
judgment; or
(2)
An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1)
The open and continuous possession of the status of a legitimate
child; or
(2)
Any other means allowed by the Rules of Court and special laws.
(265a, 266a, 267a)
Q: What are the proofs that can be used to show that a child is legitimate?
A. Primary Evidence
1) record of birth appearing in the civil registry
the evidence shown by the record of birth (birth certificate) may be
controverted because it does not bind the court
Q: Must the parents sign the record of birth for it to be an acceptable proof of
filiation? NO.
Q: What does open possession mean?

This means the enjoyment by the child of the position and privileges usually
attached to the status of a legitimate child such as bearing the parental surname,
treatment by the parents and family of the child as legitimate, constant
attendance to the childs support and education, and giving the child the
reputation of being a child of his parents.
Q: What does continuous possession mean?
By continuous is meant uninterrupted and consistent but it does not require
any particular length of time.
21

-
the action of the parents should not be intermittent (not pabugso-busgo);

it must be direct, that is doing acts not through others but directly through
their actions, spontaneous, and there must be a permanent intention
for such circumstances to be considered, the evidence must consist of a
conglomeration of proof, not just one instance
possession of legitimate status must be open and public and not kept as a
secret; it may even be enjoyed by a child conceived but not yet born
2)
any other means allowed by the Rules of Court and special laws
examples: baptismal certificate of the child; a judicial admission;
family bible wherein the name of the child is entered; common
reputation respecting pedigree; admission by silence; testimonies
of witnesses; and other kinds of proof admissible under Rule 130
of the Revised Rules of Court
NOTE: In case of failure to present the primary evidence, then the secondary
evidence may be presented. But the reasons for the non-availability of the
primary evidence must be satisfactorily explained first to the court before the
party will be allowed to present the secondary evidence.
Q: Examples of provisions in the Revised Rules of Court which can be used as
evidence to show legitimacy
1. acts and declarations concerning pedigree made by a person deceased
or out of the Philippines and made before the controversy arose
Section 39, Rule 130. Act or declaration about pedigree. The act
or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth
or marriage, may be received in evidence where it occurred
before the controversy, and the relationship between two
persons is shown by evidence other than such act or declaration.
xxx
2.
family tradition and reputation

Section 40, Rule 130. Family Reputation or tradition regarding
pedigree. The reputation or tradition existing in a family
previously to the controversy, in respect to the pedigree of any
one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other
family books or charts, engraving on rings, family portraits and
the like, may be received as evidence of pedigree.
3.
common reputation (based on public perception)

Section 41, Rule 130. Common reputation. Common reputation
existing previous to the controversy, respecting facts of public or
general interest more than thirty years old, or respecting
marriage or moral character, may be given in evidence.
Monuments and inscriptions in public places may be received as
evidence of common reputation.
Q: What does the second paragraph of Article 172 include?

Most people say that it includes open and continuous possession of legitimate
status and proofs allowed by the Rules of Court. There are some schools of
though who say that it includes the admission of parents in a public document
or private handwritten instrument precisely to allow the parents to controvert
that the same is not their admission.
The correct answer is what most people say. And your authority is the case of
Uyguangco where the SC ruled with definiteness that the second paragraph of
Article 172 only refers to open and continuous possession of the status of a
legitimate/ illegitimate child and the other proofs allowed by the Rules of
Court.
De Jesus v. Dizon, 10/02/01
This involves the case of illegitimate children who, having been born in
lawful wedlock to a certain father, claim to be the illegitimate scions of some
other male person (herein decedent) in order to enforce their respective shares
in the latter's estate under the rules of succession.
The due recognition of an illegitimate child in a record of birth, a will, a
statement before a court or record, or in any authentic writing (as prescribed
by the FC) is, in itself, a consummated act of acknowledgement of the child,
and no further court action is required. In fact, any writing is treated not just a
ground for compulsory recognition; it is in itself voluntary recognition that
does not require a separate action for judicial approval. Where, instead, a
claim for recognition is predicted on other evidence merely tending to prove
paternity, i.e., outside of those prescribed by the FC, judicial action within the
applicable statue of limitations is essential in order to establish the child's
acknowledgement.
There is perhaps no presumption of the law more firmly established and
founded on sounder morality and more convincing reason than the
presumption that children born in wedlock are legitimate. This presumption
indeed becomes ccoonncclluuss!vvee in the absence of proof that there is physical
impossibility of access between the spouses during the first 120 days of the
22

300 days which immediately precedes the birth of the child due to (a) the
physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact the husband and wife are living separately in such a way that
sexual intercourse is not possible; or (c) serious illness of the husband, which
absolutely prevents sexual intercourse. Quite remarkably, upon the expiration
of the periods set forth in Article 170, and in proper cases Article 171, of the
Family Code (which took effect on 03 August 1988), the action to impugn the
legitimacy of a child would no longer be legally feasible and the status
conferred by the presumption becomes fixed and unassailable.
Succinctly, in an attempt to establish their illegitimate filiation to the late Juan
G. Dizon, petitioners, in effect, would impugn their legitimate status as being
children of Danilo de Jesus and Carolina Aves de Jesus. This step cannot be
aptly done because the law itself establishes the legitimacy of children
conceived or born during the marriage of the parents. The presumption of
legitimacy fixes a civil status for the child born in wedlock, and only the
father, or in exceptional instances the latter's heirs, can contest in an
appropriate action the legitimacy of a child born to his wife. Thus, it is only
when the legitimacy of a child has been successfully impugned that the
paternity of the husband can be rejected. Moreover, the paramount
declaration of legitimacy by law cannot be attacked collaterally, one that can
only be repudiated or contested in a direct suit specifically brought for that
purpose. Indeed, a child so born in such wedlock shall be considered
legitimate although the mother may have declared against its legitimacy or
may have been sentenced as having been an adulteress.
Locsin v. Locsin, 12/10/01
A Certificate of Live Birth duly recorded in the Local Civil Registry, a copy of
which is transmitted to the Civil Registry General pursuant to the Civil
Registry Law, is pprr!mmaa ffaacc!ee evidence of the facts therein stated. However, if
there are material discrepancies between them, the one entered in the Civil
Registry General prevails.
The Civil Registry Law requires, !nntteerr aall!aa, the Local Civil Registrar to send
copies of registrable certificates and documents presented to them for entry to
the Civil Registrar General. A copy of the document sent by the Local Civil
Registrar to the Civil Registrar General should be identical in form and in
substance with the copy being kept by the latter. When entries in the
Certificate of Live Birth recorded in the Local Civil Registry vary from those
appearing in the copy transmitted to the Civil Registry General, pursuant to
the Civil Registry Law, the variance has to be clarified in a persuasive and
rational manner. Otherwise, the copy w/ the Local Civil Registrar, w/c is
different from that of the Civil Registrar General, shall be considered as a
spurious document.
Section 5 of Act No. 3753 and Article 280 of the Civil Code of the Philippines
explicitly prohibit, not only the naming of the father of the child born out of
wedlock, wwhheenn tthhee bb!rrtthh cceerrtt!ff!ccaattee,, oorr tthhee rreeccooggnn!tt!oonn,, !ss nnoott ff!lleedd oorr mmaaddee bbyy hh!mm,
but also, the statement of any information or circumstances by which he could
be identified. Accordingly, the Local Civil Registrar has no authority to make
or record the paternity of an illegitimate child upon the information of a third
person and tthhee cceerrtt!ff!ccaattee ooff bb!rrtthh ooff aann !lllleegg!tt!mmaattee cchh!lldd,, wwhheenn ss!ggnneedd oonnllyy bbyy tthhee
mmootthheerr ooff tthhee llaatttteerr,, !ss !nnccoommppeetteenntt eevv!ddeennccee ooff ffaatthheerrsshh!pp ooff ssaa!dd cchh!lldd. In other
words, a birth certificate not signed by the alleged father (who had no hand in
its preparation) is not competent evidence of paternity.
A birth certificate is a formidable piece of evidence prescribed by both the
Civil Code and Article 172 of the Family Code for purposes of recognition and
filiation. However, birth certificate offers only pprr!mmaa ffaacc!ee evidence of filiation
and may be refuted by contrary evidence. Its evidentiary worth cannot be
sustained where there exists strong, complete and conclusive proof of its
falsity or nullity. It is true that documents consisting of entries in public
records made in the performance of a duty by a public officer are pprr!mmaa ffaacc!ee
evidence of the facts therein stated. In this case, however, the glaring
discrepancies between the two Certificates of Live Birth have overturned the
genuineness of that entered in the Local Civil Registry. What is authentic is
that recorded in the Civil Registry General.
Bernabe v. Alejo, 01/21/02
Under Art. 285 of the Old CC, the action for the recognition of natural
children may be brought only during the lifetime of the presumed parents,
except in the following cases wherein it should be commenced w/in 4 yrs.
from the finding of the document concerned:
1. If the father or mother died during the minority of the child, in which case
the latter may file the action before the expiration of four years from the
attainment of his majority;
2. If after the death of the father or of the mother a document should appear
of which nothing had been heard and in which either or both parents
recognize the child.
These 2 exceptions provided under the foregoing provision, have however
been omitted by Articles 172 (required proofs), 173 (period to file) and 175
(rules for illegitimate children) of the Family Code. Under the new law, an
action for the recognition of an illegitimate child must be brought within the
lifetime of the alleged parent. The Family Code makes no distinction on
whether the former was still a minor when the latter died. Thus, the putative
parent is given by the new Code a chance to dispute the claim, considering
that illegitimate children are usually begotten and raised in secrecy and
without the legitimate family being aware of their existence. The putative
parent should thus be given the opportunity to affirm or deny the childs
23

filiation, and this, he or she cannot do if he or she is already dead.
Nonetheless, Art. 255 FC provides the caveat that rights that have already
vested prior to its enactment should not be prejudiced or impaired.
ISSUE1: WON ones right to an action for recognition, which was granted by
Article 285 of the Civil Code, had already vested prior to the enactment of the
Family Code.
HELD: YES
A vested right is defined as one which is absolute, complete and unconditional,
to the exercise of which no obstacle exists, and which is immediate and perfect
in itself and not dependent upon a contingency. Since Article 285 of the Civil
Code is a substantive law, as it gives an individual the right to file his petition
for recognition within 4 years from attaining majority age, then the Family Code
cannot impair or take that right to file an action for recognition, because that
right had already vested prior to its enactment.
ISSUE2: WON illegitimate children have the right to file the action for
recognition under Art. 285 CC, considering that it refers only to natural
children.
HELD: YES, but only under the circumstances hereunder.
The rules on voluntary and compulsory acknowledgment of natural children
under the Civil Code, as well as the prescriptive period for filing such action,
may likewise be applied to spurious children. The so-called spurious children,
or illegitimate children other than natural children, commonly known as
bastards, include those adulterous children or those born out of wedlock to a
married woman cohabiting with a man other than her husband or to a
married man cohabiting with a woman other than his wife. They are entitled
to support and successional rights. But their filiation must be duly proven.
To emphasize, !lllleegg!tt!mmaattee children who were sstt!llll mm!nnoorrss aatt tthhee tt!mmee tthhee FFaamm!llyy
CCooddee ttooookk eeffffeecctt and whose ppuuttaatt!vvee ppaarreenntt dd!eedd dduurr!nngg tthhee!rr mm!nnoorr!ttyy are thus given
the right to seek recognition (under Article 285 of the Civil Code) for a period of
up to four years from attaining majority age. This vested right was not impaired
or taken away by the passage of the Family Code. Indeed, our overriding
consideration is to protect the vested rights of minors who could not have filed
suit, on their own, during the lifetime of their putative parents, the State as
ppaarreennss ppaattrr!aaee should protect a minors right. The minor must be given his day in
court.
Cabatania v. CA, 10/20/04
A high standard of proof is required to establish paternity and filiation. An
order for recognition and support may create an unwholesome situation or
may be an irritant to the family or the lives of the parties so that it must be
issued only if paternity or filiation is established by clear and convincing
evidence. The applicable provisions of the law are Articles 172 and 175 of the
Civil Code.
While a baptismal certificate may be considered a public document, it can
only serve as evidence of the administration of the sacrament on the date
specified but not the veracity of the entries with respect to the childs
paternity. Thus, certificates issued by the local civil registrar and baptismal
certificates are ppeerr ssee inadmissible in evidence as proof of filiation and they
cannot be admitted indirectly as circumstantial evidence to prove the same.
The fact that the husband is living and there is a valid subsisting marriage
between the husband and the wife gives rise to the presumption that a child
born within that marriage is legitimate even though the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.
The presumption of legitimacy does not only flow out of a declaration in the
statute but is based on the broad principles of natural justice and the
supposed virtue of the mother. The presumption is grounded on the policy to
protect innocent offspring from the odium of illegitimacy.
In this age of genetic profiling and deoxyribonucleic acid (DNA) analysis, the
extremely subjective test of physical resemblance or similarity of features will
not suffice as evidence to prove paternity and filiation before the courts of
law.
ii)
Admissibility of Scientific Testing
Q. What is the importance of blood tests?

Blood tests can show that the supposed father is not the biological father of his
alleged child. Although the presence of the same type of blood in two persons
does not indicate that one was begotten by the other; the fact that they are of
different blood types indicate the impossibility of one being the child of the
other. Blood tests then, together with other evidence like racial or ethnic
difference between the supposed father and the child, can be presented to
impugn a childs legitimacy.
Q. If the blood test results in a finding that a particular man is a possible father
of the child, what is the use of such result?
The moment the blood test results in such finding, the blood test has no use. It
cannot be used for purposes of claiming legitimacy of a child of that man
because he can only be one of several hundreds of men who can be the possible
father of that child.
Jao v. CA, 07/28/87
FACTS:
Janice Marie Jao, then a minor, represented by her mother and guardian ad
litem, Arlene, filed a case for recognition and support before the Juvenile and
24

Domestic Relations Court against Perico Jao. The latter denied paternity and
the parties agreed to a blood grouping test which was conducted by the NBI.
The result of the blood grouping test indicated that Janice could not have been
the possible offspring of Perico.
ISSUE: Weight of evidence of blood grouping tests in suits concerning filitation.
HELD: Blood grouping tests are conclusive as to non-paternity, although
inconclusive as to paternity, that is the fact that the blood type of the child is a
possible product of the mother and alleged father does not conclusively prove
that the child is born by such parents; but if the blood type of the child is not the
possible blood type of the mother and alleged father when crossmatched, then
the child cannot possibly be that of the alleged father.
Lim v. CA, 03/18/97
Before us is one of those cases where a man woos a maid, succeeds in
seducing and impregnating her, only to disclaim the paternity of the child
when made to account for his misdeeds. DNA, being a relatively new science,
it has not as yet been accorded official recognition by our courts. Paternity
will still have to be resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father.
When a putative father manifests openly through words and deeds his
recognition of a child, the courts can do no less than confirm said
acknowledgment. As the immortal bard Shakespeare perspicaciously said:
"Let your own discretion be your tutor; suit the action to the word, the word
to the action."
The evidence in the instant case shows that petitioner considered himself to
be the father of Joanna Rose as shown by the hand-written letters he wrote to
Maribel. It was only after petitioner separated from Maribel that he started to
deny paternity of Joanna Rose. Until he got married to another woman, he did
not object to being identified as Joanna Rose's father as disclosed in the
Certificate of Live Birth. The evidence on record reveals that he even got a
copy of the said Certificate when Joanna Rose started schooling. His belated
denial cannot outweigh the totality of the cogent evidence which establishes
beyond reasonable doubt that petitioner is indeed the father of Joanna Rose.
Under Article 175 of the Family Code, illegitimate filiation may be established
in the same way and on the same evidence as legitimate children. See Art.
172 for the required proofs. The latter article adopts the rule in Article 283 of
the Civil Code that filiation may be proven by "any evidence or proof that the
defendant is his father."
NOTE: This is a 1997 case. See CCaabbaattaann!aa vvss.. CCAA ((22000044)) wherein the SC held
that [i]n this age of genetic profiling and DNA analysis, the extremely
subjective test of physical resemblance or similarity of features will not suffice
as evidence to prove paternity and filiation before the courts of law.
Tijing v. CA, 03/08/01

This is a case concerning an application for a writ of habeas corpus, in w/c
the identity of the minor whose custody is being sought is crucial in
determining the propriety of the writ. Thus, it must be resolved first whether
the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same
minor named John Thomas Lopez, whom Angelita insists to be her offspring.
We must first determine who between Bienvenida and Angelita is the minor's
biological mother. Evidence must necessarily be adduced to prove that two
persons, initially thought of to be distinct and separate from each other, are
indeed one and the same. Petitioners must convincingly establish that the
minor in whose behalf the application for the writ of habeas corpus is made is
the person upon whom they have rightful custody. If there is doubt on the
identity of the minor in whose behalf the application for the writ is made,
petitioners cannot invoke with certainty their right of custody over the said
minor.
A close scrutiny of the records of this case reveals that the evidence presented
by Bienvenida is sufficient to establish that John Thomas Lopez is actually her
missing son, Edgardo Tijing, Jr. One of such evidences is the trial courts
observation during several times that when the child and Bienvenida were
both in court, the two had strong similarities in their faces, eyes, eyebrows
and head shapes. Resemblance between a minor and his alleged parent is
competent and material evidence to establish parentage. Needless to stress,
the trial court's conclusion should be given high respect, it having had the
opportunity to observe the physical appearances of the minor and petitioner
concerned.
A final note. Parentage will still be resolved using conventional methods
unless we adopt the modern and scientific ways available. Fortunately, we
have now the facility and expertise in using DNA test for identification and
parentage testing. The University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to
conduct DNA typing using short tandem repeat (STR) analysis. The analysis
is based on the fact that the DNA of a child/person has two (2) copies, one
copy from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish parentage. Of
course, being a novel scientific technique, the use of DNA test as evidence is
still open to challenge. Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence. For it was
said, that courts should apply the results of science when competently
obtained in aid of situations presented, since to reject said result is to deny
progress. Though it is not necessary in this case to resort to DNA testing, in
future it would be useful to all concerned in the prompt resolution of
parentage and identity issues.
25

NOTE: This is a 2001 case. See CCaabbaattaann!aa vvss.. CCAA ((22000044)) wherein the SC held
that [i]n this age of genetic profiling and DNA analysis, the extremely
subjective test of physical resemblance or similarity of features will not suffice
as evidence to prove paternity and filiation before the courts of law.
De Villa v. Director, PNP, 11/17/04
FACTS:
This is a case where petitioner Reynaldo De Villa was convicted of raping an
Aileen Mendoza, who bore a child named Leahlyn as a result of such rape.
The conviction was affirmed by the SC upon automatic review. Three years
later, petitioner is seeking a new trial on the ground that there is newly
discovered evidence that would prove that he didnt rape Aileen. A DNA
testing was conducted by the NSRI from samples given by Leahlyn, as well
those given by the grandchildren of Reynaldo de Villa, and that given by
Reynaldo de Villa himself. The identities of the donors of the samples, save
for the sample given by Reynaldo de Villa, were not made known to the DNA
Analysis Laboratory. The test produced results showing that Reynaldo de
Villa could not have sired any of the children whose samples were tested, due
to the absence of a match between the pertinent genetic markers in
petitioners sample and those of any of the other samples, including
Leahlyns.
Petitioner now argues that, since the DNA analysis on paternity shows
conclusively that he is not the father of Leahlyn, his conviction for rape being
based on the fact that Leahlyn was sired as a result of the alleged rape cannot
stand and must be set aside.
HELD: PETITIONER LOSES, HIS CONVICTION STILL STANDS
The SC held that the remedy of the writ of hhaabbeeaass ccoorrppuuss is unavailing in this
case. Moreover, pregnancy is not an essential element of the crime of rape.
Whether the child which the victim bore was fathered by the purported
rapist, or by some unknown individual, is of no moment in determining an
individuals guilt.
Petitioner anchors his plea for new trial on the basis of purportedly newlydiscovered evidence, !..ee.., the DNA test subsequently conducted, allegedly
excluding petitioner from the child purportedly fathered as a result of the
rape. The DNA evidence, however, does not fall within the statutory or
jurisprudential definition of newly- discovered evidence.
A motion for new trial based on newly-discovered evidence may be granted
only if the following requisites are met: (a) that the evidence was discovered
after trial; (b) that said evidence could not have been discovered and
produced at the trial even with the exercise of reasonable diligence; (c) that it
is material, not merely cumulative, corroborative or impeaching; and (d) that
the evidence is of such weight that that, if admitted, it would probably change
the judgment. It is essential that the offering party exercised reasonable

diligence in seeking to locate the evidence before or during trial but
nonetheless failed to secure it.
In this instance, although the DNA evidence was undoubtedly discovered
after the trial, it still does not meet the criteria for newly-discovered
evidence that would merit a new trial. Such evidence disproving paternity
could have been discovered and produced at trial with the exercise of
reasonable diligence. Petitioner-relators claim that he was unaware of the
existence of DNA testing until the trial was concluded carries no weight.
Lack of knowledge of the existence of DNA testing speaks of negligence,
either on the part of petitioner, or on the part of petitioners counsel. In either
instance, however, this negligence is binding upon petitioner.
Even with all of the compelling and persuasive scientific evidence presented
by petitioner and his counsel, Reynaldo de Villa is still not entitled to outright
acquittal. For even if it is conclusively proven that Reynaldo de Villa is not
the father of Leahlyn Mendoza, his conviction could, in theory, still stand,
with Aileen Mendozas testimony and positive identification as its bases. The
pregnancy of the victim has never been an element of the crime of rape.
Therefore, the DNA evidence has failed to conclusively prove to this Court
that Reynaldo de Villa should be discharged. Although petitioner claims that
conviction was based solely on a finding of paternity of the child Leahlyn, this
is not the case. The conviction was based on the clear and convincing
testimonial evidence of the victim, which, given credence by the trial court,
was affirmed on appeal.
b.
To impugn filitation
x It is a right available only to parents. A child cannot impugn because his

status is given by law.
ARTICLE 166.
Legitimacy of a child may be impugned only on the
following grounds:
(1)
That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child because of:
(a)
the physical incapacity of the husband to have sexual intercourse
with his wife;
(b)
the fact that the husband and wife were living separately in such a
way that sexual intercourse was not possible; or
(c)
serious illness of the husband, which absolutely prevented sexual
intercourse;
(2)
That it is proved that for biological or other scientific reasons, the
child could not have been that of the husband, except in the instance
provided in the second paragraph of Article 164; or
26

(3)
That in case of children conceived through artificial insemination,
the written authorization or ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue influence. (255a)
Obviously not. Whether or not the marriage continues, the husband can bring
an action to impugn legitimacy if in fact he was impotent at the time of the
conception of the child.
ARTICLE 167.
The child shall be considered legitimate although the
mother may have declared against its legitimacy or may have been sentenced
as an adulteress. (256a)
Q. To what period does within the first 120 days of the 300 days which
immediately preceded the birth of the child refer?
Q. Who can bring an action to impugn the legitimacy of a child?

1. The husband
2. The heirs of the husbandprovided husband is dead
3. The wifeonly in the case of artificial insemination
Q. What is the rule as regards the husbands right to file an action to impugn
legitimacy?
As a general rule, only the husband can impugn the legitimacy of a child. If he
does not bring the action within the prescribed period, he cannot file such action
anymore thereafter, and this is also true with is heirs.
Q. Who are the heirs of the husband who can bring the action to impugn
legitimacy and when can they bring such action?
The heirs refer to all kinds of heirs whether compulsory or voluntary and
include those will be prejudiced if the child shall continue to be considered
legitimate except the wife. They can only bring the action if the husband is
already dead.
DEAN: We all know who are the compulsory heirs and that they stand to be
prejudiced if the child is going to be considered legitimate. But when we talk of
voluntary heirs, I dont think they have a right to impugn the legitimacy of any
child born to the husband and the wife.
Q. When can the wife bring an action to impugn the legitimacy of the child?
Only in case of artificial insemination wherein his consent to the artificial
insemination was vitiated by fraud, violence, intimidation, and the like.
Q. When must the wife bring the action in such case?
The wife must bring an action within 4 years from the discovery of vitiation of
consent.
Q. Suppose the husband was impotent at the time of marriage and the wife did
not bring a petition for annulment of marriage. Would the husband be denied
the right to bring an action to impugn the legitimacy of the child born by the
wife?
The period of the childs conception; i.e., the child could have been conceived at
any time within the first 120 days or first 4 months of the 300 days or 10 months
immediately preceding the birth of the child.
Q. How do you compute the approximate time of conception?
Count 300 days from the date of birth. The first 120 days of the 300 days will be
considered as the possible period of conception.
Q. What is the importance of determining this period?
If it is proven that there could not have been access between the husband and
the wife within this period, then the child could not have been a legitimate child
of the husband.
Q. Are the causes mentioned in Article 166 regarding physical impossibility of
access exclusive?
No. As long as one can prove in any other way that there was no access to the
wife during the period of conception, he can avail of the action.
Q. What is the nature of the serious illness contemplated in the third instance of
physical impossibility of access?
The illness must be such that it will prevent the husband and the wife from
having sexual intercourse. It is serious illness and not sexual illness as Mike
Mate insists. So, AIDS is not even considered in this category.
Q. Give the status of the following:
1. A child born out of artificial insemination where there was no written
authorization of both spouses the child has no status and no parents.
(oh my)
2. A child born out of artificial insemination where the husband was not
able to give his written authorizationthe child is the illegit child of
the mom. (at least may parent)
Q. What is the status of the child in case an action to impugn legitimacy
succeeds? The child is not a kid of the husband, and becomes the illegit child of
the mom.
27

Q. What kind of proceedings is an action to impugn legitimacy allowed?
The status of a child can only be questioned in a direct action or proceeding
ARTICLE 170.
The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its recording in
the civil register, if the husband or, in a proper case, any of his heirs, should
reside in the city or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of
birth as defined in the first paragraph or where it was recorded, the period
shall be two years if they should reside in the Philippines; and three years if
abroad. If the birth of the child has been concealed from or was unknown to
the husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of said birth,
whichever is earlier. (263a)
ARTICLE 171.
The heirs of the husband may impugn the filiation of the
child within the period prescribed in the preceding article only in the
following cases:
(1)
If the husband should die before the expiration of the period fixed
for bringing his action;
(2)
If he should die after the filing of the complaint, without having
desisted therefrom; or
(3)
If the child was born after the death of the husband. (262a)
Q. If the birth of the child has been concealed or was unknown to the husband
or his heirs, from what time should the periods for filing the action be counted?
1. from the discovery or knowledge of the birth of the child, or
2. from the discovery or knowledge of the fact of registration of said
birth, whichever is earlier.
Q. What does the term concealed as used in Art. 170 mean?
It means concealed from the husband or his heirs, not concealed from the
public.
NOTE: registration of the birth of the child in the civil registry is not considered
as constructive notice of such birth. There must be actual knowledge of such
registration by the husband or his heirs, in proper cases.
DEAN: If you look at the first par. of Art.170, you will notice that there is no
comma that separates birth and recording. This means that when you talk of
knowledge, it qualifies both the birth and the recording. So it is not the actual
fact of recording where you start counting the prescriptive period but from the
knowledge of recording.
But when you go towards the end of that provision, it says in case the
birth of the child is concealed or in case of the pregnancy being concealed then
the prescriptive period is counted from the time of the discovery or knowledge
of the birth or the fact of recording, whichever is earlier. What then is the
difference between concealed birth and those where there is no concealment? I
dont see any difference because when you look at the wording of the law it is
counted from the knowledge of birth or the knowledge of recording in either
case unless you want to think that if it is not a concealed birth, you start
counting from actual recording and not from the knowledge of the recording.
But that is, of course, belied by some of the arguments of the members of the
committee which says you cannot use constructive knowledge in that case. So, I
dont really know what the purpose is of making a distinction between a
concealed birth and that which is not concealed.
Another thing that will probably raise some eyebrows is the provision
of the law that in case of concealed birth, it is the knowledge of the recording or
the knowledge of the birth, whichever is earlier. So what does that mean? That
means if I am the father, I will argue that I have a choice when to count it
either from knowledge of birth or knowledge of recording. It is not logical that
in case there is no concealment the father can start from the later period whereas
if it is concealed, the father can start from whichever is earlier. As I have said,
there is something wrong in the way this was phrased. I guess they should not
have really made a distinction between concealed birth and all other cases
because in either case, it will have to be counted form knowledge of the birth or
the recording.
Q. In case of the death of the husband before the expiration of the period, when
must the heirs bring the action?
The heirs must bring an action within the remainder of the period given to the
husband. They cannot extend the period because they only succeed the
husband.
Q. Give an example.
Assume that the relevant period is one year. The husband dies after the birth of
the child. His heirs will not have more than the time allotted to the husband.
The heirs have only 6 months within which to institute an action to impugn
legitimacy.
Q. Can the heirs of the husband bring an action to impugn legitimacy in case the
husband dies after desistance? No.
Q. In case the child is born after the death of the husband, what is the period
given to the heirs to bring an action to impugn legitimacy?
28

The heirs are given the full period of 1, 2, or 3 years in accordance with Art. 170,
counted from death of the husband.
Q. Can the illegitimate status of a child be impugned? No. There is no such
action.
ARTICLE 182.
Legitimation may be impugned only by those who are
prejudiced in their rights, within five years from the time their cause of action
accrues. (275a)
Q. Who may bring an action to impugn legitimation?
Those persons who will be prejudiced in their rights. It means those who would
suffer economic or material injury by the legitimation such as testamentary or
intestate heirs of the parents. Creditors are excluded because they step into the
picture only when there is repudiation by the heirs.
Q. When must they bring the action?
Five years from the time the cause of action accrues.
Q. What do you mean by cause of action?
DEAN: 5 years from celebration of marriage
Sempio-Dy: time from the death of putative parents.
Q. What are some of the grounds to impugn legitimation?
1. The subsequent marriage of the childs parents is void.
2. The child allegedly legitimated is not natural
3. The child is not really the child of the alleged parents.
4. There is an impediment at time of conception
Lee v. CA, 10/11/01
HELD:
1. Article 412 does not pertain only to clerical errors of a harmless or innocuous
nature, effectively excluding from its domain, and the scope of its
implementing rule, substantial changes that may affect nationality, status,
filiation and the like.
First of all, Article 412 is a substantive law that provides as follows: "No entry
in a civil register shall be changed or corrected, without a judicial order." It
does not provide for a specific procedure of law to be followed except to say
that the corrections or changes must be effected by judicial order. As such, it
cannot be gleaned therefrom that the procedure contemplated for obtaining
such judicial order is summary in nature.
Secondly, it is important to note that Article 412 uses both the terms
"corrected" and "changed". In its ordinary sense, to correct means to make or
set right"; "to remove the faults or errors from" while to change means "to
replace something with something else of the same kind or with something
that serves as a substitute". The provision neither qualifies as to the kind of
entry to be changed or corrected nor does it distinguish on the basis of the
effect that the correction or change may have. Hence, it is proper to conclude
that all entries in the civil register may be changed or corrected under Article
412. What are the entries in the civil register? We need not go further than
Articles 407 and 408 of the same title to find the answer. It is beyond doubt
that the specific matters covered by said articles include not only status but
also nationality. Therefore, Article 412 also contemplates matters that may
affect civil status, nationality or citizenship.
Thirdly, Republic Act No. 9048 which was passed by Congress on February 8,
2001 substantially amended Article 412 of the New Civil Code, to wit:
"SECTION 1. AAuutthhoorr!ttyy ttoo CCoorrrreecctt CClleerr!ccaall oorr TTyyppooggrraapphh!ccaall EErrrroorr aanndd CChhaannggee ooff FF!rrsstt NNaammee oorr
NN!cckknnaammee. No entry in a civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change of first name or nickname
which can be corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its implementing rules
and regulations."
The above law speaks clearly. Clerical or typographical errors in entries of the
civil register are now to be corrected and changed without need of a judicial
order and by the city or municipal civil registrar or consul general. The
obvious effect is to remove from the ambit of Rule 108 the correction or
changing of such errors in entries of the civil register. Hence, what is left for
the scope of operation of Rule 108 are substantial changes and corrections in
entries of the civil register. What exactly is that so-called ssuummmmaarryy pprroocceedduurree
for changes or corrections of a harmless or innocuous nature as distinguished
from that aapppprroopprr!aattee aaddvveerrssaarryy pprroocceeeedd!nngg for changes or corrections of a
substantial kind? Republic Act No. 9048 now embodies that summary
procedure while Rule 108 is that aapppprroopprr!aattee aaddvveerrssaarryy pprroocceeeedd!nngg.
2. A careful reading of articles 164, 166, 170 and 171 FC will show that they do
not contemplate a situation where a child is alleged not be the child of nature or
biological child of a certain couple. Rather, these articles govern a situation
where a husband (or his heirs) denies as his own a child of his wife. Thus, under
Article 166, it is the husband who can impugn the legitimacy of said child by
proving: (1) it was physically impossible for him to have sexual intercourse,
with his wife within the first 120 days of the 300 days which immediately
preceded the birth of the child; (2) that for biological or other scientific reasons,
the child could not have been his child; (3) that in case of children conceived
through artificial insemination, the written authorization or ratification by either
parent was obtained through mistake, fraud, violence, intimidation or undue
influence. Articles 170 and 171 reinforce this reading as they speak of the
prescriptive period within which the husband or any of his heirs should file the
29

action impugning the legitimacy of said child. Doubtless then, the appellate
court did not err when it refused to apply these articles to the case at bench.
SSS v. Aguas
FACTS:
Pablo Aguas (hereinafter Aguas), member of SSS, died in 1966. His
surviving spouse Rosanna filed a claim with SSS for death benefits, indicating
in her claim that Aguas was likewise survived by this minor child, Jeylnn
(Not a typo error. Dont attempt to pronounce the name), born in 1991. This
claim for monthly pension was settled in 1997.
Leticia (the meddling sister of Aguas) sent a letter to SSS contesting the claim
of Rosanna. She alleged that Rosanna abandoned the family abode six years
ago and lived with another man (dela Pena, whom she married in 1990), on
whom she has been dependent for support; that Aguas had no children with
Rosanna; ULTIMATELY, that Jeylnn was not the child of Aguas, but of dela
Pena (Rosannas live in guy).
SSS suspended the pension of Rosanna and Jeylnn and conducted an
investigation which yielded to the info that Jeylnn and a certain Jefren were
Rosannas children with dela Pena; that Rosanna left Aguas and lived with
dela pena while she was still pregnant with Jeylnn; that Aguas was impotent.
So after report and confirmation, the request by Rosanna to resume pension
was denied by SSS and she was advised to refund all the benefits released to
her and Jeylnn. Reconsideration was denied by SSS.
Petition for Restoration/Payment of Pension with SSC: Janet Aguas joined,
claims to be a child also of Aguas; Jeylnns and Janets birth certificates
submitted; they claim that Jeylnns a LEGITIMATE child of Aguas as
evidenced by her birth certificate which bears Aguas signature. But it
appeared that Janet was only an adopted child, and Jefren was a dela Pena.
AnywaySSC ruled that Rosanna was no longer qualified because of her act
of adultery, Janet was just adopted (not legally), and Jeylnn wasnt entitled to
receive benefits because EVEN IF HER BIRTH CERT WAS SIGNED BY THE
FATHER, THERE WAS MORE COMPELLING EVIDENCE THAT SHE WAS
ILLEGITIMATE. CA reversed this and ruled entitlement of all petitioners.
ISSUE: ARE ROSANNA (SPOUSE), JANET (ADOPTED) AND JEYLNN
(MINOR CHILD) ENTITLED TO THE DEATH BENEFITS FROM SSS? (focus
more on Jeylnns entitlement, which is dependent on her legitimacy and
impugned by this Leticia person)
HELD: JEYLNN IS THE ONLY ONE ENTITLED TO THE BENEFITS! It is
evident that she was born during Rosanna and Aguas marriage; Aguas
signature was on her birth certificate.
Art. 164 of the FC: children born or conceived during the marriage of the
parents are legitimate. In DDee JJeessuuss vvss.. GGaammbbooaa,, the Court ruled that children
born in wedlock are presumed legitimate. The presumption becomes
conclusive in the absence of proof that there was impossibility of access
between spouses in the first 120 days of the 300 days which immediately
preceded the birth of the child due to a) physical incapacity of the husband to
have sexual intercourse with his wife; b) the fact that the husband and wife
are living separately in such a way that sexual intercourse is not possible; or c)
serious illness of the husband, which absolutely prevents sexual intercourse.
UPON THE EXPIRATION OF THE PERIODS IN ARTS. 170 OF FC AND 171
(see codal),
THE ACTION TO IMPUGN THE LEGITIMACY OF THE
CHILD WOULD NO LONGER BE LEGALLY FEASIBLE AND THE STATUS
CONFERRED BY THE PRESUMPTION BECOMES FIXED AND
UNASSAILABLE.
A BIRTH CERTIFICATE SIGNED BY THE FATHER IS COMPETENT
EVIDENCE OF PATERNITY.
Rosanna, the adulterer, is not entitled. Whoever claims entitlement must
prove the right thereto by substantial evidence. Under SSS law, dependents
and beneficiaries include the legitimate spouse dependent for support upon
the employee or the dependent spouse. It was proven that she was
dependent upon her other guy for support since she left the family home.
Janet was proven to be not legally adopted as no papers were presented to
support the legality of her adoption - the law includes legally adopted
child.
4.
Rights of Legitimate/Legitimated/Illegitimate Children
ARTICLE 174.
Legitimate children shall have the right:
(1)
To bear the surnames of the father and the mother, in conformity
with the provisions of the Civil Code on Surnames;
(2)
To receive support from their parents, their ascendants, and in
proper cases, their brothers and sisters, in conformity with the provisions of
this Code on Support; and
(3)
To be entitled to the legitime and other successional rights granted to
them by the Civil Code. (264a)
Q. Is it obligatory for a legit kid to use his fathers surname?
The childs use of his dads surname indicates the family to which he belongs.
Hence, it is mandatory for the child to use his dads surname. He may also use
his moms surname as a middle name, but the surname should be that of the
father.
Article 176.
Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled to support
30

in conformity with this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly recognized by the
father through the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten instrument is made
by the father. Provided, the father has the right to institute an action before
the regular courts to prove non-filiation during his lifetime. The legitime of
each illegitimate child shall consist of one-half of the legitime of a legitimate
child.(as amended by RA 9255)
Q. What are the rights of illegitimate children?
1. To bear moms surname even if the father has given his consent to use his
surname
2. support, based on the need of the illegit kid
3. for purposes of succession, their share is of the share of legit kid.
Q. Who exercises parental authority over an illegit kid?
The mom, unless the court orders otherwise.
ARTICLE 179.
Legitimated children shall enjoy the same rights as
legitimate children. (272a)
RA 9255 Surname of Illegitimate Children
AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE
SURNAME OF THEIR FATHER, AMENDING FOR THE PURPOSE
ARTICLE 176 OF EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS
THE "FAMILY CODE OF THE PHILIPPINES"
SECTION 1.
Article 176 of Executive Order No. 209, otherwise known as
the Family Code of the Philippines, is hereby amended to read as follows:
"Article 176.
Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled to support
in conformity with this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly recognized by the
father through the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten instrument is made
by the father. Provided, the father has the right to institute an action before
the regular courts to prove non-filiation during his lifetime. The legitime of
each illegitimate child shall consist of one-half of the legitime of a legitimate
child."
SECTION 2.
Repealing Clause. All laws, presidential decrees,
executive orders, proclamations, rules and regulations, which are inconsistent
with the provisions of this Act are hereby repealed or modified accordingly.
SECTION 3.
Effectivity Clause. This Act shall take effect fifteen (15)
days from its publication in the Official Gazette or in two (2) newspaper of
general circulation.
Approved: February 24, 2004
RA 9225 Citizenship Retention and Re-acquisition Act of 2003
AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO
ACQUIRE FOREIGN CITIZENSHIP PERMANENT, AMENDING FOR THE
PURPOSE COMMONWEALTH ACT NO. 63, AS AMENDED, AND FOR
OTHER PURPOSES.
Section 1. Short Title. This act shall be known as the "Citizenship Retention
and Re-acquisition Act of 2003."
Sec. 2. Declaration of Policy. - It is hereby declared the policy of the State that
all Philippine citizens of another country shall be deemed not to have lost
their Philippine citizenship under the conditions of this Act.
Sec. 3. Retention of Philippine Citizenship. - Any provision of law to the
contrary notwithstanding, natural-born citizenship by reason of their
naturalization as citizens of a foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance
to the Republic:
"I _____________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws
and legal orders promulgated by the duly constituted authorities of the
Philippines; and I hereby declare that I recognize and accept the supreme
authority of the Philippines and will maintain true faith and allegiance thereto;
and that I imposed this obligation upon myself voluntarily without mental
reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act,
become citizens of a foreign country shall retain their Philippine citizenship
upon taking the aforesaid oath.
Sec. 4. Derivative Citizenship. - The unmarried child, whether legitimate,
illegitimate or adopted, below eighteen (18) years of age, of those who reacquire Philippine citizenship upon effectivity of this Act shall be deemed
citizenship of the Philippines.
Sec. 5. Civil and Political Rights and Liabilities. - Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution, Republic Act No.
9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and
other existing laws;
(2) Those seeking elective public in the Philippines shall meet the
qualification for holding such public office as required by the Constitution
31

and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear to an oath
of allegiance to the Republic of the Philippines and its duly constituted
authorities prior to their assumption of office: Provided, That they renounce
their oath of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply
with the proper authority for a license or permit to engage in such practice;
and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of
which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the
armed forces of the country which they are naturalized citizens.
Sec. 6. Separability Clause. - If any section or provision of this Act is held
unconstitutional or invalid, any other section or provision not affected
thereby shall remain valid and effective.
Sec. 7. Repealing Clause. - All laws, decrees, orders, rules and regulations
inconsistent with the provisions of this Act are hereby repealed or modified
accordingly.
Sec. 8. Effectivity Clause. This Act shall take effect after fifteen (15) days
following its publication in the Official Gazette or two (2) newspaper of
general circulation.
Approved: August 29, 2003
De Santos v. Angeles
FACTS:
In 1941, Dr. Antonio de Santos (Ne-yo) married Sofia Bona (Bon-bon). They
had a daughter, PETITIONER Maria Rosario de Santos. They started hating
each other, so Ne-yo fell in love with a fellow doctor, Conchita Talag (Chichi). Ne-yo obtained a divorce decree from a Nevada court in 1949, aimed at
dissolving his marriage to Bon-bon (who cant stop shaking). But DUH! He
was obviously aware the decree was a worthless piece of crap in our
jurisdiction, Ne-yo proceeded to Tokyo, Japan in 1951 to marry Chi-chi, with
whom he had been cohabiting since his de facto separation from Bon-bon
(shake it, baby). The result: A WHOPPING NUMBER OF ELEVEN
CHILDREN!
Bon-bon died in Guatemala (1967). Less than a month later, on April 23, 1967,
Ne-yo and Chi-chi got married in Tagaytay celebrated under Philippine laws.
Yihee.
Ne-yo finally croaked (1981) intestate leaving properties worth 15M. Chi-chi
went to court asking for the issuance of letters of administration in her favor
in connection with the settlement of Ne-yo's estate. She alleged that the
decedent was survived by 12 legitimate heirs, namely, herself, their ten
surviving children, and petitioner. There being no opposition, her petition
was granted.
After 6 years of protracted intestate proceedings, petitioner intervened. She
argues that Chi-chis children were illegitimate. This was challenged by Chichi although she admitted during the hearing that all her children were born
prior to Sofia's death in 1967.
TC declared Chi-chi's ten children legitimated and thereupon instituted and
declared them, along with petitioner and private respondent, as the heirs of
their Daddy-yo Ne-yo. Petitioners MR was denied.
Hence, she filed the instant petition for certiorari contending that since only
natural children can be legitimized, the trial court mistakenly declared as
legitimated her half brothers and sisters.
ISSUE: WERE THEY RIGHTFULLY DERCLARED LEGITIMATED DUE TO
NE-YO AND CHI-CHIS MARRIAGE AFTER BON-BON KICKED THE
BUCKET?
HELD: HELL NO! Art. 269 of the Civil Code says, Only natural children can be
legitimized. Children born outside wedlock of parents who, at the time of the
conception of the former, were not disqualified by any impediment to marry
each other, are natural."
In other words, a child's parents should not have been disqualified to marry
each other at the time of conception for him to qualify as a "natural child."
In this case where the marriage was void as bigamous, and since they were
begotten of such union, they cannot be considered as natural children proper.
They are called natural children BY LEGAL FICTION( this term was coined
because legal fiction had to be resorted to, thus giving rise to another category
of illegitimate children). They cant be called natural children (and thus they
dont have the right to be legitimated) because they were conceived at a time
their parents were disqualified from marrying each other (due to impediment
of a prior subsisting marriage). Legitimation is not a right which is
demandable by a child. It is a privilege, available to nnaattuurraall cchh!llddrreenn pprrooppeerr as
defined in Art. 269 of NCC.
Another point to be considered is that although natural children can be
legitimized, and natural children by legal fiction enjoy the rights of
acknowledged natural children, this does not necessarily lead to the
conclusion that natural children by legal fiction can likewise be legitimized.
Much more is involved here than the mere privilege to be legitimized. The
rights of other children, like the petitioner in the case at bench, may be
32

adversely affected as her testamentary share may well be reduced in the event
that her ten surviving half siblings should be placed on par with her, when
each of them is rightfully entitled to only half of her share.
The provisions of law invoked by private respondent are couched in simple
and unmistakable language, not at all subject to interpretation, and they all
point to the correctness of petitioner's claim. If it should be asserted that we
now trench on a gray area of law that calls for interpretation, or a lacuna that
cries for filling up, then we have to pierce the shroud unintentionally created
by the letter of the law and expose its spirit as evincing intent, in this case one
which decidedly favors legitimacy over illegitimacy. The hierarchy of
children so painstakingly erected by law and the corresponding gradation of
their rights may conceivably be shattered by elevating natural children by
legal fiction who are incontestably illegitimate children to the level of natural
children proper, whose filiation would otherwise be legitimate had their
parents blessed their union with a valid marriage.
Finally, attention must be drawn to the fact that this case has been decided
under the provisions of the Civil Code, not the Family Code which now
recognizes only legitimate and illegitimate. "Natural children by legal fiction"
are nothing if not pure fiction.
Tecson v. COMELEC, 03/03/04
FACTS:
Before the Court are three consolidated cases, all of which raise a single
question of profound importance to the nation. The issue of citizenship is
brought up to challenge the qualifications of a presidential candidate to hold
the highest office of the land. Our people are waiting for the judgment of the
Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and
now one of the main contenders for the presidency, a natural-born Filipino or
is he not?
FPJs grandfather, Lorenzo Pou, is a Filipino citizen. Hence, his father, Allan
Poe (son of Lorenzo Pou) is also a Filipino citizen. Allan Poe was shown to
have been married to a Paulita Gomez in 1936. In 1940, he also married Bessie
Kelly, an American citizen. FPJ was the child of Allan Poe and Bessie Kelley,
and therefore was illegitimate.
ISSUE: WON an illegitimate son may run for an elective position.
HELD: YES
PPrrooooff ooff ppaatteerrnn!ttyy aanndd ff!ll!aatt!oonn uunnddeerr cc!vv!ll llaaww:: It should be apparent that the
growing trend to liberalize the acknowledgment or recognition of illegitimate
children is an attempt to break away from the traditional idea of keeping well
apart legitimate and non-legitimate relationships within the family in favor of
the greater interest and welfare of the child. The provisions are intended to
merely govern the private and personal affairs of the family. There is little, if
any, to indicate that the legitimate or illegitimate civil status of the individual
would also affect his political rights or, in general, his relationship to the
State. While, indeed, provisions on "citizenship" could be found in the Civil
Code, such provisions must be taken in the context of private relations, the
domain of civil law; particularly - "Civil Law is that branch of law which has
for its double purpose the organization of the family and the regulation of
property. It has thus been defined as the mass of precepts which determine
and regulate the relations of assistance, authority and obedience among
members of a family, and those which exist among members of a society for
the protection of private interests."
Civil law provisions point to an obvious bias against illegitimacy. This
discriminatory attitude may be traced to the Spanish family and property
laws, which, while defining proprietary and successional rights of members
of the family, provided distinctions in the rights of legitimate and illegitimate
children. In the monarchial set-up of old Spain, the distribution and
inheritance of titles and wealth were strictly according to bloodlines and the
concern to keep these bloodlines uncontaminated by foreign blood was
paramount. These distinctions between legitimacy and illegitimacy were
codified in the Spanish Civil Code, and the invidious discrimination survived
when the Spanish Civil Code became the primary source of our own Civil
Code. Such distinction, however, remains and should remain only in the
sphere of civil law and not unduly impede or impinge on the domain of
political law.
The proof of filiation or paternity for purposes of determining his citizenship
status should thus be deemed independent from and not inextricably tied up
with that prescribed for civil law purposes. The Civil Code or Family Code
provisions on proof of filiation or paternity, although good law, do not have
preclusive effects on mmaatttteerrss aall!eenn ttoo personal and family relations. The
ordinary rules on evidence could well and should govern. For instance, the
matter about pedigree (Sec. 39, Rule 130) is not necessarily precluded from
being applicable by the Civil Code or Family Code provisions.
OObb!tteerr dd!ccttuumm rreell!eedd uuppoonn bbyy FFPPJJ:: The doctrine on constitutionally allowable
distinctions was established long ago by People vs. Cayat. It is true that the
distinction between legitimate children and illegitimate children rests on real
differences. But real differences alone do not justify invidious distinction.
Real differences may justify distinction for one purpose but not for another
purpose. What is the relevance of legitimacy or illegitimacy to elective public
service? What possible state interest can there be for disqualifying an
illegitimate child from becoming a public officer. It was not the fault of the
child that his parents had illicit liaison. Why deprive the child of the fullness
of political rights for no fault of his own? To disqualify an illegitimate child
from holding an important public office is to punish him for the indiscretion
of his parents. There is neither justice nor rationality in that. And if there is
33

neither justice nor rationality in the distinction, then the distinction

transgresses the equal protection clause and must be reprobated.
NOTE: It is to be noted, however, that such is not exactly the issue here. The
issue is not WON FPJ can run for the presidential position if he is found to be
an illegitimate child. That is beside the fact. His legitimacy or illegitimacy is
only one step to the determination of WON he can run for the position. The
issue is WON he is an illegitimate child of his father such that his citizenship
would follow that of his mothers (Bessie Kelly), who is an American citizen,
in w/c case he cannot run for the position. And this, still, is not exactly the
determining factor either. For the fact of the matter perhaps the most
significant consideration is that the fundamental law prevailing on the day,
month and year of birth of respondent FPJ, w/c is the 1935 Constitution,
provides neither conditions nor distinctions (particularly on legitimacy or
illegitimacy) when it states that among the citizens of the Philippines are
those whose fathers are citizens of the Philippines. There utterly is no
cogent justification to prescribe conditions or distinctions where there clearly
are none provided.
In sum, in ascertaining whether FPJ can run for presidency, it is necessary to
take on the matter of whether or not he is a natural-born citizen, which, in
turn, depended on whether or not his father, Allan F. Poe, would have
himself been a Filipino citizen and, in the affirmative, whether or not the
alleged illegitimacy of respondent prevents him from taking after the Filipino
citizenship of his putative father. And the answer to that is in the negative,
since the 1935 Constitution, during which regime respondent FPJ has seen
first light, confers citizenship to all persons whose fathers are Filipino citizens
regardless of whether such children are legitimate or illegitimate.
Where jurisprudence regarded an illegitimate child as taking after the
citizenship of its mother, it did so for the benefit the child. It was to ensure a
Filipino nationality for the illegitimate child of an alien father in line with the
assumption that the mother had custody, would exercise parental authority
and had the duty to support her illegitimate child. It was to help the child,
not to prejudice or discriminate against him.
NOTE on DNA Testing: In case proof of filiation or paternity would be
unlikely to satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent could be
resorted to. A positive match would clear up filiation or paternity. See TT!jj!nngg
vvss.. CCAA digest ssuupprraa (penultimate par.).
I.
Adoption
RA 8043 Inter-Country Adoption Act of 1995
AN ACT ESTABLISHING THE RULES TO GOVERN INTER-COUNTRY

ADOPTION OF FILIPINO CHILDREN, AND FOR OTHER PURPOSES
ARTICLE I
General Provisions
SECTION 1.
Short Title. This Act shall be known as the "InterCountry Adoption Act of 1995."
SECTION 2.
Declaration of Policy. It is hereby declared the policy of
the State to provide every neglected and abandoned child with a family that
will provide such child with love and care as well as opportunities for growth
and development. Towards this end, efforts shall be exerted to place the
child with an adoptive family in the Philippines. However, recognizing that
inter-country adoption may be considered as allowing aliens, not presently
allowed by law to adopt Filipino children if such children cannot be adopted
by qualified Filipino citizens or aliens, the State shall take measures to ensure
that inter-country adoptions are allowed when the same shall prove
beneficial to the child's best interests, and shall serve and protect his/her
fundamental rights.
SECTION 3.
Definition of Terms. As used in this Act, the term:
a)
Inter-country adoption refers to the socio-legal process of adopting a
Filipino child by a foreigner or a Filipino citizen permanently residing abroad
where the petition is filed, the supervised trial custody is undertaken, and the
decree of adoption is issued outside the Philippines.
b)
Child means a person below fifteen (15) years of age unless sooner
emancipated by law.
c)
Department refers to the Department of Social Welfare and
Development of the Republic of the Philippines.
d)
Secretary refers to the Secretary of the Department of Social Welfare
and Development.
e)
Authorized and accredited agency refers to the State welfare agency
or a licensed adoption agency in the country of the adopting parents which
provide comprehensive social services and which is duly recognized by the
Department.
f)
Legally-free child means a child who has been voluntarily or
involuntarily committed to the Department, in accordance with the Child and
Youth Welfare Code.
g)
Matching refers to the judicious pairing of the adoptive child and the
applicant to promote a mutually satisfying parent-child relationship.
h)
Board refers to the Inter-country Adoption Board.
ARTICLE II
The Inter-Country Adoption Board
34

SECTION 4.
The Inter-Country Adoption Board. There is hereby
created the Inter-Country Adoption Board, hereinafter referred to as the
Board, to act as the central authority in matters relating to inter-country
adoption. It shall act as the policy-making body for purposes of carrying out
the provisions of this Act, in consultation and coordination with the
Department, the different child-care and placement agencies, adoptive
agencies, as well as non-governmental organizations engaged in child-care
and placement activities. As such, it shall:
a)
Protect the Filipino child from abuse, exploitation, trafficking and/or
sale or any other practice in connection with adoption which is harmful,
detrimental, or prejudicial to the child;
b)
Collect, maintain, and preserve confidential information about the
child and the adoptive parents;
c)
Monitor, follow up, and facilitate completion of adoption of the
child through authorized and accredited agency;
d)
Prevent improper financial or other gain in connection with an
adoption and deter improper practices contrary to this Act;
e)
Promote the development of adoption services including post-legal
adoption;
f)
License and accredit child-caring/placement agencies and collaborate
with them in the placement of Filipino children;
g)
Accredit and authorize foreign adoption agency in the placement of
Filipino children in their own country; and
h)
Cancel the license to operate and blacklist the child-caring and
placement agency or adoptive agency involved from the accreditation list of
the Board upon a finding of violation of any provision under this Act.
SECTION 5.
Composition of the Board. The Board shall be composed
of the Secretary of the Department as ex officio Chairman, and six (6) other
members to be appointed by the President for a nonrenewable term of six (6)
years: Provided, That there shall be appointed one (1) psychiatrist or
psychologist, two (2) lawyers who shall have at least the qualifications of a
regional trial court judge, one (1) registered social worker and two (2)
representatives from non-governmental organizations engaged in childcaring and placement activities. The members of the Board shall receive a per
diem allowance of One thousand five hundred pesos (P1,500) for each
meeting attended by them: Provided, further, That no compensation shall be
paid for more than four (4) meetings a month.
SECTION 6.
Powers and Functions of the Board. The Board shall have
the following powers and functions:
a)
to prescribe rules and regulations as it may deem reasonably
necessary to carry out the provisions of this Act, after consultation and upon
favorable recommendation of the different agencies concerned with childcaring, placement, and adoption;
b)
to set the guidelines for the convening of an Inter-country Adoption
Placement Committee which shall be under the direct supervision of the
Board;
c)
to set the guidelines for the manner by which selection/matching of
prospective adoptive parents and adoptive child can be made;
d)
to determine a reasonable schedule of fees and charges to be exacted
in connection with the application for adoption;
e)
to determine the form and contents of the application for intercountry adoption;
f)
to formulate and develop policies, programs and services that will
protect the Filipino child from abuse, exploitation, trafficking and other
adoption practice that is harmful, detrimental and prejudicial to the best
interest of the child;
g)
to institute systems and procedures to prevent improper financial
gain in connection with adoption and deter improper practices which are
contrary to this Act;
h)
to promote the development of adoption services, including postlegal adoption services;
i)
to accredit and authorize foreign private adoption agencies which
have demonstrated professionalism, competence and have consistently
pursued non-profit objectives to engage in the placement of Filipino children
in their own country: Provided, That such foreign private agencies are duly
authorized and accredited by their own government to conduct inter-country
adoption: Provided, however, That the total number of authorized and
accredited foreign private adoption agencies shall not exceed one hundred
(100) a year;
j)
to take appropriate measures to ensure confidentiality of the records
of the child, the natural parents and the adoptive parents at all times;
k)
to prepare, review or modify, and thereafter, recommend to the
Department of Foreign Affairs, Memoranda of Agreement respecting intercountry adoption consistent with the implementation of this Act and its
stated goals, entered into, between and among foreign governments,
international organizations and recognized international non-governmental
organizations;
l)
to assist other concerned agencies and the courts in the
implementation of this Act, particularly as regards coordination with foreign
persons, agencies and other entities involved in the process of adoption and
the physical transfer of the child; and
m)
to perform such other functions on matters relating to inter-country
adoption as may be determined by the President.
ARTICLE III
Procedure
SECTION 7.
Inter-Country Adoption as the Last Resort. The Board
shall ensure that all possibilities for adoption of the child under the Family
Code have been exhausted and that inter-country adoption is in the best
35

interest of the child. Towards this end, the Board shall set up the guidelines
to ensure that steps will be taken to place the child in the Philippines before
the child is placed for inter-country adoption: Provided, however, That the
maximum number that may be allowed for foreign adoption shall not exceed
six hundred (600) a year for the first five (5) years.
SECTION 8.
Who May be Adopted. Only a legally free child may be
the subject of inter-country adoption. In order that such child may be
considered for placement, the following documents must be submitted to the
Board:
a)
Child study;
b)
Birth certificate/foundling certificate;
c)
Deed of voluntary commitment/decree of abandonment/death
certificate of parents;
d)
Medical evaluation/history;
e)
Psychological evaluation, as necessary; and
f)
Recent photo of the child.
SECTION 9.
Who May Adopt. An alien or a Filipino citizen
permanently residing abroad may file an application for inter-country
adoption of a Filipino child if he/she:
a)
is at least twenty-seven (27) years of age and at least sixteen (16) years
older than the child to be adopted, at the time of application unless the
adoptor is the parent by nature of the child to be adopted or the spouse of
such parent;
b)
if married, his/her spouse must jointly file for the adoption;
c)
has the capacity to act and assume all rights and responsibilities of
parental authority under his national laws, and has undergone the
appropriate counseling from an accredited counselor in his/her country;
d)
has not been convicted of a crime involving moral turpitude;
e)
is eligible to adopt under his/her national law;
f)
is in a position to provide the proper care and support and to give the
necessary moral values and example to all his children, including the child to
be adopted;
g)
agrees to uphold the basic rights of the child as embodied under
Philippine laws, the U.N. Convention on the Rights of the Child, and to abide
by the rules and regulations issued to implement the provisions of this Act;
h)
comes from a country with whom the Philippines has diplomatic
relations and whose government maintains a similarly authorized and
accredited agency and that adoption is allowed under his/her national laws;
and
i)
possesses all the qualifications and none of the disqualifications
provided herein and in other applicable Philippine laws.
SECTION 10.
Where to File Application. An application to adopt a
Filipino child shall be filed either with the Philippine Regional Trial Court
having jurisdiction over the child, or with the Board, through an intermediate
agency, whether governmental or an authorized and accredited agency, in the
country of the prospective adoptive parents, which application shall be in

accordance with the requirements as set forth in the implementing rules and
regulations to be promulgated by the Board.
The application shall be supported by the following documents written and
officially translated in English:
a)
Birth certificate of applicant(s);
b)
Marriage contract, if married, and divorce decree, if applicable;
c)
Written consent of their biological or adoptive children above ten
(10) years of age, in the form of sworn statement;
d)
Physical, medical and psychological evaluation by a duly licensed
physician and psychologist;
e)
Income tax returns or any document showing the financial capability
of the applicant(s);
f)
Police clearance of applicant(s);
g)
Character reference from the local church/minister, the applicant's
employer and a member of the immediate community who have known the
applicant(s) for at least five (5) years; and
h)
Recent postcard-size pictures of the applicant(s) and his immediate
family.
The Rules of Court shall apply in case of adoption by judicial proceedings.
SECTION 11.
Family Selection/Matching. No child shall be matched to
a foreign adoptive family unless it is satisfactorily shown that the child
cannot be adopted locally. The clearance, as issued by the Board, with the
copy of the minutes of the meetings, shall form part of the records of the child
to be adopted. When the Board is ready to transmit the Placement Authority
to the authorized and accredited inter-country adoption agency and all the
travel documents of the child are ready, the adoptive parents, or any one of
them, shall personally fetch the child in the Philippines.
SECTION 12.
Pre-adoptive Placement Costs. The applicant(s) shall bear
the following costs incidental to the placement of the child:
a)
The cost of bringing the child from the Philippines to the residence
of the applicant(s) abroad, including all travel expenses within the
Philippines and abroad; and
b)
The cost of passport, visa, medical examination and psychological
evaluation required, and other related expenses.
SECTION 13.
Fees, Charges and Assessments. Fees, charges, and
assessments collected by the Board in the exercise of its functions shall be
used solely to process applications for inter-country adoption and to support
the activities of the Board.
SECTION 14.
Supervision of Trial Custody. The governmental agency
or the authorized and accredited agency in the country of the adoptive parents
which filed the application for inter-country adoption shall be responsible for
the trial custody and the care of the child. It shall also provide family
counseling and other related services. The trial custody shall be for a period
of six (6) months from the time of placement. Only after the lapse of the
36

period of trial custody shall a decree of adoption be issued in the said
country, a copy of which shall be sent to the Board to form part of the records
of the child.
During the trial custody, the adopting parent(s) shall submit to the
governmental agency or the authorized and accredited agency, which shall in
turn transmit a copy to the Board, a progress report of the child's adjustment.
The progress report shall be taken into consideration in deciding whether or
not to issue the decree of adoption.
The Department of Foreign Affairs shall set up a system by which Filipino
children sent abroad for trial custody are monitored and checked as reported
by the authorized and accredited inter-country adoption agency as well as the
repatriation to the Philippines of a Filipino child whose adoption has not
been approved.
SECTION 15.
Executive Agreements. The Department of Foreign
Affairs, upon representation of the Board, shall cause the preparation of
Executive Agreements with countries of the foreign adoption agencies to
ensure the legitimate concurrence of said countries in upholding the
safeguards provided by this Act.
ARTICLE IV
Penalties
SECTION 16.
Penalties. a) Any person who shall knowingly participate
in the conduct or carrying out of an illegal adoption, in violation of the
provisions of this Act, shall be punished with a penalty of imprisonment
ranging from six (6) years and one (1) day to twelve (12) years and/or a fine of
not less than Fifty thousand pesos (P50,000), but not more than Two hundred
thousand pesos (P200,000), at the discretion of the court. For purposes of this
Act, an adoption is illegal if it is effected in any manner contrary to the
provisions of this Act or established State policies, its implementing rules
and regulations, executive agreements, and other laws pertaining to adoption.
Illegality may be presumed from the following acts:
1)
consent for an adoption was acquired through, or attended by
coercion, fraud, improper material inducement;
2)
there is no authority from the Board to effect adoption;
3)
the procedures and safeguards placed under the law for adoption
were not complied with; and
4)
the child to be adopted is subjected to, or exposed to danger, abuse
and exploitation.
b)
Any person who shall violate established regulations relating to the
confidentiality and integrity of records, documents and communications of
adoption applications, cases and processes shall suffer the penalty of
imprisonment ranging from one (1) year and one (1) day to two (2) years,
and/or a fine of not less than Five thousand pesos (P5,000), but not more than
Ten thousand pesos (P10,000), at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the consummated
felony under this Article shall be imposed upon the principals of the attempt
to commit any of the acts herein enumerated.
Acts punishable under this Article, when committed by a syndicate or where
it involves two or more children shall be considered as an offense
constituting child trafficking and shall merit the penalty of reclusion
perpetua.
Acts punishable under this Article are deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any of the unlawful acts
defined under this Article. Penalties as are herein provided shall be in
addition to any other penalties which may be imposed for the same acts
punishable under other laws, ordinances, executive orders, and
proclamations.
SECTION 17.
Public Officers as Offenders. Any government official,
employee or functionary who shall be found guilty of violating any of the
provisions of this Act, or who shall conspire with private individuals shall, in
addition to the above-prescribed penalties, be penalized in accordance with
existing civil service laws, rules and regulations: Provided, That upon the
filing of a case, either administrative or criminal, said government official,
employee or functionary concerned shall automatically suffer suspension
until the resolution of the case.
ARTICLE V
Final Provisions
SECTION 18.
Implementing Rules and Regulations. The Inter-country
Adoption Board, in coordination with the Council for the Welfare of
Children, the Department of Foreign Affairs, and the Department of Justice,
after due consultation with agencies involved in child-care and placement,
shall promulgate the necessary rules and regulations to implement the
provisions of this Act within six (6) months after its effectivity.
SECTION 19.
Appropriations. The amount of Five million pesos
(P5,000,000) is hereby appropriated from the proceeds of the Lotto for the
initial operations of the Board and subsequently the appropriations of the
same shall be included in the General Appropriations Act for the year
following its enactment.
SECTION 20.
Separability Clause. If any provision, or part hereof, is
held invalid or unconstitutional, the remainder of the law or the provision not
otherwise affected, shall remain valid and subsisting.
SECTION 21.
Repealing Clause. Any law, decree, executive order,
administrative order or rules and regulations contrary to, or inconsistent with
the provisions of this Act are hereby repealed, modified or amended
accordingly.
SECTION 22.
days after its publication in two (2) newspapers of general circulation.
Approved: June 7, 1995
37

RA 8552 Domestic Adoption Act of 1998

AN ACT ESTABLISHING THE RULES AND POLICIES ON THE
DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR OTHER
PURPOSES
ARTICLE I
General Provisions
SECTION 1.
Short Title. This Act shall be known as the "Domestic
Adoption Act of 1998."
SECTION 2.
Declaration of Policies. (a) It is hereby declared the policy
of the State to ensure that every child remains under the care and custody of
his/her parent(s) and be provided with love, care, understanding and security
towards the full and harmonious development of his/her personality. Only
when such efforts prove insufficient and no appropriate placement or
adoption within the child's extended family is available shall adoption by an
unrelated person be considered.
(b)
In all matters relating to the care, custody and adoption of a child,
his/her interest shall be the paramount consideration in accordance with the
tenets set forth in the United Nations (UN) Convention on the Rights of the
Child; UN Declaration on Social and Legal Principles Relating to the
Protection and Welfare of Children with Special Reference to Foster
Placement and Adoption, Nationally and Internationally; and the Hague
Convention on the Protection of Children and Cooperation in Respect of
Intercountry Adoption. Toward this end, the State shall provide alternative
protection and assistance through foster care or adoption for every child who
is neglected, orphaned, or abandoned.
(c)
It shall also be a State policy to:
(i)
Safeguard the biological parent(s) from making hurried decisions to
relinquish his/her parental authority over his/her child;
(ii)
Prevent the child from unnecessary separation from his/her
biological parent(s);
(iii)
Protect adoptive parent(s) from attempts to disturb his/her parental
authority and custody over his/her adopted child.
Any voluntary or involuntary termination of parental authority shall be
administratively or judicially declared so as to establish the status of the child
as "legally available for adoption" and his/her custody transferred to the
Department of Social Welfare and Development or to any duly licensed and
accredited child-placing or child-caring agency, which entity shall be
authorized to take steps for the permanent placement of the child;
(iv)
Conduct public information and educational campaigns to promote a
positive environment for adoption;
(v)
Ensure that sufficient capacity exists within government and private
sector agencies to handle adoption inquiries, process domestic adoption
applications, and offer adoption-related services including, but not limited to,
parent preparation and post-adoption education and counseling; and
(vi)
Encourage domestic adoption so as to preserve the child's identity
and culture in his/her native land, and only when this is not available shall
intercountry adoption be considered as a last resort.
SECTION 3.
Definition of Terms. For purposes of this Act, the
following terms shall be defined as:
(a)
"Child" is a person below eighteen (18) years of age.
(b)
"A child legally available for adoption" refers to a child who has
been voluntarily or involuntarily committed to the Department or to a duly
licensed and accredited child-placing or child-caring agency, freed of the
parental authority of his/her biological parent(s) or guardian or adopter(s) in
case of rescission of adoption.
(c)
"Voluntarily committed child" is one whose parent(s) knowingly and
willingly relinquishes parental authority to the Department.
(d)
"Involuntarily committed child" is one whose parent(s), known or
unknown, has been permanently and judicially deprived of parental
authority due to abandonment; substantial, continuous, or repeated neglect;
abuse; or incompetence to discharge parental responsibilities.
(e)
"Abandoned child" refers to one who has no proper parental care or
guardianship or whose parent(s) has deserted him/her for a period of at least
six (6) continuous months and has been judicially declared as such.
(f)
"Supervised trial custody" is a period of time within which a social
worker oversees the adjustment and emotional readiness of both adopter(s)
and adoptee in stabilizing their filial relationship.
(g)
"Department" refers to the Department of Social Welfare and
Development.
(h)
"Child-placing agency" is a duly licensed and accredited agency by
the Department to provide comprehensive child welfare services including,
but not limited to, receiving applications for adoption, evaluating the
prospective adoptive parents, and preparing the adoption home study.
(i)
"Child-caring agency" is a duly licensed and accredited agency by the
Department that provides twenty four (24)-hour residential care services for
abandoned, orphaned, neglected, or voluntarily committed children.
(j)
"Simulation of birth" is the tampering of the civil registry making it
appear in the birth records that a certain child was born to a person who is not
his/her biological mother, causing such child to lose his/her true identity and
status.
ARTICLE II
Pre-Adoption Services
SECTION 4.
Counseling Service. The Department shall provide the
services of licensed social workers to the following:
(a)
Biological Parent(s) Counseling shall be provided to the parent(s)
before and after the birth of his/her child. No binding commitment to an
adoption plan shall be permitted before the birth of his/her child. A period of
38

six (6) months shall be allowed for the biological parent(s) to reconsider any
decision to relinquish his/her child for adoption before the decision becomes
irrevocable. Counseling and rehabilitation services shall also be offered to the
biological parent(s) after he/she has relinquished his/her child for adoption.
Steps shall be taken by the Department to ensure that no hurried decisions
are made and all alternatives for the child's future and the implications of
each alternative have been provided.
(b)
Prospective Adoptive Parent(s) Counseling sessions, adoption
fora and seminars, among others, shall be provided to prospective adoptive
parent(s) to resolve possible adoption issues and to prepare him/her for
effective parenting.
(c)
Prospective Adoptee Counseling sessions shall be provided to
ensure that he/she understands the nature and effects of adoption and is able
to express his/her views on adoption in accordance with his/her age and level
of maturity.
SECTION 5.
Location of Unknown Parent(s). It shall be the duty of the
Department or the child-placing or child-caring agency which has custody of
the child to exert all efforts to locate his/her unknown biological parent(s). If
such efforts fail, the child shall be registered as a foundling and subsequently
be the subject of legal proceedings where he/she shall be declared
abandoned.
SECTION 6.
Support Services. The Department shall develop a preadoption program which shall include, among others, the above mentioned
services.
ARTICLE III
Eligibility
SECTION 7.
Who May Adopt. The following may adopt:
(a)
Any Filipino citizen of legal age, in possession of full civil capacity
and legal rights, of good moral character, has not been convicted of any crime
involving moral turpitude, emotionally and psychologically capable of caring
for children, at least sixteen (16) years older than the adoptee, and who is in a
position to support and care for his/her children in keeping with the means of
the family. The requirement of sixteen (16) year difference between the age of
the adopter and adoptee may be waived when the adopter is the biological
parent of the adoptee, or is the spouse of the adoptee's parent;
(b)
Any alien possessing the same qualifications as above stated for
Filipino nationals: Provided, That his/her country has diplomatic relations
with the Republic of the Philippines, that he/she has been living in the
Philippines for at least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence until the adoption
decree is entered, that he/she has been certified by his/her diplomatic or
consular office or any appropriate government agency that he/she has the
legal capacity to adopt in his/her country, and that his/her government allows
the adoptee to enter his/her country as his/her adopted son/daughter:
Provided, Further, That the requirements on residency and certification of the
alien's qualification to adopt in his/her country may be waived for the

following:
(i)
a former Filipino citizen who seeks to adopt a relative within the
fourth (4th) degree of consanguinity or affinity; or
(ii)
one who seeks to adopt the legitimate son/daughter of his/her
Filipino spouse; or
(iii)
one who is married to a Filipino citizen and seeks to adopt jointly
with his/her spouse a relative within the fourth (4th) degree of consanguinity
or affinity of the Filipino spouse; or
(c)
The guardian with respect to the ward after the termination of the
guardianship and clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i)
if one spouse seeks to adopt the legitimate son/daughter of the other;
or
(ii)
if one spouse seeks to adopt his/her own illegitimate son/daughter:
Provided, However, that the other spouse has signified his/her consent
thereto; or
(iii)
if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the
spouses.
SECTION 8.
Who May Be Adopted. The following may be adopted:
(a)
Any person below eighteen (18) years of age who has been
administratively or judicially declared available for adoption;
(b)
The legitimate son/daughter of one spouse by the other spouse;
(c)
An illegitimate son/daughter by a qualified adopter to improve
his/her status to that of legitimacy;
(d)
A person of legal age if, prior to the adoption, said person has been
consistently considered and treated by the adopter(s) as his/her own child
since minority;
(e)
A child whose adoption has been previously rescinded; or
(f)
A child whose biological or adoptive parent(s) has died: Provided,
That no proceedings shall be initiated within six (6) months from the time of
death of said parent(s).
SECTION 9.
Whose Consent is Necessary to the Adoption. After being
properly counseled and informed of his/her right to give or withhold his/her
approval of the adoption, the written consent of the following to the adoption
is hereby required:
(a)
The adoptee, if ten (10) years of age or over;
(b)
The biological parent(s) of the child, if known, or the legal guardian,
or the proper government instrumentality which has legal custody of the
child;
(c)
The legitimate and adopted sons/daughters, ten (10) years of age or
over, of the adopter(s) and adoptee, if any;
39

(d)
The illegitimate sons/daughters, ten (10) years of age or over, of the
adopter if living with said adopter and the latter's spouse, if any; and
(e)
The spouse, if any, of the person adopting or to be adopted.
ARTICLE IV
Procedure
SECTION 10.
Hurried Decisions. In all proceedings for adoption, the
court shall require proof that the biological parent(s) has been properly
counseled to prevent him/her from making hurried decisions caused by strain
or anxiety to give up the child, and to sustain that all measures to strengthen
the family have been exhausted and that any prolonged stay of the child in
his/her own home will be inimical to his/her welfare and interest.
SECTION 11.
Case Study. No petition for adoption shall be set for
hearing unless a licensed social worker of the Department, the social service
office of the local government unit, or any child-placing or child-caring
agency has made a case study of the adoptee, his/her biological parent(s), as
well as the adopter(s), and has submitted the report and recommendations on
the matter to the court hearing such petition.
At the time of preparation of the adoptee's case study, the concerned social
worker shall confirm with the Civil Registry the real identity and registered
name of the adoptee. If the birth of the adoptee was not registered with the
Civil Registry, it shall be the responsibility of the concerned social worker to
ensure that the adoptee is registered.
The case study on the adoptee shall establish that he/she is legally available
for adoption and that the documents to support this fact are valid and
authentic. Further, the case study of the adopter(s) shall ascertain his/her
genuine intentions and that the adoption is in the best interest of the child.
The Department shall intervene on behalf of the adoptee if it finds, after the
conduct of the case studies, that the petition should be denied. The case
studies and other relevant documents and records pertaining to the adoptee
and the adoption shall be preserved by the Department.
SECTION 12.
Supervised Trial Custody. No petition for adoption shall
be finally granted until the adopter(s) has been given by the court a
supervised trial custody period for at least six (6) months within which the
parties are expected to adjust psychologically and emotionally to each other
and establish a bonding relationship. During said period, temporary parental
authority shall be vested in the adopter(s).
The court may motu proprio or upon motion of any party reduce the trial
period if it finds the same to be in the best interest of the adoptee, stating the
reasons for the reduction of the period. However, for alien adopter(s), he/she
must complete the six (6)-month trial custody except for those enumerated in
Sec. 7 (b) (i) (ii) (iii).
If the child is below seven (7) years of age and is placed with the prospective
adopter(s) through a pre-adoption placement authority issued by the
Department, the prospective adopter(s) shall enjoy all the benefits to which
biological parent(s) is entitled from the date the adoptee is placed with the
prospective adopter(s).
SECTION 13.
Decree of Adoption. If, after the publication of the order
of hearing has been complied with, and no opposition has been interposed to
the petition, and after consideration of the case studies, the qualifications of
the adopter(s), trial custody report and the evidence submitted, the court is
convinced that the petitioners are qualified to adopt, and that the adoption
would redound to the best interest of the adoptee, a decree of adoption shall
be entered which shall be effective as of the date the original petition was
filed. This provision shall also apply in case the petitioner(s) dies before the
issuance of the decree of adoption to protect the interest of the adoptee. The
decree shall state the name by which the child is to be known. cdtai
SECTION 14.
Civil Registry Record. An amended certificate of birth
shall be issued by the Civil Registry, as required by the Rules of Court,
attesting to the fact that the adoptee is the child of the adopter(s) by being
registered with his/her surname. The original certificate of birth shall be
stamped "cancelled" with the annotation of the issuance of an amended birth
certificate in its place and shall be sealed in the civil registry records. The new
birth certificate to be issued to the adoptee shall not bear any notation that it
is an amended issue.
SECTION 15.
Confidential Nature of Proceedings and Records. All
hearings in adoption cases shall be confidential and shall not be open to the
public. All records, books, and papers relating to the adoption cases in the
files of the court, the Department, or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a third person is
necessary for purposes connected with or arising out of the adoption and will
be for the best interest of the adoptee, the court may merit the necessary
information to be released, restricting the purposes for which it may be used.
ARTICLE V
Effects of Adoption
SECTION 16.
Parental Authority. Except in cases where the biological
parent is the spouse of the adopter, all legal ties between the biological
parent(s) and the adoptee shall be severed and the same shall then be vested
on the adopter(s).
SECTION 17.
Legitimacy. The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and purposes and as
such is entitled to all the rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination of any kind. To this end,
the adoptee is entitled to love, guidance, and support in keeping with the
means of the family.
SECTION 18.
Succession. In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of succession without
distinction from legitimate filiation. However, if the adoptee and his/her
40

biological parent(s) had left a will, the law on testamentary succession shall
govern.
ARTICLE VI
Rescission of Adoption
SECTION 19.
Grounds for Rescission of Adoption. Upon petition of
the adoptee, with the assistance of the Department if a minor or if over
eighteen (18) years of age but is incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the following grounds committed by
the adopter(s): (a) repeated physical and verbal maltreatment by the
adopter(s) despite having undergone counseling; (b) attempt on the life of the
adoptee; (c) sexual assault or violence; or (d) abandonment and failure to
comply with parental obligations.
Adoption, being in the best interest of the child, shall not be subject to
rescission by the adopter(s). However, the adopter(s) may disinherit the
adoptee for causes provided in Article 919 of the Civil Code.
SECTION 20.
Effects of Rescission. If the petition is granted, the
parental authority of the adoptee's biological parent(s), if known, or the legal
custody of the Department shall be restored if the adoptee is still a minor or
incapacitated. The reciprocal rights and obligations of the adopter(s) and the
adoptee to each other shall be extinguished.
The court shall order the Civil Registrar to cancel the amended certificate of
birth of the adoptee and restore his/her original birth certificate.
Succession rights shall revert to its status prior to adoption, but only as of the
date of judgment of judicial rescission. Vested rights acquired prior to
judicial rescission shall be respected.
All the foregoing effects of rescission of adoption shall be without prejudice
to the penalties imposable under the Penal Code if the criminal acts are
properly proven.
ARTICLE VII
Violations and Penalties
SECTION 21.
Violations and Penalties. (a) The penalty of
imprisonment ranging from six (6) years and one (1) day to twelve (12) years
and/or a fine not less than Fifty thousand pesos (P50,000.00), but not more
than Two hundred thousand pesos (P200,000.00) at the discretion of the court
shall be imposed on any person who shall commit any of the following acts:
(i)
obtaining consent for an adoption through coercion, undue
influence, fraud, improper material inducement, or other similar acts;
(ii)
non-compliance with the procedures and safeguards provided by the
law for adoption; or
(iii)
subjecting or exposing the child to be adopted to danger, abuse, or
exploitation.
(b)
Any person who shall cause the fictitious registration of the birth of
a child under the name(s) of a person(s) who is not his/her biological parent(s)
shall be guilty of simulation of birth, and shall be punished by prision mayor
in its medium period and a fine not exceeding Fifty thousand pesos
(P50,000.00).
Any physician or nurse or hospital personnel who, in violation of his/her oath
of office, shall cooperate in the execution of the abovementioned crime shall
suffer the penalties herein prescribed and also the penalty of permanent
disqualification.
Any person who shall violate established regulations relating to the
confidentiality and integrity of records, documents, and communications of
adoption applications, cases, and processes shall suffer the penalty of
imprisonment ranging from one (1) year and one (1) day to two (2) years,
and/or a fine of not less than Five thousand pesos (P5,000.00) but not more
than Ten thousand pesos (P10,000.00), at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the consummated
offense under this Article shall be imposed upon the principals of the attempt
to commit any of the acts herein enumerated.
Acts punishable under this Article, when committed by a syndicate or where
it involves two (2) or more children shall be considered as an offense
constituting child trafficking and shall merit the penalty of reclusion
perpetua.
Acts punishable under this Article are deemed committed by a syndicate if
carried out by a group of three (3) or more persons conspiring and/or
confederating with one another in carrying out any of the unlawful acts
defined under this Article. Penalties as are herein provided, shall be in
addition to any other penalties which may be imposed for the same acts
punishable under other laws, ordinances, executive orders, and
proclamations.
When the offender is an alien, he/she shall be deported immediately after
service of sentence and perpetually excluded from entry to the country.
Any government official, employee or functionary who shall be found guilty
of violating any of the provisions of this Act, or who shall conspire with
private individuals shall, in addition to the above-prescribed penalties, be
penalized in accordance with existing civil service laws, rules and
regulations: Provided, That upon the filing of a case, either administrative or
criminal, said government official, employee, or functionary concerned shall
automatically suffer suspension until the resolution of the case.
SECTION 22.
Rectification of Simulated Births. A person who has,
prior to the effectivity of this Act, simulated the birth of a child shall not be
punished for such act: Provided, That the simulation of birth was made for
the best interest of the child and that he/she has been consistently considered
and treated by that person as his/her own son/daughter: Provided, further,
That the application for correction of the birth registration and petition for
adoption shall be filed within five (5) years from the effectivity of this Act
and completed thereafter: Provided, finally, That such person complies with
the procedure as specified in Article IV of this Act and other requirements as
determined by the Department.
41

ARTICLE VIII
Final Provisions
SECTION 23.
Adoption Resource and Referral Office. There shall be
established an Adoption Resources and Referral Office under the Department
with the following functions: (a) monitor the existence, number, and flow of
children legally available for adoption and prospective adopter(s) so as to
facilitate their matching; (b) maintain a nationwide information and
educational campaign on domestic adoption; (c) keep records of adoption
proceedings; (d) generate resources to help child-caring and child-placing
agencies and foster homes maintain viability; and (e) do policy research in
collaboration with the Intercountry Adoption Board and other concerned
agencies. The office shall be manned by adoption experts from the public and
private sectors.
SECTION 24.
Implementing Rules and Regulations. Within six (6)
months from the promulgation of this Act, the Department, with the Council
for the Welfare of Children, the Office of Civil Registry General, the
Department of Justice, Office of the Solicitor General, and two (2) private
individuals representing child-placing and child-caring agencies shall
formulate the necessary guidelines to make the provisions of this Act
operative.
SECTION 25.
Appropriations. Such sum as may be necessary for the
implementation of the provisions of this Act shall be included in the General
Appropriations Act of the year following its enactment into law and
thereafter.
SECTION 26.
Repealing Clause. Any law, presidential decree or
issuance, executive order, letter of instruction, administrative order, rule, or
regulation contrary to, or inconsistent with the provisions of this Act is
hereby repealed, modified, or amended accordingly.
SECTION 27.
Separability Clause. If any provision of this Act is held
invalid or unconstitutional, the other provisions not affected thereby shall
remain valid and subsisting.
SECTION 28.
days following its complete publication in any newspaper of general
circulation or in the Official Gazette.
Approved: February 25, 1998
1.
Construction
Q. What is adoption?
Adoption is a juridical act, which creates between two persons a relationship
similar to that which results from a legitimate paternity and filiation. By virtue
of adoption, a child is considered as legitimate on the basis of fiction of law.
Adoption is a judicial process, and anyone who seeks to be conferred the status
of a legitimate child by fiction of law must be adopted in a judicial
proceedings. While Pinoys have this custom of anak-anakan, for as long as
these anaks have not been legally adopted, they will receive nothing by way
of benefits as adopted children. Unless judicial proceedings for adoption are
instituted, the child will not have any rights with respect to the parents, in as
much as there is no legal relation between them. Likewise, if the child dies, the
supposed parents who took care of him/her and reared him/her have no rights
with respect to the child.
Thus, mere agreements to adopt between the adopters and the natural parents
of the child does not create any legal relationship between the adopter and the
adopted. Neither would registration of the child in his/her birth certificate as
the child of the adopters a valid adoption.
Adoption proceedings are therefore always judicial, and one cannot be adopted
through administrative proceedings. Furthermore, the proceedings are in rem,
thus the publication requirements in the Rules of Court must be complied with.
If there is no publication, the court does not acquire jurisdiction over the case.
Republic v. CA/Bobiles
FACTS:
Zenaida Bobiles (Zen) filed petition to adopt Jason Condat, 6 years old, who
had been living with her family since he was 4 months old, with RTC. Court
found petition to be sufficient in form and substance, issued order setting
petition for hearing. After compliance with jurisdictional and procedural
requirements, TC rendered judgment granting adoption, and declared the kid
to be the child of Dioscoro and Zen Bobiles, changed kids surname to Bobiles.
Republic appealed to CA, but CA affirmed TCs decision (denying
applicability of FC on joint adoption and applying PC 603). Thus this
petition to SC.
ISSUE: IS DIOSCOROS
JURISDICTIONAL EFFECT?
NON-JOINDER
IN
THE
PETITION
HELD: NO. When the petition was filed, the law applicable was P.D. 603 (Child
and Youth Welface Code) which allows the petition for adoption to be filed by
either or both of the spouses. But after TC rendered its decision and pending
appeal in CA, the Family Code took effect, which makes joint adoption
mandatory.
Article 246 of the Family Code provides for retroactive effect of appropriate
relevant provisions thereof, subject to the qualification that such retrospective
42

application will not prejudice or impair vested or acquired rights in

accordance with the Civil Code or other laws.
Under the Child and Youth Welfare Code, private respondent had the right to
file a petition for adoption by herself, without joining her husband therein.
When Mrs. Bobiles filed her petition, she was exercising her explicit and
unconditional right under said law. Upon her filing thereof, her right to file
such petition alone and to have the same proceed to final adjudication, in
accordance with the law in force at the time, was already vested and cannot
be prejudiced or impaired by the enactment of a new law.
When private respondent filed her petition in the trial court, it acquired
jurisdiction over it in accordance with the governing law. Jurisdiction being a
matter of substantive law, the established rule is that the jurisdiction of the
court is determined by the statute in force at the time of the commencement of
the action.
Article 185 of the Family Code is remedial in nature. Procedural statutes are
ordinarily accorded a retrospective construction in the sense that they may be
applied to pending actions and proceedings, as well as to future actions.
However, they will not be so applied as to defeat procedural steps completed
before their enactment. Procedural matters are governed by the law in force
when they arise, and procedural statutes are generally retroactive in that they
apply to pending proceedings and are not confined to those begun after their
enactment although, with respect to such pending proceedings, they affect
only procedural steps taken after their enactment.
A petition cannot be dismissed by reason of failure to comply with a law
which was not yet in force and effect at the time. As long as the petition for
adoption was sufficient in form and substance in accordance with the law in
governance at the time it was filed, the court acquires jurisdiction and retains
it until it fully disposes of the case.
Petitioner argues that, even assuming that the Family Code should not apply
retroactively, the Court of Appeals should have modified the trial court's
decision by granting the adoption in favor of private respondent Zenaida C.
Bobiles only, her husband not being a petitioner.
Court held that although Dioscoro Bobiles was not named as one of the
petitioners in the petition for adoption filed by his wife, his affidavit of
consent, attached to the petition and expressly made an integral part thereof,
shows that he himself actually joined his wife in adopting the child: That my
wife, ZENAIDA O. CORTEZA BOBILES and I mutually desire to adopt as
our child. That we are filing the corresponding Petition for Adoption xxx
That I, Dioscoro C. Bobiles as the husband and father, am giving my lawful
consent to this adoption of said minor child, JASON CONDAT. These
declarations, and his subsequent confirmatory testimony in open court, are
sufficient to make him a co-petitioner.
The future of an innocent child must not be compromised by arbitrary

insistence of rigid adherence to procedural rules on the form of pleadings.
It is a settled rule therein that adoption statutes, as well as matters of
procedure leading up to adoption, should be liberally construed to carry out
the beneficent purposes of the adoption institution and to protect the adopted
child in the rights and privileges coming to it as a result of the adoption. The
technical rules of pleading should not be stringently applied to adoption
proceedings, and it is deemed more important that the petition should
contain facts relating to the child and its parents, which may give information
to those interested, than that it should be formally correct as a pleading.
Accordingly, it is generally held that a petition will confer jurisdiction if it
substantially complies with the adoption statute, alleging all facts necessary to
give the court jurisdiction.
Republic v. CA and Spouses Hughes, 10/26/93
FACTS:
James Anthony Hughes, a natural born US citizen, married Lenita Mabunay
Hughes, a Filipino, who herself was later naturalized as a US citizen. On 29 June
1990, the spouses jointly filed a petition to adopt Ma. Cecilia, Neil and Maria, all
surnamed Mabunay, minor niece and nephews of Lenita, who had been living
with the couple even prior to the filing of the petition. The minors, as well as
their parents, gave consent to the adoption.
On 29 November 1990, the RTC granted the petition. In a petition for review of
the RTC decision with the CA, the Republic contended that the RTC erred in
holding that the spouses Hughes are qualified to adopt. The CA affirmed the
RTC decision, theorizing that James Anthony should merely be considered a
nominal or formal party" in the proceedings.
ISSUE: WON the spouses Hughes are not qualified to adopt
HELD: Spouses Hughes are not qualified to adopt.
James Anthony Hughes is not qualified to adopt under Art. 184 FC because
he doesnt fall under any of the exceptions. His wife, Lenita, however, can
qualify under par. (3) of the same article which provides that a former
Filipino citizen may adopt a relative by consanguinity. However, Lenita may
not adopt alone since Article 185 requires a joint adoption by the husband and
the wife, a condition that must be read along together with Article 184.
Article 185 FC now expresses the necessity for joint adoption by the spouses
except in only two instances: (1) When one spouse seeks to adopt his own
legitimate child; or (2) When one spouse seeks to adopt the legitimate child of
the other. Art. 186 FC provides that in case husband and wife jointly adopt or
one spouse adopts the legitimate child of the other, joint parental authority
shall be exercised by the spouses.
James Anthony is not just a nominal or formal party. Adoption creates a
status that is closely assimilated to legitimate paternity and filiation with
43

corresponding rights and duties that necessarily flow from adoption. These
are matters that obviously cannot be considered inconsequential to the
parties.
Republic v. Toledano
FACTS:
In 1990, Spouses Alvin Clouse (natural born American) and Evelyn Clouse
(naturalized American in 1988) filed petition to adopt Solomon Alcala,
brother of Evelyn. He has been under the care of the spouses for a long time.
His mother consented to the adoption due to poverty. Social worker favorably
recommended the granting of the petition. Trial court granted petition.
ISSUE: BEING BOTH ALIENS, ARE THE SPOUSES QUALIFIED TO ADOPT?
HELD: no!
Arts. 184 and 185 of FC clearly bar the spouses from adopting Solomon.
Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates
the persons who are not qualified to adopt, viz:
""((33))
AAnn aall!eenn,, eexxcceepptt::
((aa))
AA ffoorrmmeerr FF!ll!pp!nnoo cc!tt!zzeenn wwhhoo sseeeekkss ttoo aaddoopptt aa rreellaatt!vvee bbyy ccoonnssaanngguu!nn!ttyy;;
((bb))
OOnnee wwhhoo sseeeekkss ttoo aaddoopptt tthhee lleegg!tt!mmaattee cchh!lldd ooff hh!ss oorr hheerr FF!ll!pp!nnoo ssppoouussee;; oorr
((cc))
OOnnee wwhhoo !ss mmaarrrr!eedd ttoo aa FF!ll!pp!nnoo cc!tt!zzeenn aanndd sseeeekkss ttoo aaddoopptt jjoo!nnttllyy ww!tthh hh!ss oorr hheerr ssppoouussee
aa rreellaatt!vvee bbyy ccoonnssaanngguu!nn!ttyy ooff tthhee llaatttteerr..
AAll!eennss nnoott !nncclluuddeedd !nn tthhee ffoorreeggoo!nngg eexxcceepptt!oonnss mmaayy aaddoopptt FF!ll!pp!nnoo cchh!llddrreenn !nn aaccccoorrddaannccee ww!tthh tthhee
rruulleess oonn !nntteerr--ccoouunnttrryy aaddoopptt!oonn aass mmaayy bbee pprroovv!ddeedd bbyy llaaww..""
There can be no question that private respondent Alvin A. Clouse is not

qualified to adopt Solomon Joseph Alcala under any of the exceptional cases
in the aforequoted provision. In the first place, he is not a former Filipino
citizen but a natural born citizen of the United States of America. In the
second place, Solomon Joseph Alcala is neither his relative by consanguinity
nor the legitimate child of his spouse. In the third place, when private
respondents spouses Clouse jointly filed the petition to adopt Solomon Joseph
Alcala on February 21, 1990, private respondent Evelyn A. Clouse was no
longer a Filipino citizen. She lost her Filipino citizenship when she was
naturalized as a citizen of the United States in 1988.
Private respondent Evelyn A. Clouse, on the other hand, may appear to
qualify pursuant to paragraph 3(a) of Article 184 of E.O. 209. She was a
former Filipino citizen. She sought to adopt her younger brother.
Unfortunately, the petition for adoption cannot be granted in her favor alone
without violating Article 185 which mandates a joint adoption by the husband
and wife. It reads:
""AArrtt.. 118855.. HHuussbbaanndd aanndd ww!ffee mmuusstt jjoo!nnttllyy aaddoopptt,, eexxcceepptt !nn tthhee ffoollllooww!nngg ccaasseess::
((11))
WWhheenn oonnee ssppoouussee sseeeekkss ttoo aaddoopptt hh!ss oowwnn !lllleegg!tt!mmaattee cchh!lldd;; oorr
((22))
WWhheenn oonnee ssppoouussee sseeeekkss ttoo aaddoopptt tthhee lleegg!tt!mmaattee cchh!lldd ooff tthhee ootthheerr..""
Article 185 requires a joint adoption by the husband and wife, a condition that
must be read along together with Article 184.
2.
Qualifications/Disqualifications of Adopter
ARTICLE 183.
A person of age and in possession of full civil capacity and
legal rights may adopt, provided he is in a position to support and care for his
children, legitimate or illegitimate, in keeping with the means of the family.
Only minors may be adopted, except in the cases when the adoption of a
person of majority age is allowed in this Title.
In addition, the adopter must be at least sixteen years older than the person to
be adopted, unless the adopter is the parent by nature of the adopted, or is the
spouse of the legitimate parent of the person to be adopted. (27a, EO 91 and
PD 603)
Q. What are the requirements for one to be able to adopt?
1. The adopter must be in full possession of his civil rights. This means
that he must be of age, not insane, not mentally incapacitated. For as
long as at least 18 years of age, and in full possession of his civil rights,
one can adopt a child, subject of course to other requirements.
2. The adopter should have enough resources to be able to support, not
only the adopted child, but his legit and illegit kids as well. Even if the
Ave has 20 children, for as long as he can support all of them, plus the
adopted child Felix, then he is considered as having the financial
capability to adopt. The number of legit or illegit children is
immaterial; what matters is whether one can legally support all of
them.
3. ( This is dedicated to Chris Gerona) The general rule is that there must
be at least a 16-year age difference between the adopter and the
adopted. The age difference is imposed to guarantee that there would
be no malicious intentions in the adoption of the child.
NOTE: A person who has previously adopted a child is not prohibited from
adopting again.
Q. What are the exceptions to the 16-year age difference requirement?
1. If the adopter is the parent by nature of the adopted. The reason for
allowing this is to grant illegit kids more rights by according them the
status of a legit kid from that of an illegit kid.
2. If the adopter seeks to adopt the legitimate child of his/her spouse.
Q. Are there any citizenship requirements with respect to adoptions in the
Philippines?
Generally, one must be a Filipino citizen. There are, however, exceptions to this
rule. Relax..well get to those exceptions later.
44

Q. Must a person be married before he/she can adopt?
NO. The person can be single or married, as long as he has all the qualifications
and none of the disqualifications provided by law.
Q. Can an older brother adopt his younger sibling? Can a grandparent adopt
his/her grandchild?
YES to both. The FC does not create any disqualifications by reason of blood
relations between adopter and adopted.
ARTICLE 184.
The following persons may not adopt:
(1)
The guardian with respect to the ward prior to the approval of the
final accounts rendered upon the termination of their guardianship relation;
(2)
Any person who has been convicted of a crime involving moral
turpitude;
(3)
An alien, except:
(a)
A former Filipino citizen who seeks to adopt a relative by
consanguinity;
(b)
One who seeks to adopt the legitimate child of his or her Filipino
spouse; or
(c)
One who is married to a Filipino citizen and seeks to adopt jointly
with his or her spouse a relative by consanguinity of the latter.
Aliens not included in the foregoing exceptions may adopt Filipino children
in accordance with the rules on inter-country adoption as may be provided by
law. (28a, EO 91 and PD 603)
Q. (As promised) What are the exceptions with respect to the prohibition
against aliens adopting in the Philippines?
1. A former Filipino citizen who seeks to adopt a relative by
consanguinity. The prospective adopter must be a former Filipino
citizen at the time the adoption proceedings commence.
2. An alien who seeks to adopt the legit kid of his/her Filipino spouse.
3. Aliens who are married to Filipino citizens who wish to adopt jointly
with his/her spouse relatives by consanguinity of the Filipino spouse.
In all of these cases, there is always a reasonable connection to a Filipino citizen:
either because you are a former Filipino citizen or because you are married to a
Filipino citizen. That is the reason why you are allowed to adopt here in the
Philippines.
NOTE: In the cases referred to under the third exception, the person to be
adopted could be either a legitimate or illegitimate relative of the Filipino
spouse. The only requirements, of course, is that the person to be adopted has to
be a relative by consanguinity of the Filipino spouse and that the alien has to
adopt jointly with the former. Under exception (3), the relative could be the
child, cousin, sister, uncle, brother, or any other blood relative of the Filipino
spouse.
Q: Are all aliens not falling under the three (3) exceptions absolutely prohibited
from adopting in the Philippines?
Not really. Under the last paragraph of Art. 184, aliens not included in the
exceptions may adopt Filipino children subject to the rules on inter-country
adoption that may be provided for by legislation.
Q: What are the current rules on inter-country adoption for aliens not falling
within the three exceptions? Read inter-country adoption act.
Q: Can Filipinos adopt aliens? Yes, as long as the aliens do not fall under any of
the categories under Art. 187
ARTICLE 185.
Husband and wife must jointly adopt, except in the
following cases:
(1)
When one spouse seeks to adopt his own illegitimate child; or
(2)
When one spouse seeks to adopt the legitimate child of the other.
(29a, EO 91 and PD 603)
Q: Must a husband and wife adopt jointly?
The general rule is that if the adopter is married, he/she must adopt jointly with
his/her spouse. The reason for this is that in these cases, the FC seeks to
approximate a true family relationship between the adopters and the adopted.
Thus, the adopted would have a father and a mother since both spouses must
adopt the child.
Q: What are the exceptions?
1. When the adopter wishes to adopt his/her own illegitimate child.
This exception is meant to respect the other spouse who may
not want to take part in anything having to do with the illicit
fruit of the adopting spouses past indiscretion.
2. When one spouse wishes to adopt the legitimate child of the other
In both cases, the consent of the other spouse to the adoption
is required.
NOTE: The rule on joint adoptions, as well as the exceptions thereto, apply
equally to Filipinos and to aliens. Thus, if a former Filipino citizen wishes to
adopt a relative by consanguinity other than an illegitimate child (of the Filipino
spouse), he/she must adopt jointly with the alien spouse. In the same manner,
an alien who wishes to adopt a legitimate child of his/her Filipino souse need
not adopt jointly with the latter. Also, the alien spouse need not be a joint
adopter where the Filipino souse wishes to adopt his/her own illegitimate child.
45

Republic v. Vergara
FACTS:
Spouses Samuel Dye (American citizen) and Rosalina Dye (nauralized
American) sought to adopt Rosalinas siblings Maricel (12) and Alvin (13).
The spouses have 2 children. Both Maricel and Alvin and their parents
consented to the adoption. Lower court granted the petition, thus declaring
the siblings to be children of the Spouses. TC disregarded the fact that the gap
between the spouses and Maricel was less that 16 years (15 yrs-3mos; 15 yrs9mos) on the ground that implementation should not defeat the philosophy
behind adoption statues: to promote welfare of the child.
ISSUE: DID THE COURT ERR IN GRANTING THE ADOPTION?
HELD: YES!
As a general rule, aliens cannot adopt Filipino citizens as this is proscribed
under Article 184 of the Family Code which states:
""AArrtt.. 118844.. TThhee ffoollllooww!nngg ppeerrssoonnss mmaayy nnoott aaddoopptt::

xxxxxx xxxxxx xxxxxx
((33))
AAnn aall!eenn,, eexxcceepptt::
((aa))
AA ffoorrmmeerr FF!ll!pp!nnoo cc!tt!zzeenn wwhhoo sseeeekkss ttoo aaddoopptt aa rreellaatt!vvee bbyy ccoonnssaanngguu!nn!ttyy;;
((bb))
OOnnee wwhhoo sseeeekkss ttoo aaddoopptt tthhee lleegg!tt!mmaattee cchh!lldd ooff hh!ss oorr hheerr FF!ll!pp!nnoo ssppoouussee;; oorr
((cc))
OOnnee wwhhoo !ss mmaarrrr!eedd ttoo aa FF!ll!pp!nnoo cc!tt!zzeenn aanndd sseeeekkss ttoo aaddoopptt jjoo!nnttllyy ww!tthh hh!ss oorr hheerr ssppoouussee
aa rreellaatt!vvee bbyy ccoonnssaanngguu!nn!ttyy ooff tthhee llaatttteerr..
Aliens not included in the foregoing exceptions may adopt Filipino children
in accordance with the rules on inter-country adoption as may be provided by
law."
Samuel Robert Dye, Jr. who is an American and, therefore, an alien is
disqualified from adopting the minors Maricel and Alvin Due because he
does not fall under any of the three aforequoted exceptions laid down by the
law. He is not a former Filipino citizen who seeks to adopt a relative by
consanguinity. Nor does he seek to adopt his wife's legitimate child. Although
he seeks to adopt with his wife her relatives by consanguinity, he is not
married to a Filipino citizen, for Rosalina was already a naturalized American
at the time the petition was filed, thus excluding him from the coverage of the
exception. The law here does not provide for an alien who is married to a
former Filipino citizen seeking to adopt jointly with his or her spouse a
relative by consanguinity, as an exception to the general rule that aliens may
not adopt.
On her own, Rosalina Dye cannot adopt her brother and sister for the law
mandates joint adoption by husband and wife, subject to exceptions. Article
29 of Presidential Decree No. 603 (Child and Youth Welfare Code) retained
the Civil Code provision 4 that husband and wife may jointly adopt. The
Family Code amended this rule by scrapping the optional character of joint
adoption and making it now mandatory.
Article 185 of the Family Code provides:
""AArrtt.. 118855.. HHuussbbaanndd aanndd ww!ffee mmuusstt aaddoopptt,, eexxcceepptt !nn tthhee ffoollllooww!nngg ccaasseess::
((11))
WWhheenn oonnee ssppoouussee sseeeekkss ttoo aaddoopptt hh!ss oowwnn !lllleegg!tt!mmaattee cchh!lldd;;
((22))
WWhheenn oonnee ssppoouussee sseeeekkss ttoo aaddoopptt tthhee lleegg!tt!mmaattee cchh!lldd ooff tthhee ootthheerr..""
None of the above exceptions applies to Samuel and Rosalina Dye, for they
did not petition to adopt the latter's child but her brother and sister.
3.
Qualifications/Disqualifications of Adopted
NOTE: W e dont have page 128 of the original reviewer.

ARTICLE 186.
In case husband and wife jointly adopt or one spouse
adopts the legitimate child of the other, joint parental authority shall be
exercised by the spouses in accordance with this Code. (29a, EO 91 and PD
603)
ARTICLE 187.
The following may not be adopted:
(1)
A person of legal age, unless he or she is a child by nature of the
adopter or his or her spouse, or, prior to the adoption, said person had been
consistently considered and treated by the adopter as his or her own child
during minority.
(2)
An alien with whose government the Republic of the Philippines
has no diplomatic relations; and
(3)
A person who has already been adopted unless such adoption has
been previously revoked or rescinded. (30a, EO 91 and PD 603)
NOTE: If the person of legal age being adopted under the two exceptions is
already married, the consent of his/her spouse is required.
Q. Who are the other persons who cannot be adopted?
1. An alien with whose government the Philippines has no diplomatic
relations; and
2. A person who has already been adopted unless such adoption has been
previously revoked or rescinded.
ARTICLE 188.
The written consent of the following to the adoption shall
be necessary:
(1)
The person to be adopted, if ten years of age or over;
(2)
The parents by nature of the child, the legal guardian, or the proper
government instrumentality;
(3)
The legitimate and adopted children, ten years of age or over, of the
adopting parent or parents;
46

(4)
The illegitimate children, ten years of age or over, of the adopting
parent, if living with said parent and the latter's spouse, if any; and
(5)
The spouse, if any, of the person adopting or to be adopted. (31a, EO
91 and PD 603)
Q. Who are required to give consent to an adoption?
1. The person to be adopted, if 10 years of age or older;
2. The parents by nature of the child, the legal guardian, or the proper
government instrumentality;
In the case of the parents by nature, both of them must consent, unless one of
them has been deprived of parental authority or has already passed away. If
both parents have abandoned the child, the person or entity exercising
substitute parental authority can give consent.
If the child has no legal guardian, the consent of a guardian ad litem is
sufficient. (Sempio-Dy)
If the person to be adopted is already of legal age, parental consent is no longer
necessary. This is because the requirement of parental consent is based on
existing parental authority.
Finally, if the person to be adopted is an illegit kid, only the moms consent is
required, since the child is under her parental authority.
3. The legit and adopted kids, 10 years of age or over, of the adopting parent or
parents.
This is because the rights of these children will be affected, especially with
respect to support and successional rights (pati na rin love and affection chuva
chuva)
4. The illegit kids, 10 years or over of the adopting parent, if living with said
parent and the latters spouse, if any;
Same reason as that for requiring the consent of the legit and adopted. (Illegit na
nga, malalamangan pa nung bagong adopted)
BUT: the illegits must be living with their illegit parent.
5. The spouse, if any, of the person adopting or to be adopted
There are no exceptions to the requirement of spousal consent.
4.
Rights Granted by Adoption
ARTICLE 189.
Adoption shall have the following effects:
(1)
For civil purposes, the adopted shall be deemed to be a legitimate
child of the adopters and both shall acquire the reciprocal rights and
obligations arising from the relationship of parent and child, including the
right of the adopted to use the surname of the adopter;
(2)
The parental authority of the parents by nature over the adopted
shall terminate and be vested in the adopters, except that if the adopter is the
spouse of the parent by nature of the adopted, parental authority over the
adopted shall be exercised jointly by both spouses; and
(3)
The adopted shall remain an intestate heir of his parents and other
blood relatives. (39(1)a, (2)a, (3)a, PD 603)
Q. What are the effects of adoption?
1. For civil purposes, the adopted shall be deemed to be a legit kid of the
adopters and both shall acquire reciprocal rights and obligations arising from
the relationship of parent and child, including the rights of the adopted to use
the surname of the adopter.
With respect to the relationship between the adopter and the adopted,
by fiction of law the latter becomes the legit kid of the former. However, this
relationship extends only between the adopter and the adopted. It does not
extend to the other relatives of the adopter. Thus, the adopted has no
successional rights as regards the other relatives of the adopter, such as the right
to represent the adopted under the right of representation.
In addition, the adopted does not acquire the citizenship of the
adopter. Citizenship being apolitical act, it cannot be granted save in accordance
with the proceedings provided for by law.
With respect to surnames, the adopted adopts the surname of whoever
adopts him. If husband and wife jointly adopt, the adopted uses the surname of
the husband. If a single person adopts, the adopted uses the surname of such
single person. But, if a married woman adopts singly, the adopted uses the
maiden name of the married woman and not that of the husband. Just because
the husband consented to the adoption does not mean the adopted can use his
surname.
2. The parental authority of the parent by nature over the adopted shall
terminated and be vested in the adopters, except that if the adopter is the
spouse of the parent by nature of the adopted, parental authority over the
adopted shall be exercised jointly by both spouses.
Generally, the parental authority of the parents by nature is dissolved
and transferred to the adopter/s. The only exception is when the adopter adopts
the legit kid of his/her spouse. In the latter case, the other spouse does not lose
his/her parental authority.
47

Parental authority includes the legal and physical custody of the
adopted (unless the latter is already of age). Thus, if the adopters are both
aliens, the adopted can be brought out of the country.
Cervantes v. Fajardo
FACTS:
Petition for Habeas Corpus over minor Angelie Cervantes, legally adopted by
the Cervantes spouses. The kids real mom is Mrs. Cervantes sister and her
dad is Fajardo who is only cohabiting with the mom cuz hes married to
someone else.
One day, the Cercantes spouses received a letter from the natural parents
asking for 150K, otherwise, theyll get the child back. The spouses refused. So
the real mom took the kid from the yaya and sent word that shell return the
kid after payment of the 150K. She also claims that the affidavit of consent in
the adoption was mot fully explained to her. But the social worker testified
that the mom manifested in an interview her desire to have the kid adopted
by the spouses. And the fact that the dad was already a married man and that
her mom bore a kid (previously) who had a different father (also married)
justified the adoption as these facts will expose her to an undesirable
upbringing and atmosphere.
ISSUE: IS HABEAS CORPUS PROPER?
HELD: YES. The minor has been legally adopted by petitioners with the full
knowledge and consent of respondents. A decree of adoption has the effect,
among others, of dissolving the authority vested in natural parents over the
adopted child, except where the adopting parent is the spouse of the natural
parent of the adopted, in which case, parental authority over the adopted shall
be exercised jointly by both spouses. The adopting parents have the right to the
care and custody of the adopted child and exercise parental authority and
responsibility over him.
3. The adopted shall remain an intestate heir of his parents and other blood
relatives.
According to the Dean, this is the beautiful thing about the adopted,
they dont lose their right to inherit from their natural parents. While the
adoption dissolves the natural parents parental authority, the right of the
adopted to inherit from his/her natural parents remains.
NOTE: If the adopted is the only surviving descendant of the adopter and there
are surviving ascendants, since the adopted is considered as legit, he/she will
exclude the ascendants.
Republic v. Hernandez
FACTS:
RTC is faulted for having approved the petition for adoption of Kevin Earl
Bartolome Moran and simultaneously granted the prayer therein for the
change of the first name of said adoptee to Aaron Joseph, to complement the
surname Munson y Andrade which he acquired consequent to his adoption.
This is because when the spouses Munson filed the petition, they also prayed
for the change of name of the kid to Aaron Joseph as it was the name he was
baptized with in keeping with religious tradition. Change of name was
opposed by the republic arguing that it should be conducted in a separate
proceeding. But as previously stated, RTC granted the petition including the
change of name, despite this opposition. No challenge on the fitness of the
spouses to adopt or on the validity of decree of adoption. Just the change of
name.
ISSUE: WAS THE CHANGE OF THE PROPER NAME (FIRST NAME)
CORRECT?
HELD: No. The change of the surname of the adoptee as a result of the adoption
and to follow that of the adopter does not lawfully extend to or include the
proper or given name. It must be brought under Rule 103.
A change of name is a privilege, not a matter of right, addressed to the sound
discretion of the court which has the duty to consider carefully the
consequences of a change of name and to deny the same unless weighty
reasons are shown. Before a person can be authorized to change his name,
that is, his true or official name or that which appears in his birth certificate or
is entered in the civil register, he must show proper and reasonable cause or
any convincing reason which may justify such change.
Jurisprudence has recognized, inter alia, the following grounds as being
sufficient to warrant a change of name: (a) when the name is ridiculous,
dishonorable or extremely difficult to write or pronounce; (b) when the
change results as a legal consequence of legitimation or adoption; (c) when
the change will avoid confusion; (d) when one has continuously used and
been known since childhood by a Filipino name and was unaware of alien
parentage; (e) when the change is based on a sincere desire to adopt a Filipino
name to erase signs of former alienage, all in good faith and without prejudice
to anybody, and (f) when the surname causes embarrassment and there is no
showing that the desired change of name was for a fraudulent purpose or that
the change of name would prejudice public interest.
Contrarily, a petition for change of name grounded on the fact that one was
baptized by another name, under which he has been known and which he
used, has been denied inasmuch as the use of baptismal names is not
sanctioned. Baptism is not a condition sine qua non to a change of name.
Neither does the fact that the petitioner has been using a different name and
48

has become known by it constitute proper and reasonable cause to legally
authorize a change of name. A name given to a person in the church records
or elsewhere or by which he is known in the community when at variance
with that entered in the civil register is unofficial and cannot be recognized
as his real name.
The legal bases chosen by them to bolster their cause have long been struck
down as unavailing for their present purposes. For, to allow the adoptee
herein to use his baptismal name, instead of his name registered in the civil
register, would be to countenance or permit that which has always been
frowned upon.
Here, the Solicitor General meritoriously explained that:
"Respondent Judge failed to distinguish between a situation wherein a child is
being named for the first time by his natural parent, as against one wherein, a
child is previously conferred a first name by his natural parent, and such name
is subsequently sought to be disregarded and changed by the adoptive parents.
In the first case, there is no dispute that natural parents have the right to freely
select and give the child's first name for every person, including juridical
persons, must have a name (Tolentino, A., Commentaries and Jurisprudence on
the Civil Code, Vol. I, 1987 edition, page 721). In the second case, however, as in
the case at bar, private respondents, in their capacities as adopters, cannot claim
a right to name the minor adoptee after such right to name the child had already
been exercised by the natural parent. Adopting parents have not been conferred
such right by law, hence, the right asserted by private respondents herein
remains but illusory. Renaming the adoptee cannot be claimed as a right. It is
merely a privilege necessitating judicial consent upon compelling grounds."
Once such name is registered, regardless of the reasons for such choice and
even if it be solely for the purpose of identification, the same constitutes the
official name. This effectively authenticates the identity of the person and
must remain unaltered save when, for the most compelling reasons shown in
an appropriate proceeding, its change may merit judicial approval.
While the right of a natural parent to name the child is recognized,
guaranteed and protected under the law, the so-called right of an adoptive
parent to re-name an adopted child by virtue or as a consequence of adoption,
even for the most noble intentions and moving supplications, is unheard of in
law and consequently cannot be favorably considered. To repeat, the change
of the surname of the adoptee as a result of the adoption and to follow that of
the adopter does not lawfully extend to or include the proper or given name.
5.
Rules on Succession
Sayson v. CA, 01/23/92

FACTS:
A and B had 5 children: C, D, E, F, and G. G was married to H, and they

allegedly had 3 children: X, Y and Z; X and Y are allegedly adopted kids
while Z is a legitimate child by blood. Upon the death of G and H, the
siblings of G C, D, E, and F filed a complaint for partition and accounting
of the intestate estate of G and H. In retaliation, X, Y and Z filed a complaint
for accounting and partition of the intestate estate of A and B. X, Y and Z
filed a complaint for the accounting and partition of the estate of A and B. X,
Y and Z asserted that since X and Y are adopted children of G and Z is Gs
legitimate child, they were entitled to Gs share in his parents estate by right
of representation.
The validity of the adoption of X and Y was raised in the second case, as it
was contended that at the time X and Y were adopted, Z had already been
born. Thus under the Civil Code, G and H could not have validly adopted X
and Y. Another issue was raised with respect to the right of X and Y to
represent G.
HELD:
1. The validity of an adoption cannot be attacked collaterally but can only be
done in a direct proceeding frontally addressing the issue.
2. XX and Y cannot exercise the right of representation.
Legitimate children and their descendants succeed the parents and other
descendants, w/o distinction as to sex or age, and even if they should come
from different marriages. Adopted children succeed to the property ooff tthhee
aaddoopptt!nngg ppaarreennttss in the same manner as a legitimate child (Art. 979 CC). The
philosophy underlying this article is that a person's love descends first to his
children and grandchildren before it ascends to his parents and thereafter
spreads among his collateral relatives. It is also supposed that one of his
purposes in acquiring properties is to leave them eventually to his children as
a token of his love for them and as a provision for their continued care even
after he is gone from this earth.
The right of representation (Arts. 970, 971, 981 CC), however, does not extend
to adopted children, to whom the grandparents were total strangers. While it
is true that the adopted child shall be deemed to be a legitimate child and
have the same right as the latter, these rights do not include the right of
representation. The relationship created by the adoption is between only the
adopting parents and the adopted child and does not extend to the blood
relatives of either party.
ARTICLE 190.
Legal or intestate succession to the estate of the adopted
shall be governed by the following rules:
(1)
Legitimate and illegitimate children and descendants and the
surviving spouse of the adopted shall inherit from the adopted, in accordance
with the ordinary rules of legal or intestate succession;
(2)
When the parents, legitimate or illegitimate, or the legitimate
ascendants of the adopted concur with the adopters, they shall divide the
49

entire estate, one-half to be inherited by the parents or ascendants and the
other half, by the adopters;
(3)
When the surviving spouse or the illegitimate children of the
adopted concur with the adopters, they shall divide the entire estate in equal
shares, one-half to be inherited by the spouse or the illegitimate children of
the adopted and the other half, by the adopters; casia
(4)
When the adopters concur with the illegitimate children and the
surviving spouse of the adopted, they shall divide the entire estate in equal
shares, one-third to be inherited by the illegitimate children, one-third by the
surviving spouse, and one-third by the adopters;
(5)
When only the adopters survive, they shall inherit the entire estate;
and
(6)
When only collateral blood relatives of the adopted survive, then the
ordinary rules of legal or intestate succession shall apply. (39(4)a, PD 603)
THE DEANS SIMPLE RULES ON ARTICLE 190:
1. The moment an adopted child leaves legit children, forget about Art. 190.
These rules only affect the ascending line and do not apply when there is a
legit child or descendant because you still apply the ordinary rules of intestate
succession.
2. In the absence of legit children, even w/ the presence of illegit kids, the
adopter/s inherit
3. With two sets of relatives surviving, each set always takes one-half
FOR EXAMPLE: the illegits of the adopted concur w/ the adopter/s;
or
the adopteds surviving spouse concurs with the
adopter/s; or
the parents by nature of the adopted concur w/
the adopter/s.
EXCEPTION: Where the adopters concur with the natural ascendants
of the adopted, the adopter/s inherit everything since the ascendants
have no right of representation with respect to the natural parents of
the adopted.
BUT: Under Article 190(2), legit ascendants of the adopted can concur
with the adopter/s.
NOTE: Rule with respect to concurrence of natural parents and
adopter/s. Regardless of how many of the natural parents or the
adopters survive, each set gets one-half.
4. Where three sets of relatives survive the adopted, as in the case of illegit
children surviving, then the adopter/s, then the surviving spouse, in w/c case
each takes 1/3.
THUS: If two sets of relatives survive the adopted, they get one-half
each;
If there are three, which only happens in case of illegit kids,
adopter and
surviving spouse, each gets one-third.
EXCEPTION: If the adopter/s concurs with illegit kids and surviving
spouse, and the natural parents of adopted:
Illegit kids=1/3
Surviving spouse=1/3
Adopter/s and natural parent/s=1/3
5. If there is only one surviving set of relatives, give em everyting
6. If only collateral blood relatives survive the adopted, the normal rules on
intestate succession apply. Note that the collaterals are also excluded unless
they alone survive the adopted.
7. If there are no surviving relatives, give it to the State.
NOTE: Art.190 only speaks of intestate succession. It does not provide for any
rules regarding restate succession. Thus, adopter/s are not considered as
compulsory heirs and are not entitled to any legitime.
6.
Rescission of Adoption
ARTICLE 191.
If the adopted is a minor or otherwise incapacitated, the
adoption may be judicially rescinded upon petition of any person authorized
by the court or proper government instrumentality acting on his behalf, on
the same grounds prescribed for loss or suspension of parental authority. If
the adopted is at least eighteen years of age, he may petition for judicial
rescission of the adoption on the same grounds prescribed for disinheriting
an ascendant. (40a, PD 603)
ARTICLE 192.
The adopters may petition the court for the judicial
rescission of the adoption in any of the following cases:
(1)
If the adopted has committed any act constituting a ground for
disinheriting a descendant; or
(2)
When the adopted has abandoned the home of the adopters during
minority for at least one year, or, by some other acts, has definitely repudiated
the adoption. (41a, PD 603)
50

ARTICLE 193.
If the adopted minor has not reached the age of majority at
the time of the judicial rescission of the adoption, the court in the same
proceeding shall reinstate the parental authority of the parents by nature,
unless the latter are disqualified or incapacitated, in which case the court
shall appoint a guardian over the person and property of the minor. If the
adopted person is physically or mentally handicapped, the court shall appoint
in the same proceeding a guardian over his person or property or both.
Judicial rescission of the adoption shall extinguish all reciprocal rights and
obligations between the adopters and the adopted arising from the
relationship of parent and child. The adopted shall likewise lose the right to
use the surnames of the adopters and shall resume his or her surname prior to
the adoption.
The court shall accordingly order the amendment of the records in the proper
registries. (42a, PD 603)
Q. When may the adopted petition for the judicial rescission of the adoption?
1. When the adopter/s have committed any of the grounds for the loss or
suspension of parental authority (see Arts. 229-30). The petition would be
brought by any person authorized by the court, e.g. a guardian ad litem, or the
proper government instrumentality.
BUT: this ground is only available during the adopteds minority.
2. Once the adopted is at least 18 years of age, he can petition for judicial
rescission of adoption on the basis of any of the grounds for disinheriting an
ascendant.
Under Art. 920 of the Civil Code, the following are the grounds for disinheriting
an ascendant:
1) When the parents have abandoned their children or induced their
daughters to live a corrupt or immoral life, or attempted against their virtue;
(2) When the parent or ascendant has been convicted of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;
(6) The loss of parental authority for causes specified in this Code;
(7) The refusal to support the children or descendants without justifiable
cause;
(8) An attempt by one of the parents against the life of the other, unless there
has been a reconciliation between them.
NOTE: abandoned under (a) should be understood in a general sense, as to
include failure to give due care, attention, and support
attempted against the virtue under (a) does not require a conviction.
attempt by one parent against the life of the other under (g) does not
require a conviction.
Q. When may the adopter petition for rescission of adoption?
1. When the adopted has committed any act constituting a ground for
disinheriting a descendant.
Under Art. 919 of the Civil Code, the following are the grounds for disinheriting
a descendant:
(1) When a child or descendant has been found guilty of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the accusation has
been found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage
with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parent or ascendant who
disinherits such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant;
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction
(3) When the parent or ascendant has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the accusation has
been found to be false;
NOTE: attempt against the life of the testator, etc. under (a) includes all
degrees of execution of the crime. But there must be intent to kill.
(4) When the parent or ascendant has been convicted of adultery or

concubinage with the spouse of the testator;
2. If, during his minority, the adopted has abandoned the home of the adopted
for at least one (1) year.
3. If by some other act, the adopted has definitely repudiated the adoption.
(5) When the parent or ascendant by fraud, violence, intimidation, or undue

influence causes the testator to make a will or to change one already made;
Q. When must the petition to rescind the adoption be brought?
51

The action for rescission of an adoption is imprescriptible. The relationship of
legitimate parent and child between the adopter and the adopted having been
created purely by fiction of law, it can be revoked at any time.
Q. What is the effect of the rescission of adoption?
1. Parental Authority
If the adopted is still a minor at time of rescission, parental authority will be
returned to the natural parents;
x
If the natural parents are disqualified or incapacitated, or are absent or
dead, the court will appoint a general guardian for the person and
property of the child;
x
If the child was under the care of an institution, he/she will be
returned there.
2. Reciprocal rights and obligations between and the adopter and the adopted
are extinguished.
3. Surnames - The adopted reverts to his/her surname prior to the adoption.
Q. Is the adopted required to reimburse the adopter/s for all their expenses for
the adopted prior to the rescission?
NO. The Family Code has not yet reached that level of depravity.
Lahom v. Sibulo
FACTS:
Spouses Dr. Diosdado Lahom and Isabelita Lahom took care of Isabelitas
nephew Jose Melvin Sibulo and brought him up as their own. In 1971, the
couple decided to file a petition for adoption. On May 5, 1972, an order
granting the petition was issued The Civil Registrar of Naga City changed the
name Jose Melvin Sibulo to Jose Melvin Lahom. On March 22, 1998, RA
8552 or the Domestic Adoption Act went into effect. The new statute deleted
from the law the right of adopters to rescind a decree of adoption.
On December 1999, Mrs. Lahom commenced a petition to rescind the decree
of adoption before the RTC of Naga City, averring that despite the proddings
and pleadings of said spouses, respondent refused to change his surname
from Sibulo to Lahom, to her frustration, that respondent remained
indifferent and would only come to Naga to see her once a year and that she
has suffered wounded feelings, knowing that respondents only motive in his
adoption is his expectancy of his alleged rights over her and her husbands
properties, as shown by his filing an action for partition against her. The trial
court dismissed the action because of lack of cause of action and prescription,
the petition having been filed after more than 5 years since knowledge of the
legal grounds for rescission.
ISSUES:
1. WON the adoption may be rescinded after the effectivity of RA 8552
2. WON the adopters action has prescribed
HELD:
1. The adoption may no longer be rescinded. In Republic v. CA and Republic v.
Miller, the Court has held that the controversy (re adoption) should be
resolved in the light of the law governing at the time the petition was filed. In
this case, it was months after the effectivity of RA 8552 that petitioner filed an
action to revoke the decree of adoption granted in 1975. By then, the new
law, had already abrogated and repealed the right of an adopter under the
Civil Code and the Family Code to rescind a decree of adoption.
2. The adopters action has prescribed. Even before the passage of the statute, an
action to set aside the adoption is subject to the fiveyear bar rule under Rule
100 of the Rules of Court and that the adopter would lose the right to revoke
the adoption decree after the lapse of that period.
3. An adopter, while barred from severing the legal ties of adoption, can always
for valid reasons cause the forfeiture of certain benefits otherwise accruing to
an undeserving child. For instance, upon the grounds recognized by law, an
adopter may deny to an adopted child his legitime and, by a will and
testament, may freely exclude him from having a share in the disposable
portion of his estate.
J.
1.
Support
What constitutes support
ARTICLE 194.
Support comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some
profession, trade or vocation, even beyond the age of majority. Transportation
shall include expenses in going to and from school, or to and from place of
work. (290a)
Q. What does support consist of?
1. sustenance
2. dwelling
3. clothing
4. medical attendance
5. education; and
6. transportation
Q. What are the kinds of support?
Support can be classified according to:
52

1.Extent
a. natural-those absolutely indispensable for subsistence
b. civil-that which accords with social position of the family
2. Source
a. legal-that which is required to be given by law
b. judicial-that which is required by court order whether pendente lite
or in a final judgment
c. voluntary or conventional
1)inter vivos-by contract
2)mortis causa-by will
Q. What are the characteristics of support?
Support is:
1. purely personal, i.e, founded on personal necessity
2. intransmissible or non-assignable
3. not subject to attachment or execution by creditors
4. always subject to adjustment depending on the means of the giver
and the needs of the recipient
5. reciprocal on the part of those who are by law bound to support
each other
6. demandable from the time it is needed, but payable only from
time of demand
7. demandable even if the recipient is beyond legal age as ong as it is
needed and the obligor is in a position to give support
8. demandable even if recipient is married.
Q. Distinguish support in the Civil Code from that in the Family Code
Civil Code
There are two kinds of support,
natural and civil. Natural can only be
required of brothers and sisters when
the recipient is physically or mentally
incapacitated. Civil support was
according to the social standing of the
family.
2.
Family Code
There is no distinction. The Family
Code only talks of legal support,
which is equivalent to civil support in
the NCC, except that, it is gauged on
the financial capacity of the family.
(there is no more civil support.)
Persons obliged to support each other
ARTICLE 195.
Subject to the provisions of the succeeding articles, the
following are obliged to support each other to the whole extent set forth in
the preceding article:
(1)
The 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; and
(5)
Legitimate brothers and sisters, whether of the full or half-blood.
(291a)
Q. Who are obliged to support each other?
The following are required to give mutual support:
1. Spouses, legally married
2. Legitimate ascendants and descendants, whatever degree
3. Parents, legit or illegit
4. Children, grandkids, grand-grandkids, grand-grand-grand (blah
blah blah), legit or illegit
5. Legit bros and sisters, half or full-blood
Q. Is Art. 195 giving us an order of priority?
YES. In general, the spouse must be supported first, then the ascendants and
descendants. If, however, your spouse has to choose between feeding you and
your minor children, hello naman, kids take precedence.
NOTE: action for support is an independent action; need not file an action for
nullity, annulment or legal separation first.
a.
Spouses
Q. What is mutual support of the spouses?

Mutual support is the duty of each spouse to support each other. It presupposes
that a valid marriage exists between the parties. The duty exists as long as the
marriage exists. Once the marriage is annulled, the duty ceases. If however, a
spouse refuses unjustifiably to live with the other, he or she can be denied
support, but if, for example, a wife is forced to leave the conjugal home for
justifiable reasons, she is entitled to separate support. (Goitia v. Campos Rueda,
35 SCRA 252)
In case of legal separation, the spouse may be ordered to continue
giving support because the marriage still exists. Remember, the fact of marriage
gives rise to the obligation to support. If the wife commits adultery, she loses
the right to support, but if the spouses are in pari delicto, the right remains.
(Almacen v. Baltazar, 103 Phil. 1147)
Q. What are the available defenses for giving support?
1. infidelity of the spouse, unless condoned
2. unjustified refusal to live in the conjugal dwelling
53

3. presence of strong evidence to deny support (i.e, claimant spouse is
the guilty spouse)
If the spouse are living with the in-laws and the spouse is maltreated
by the in-laws, the kawawa spouse can pack his/her bags and go, and
still get a fixed monthly allowance from the other spouse.
Q. Mike married Felixberta. Mike, however, supports his father, Chris. Where
should Mike get support?
Mike must get his fathers support from his separate properties. He can,
however, get the amount from the conjugal property, which would be
considered as an advance on his share.
Q. Mike filed a case for legal separation against Felixberta. Where should the
support of the family during litigation come from?
Normally, support pendent elite should come from the conjugal properties. If,
however, evidence of guilt concerning the cause of the action is strong, then the
right to support will be denied, and the apparently guilty party must find
support on his own.
Lerma v. CA
FACTS:
Petitioner Lerma and respondent Diaz are husband and wife. In 1969,
petitioner filed a complaint for adultery against respondent and a certain
Teodoro Ramirez (Respondent was later on convicted for adultery)
Respondent, however, filed a complaint for legal separation and/or
separation of properties, custody of their children and support, with an
urgent petition for support ppeennddeenntt eell!ttee for their youngest son, Grogory who
was then and until now in her custody.
The CFI granted respondents application for support ppeennddeennttee ll!ttee.. Petitioner
filed an urgent motion for a writ of preliminary injunction and/or restraining
order to stop the CFI from enforcing its orders. The CA denied his motion.
Petitioner argues that the lower court disregarded the procedural law on
support ppeennddeennttee ll!ttee when it issued the disputed orders without provisionally
determining the pertinent facts in the case, merely relying on the bare
allegations of the complaint. Sec. 5 Rule 61 provides that the court shall
determine provisionally the pertinent facts for awarding support ppeennddeennttee ll!ttee.
ISSUE: WON adultery is a good defense against the respondents claim for
support ppeennddeennttee ll!ttee
HELD: Yes, adultery is a good defense.
Within the meaning of Sec. 5 Rule 61, the probable failure of the respondent's
suit for legal separation can be foreseen since she is not an innocent spouse,
having been convicted of adultery by the CFI. While it is true that the
judgment of conviction is on appeal in the CA, it undoubtedly satisfies the
standard of provisional showing in Rule 61. If legal separation cannot be
claimed by the guilty spouse in the first place, the fact that an action for that
purpose is filed anyway should not be permitted to be used as a means to
obtain support ppeennddeennttee ll!ttee. Otherwise, all that an erring spouse has to do to
circumvent such defense would be to file a suit for legal separation no matter
how groundless.
The right to separate support or maintenance, even from the conjugal
partnership property, presupposes the existence of a justifiable cause for the
spouse claiming such right to live separately. This is implicit in Article 104 of
the Civil Code, which states that after the filing of the petition for legal
separation the spouses shall be entitled to live separately from each other. A
petition in bad faith, such as that filed by one who is himself or herself guilty
of an act which constitutes a ground for legal separation at the instance of the
other spouse, cannot be considered as within the intendment of the law
granting separate support. In fact under Article 303 of the same Code the
obligation to give support shall cease "when the recipient, be he a forced heir
or not, has committed some act which gives rise to disinheritance;" and under
Article 921 one of the causes for disinheriting a spouse is "when the spouse
has given cause for legal separation." The loss of the substantive right to
support in such a situation is incompatible with any claim for support
ppeennddeennttee ll!ttee.
Q. Is infidelity a good defense against a claim for support?
YES. So when Felixberta sues Mike for support, Mike can prove Felixbertas
indiscriminate sex life. But, unlike the old law where a case for legal separation
need not be filed, Felixberta must file a case for legal separation to prove such
fact before the right to support is denied.
ARTICLE 198.
During the proceedings for legal separation or for
annulment of marriage, and for declaration of nullity of marriage, the spouses
and their children shall be supported from the properties of the absolute
community or the conjugal partnership. After final judgment granting the
petition, the obligation of mutual support between the spouses ceases.
However, in case of legal separation, the court may order that the guilty
spouse shall give support to the innocent one, specifying the terms of such
order. (292a)
Sources of Support
Spouses
During the marriage
From the community
Pending litigation
from the community
After litigation
There is no obligation to
54

property
Children
During the marriage
from the community
property
b.
property assets except if

Art. 203 applies, that is if
the claimant spouse is
the guilty spouse (in that
case, he/she not entitled
to support). If the
spouses are under the
CPG,
support
is
considered an advance
of such spouses share.
The rule does not apply
if the spouses are under
absolute
community
based on Art. 153
support except if there is

legal
separation,
in
which case the court
may require the guilty
spouse to give support.
Pending Litigation
From the community
property
After Litigation
From
the
separate
property of the spouses
HELD: Yes, respondents may be granted the allowance.

The fact that private respondents are of age, gainfully employed, or married is
of no moment and should not be regarded as the determining factor of their
right to allowance under Art. 188 CC. While the Rules of Court limit
allowances to the widow and minor or incapacitated children of the deceased,
the New Civil Code gives the surviving spouse and his/her children without
distinction.
With respect to "spouse," the same must be the "legitimate spouse" (not
common-law spouses who are the mothers of the children here).
c.
Ascendants & Descendants
Q. What is the general rule concerning legit ascendants and descendants?

The general rule is to descend before ascending. This means that one supports
ones descendants first before supporting his ascendants. The relationship must
first be established before support can be demanded (Francisco v. Zandueta 61
Phil. 752). If, however, a child has sufficient property on his own, he cannot
demand support from his parent (Jocson v. Empire Insurance, 103 Phil.580).
There is no limit in the degree of the relationship.
Santero v. CFI
FACTS:
Petitioners are the children begotten by the late Pablo Santero with Felixberto
Pacursa while respondents are 4 of the 7 children begotten by Pablo Santero
with Anselma Diaz. Both sets of children are natural children of Pablo
Santero, since neither of their mothers was married to Pablo.
Respondents filed a motion for allowance thru their guardian, Anselma Diaz.
Petitioners opposed, contending that respondents are no longer schooling and
have attained majority age so that they are no longer under guardianship, two
are gainfully employed and one is married. The CFI granted the motion.
ISSUE: WON respondents may be granted the allowance even if they are no
longer minors and are gainfully employed
Parents and Legitimate/Illegitimate Children/Descendants
Lam v. Chua
FACTS:
Adriana Chua and Jose Lam were married and begot one son, John Paul Chua
Lam. In 1994, Chua filed a petition for declaration of nullity of the marriage
on the ground of psychological incapacity. Chua filed an Urgent Motion to
Re-open and submitted as evidence a Marriage Contract between Jose and
one Celia Santiago. Because of this, the Pasay RTC held that the Chua-Lam
marriage is void for being bigamous. It also ordered Lam to give a monthly
support to his son in the amount of P20K. Lam filed an MR with regard to the
monthly support, contending that there was already a provision for support
for the child in the decision of the Makati RTC wherein he an Adriana agreed
to contribute P250K each to a common fund for the benefit of the child.
ISSUE: WON the decision of the Makati RTC is a bar to a subsequent decision of
the Pasay RTC awarding monthly support of P20K
HELD:
Judgment for support does not become final. The right to support is of such
nature that its allowance is essentially provisional; for during the entire
period that a needy party is entitled to support, his or her alimony may be
modified or altered, in accordance with his increased or decreased needs, and
with the means of the giver. It cannot be regarded as subject to final
determination. Thus, there is no merit to the claim of Jose that the
compromise agreement between him and Adriana, as approved by the Makati
RTC in the case for voluntary dissolution of conjugal partnership of gains, is a
bar to any further award of support in favor of their child John Paul.
It is incumbent upon the trial court to base its award of support on the
evidence presented before it. The evidence must prove the capacity or
resources of both parents who are jointly obliged to support their children as
provided for under Article 195 of the Family Code; and the monthly expenses
incurred for the sustenance, dwelling, clothing, medical attendance, education
and transportation of the child.
55

In this case, the only evidence presented by respondent Adriana regarding
her claim for support of the child is her testimony which does not establish
the amount needed by the child nor the amount that the parents are
reasonably able to give. The trial courts action of merely ordering in open
court that a prayer for support be written and inserted in the petition does not
constitute proper amendment and notice upon Lam. Hence, Lam was
deprived of due process when the trial court proceeded to hear the case on a
motion to re-open and render judgment.
d.
Legitimate/Illegitimate Brothers and Sisters
ARTICLE 196.
Brothers and sisters not legitimately related, whether of the
full or half-blood, are likewise bound to support each other to the full extent
set forth in Article 194, except only when the need for support of the brother
or sister, being of age, is due to a cause imputable to the claimant's fault or
negligence. (291a)
ARTICLE 197.
For the support of legitimate ascendants; descendants,
whether legitimate or illegitimate, and brothers and sisters, whether
legitimately or illegitimately related, only the separate property of the person
obliged to give support shall be answerable provided that in case the obligor
has no separate property, the absolute community or the conjugal
partnership, if financially capable, shall advance the support, which shall be
deducted from the share of the spouse obliged upon the liquidation of the
absolute community or of the conjugal partnership. (n)
NOTE: half-blood= assumed legit so entitled to full support, no questions asked.
Q. What rules govern support concerning illegit brothers and sisters?
1. As long as the need for support is not due to a cause imputable to the
claimants fault or negligence and he is not yet of age, the illegit bros/sisters are
entitled to support.
NOTE: We dont have page 145 of the reviewer.

ARTICLE 199.
Whenever two or more persons are obliged to give support,
the liability shall devolve upon the following persons in the order herein
provided:
(1)
The spouse;
(2)
The descendants in the nearest degree;
(3)
The ascendants in the nearest degree; and
(4)
The brothers and sisters. (294a)
ARTICLE 200.
When the obligation to give support falls upon two or more
persons, the payment of the same shall be divided between them in
proportion to the resources of each.
However, in case of urgent need and by special circumstances, the judge may
order only one of them to furnish the support provisionally, without
prejudice to his right to claim from the other obligors the share due from
them.
When two or more recipients at the same time claim support from one and the
same person legally obliged to give it, should the latter not have sufficient
means to satisfy all claims, the order established in the preceding article shall
be followed, unless the concurrent obligees should be the spouse and a child
subject to parental authority, in which case the child shall be preferred. (295a)
Q: What happens when there is plurality of givers?
In case there is a plurality of givers, their obligation is considered joint and their
shares shall be proportioned according to their resources. But in case of urgent
need and special circumstances, the court may order only one of them to furnish
the support provisionally, without prejudice to his tight to claim reimbursement
from his co-obligors.
Q: Marife and Pitsy have 3 children, how will their children support their
parents when theyre old? Proportionately.
3.
Contractual Support
ARTICLE 208.
In case of contractual support or that given by will, the
excess in amount beyond that required for legal support shall be subject to
levy on attachment or execution.
Furthermore, contractual support shall be subject to adjustment whenever
modification is necessary due to changes in circumstances manifestly beyond
the contemplation of the parties. (n)
Q: What is contractual support?
Contractual support is that which is given by way of a contract or will. In this
kind of support, the excess in amount beyond legal support is subject to levy on
attachment or execution. Contractual support is subject to modifications if there
are changes in the circumstances manifestly beyond the contemplation of the
parties.
Q: What is an example of a circumstance manifestly beyond the contemplation
of the Parties?
Pitsy works 15 hour days to support Marife. Then one day Marife wins P6M in
the Sweepstakes.
56

Q: Distinguish legal support from contractual support.
Legal support
contractual support
Based on law
based on contract, so it can be between
strangers
Exempt from execution and
not exempt from attachment and
attachment
execution because it is not a legal
obligation
EXCEPTION: If the giver contracts
with a person whom he is obliged by
law to support, in which case only the
excess of what is obliged based on
need can bee attached or subject to
execution
Q: Distinguish legacy of support and contractual support
Legacy of support
contractual support
If contained in a will, apply the rules
follow rules of contract which say that
of contractual support because there
obligation must be fulfilled (support
is no more obligation to speak of
must be given) no matter what
since the giver is already dead
happens (even if you should lose your
job)
BUT if the change in circumstances are
manifestly beyond the contemplation
of the parties, support may be adjusted
accordingly
4.
Basis of Support
ARTICLE 201.
The amount of support, in the cases referred to in Articles
195 and 196, shall be in proportion to the resources or means of the giver and
to the necessities of the recipient. (296a)
ARTICLE 202.
Support in the cases referred to in the preceding article shall
be reduced or increased proportionately, according to the reduction or
increase of the necessities of the recipient and the resources or means of the
person obliged to furnish the same. (297a)
ARTICLE 203.
The obligation to give support shall be demandable from
the time the person who has a right to receive the same needs it for
maintenance, but it shall not be paid except from the date of judicial or
extrajudicial demand.
Support pendente lite may be claimed in accordance with the Rules of Court.
Payment shall be made within the first five days of each corresponding
month. When the recipient dies, his heirs shall not be obliged to return what
he has received in advance. (298a)
Q: What is the basis of support?
Support shall always be in proportion to (a) the resources or means of the giver
and (b)the necessities of the recipient. Any increase of reduction of the two shall
be subject the support to modification. Thus the order of support is never final.
The plaintiff can, by mere motion in the same proceeding, ask for an increase,
and the defendant, a reduction.
Q: Can support in arrears be demanded?
No. Support is intended for actual needs. Under Barnuevo v. Fuster (29 Phil 606)
support in arrears cannot be demanded by a wife who might have needed
support from the time her husband separated from or abandoned her, but
demanded only after many years. However, once support is awarded, the
judgment for support never becomes dormant and never prescribes (Marcelo v.
Estacio, 70 Phil 145)
5.
Options of Giver
ARTICLE 204.
The person obliged to give support shall have the option to
fulfill the obligation either by paying the allowance fixed, or by receiving and
maintaining in the family dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case there is a moral or
legal obstacle thereto. (299a)
Q: What are the options of the giver?
He may choose between two options of giving support:
1. To give a fixed monthly income; or
2. To receive and maintain the recipient in the givers home or family
dwelling.
x
EXCEPTION: When there is a legal or moral obstacle.
a) A husband cannot against the will of his wife, take into his home
his minor illegitimate child (Pascual v. Martinez, CA, 37 OG 2418)
b) A wife cannot be compelled to live with ahusband who mistreats
her (Goitia v. Campos Rueda)
c) A minor daughter who has been raped by her own father cannot
be compelled to live with the latter.
ARTICLE 205.
The right to receive support under this Title as well as any
money or property obtained as such support shall not be levied upon on
attachment or execution. (302a)
57

Q: Is support always exempt from execution?
No. In general, support is exempt from execution, including support in arrears
and future support. However, contractual support and legacy of support are not
exempt.
Support by a Third Person
ARTICLE 206.
When, without the knowledge of the person obliged to give
support, it is given by a stranger, the latter shall have a right to claim the same
from the former, unless it appears that he gave it without any intention of
being reimbursed. (2164a)
ARTICLE 207.
When the person obliged to support another unjustly
refuses or fails to give support when urgently needed by the latter, any third
person may furnish support to the needy individual, with a right of
reimbursement from the person obliged to give support. This Article shall
apply particularly when the father or mother of a child under the age of
majority unjustly refuses to support or fails to give support to the child when
urgently needed. (2166a)
Q: What are the requisites in order that these two provisions will apply?
1. The requisites for the recovery of support given by a stranger are:
2. The one obliged to give support failed to provide for the same
3. Support was urgently needed by the recipient
4. Support was given without the knowledge of the person obliged to give it;
and
5. It was given with the intention of being reimbursed
Q: The relatives of a married woman gave her support notifying the husband,
who was then working abroad providing the wife with support. Can the
relatives be reimbursed?
NO. The support was given without the knowledge of the husband and without
giving the husband the opportunity to give the same himself (Ramirez & De
Marcaida v. Redfern, 49 Phil 849).
K. Parental Authority
1. Concept
ARTICLE 209.
Pursuant to the natural right and duty of parents over the
person and property of their unemancipated children, parental authority and
responsibility shall include the caring for and rearing of such children for
civic consciousness and efficiency and the development of their moral,
mental and physical character and well-being. (n)
Q: What is the concept of parental authority? (minors only)

Parental authority is the sum total of the rights and obligations of parents over
the person and property of their children.
Q: Over whom is parental authority exercised?
Parental authority is exercised over unemancipated children or children who
have not yet reached the age of majority.
ARTICLE 210.
Parental authority and responsibility may not be renounced
or transferred except in the cases authorized by law. (313a)
Q: When does the law authorize the renunciation or transfer of parental
authority and responsibility?
1. The law authorizes such in the following cases:
2. Guardianship (Rules 92-97 of the Rules of Court)
3. Legal adoption (Article 189[2] Family Code)
4. Separation of the parents (Article 213, FC)
5. Death, absence, or unsuitability of the parents (Article 214, FC)
6. Substitute parental authority (Article 216, FC)
7. Entrusting of disadvantaged children to heads of childrens homes,
orphanages, and similar institutions (Article 217, FC))
8. Commitment of the child in an entity or institution engaged in child care
(Articles 223-224)
2.
Over Person
ARTICLE 211.
The father and the mother shall jointly exercise parental
authority over the persons of their common children. In case of disagreement,
the father's decision shall prevail, unless there is a judicial order to the
contrary.
Children shall always observe respect and reverence toward their parents and
are obliged to obey them as long as the children are under parental authority.
(311a)
Q: Who exercises parental authority over the child?
As a general rule, it is the parents who exercise joint parental authority. This
rule applies in cases of legitimate and legitimated children.
The exercise of such is automatic in the sense that no prior court approval is
required.
In case of disagreement, however, the fathers decision will prevail, unless the
mother successfully petitions the court for an order to the contrary.
Q: What are the exceptions to the general rule of joint parental authority over
the child?
58

The exceptions are the following:
1. If the child is illegitimate, the mother alone is vested with parental
authority (Art. 176, FC)
2. If the child has been adopted, the adopter exercises parental authority (Art
189[2] FC)
3. In the case of foundlings,abandoned, neglected, or abused children and
other children similarly situated, parental authority is entrusted to heads of
childrens homes, orphanages, and similar institutions (Article 217, FC)
The court particularly considers the choice of the child over sevenyears of age,
unless the parent chosen is unfit.
ARTICLE 212.
In case of absence or death of either parent, the parent
present shall continue exercising parental authority. The remarriage of the
surviving parent shall not affect the parental authority over the children,
unless the court appoints another person to be the guardian of the person or
property of the children. (n)
Q: In case both parents are unable to exercise parental authority, who should
exercise substitute parental authority?
A surviving grandparent, or one designated by the court from among several
surviving grandparents, shall exercise substitute parental authority in case of
the death, absence, or unsuitability of both parents.
ARTICLE 213.
In case of separation of the parents, parental authority shall
be exercised by the parent designated by the court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit. (n)
No child under seven years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise.
Q: Distinguish Article 212 from Article 214.

The former applies where only one fo the parents parental authority is affected
due to death, absence, or unsuitability, so that the other parent will continue to
exercise parental authority.
However, under Article 214, the assumption is that both parents have died, are
absent, or are unsuitable, so that parental authority has to be vested in a
surviving grandparent.
Q: Which parent exercises parental authority over the children in the situations
mentioned in Articles 212 and 213?
Situation
Who exercises parental authority
1. Absence of either parent
Parent present
2.
Death of either parent
Surviving parent
3.
Remarriage of surviving parent
4.
Separation of parents
Surviving parent unless the court

appoints a guardian over the child
The parent designated by the parent
NOTE: The term separation under Article 213 is used in the general sense
and may arise from legal separation, separation de facto, annulment or
declaration of nullity of the marriage.
Q: How should the court designate the parent to exercise parental authority
under Article 213?
The court should take into account all relevant considerations which refers to
any situation, condition, or anything else that has something to do in assuring
the welfare of the child.
ARTICLE 214.
In case of death, absence or unsuitability of the parents,
substitute parental authority shall be exercised by the surviving grandparent.
In case several survive, the one designated by the court, taking into account
the same consideration mentioned in the preceding article, shall exercise the
authority. (355a)
ARTICLE 215.
No descendant shall be compelled, in a criminal case, to
testify against his parents and grandparents, except when such testimony is
indispensable in a crime against the descendant or by one parent against the
other. (315a)
Q: what are the limitations of filial privilege?
1. Covers only compulsory and not voluntary testimony
2. Applies only in criminal cases involving a crime committed
a. Against the descendant or
b. By one parent against the other
3. Covers testimony against only parents and grandparents, and no other
descendants
Note: As the rule covers only compulsory testimony, the child can still choose to
testify against the parent or grandparent if he wants to. Remember thought that
should the child testify against his parent, and the testimony involves any
imputation of a crime punishable by imprisonment of 6 years of more, and such
is found to be groundless then such may constitute a ground for disinheritance
of the child.
Effect of Parental Authority Upon the Persons of the Children
59

ARTICLE 220.
The parents and those exercising parental authority shall
have with respect to their unemancipated children or wards the following
rights and duties:
(1)
To keep them in their company, to support, educate and instruct
them by right precept and good example, and to provide for their upbringing
in keeping with their means;
(2)
To give them love and affection, advice and counsel, companionship
and understanding;
(3)
To provide them with moral and spiritual guidance, inculcate in
them honesty, integrity, self-discipline, self-reliance, industry and thrift,
stimulate their interest in civic affairs, and inspire in them compliance with
the duties of citizenship;
(4)
To enhance, protect, preserve and maintain their physical and mental
health at all times;
(5)
To furnish them with good and wholesome educational materials,
supervise their activities, recreation and association with others, protect them
from bad company, and prevent them from acquiring habits detrimental to
their health, studies and morals;
(6)
To represent them in all matters affecting their interests;
(7)
To demand from them respect and obedience;
(8)
To impose discipline on them as may be required under the
circumstances; and
(9)
To perform such other duties as are imposed by law upon parents
and guardians. (316a)
Q: What are the rights of those exercising parental authority over emancipated
children?
1. The right to custody over the child
2. The right to demand respect and obedience
3. The right to discipline their children or wards as may be required under the
circumstances
Q: Can the minor children be punished corporally?
YES, by those exercising parental authority but the punishment should be
moderate, and for the purpose of discipline.
However, those exercising special parental authority cannot impose corporal
punishment on the children. For instance, a teacher cannot whip a pupil but can
make him stand in the corner.
Q: What if the child become uncontrollable, despite efforts to discipline?
The parents or those exercising parental authority may go to court and ask for
further disciplinary measures to be imposed, which may include the
commitment of the child under Articles 223-224.
Q: What are the duties of those exercising parental authority?

They have the following duties:
1. To keep the children in their company, support and educate them
2. To love and give them wise counsel
3. To guide them morally and spiritually
4. To stimulate their interest in civic affairs
5. To inspire them to comply with duties of citizenship
6. To provide their needs for their education
7. To supervise their activities to maintain their physical and mental health
and morality
8.
To represent them in all matters affecting their interest.
Q: What are the duties of the children toward the person vested with parental
authority over them?
Their corresponding duties are the following:
1. To observe respect and reverence
2. To obey reasonable order
3. Other duties under Article 4 of PD 603
ARTICLE 222.
The courts may appoint a guardian of the child's property,
or a guardian ad litem when the best interests of the child so require. (317)
ARTICLE 223.
The parents or, in their absence or incapacity, the
individual, entity or institution exercising parental authority, may petition
the proper court of the place where the child resides, for an order providing
for disciplinary measures over the child. The child shall be entitled to the
assistance of counsel, either of his choice or appointed by the court, and a
summary hearing shall be conducted wherein the petitioner and the child
shall be heard.
However, if in the same proceeding the court finds the petitioner at fault,
irrespective of the merits of the petition, or when the circumstances so
warrant, the court may also order the deprivation or suspension of parental
authority or adopt such other measures as it may deem just and proper. (318a)
Q: How is Article 223 applied?
If the child committed acts warranting the imposition of some disciplinary
sanction, the parents or those exercising parental authority may petition the
court for the issuance of disciplinary orders against the child.
The child is however entitled to due process and to assure this, he or she is
entitled to counsel in the summary proceedings.
Should the court find that it is the petitioner who is at fault, the court, in the
same proceeding, may suspend or deprive the petitioner of parental authority
over the child or may adopt other measures under the circumstances.
60

ARTICLE 224.
The measures referred to in the preceding article may
include the commitment of the child for not more than thirty days in entities
or institutions engaged in child care or in children's home duly accredited by
the proper government agency.
The parent exercising parental authority shall not interfere with the care of
the child whenever committed but shall provide for his support. Upon proper
petition or at its own instance, the court may terminate the commitment of the
child whenever just and proper. (319a)
Q: Can the errant child be committed?
YES; if the circumstances so warrant, the court may commit or place the custody
of the child for not more than 30 days in institutions engaged in child care, or in
childrens homes duly accredited by the government.
The person exercising parental authority shall provide for the support of the
child during the childs commitment, but cannot interfere in the care of the
child.
Espiritu v. CA
Petitioner Reynaldo Espiritu and respondent Teresita Masauding were
married in 1987 and had a daughter, Rosalind, and a son, Reginald. In 1990,
however, their relationship deteriorated such that they decided to separate.
Teresita left Reynaldo and the children and went to California. Reynaldo
brought the children home to the Philippines, but because his assignment in
Pittsburgh was not yet completed, he was sent back to Pittsburgh and he had
to leave his children with his sister and her family.
Teresita returned to the Philippines and filed a petition for writ of hhaabbeeaass
ccoorrppuuss against Reynaldo and his sister to gain custody over the children. The
trial court dismissed the petition and suspended Teresitas parental authority
over her children and declared Reynaldo to have sole parental authority over
them but with rights of visitation. The CA reversed the trial courts decision
and instead gave custody to Teresita and visitation rights on weekends to
Reynaldo.
ISSUE: WON the CA erred in giving custody to the mother
HELD: The CA erred in giving custody to the mother.
In ascertaining the welfare and best interests of the child, courts are mandated
by the Family Code to take into account all relevant considerations. If a child
is over seven, his choice is paramount but in its discretion, the court may find
the chosen parent unfit and award custody to the other parent, or even to a
third party as it deems fit under the circumstances.
The findings and conclusions of the trial court showed that when she was a
little over 5 years old, Rosalind was referred to a child psychologist. Rosalind
revealed an incident where she saw her mother hugging and kissing a "bad"
man who lived in their house and worked for her father. Rosalind refused to
talk to her mother even on the telephone. She tended to be emotionally
emblazed because of constant fears that she may have to leave school and her
aunt's family to go back to the US to live with her mother. The child tried to
compensate by having fantasy activities.
A social welfare case study was conducted for securing the travel clearance
required before minors may go abroad, showing that Rosalind refused to go
back to the US and be with her mother. The child was found suffering from
emotional shock from her mother's infidelity.
Considerations involving the choice made by a child must be ascertained at
the time that either parent is given custody over the child. The matter of
custody is not permanent and unalterable. If the parent who was given
custody suffers a future character change and becomes unfit, the matter of
custody can always be re-examined and adjusted.
Bondagjy v. Bondagjy
FACTS:
Petitioner Sabrina was a Christian woman. She became a Muslim by
conversion. Four months later, she married respondent Fouzi under Islamic
rites. In December 1995, the children lived in the house of Sabrinas mother in
Ayala Alabang. Fouzi alleged that he could not see his children until he got
an order from the court. Even with a court order, he could only see his
children in school at De La Salle-Zobel. Meanwhile, Sabrina had the children
baptized as Christians and their names changed.
Fouzi filed an action to obtain custody over his minor children, Abdulaziz, 10
and Amouaje, 9 with the Sharia District Court, Marawi City. On the other
hand, Sabrina filed with the RTC of Muntinlupa an action for nullity of
marriage, custody and support, ordered the parties to maintain status quo
until further orders from the court. The RTC allowed Fouzi to exercise his
right of parental authority over their minor children with that of the
defendant in accordance with Sec. 71 PD 1083, the Code of Muslim Personal
Laws.
The Sharia District Court awarded the custody of the children to Fouzi, held
that PD 1083 on Custody and Guardianship does not apply because the
spouses were not yet divorce and that Sabrina is unworthy to care for her
children.
ISSUE: WON the custody should be given to the mother, Sabrina
HELD: The mother, Sabrina, shall have custody over the children until they
reach majority age. Both spouses shall have joint responsibility over all
expenses of rearing the children.
The burden is upon Fouzi to prove that petitioner is not worthy to have
custody of her children. In deciding whether a non-Muslim woman is
61

incompetent, the Muslim laws and the Family Code are taken into
consideration. What determines the fitness of any parent is the ability to see to
the physical, educational, social and moral welfare of the children, and the
ability to give them a healthy environment as well as physical and financial
support taking into consideration the respective resources and social and
moral situations of the parents. In the case at bar, petitioner is equally
financially capable of providing for all the needs of her children. The children
went to school at De La Salle Zobel School, Muntinlupa City with their tuition
paid by petitioner according to the schools certification.
In cases where both parties cannot have custody because of their voluntary
separation, we take into consideration the circumstances that would lead us
to believe which parent can better take care of the children. Although we see
the need for the children to have both a mother and a father, the petitioner
has more capacity and time to see to the childrens needs. Respondent is a
businessman whose work requires that he go abroad or be in different places
most of the time. Under P.D. No. 603, the custody of the minor children,
absent a compelling reason to the contrary, is given to the mother.
Tonog v. CA
FACTS:
In 1989, petitioner Dinah B. Tonog gave birth to Gardin Faith, her illegitimate
daughter with private respondent Edgar Daguimol. A year after, petitioner
left for the US to work as a registered nurse while Gardin was left in the care
of her father and paternal grandparents.
In 1992, private respondent filed a petition for guardianship over Gardin
Faith, which the trial court granted. Petitioner filed a petition for relief from
the judgment. The trial court set aside its original judgment and allowed
petitioner to file her opposition. She also filed a motion to remand custody of
Gardin Faith to her. Private respondent assailed the decision of the trial
court.
Petitioner contends that she is entitled to the custody of Gardin Faith, as a
matter of law. The law confers parental authority upon her as the mother of
the illegitimate minor. Gardin Faith cannot be separated from her since she
had not yet then attained the age of 7.
ISSUE: WON the CA erred in giving temporary custody to the father
HELD: The CA did not err in giving temporary custody to the father.
The parents right to custody over their children is enshrined in Art. 220 FC.
The right of custody accorded to parents springs from the exercise of parental
authority. Parental authority is a mass of rights and obligations which the law
grants to parents for the purpose of the childrens physical preservation and
development, as well as the cultivation of their interest and the education of
their heart and senses. The law grants a waiver of parental authority only in
cases of adoption, guardianship and surrender to a childrens home or an

orphan institution.
Art. 213 FC provides that no child under seven years of age shall be separated
from the minor, unless the court finds compelling reasons to order otherwise.
Instances of unsuitability are neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction, maltreatment of the child,
insanity and affliction with a communicable disease.
In the case at bar, the proceedings for guardianship have not yet terminated
and no pronouncement has been made as to who should have final custody of
the minor. The CA did not err in allowing her father to retain temporary
custody of the minor. Meanwhile, the child should not be wrenched from her
familiar surroundings, and thrust into a strange environment away from the
people and places to which she had apparently formed an attachment.
Inasmuch as the child is now above 7 years old (12 years old), her preference
and opinion must first be sought in the choice of which parent should have
custody over her person.
Briones v. Miguel
FACTS:
In a petition for habeas corpus, petitioner Joey Briones alleges that the minor
Michael is his illegitimate son with respondent Loreta. Respondent Loreta P.
Miguel is now married to a Japanese national and is presently residing in
Japan. He alleged that his parents assisted him in taking care of the child. One
day, respondents Maricel P. Miguel and Francisca P. Miguel came to the
house of the petitioner in Caloocan City and requested that they be allowed to
bring the child for recreation at the SM. They promised him that they will
bring him back in the afternoon but they did not bring him back.
Respondent alleges that the custody of the child was entrusted to petitioners
parents while they were both working in Japan, that her marriage to a
Japanese national is for the purpose of availing of the privileges of staying
temporarily in Japan to pursue her work so she could be able to send money
regularly to her son in the Philippines and that she has no intention of staying
permanently in Japan as she has been returning to the Philippines every six
(6) months or as often as she could. She prays for the custody her of her minor
child to be given to her, under Art. 213 par. 2 FC and Art. 363 CC. The CA
awarded custody to her.
Petitioner concedes that Respondent Loreta has preferential right over their
minor child. He insists, however, that custody should be awarded to him
whenever she leaves for Japan and during the period that she stays there
while the mother would have custody when she is in the country.
ISSUE: WON custody was correctly given to the mother
62

HELD: Yes, custody was correctly given to the mother. There is no showing at
all that she is unfit to take charge of him.
Under Art. 176 FC, parental authority over him resides in his mother,
Respondent Loreta, notwithstanding his fathers recognition of him. Article
176 FC explicitly provides that illegitimate children shall use the surname
and shall be under the parental authority of their mother, and shall be entitled
to support in conformity with this Code. Having been born outside a valid
marriage, the minor is deemed an illegitimate child of petitioner and
Respondent Loreta. Michael is a natural (illegitimate, under the Family
Code) child, as there is nothing in the records showing that his parents were
suffering from a legal impediment to marry at the time of his birth. Both
acknowledge that Michael is their son.
Only the most compelling of reasons, such as the mothers unfitness to
exercise sole parental authority, shall justify her deprivation of parental
authority and the award of custody to someone else. The following grounds
have been considered ample justification to deprive a mother of custody and
parental authority: neglect or abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child, insanity,
and affliction with a communicable disease.
Petitioner was correctly awarded visitorial right.
3.
Over Property
Effect of Parental Authority Upon The Property Of The Children

ARTICLE 225.
The father and the mother shall jointly exercise legal
guardianship over the property of their unemancipated common child
without the necessity of a court appointment. In case of disagreement, the
father's decision shall prevail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual income of the child
exceeds P50,000, the parent concerned shall be required to furnish a bond in
such amount as the court may determine, but not less than ten per centum
(10%) of the value of the property or annual income, to guarantee the
performance of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the proper court
of the place where the child resides, or, if the child resides in a foreign
country, in the proper court of the place where the property or any part
thereof is situated.
The petition shall be docketed as a summary special proceeding in which all
incidents and issues regarding the performance of the obligations referred to
in the second paragraph of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when
the child is under substitute parental authority, or the guardian is a stranger,
or a parent has remarried, in which case the ordinary rules on guardianship

shall apply. (320a)
Q: Who exercises parental authority/legal guardianship over the property of the
unemancipated child?
The general rule is the same for that of the parental authority over the person of
the minor child, i.e. joint exercise by the parents, without need of a court
appointment.
Again, in case of disagreement, the fathers decision prevails, unless a judicial
order to the contrary is made.
Q: What is the significance of the term legal guardianship over the property of
the child, as used in article 225?
The significance of this is that the rights of parents over the property of their
child are the same as for guardians; meaning a distinction must be made
between acts of administration and acts of ownership.
Q: What acts are covered by legal guardianship
Only acts of administration are authorized and not acts of ownership, as is the
rule with any guardianship.
Badillo v. Ferrer
FACTS:
Macario Badillo died intestate, survived by his widow, Clarita and 5 minor
children (appellees). He left a parcel of land in Laguna, with a house erected
thereon. Each child inherited P625 each.
The widow Clarita, in her behalf and as natural guardian of the children,
executed a Deed of Extrajudicial Partition and Sale of the Property. The
property was sold to Spouses Gregorio Soromeo and Eleuteria Rana.
The deceaseds sister, Modesta, was able to obtain guardianship over the
persons and properties of the minor children and caused the minor plaintiffs
to file a complaint for the annulment of the sale of their participation in the
property and conceding the validity of the sale, asked that they be allowed to
redeem the property. The lower court annulled the sale.
ISSUE: WON the sale was unforceable
HELD: The sale was unenforceable.
The father, or in his absence the mother, is considered the legal administrator
of the property pertaining to his child under parental authority without need
of giving a bond in case the amount of his childs property does not exceed
P2K. Sec. 7 Rule 93 of the Revised Rules of Court automatically designates the
parent as legal guardian of the child without need of any judicial
appointment in case the latters property does not exceed P2K.
63

The period fixed for legal redemption will also run against a minor co-owner
whose property is valued at no more than P2K and who is merely represented
by his father or mother with no judicial appointment as guardian. The
parent-guardian must first be served with a notice in writing of the sale of an
undivided portion of the property by the vendor in order that the period for
redemption may begin to accrue.
In the case at bar, each of the minors inherited only an undivided property
worth P625. Therefore, after the minors father died, their mother, Clarita,
automatically became their legal guardian and acquired plenary powers of a
judicial guardian except that power to alienate or encumber her childrens
property without judicial authorization.
When Clarita signed and received her copy of the Deed of Extrajudicial
Partition and Sale on Jan. 18, 1967, she also received the notice in behalf of her
children. Thus, the period of redemption began to toll from the time of that
receipt.
On the other hand, the judicial guardian, Modesto Badillo, was only
appointed on Nov. 11, 1968. She thereafter manifested her desire to redeem
the property in a complaint.
Since the required written notice was served on January 18, 1967 and the offer
to redeem was only made after November 11, 1968, the period for legal
redemption had already expired and the appellants now cannot be ordered to
reconvey to the appellees that portion of the undivided property which
belonged to Clarita.
The Deed of Extrajudicial Partition and Sale is an unauthorized contract.
Clarita had no authority or acted beyond her powers in conveying to the
appellants that 5/12 undivided share of her minor children in the property
involved in this case. The powers given to her by the laws as the natural
guardian covers only matters of administration and cannot include the power
of disposition. She should have first secured the permission of the court
before she alienated that portion of the property. The appellees never ratified
this Deed of Extrajudicial Partition and Sale.
Comment: The bottom line in this case is that Clarita performed an act of
disposition over the properties of her minor children. Regardless of the amount
or value involved, an act of disposition or ownership is not included under the
legal guardianship of a parent and cannot be allowed without prior court
approval.
Q: What is the nature of a contract evidencing an act of ownership made by the
guardian of the childs property without prior court approval?
The contract is unenforceable for being unauthorized and not within the scope
of the legal guardianship office.
Q: May the parents enter into acts of guardianship over the property of the
unemancipated child without first filing a bond?
It depends on the value of the properties/income of the child.
No bond is required when the value does not exceed P50,000, so that the parents
have an automatic right to legal guardianship.
However, with respect to properties/income valued at over P50,000., the
parents must file the requisite bond and obtain court approval of such bond in a
summary proceeding.
Q: What should be the amount of the bond?
The court will determine the proper amount, but the minimum set is at least
10% of the value of the property or annual income of the child.
ARTICLE 226.
The property of the unemancipated child earned or acquired
with his work or industry or by onerous or gratuitous title shall belong to the
child in ownership and shall be devoted exclusively to the latter's support
and education, unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the child's property
shall be limited primarily to the child's support and secondarily to the
collective daily needs of the family. (321a, 323a)
ARTICLE 227.
If the parents entrust the management or administration of
any of their properties to an unemancipated child, the net proceeds of such
property shall belong to the owner. The child shall be given a reasonable
monthly allowance in an amount not less than that which the owner would
have paid if the administrator were a stranger, unless the owner grants the
entire proceeds to the child. In any case, the proceeds thus given in whole or
in part shall not be charged to the child's legitime. (322a)
Q: What are the classifications of properties under Articles 226 and 227?
The properties are classified as follows:
1. properties owned by the unemancipated child, regardless of how such are
acquired;
2.
properties of the parents managed or administered by the unemancipated

child.
Q: Are minors allowed to own properties?

Absolutely! There is no prohibition against their owning properties; what is in
fact prohibited or restricted pertain to legal actions with respect to these
properties in that minors must be represented by guardians.
Q: What is the rule with regards properties owned by the unemancipated child?
64

Properties of the minor, whether acquired through his own work or industry, or
by onerous or gratuitous title, belong to the child in ownership. (This is obvious,
but Article 226 still provides for this.)
Q: How may properties owned by the minor be classified?
Properties of the minor may be categorized generally in connection with how
such kind of properties can be utilized.
Q: What is the rule with regards to principal properties?
The general rule is that principal properties must be devoted exclusively to the
owner-childs support and education, and cannot be used for any other
purpose.
The exception to this rule is where the title or transfer of the property involved
provides otherwise.
Q: What is the rule with regards to income and fruits?
The fruits and income of the childs property is limited principally to the childs
support. However, some latitude is granted to the parents in that the said fruits
and income may be applied secondarily to the collective daily needs of the
family.
Q: May the parents of a child star spend her money to buy a family car?
YES: they may, provided (1) that the money is not part of her principal
properties and is merely income therefrom and (2) that her support is
completely assured so that the money is really excess income.
Q: What is the rule applied with regards to properties of the parents being
managed by the unemancipated child?
The ownership of these properties is of course retained by the parents, both as
to principal and interest/fruits (since the accessory follows the principal).
However since the child is managing the properties for the parents, he/she is
entitled to some form of remuneration.
Q: How much remuneration should the manager child receive?
The child should be given a reasonable monthly allowance, not less than what
the parents would have paid a stranger to administer the properties.
Normally this compensation would be taken from the net proceeds of the
managed property and any excess after deducting the childs allowance would
go to the parents.
Q: How else may the child be compensated?
The parents may instead grant the entire proceeds from the managed property
to the child.
Q: Are the proceeds given to the manager-child, either as salary or fully,

chargeable to the childs legitime?
NO. The proceeds thus given in whole or in part are really compensation for
services rendered and not a donation, so that they should not be considered as
an advance on the childs legitime.
Pineda v. CA
FACTS:
Prime Marine Services Inc. procured a group policy from Insular Life
Assurance Co., Ltd. to provide life insurance coverage to its sea-based
employees enrolled under the plan. During the effectivity of the policy,
covered employees of the PMSI died at sea when their vessel, M/V Nemos,
sunk somewhere in Morocco. They were survived by complainantsappelleess, the beneficiaries under the policy.
Complainants-appellees sought to claim death benefits due them and, for this
purpose, they approached the President and General Manager of PMSI, Capt.
Roberto Nuval. They were made to execute special powers of attorney
authorizing Capt. Nuval to follow up, ask, demand, collect and receives for
their benefit indemnities of sums of money due them relative to the sinking of
M/V Nemos. They were able to obtain death benefits.
Unknown to them, PMSI, in its capacity as employer and policyholder of the
life insurance of its deceased workers, filed with Insular life, formal claims for
and in behalf of the beneficiaries, through its President Capt. Nuval. Among
the documents submitted were the five special powers of attorney. Insular
Life paid Capt. Nuval based on the SPA.
Complainants-appellees learned that they are beneficiaries to life insurance
benefits under a group policy with Insular Life. They sought to recover these
benefits from Insular Life but the latter denied their claim on the ground that
the liability to them was already extinguished upon delivery to and receipt by
PMSI.
Insular Life contends that the mothers can validly receive the shares of their
minor children without need of posting a bond or court appointment. The
payment therefore was valid, as it was intended to be delivered to the
mothers.
ISSUE: WON the mother s can validly receive the shares of their minor children
without a bond or court appointment.
HELD:
Regardless of the value of the unemancipated common childs property, the
father and the mother !ppssoo jjuurree became the legal guardian of the childs
property. However, if the market value of the property or the annual income
65

of the child exceeds P50K, a bond has to be posted by the parents concerned
to guarantee the performance of the obligations of the guardian.
Par. 2 Art. 225 FC speaks of the market value of the property or the annual
income of the child which means, the aggregate of the childs property or
annual income. If this exceeds P50K a bond is required. There is no evidence
that the share of each of the minors in the proceeds of the group policy is the
minors only property. Without such evidence, it would not be safe to
conclude that, indeed, that is his only property.
Mijares v. CA cant find this case
4.
Substitute and Special Parental Authority
ARTICLE 216.
In default of parents or a judicially appointed guardian, the
following persons shall exercise substitute parental authority over the child
in the order indicated:
(1)
The surviving grandparent, as provided in Art. 214;
(2)
The oldest brother or sister, over twenty-one years of age, unless
unfit or disqualified; and
(3)
The child's actual custodian, over twenty-one years of age, unless
unfit or disqualified.
Whenever the appointment of a judicial guardian over the property of the
child becomes necessary, the same order of preference shall be observed.
(349a, 351a, 354a)
Q: Who are the persons given substitute parental authority in default of parents
or a judicial guardian?
The following are given substitute parental authority in order of preference:
1. The surviving grandparents
a) No preference to either paternal or maternal side
b) Refer to article 214 when several grandparents survive
2. The oldest brother or sister
a) Over twenty-one
b) Unless unfit or disqualified
3. The actual custodian of the child
a) Over twenty-one
b) Unless unfit or disqualified
4. Judicial guardian absence of above (1-3) anyone can apply
Q: Is the order of preference given above also observed in relation to appointing
a judicial guardian over the property of a child?
YES by virtue of the second paragraph of article 216.
NOTE: Dean says that technically there is no substitute parental authority

over the property of the child as in this case the person must be judicially
appointed.
However, substitute parental authority over the person of the child is exercised
automatically by the persons mentioned in Article 216 in the order indicated.
ARTICLE 217.
In case of foundlings, abandoned, neglected or abused
children and other children similarly situated, parental authority shall be
entrusted in summary judicial proceedings to heads of children's homes,
orphanages and similar institutions duly accredited by the proper
government agency. (314a)
Q: Define the classes of disadvantaged children above.
Foundling an infant found by others abandoned or exposed, without a known
parent or person having charge of it.
Abandoned Child one who has no proper parental care or guardianship, or
whose parents or guardians have deserted him for a period of at least six
continuous months.
Neglected Child one whose basic needs have been deliberately or
inadequately unattended.
Abused Child one subjected to sexual abuse or maltreatment by his parents or
other persons.
Q: How are these disadvantaged children protected?
Article 217 mandates that parental authority over them should be entrusted to
heads of childrens homes, orphanages, or similar institutions duly accredited
by the government as these entities are better equipped for the proper physical,
mental and moral development of such children.
Also, the proceedings for the entrusting of parental authority shall be summary,
i.e. to be decided expeditiously without regard to technical rules.
ARTICLE 218.
The school, its administrators and teachers, or the
individual, entity or institution engaged in child care shall have special
parental authority and responsibility over the minor child while under their
supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether
inside or outside the premises of the school, entity or institution. (349a)
Q: Distinguish special parental authority from substitute parental authority.
Special parental authority can be concurrent with the parental authority of the
parents, while the child is in the custody and care of those authorized to have
special parental authority. It rests on the theory that the parents temporarily
relinquish parental authority over the child.
66

Substitute parental authority cannot be exercised concurrently with the parents
parental authority since it operates in the case of death, absence, or unsuitability
of both parents.
Q: What is the scope of the exercise of special parental authority?
1. Exercised only by the school, its administrators and teachers, or the
individual, entity, or institution engaged in child care;
2. Authority is temporary as it subsists only while the child is under their
supervision, instruction, or custody
3. Ceases if the child has passed the minority age or as soon as he has been
officially removed from the school or institution
4. Extends to all authorized activities, whether inside or outside premises of
the school or institution.
Vancil v. Balmes
FACTS:
Petitioner Bonifacia Vancil is the mother of Reeder C. Vancil, a Navy
serviceman of the US who died. During his lifetime, Reeder had 2 children:
Valerie and Vincent by his common-law wife, respondent Helen G. Belmes.
Bonifacia Vancil commenced guardianship proceedings over the persons and
properties of minors Valerie and Vincent. At the time, Valerie was only 6
years old while Vincent was a 2-year old child. Vancil claimed that the
minors are residents of Cebu City, Philippines and have an estate consisting
of proceeds from their fathers death pension benefits with a probable value
of P100K. She was appointed legal and judicial guardian over the persons and
estate of the 2 children.
The natural mother of the minors, Helen Belmes, submitted an opposition to
the subject guardianship proceedings asseverating that she had already filed a
similar petition for guardianship. The trial court rejected and denied Belmes
motion to remove and/or to disqualify Bonifacia as guardian. The CA
reversed. (Considering that Valerie is already of major age, Vancils petition
assailing the CA decision is moot with respect to her.)
ISSUE: WON the mother should be the guardian of the minor Vincent
HELD: The mother, should be the guardian of the minor Vincent.
Respondent, being the natural mother of the minor, has the preferential right
over that of petitioner to be his guardian. Being the natural mother of minor
Vincent, respondent has the corresponding natural and legal right to his
custody.
Petitioner, as the surviving grandparent, can exercise substitute parental
authority only in case of death, absence or unsuitability of respondent.
Considering that respondent is very much alive and has exercised
continuously parental authority over Vincent, petitioner has to prove, in
asserting her right to be the minors guardian, respondents unsuitability.
There is no convincing evidence showing that respondent is not suited to be

the guardian. Petitioner merely insists that respondent is morally unfit as
guardian of Valerie considering that her (respondents) live-in partner raped
Valerie several times. But Valerie, being now of major age, is no longer a
subject of this guardianship proceeding.
Petitioner cannot qualify as a substitute guardian. She is an American citizen
and a resident of Colorado and therefore she will not be able to perform the
responsibilities and obligations required of a guardian. She admitted the
difficulty of discharging the duties of a guardian by an expatriate, like her.
She will merely delegate those duties to someone else who may not also
qualify as a guardian.
Respondents allegation that petitioner has not set foot in the Philippines
since 1987 has not been controverted by her. Besides, petitioners old age and
her conviction of libel by the one Danilo R. Deen, will give her a second
thought of staying here.
St. Marys Academy v. Carpitanos
FACTS:
St. Marys Academy conducted an enrollment drive which includes visitation
of schools from where prospective enrollees were studying. As a student of St.
Marys Academy, Sherwin Carpitanos was part of the campaigning group.
On the fateful day, Sherwin, along with other high school students were
riding in a Mitsubishi jeep owned by Vivencio Viallanueva. Allegedly, the
jeep was driven in a reckless manner and as a result it turned turtle.
Carpitanos died. Spouses Carpitanos filed an action for damages against
James Daniel II and his parents, the vehicle owner and St. Marys Academy.
The RTC held that St. Marys Academy was liable. The CA held that St.
Marys was liable because it was negligent in allowing a minor to drive and in
not having a teacher accompany the minor students in the jeep.
ISSUE: WON St. Marys Academy is liable for damages
HELD: St. Marys is not liable.
Under Art. 218 FC, the ff. shall have special parental authority over a minor
child while under their supervision, instruction or custody: (1) the school, its
administrators and teachers; (2) the individual, the entity or institution
engaged in child care. This special parental authority and responsibility
applies to all authorized activities, whether inside or outside the premises of
the school, entity or institution. Thus, it applies to field trips, excursions and
other affairs of the pupils and students outside the school premises whenever
authorized by the school or its teachers.
Under Art. 219 FC, if the person under custody is a minor, those exercising
special parental authority are principally and solidarily liable for damages
67

caused by the arts or omissions of the unemancipated minor under their
supervision, instruction and custody.
The respondents failed to show that the negligence of petitioner was the
proximate cause of the death of the victim. Respondents admitted that the
immediate cause of the accident was not the negligence of petitioner or the
reckless driving of James Daniel II, but the detachment of the steering wheel
guide of the jeep. There was no evidence that the school allowed the minor
James Daniel II to drive the jeep. It was Ched Villanueva, grandson of the
jeeps owner, who had possession and control of the jeep and who allowed
James Daniel II to drive it.
The liability for the accident must be pinned on the minors parents primarily.
The negligence of St. Mary was only remote cause of the accident. Between
the remote cause and the injury, there intervened the negligence of the
minors parents or the detachment of the steering wheel guide of the jeep.
5.
Suspension/Termination of Parental Authority
ARTICLE 229.
Unless subsequently revived by a final judgment, parental
authority also terminates:
(1)
Upon adoption of the child;
(2)
Upon appointment of a general guardian;
(3)
Upon judicial declaration of abandonment of the child in a case filed
for the purpose;
(4)
Upon final judgment of a competent court divesting the party
concerned of parental authority; or
(5)
Upon judicial declaration of absence or incapacity of the person
exercising parental authority. (327a)
Q: What are the grounds for temporarily terminating parental authority and
how can parental authority be subsequently revived?
Grounds for Termination
How to Revive Parental Authority
1. Adoption of the child
Rescind the adoption of the child
2.
Appointment of a general
guardian
Terminate the judicial guardianship

over the child
3.
Judicial declaration of
abandonment of the child
Restore parental authority to the

child who has returned home after
abandoning the child
4.
Final judgment of a competent

court divesting the party
concerned of parental authority
Restore parental authority to the

parent who has been divested of
parental authority for any other
reason
5.
Judicial declaration of absence

or incapacity of the person
exercising parental authority
Restore parental authority to an

absent parent who has returned or a
formerly incapacitated parent who
has regained his/her capacity
Permanent Termination or Deprivation of Parental Authority

ARTICLE 228.
Parental authority terminates permanently:
(1)
Upon the death of the parents;
(2)
Upon the death of the child; or
(3)
Upon emancipation of the child. (327a)
ARTICLE 232.
If the person exercising parental authority has subjected the
child or allowed him to be subjected to sexual abuse, such person shall be
permanently deprived by the court of such authority. (n)
Q: What are the instances when parental authority is permanently deprived
from the parent?
1. When both parents are dead, in which case, substitute parental authority
arises.
2. When the child dies.
3. When the child is emancipated or reaches the age of majority.
4. When the parent subjects the child or allows him/her to be subjected to
sexual abuse. (i.e. parents who allow their children to become prostitutes, a
father who rapes or seduces his own daughter)
NOTE: The deprivation of parental authority being permanent, such authority
can no longer be restored.
Temporary Deprivation of Parental Authority
Suspension of parental authority

ARTICLE 230.
Parental authority is suspended upon conviction of the
parent or the person exercising the same of a crime which carries with it the
penalty of civil interdiction. The authority is automatically reinstated upon
service of the penalty or upon pardon or amnesty of the offender. (330a)
Q: When is parental authority suspended?
Parental authority is suspended upon the parents conviction of a crime which
carries the penalty of civil interdiction.
68

Q: When is parental authority restored to the parent?
Parental authority is aauuttoommaatt!ccaallllyy restored upon the service of the penalty by or
upon the pardon or amnesty of a parent. There is no need of a court order
restoring parental authority.
ARTICLE 231.
The court in an action filed for the purpose or in a related
case may also suspend parental authority if the parent or the person
exercising the same:
(1)
Treats the child with excessive harshness or cruelty;
(2)
Gives the child corrupting orders, counsel or example;
(3)
Compels the child to beg; or
(4)
Subjects the child or allows him to be subjected to acts of
lasciviousness.
The grounds enumerated above are deemed to include cases which have
resulted from culpable negligence of the parent or the person exercising
parental authority.
If the degree of seriousness so warrants, or the welfare of the child so
demands, the court shall deprive the guilty party of parental authority or
adopt such other measures as may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental authority
revived in a case filed for the purpose or in the same proceeding if the court
finds that the cause therefor has ceased and will not be repeated. (332a)
Q: When can the court order the suspension of parental authority?
The court may, in an action for the purpose or in a related case, suspend
parental authority if the parent:
1. Treats the child with excessive harshness or cruelty
2. Gives the child corrupting orders, counsel or example
3. Compels the child to beg
4.
Subjects the child or allows him/her to be subjected to acts of

lasciviousness.
ARTICLE 233.
The person exercising substitute parental authority shall
have the same authority over the person of the child as the parents.
In no case shall the school administrator, teacher or individual engaged in
child care and exercising special parental authority, inflict corporal
punishment upon the child. (n)
6.
Liability of Parents for Acts of Children
ARTICLE 218.
The school, its administrators and teachers, or the
individual, entity or institution engaged in child care shall have special
parental authority and responsibility over the minor child while under their
supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities whether
inside or outside the premises of the school, entity or institution. (349a)
ARTICLE 219.
Those given the authority and responsibility under the
preceding Article shall be principally and solidarily liable for damages
caused by the acts or omissions of the unemancipated minor. The parents,
judicial guardians or the persons exercising substitute parental authority over
said minor shall be subsidiarily liable.
The respective liabilities of those referred to in the preceding paragraph shall
not apply if it is proved that they exercised the proper diligence required
under the particular circumstances.
All other cases not covered by this and the preceding articles shall be
governed by the provisions of the Civil Code on quasi-delicts. (n)
Q: Under Article 218, who exercises ssppeecc!aall parental authority over the minor?
The following exercise special parental authority and responsibility over the
minor child while under their supervision, instruction, or custody:
1. The school, its administrators and teachers; or
2. The individual, entity or institution engaged in child care.
Q: Can the abovementioned acts be committed by the parents through culpable

negligence?
YES. There are parents who, without actually committing the abovementioned
acts as begins, appearing in indecent shows, and the like, but do not prevent
them and even allow them to commit such acts for profit or material advantage.
Q: To what kind of activities does special parental authority apply?

It applies to all authorized activities wwhheetthheerr !nnss!ddee oorr oouuttss!ddee the premises of the
school, entity or institution.
Thus, such authority and responsibility applies to field trips, excursions and
other affairs of the pupils and students outside the school premises whenever
authorized by the school or its teachers.
Q: When is parental authority restored or revived?

The suspension or deprivation of parental authority may be revoked or restored
to the parent in a case file for the purpose or in the same proceeding if the court
finds that the cause for the suspension has ceased and will not be repeated.
Q: What is the liability of the person exercising special parental authority?

They are pprr!nncc!ppaallllyy and ssooll!ddaarr!llyy liable for damages caused by the acts or
omissions of the minor while under their supervision, instruction or custody.
69

Q: What defense should the person exercising ssppeecc!aall parental authority raise in
order to avoid civil liability?
The person exercising ssppeecc!aall parental authority can raise the defense that he
exercised the proper diligence required by the circumstances.
Q :When are parents held civilly liable for the torts committed by their minor
children?
The minor children must be living in their company at the time the tort was
committed.
Q: What is the liability of parents and judicial guardians for the acts or
omissions committed by the minor while under special parental authority?
They are ssuubbss!dd!aarr!llyy liable.
Q: What defenses may the parents raise in order to avoid civil liability?
They can raise the defense that they observed the diligence of a good father of a
family to prevent the damage.
Art. 2180 NCC. The obligation imposed by Article 2176 is demandable not
only for one's own acts or omissions, but also for those of persons for whom
one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible
for the damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated
persons who are under their authority and live in their company.
xxx
Lastly, teachers or heads of establishments of arts and trades shall be liable
for damages caused by their pupils and students or apprentices, so long as
they remain in their custody.
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage.
Q: What is the liability of parents and those exercising parental authority over
the child for torts committed by the child?
The liability is solidary, primary and direct, not subsidiary.
Art. 101 RPC. Rules regarding civil liability in certain cases.

xxx
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for
acts committed by an imbecile or insane person, and by a person under nine
years of age, or by one over nine but under fifteen years of age, who has acted
without discernment, shall devolve upon those having such person under
their legal authority or control, unless it appears that there was no fault or
negligence on their part.
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.
ARTICLE 221.
Parents and other persons exercising parental authority
shall be civilly liable for the injuries and damages caused by the acts or
omissions of their unemancipated children living in their company and under
their parental authority subject to the appropriate defenses provided by law.
(2180(2)a and (4)a)
Libi v. IAC
FACTS:
Julie Ann Gotiong was an 18-year-old first year commerce student of the
University of San Carlos, Cebu City while her sweetheart for 2 years, Wendell
Libi, was between 18 and 19 years of age living with his parents. On
December 1978, Julie Ann broke up with Wendell after she supposedly found
him to be sadistic and irresponsible. Wendell kept pestering Julie Ann with
demands for reconciliation but the latter persisted in her refusal, prompting
the former to resort to threats against her. In order to avoid him, Julie Ann
stayed in the house of her best friend, Malou Alfonso.
On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot
wound inflicted with the same firearm, a Smith and Wesson revolver licensed
in the name of petitioner Cresencio Libi, which was recovered from the scene
of the crime inside the residence of private respondents.
Due to absence of an eyewitness account of the circumstances regarding their
childrens deaths, their parents had their own theories. Respondent spouses,
legitimate parents of Julie Ann, believed that Wendell shot her and thereafter
turned the gun on himself to commit suicide. On the other hand, petitioners,
parents of Wendell, believed that an unknown party, whom Wendell may
have displeased or antagonized by reason of his work as a narcotics informer
of the Constabulary Anti-Narcotics Unit (CANU), must have caused
Wendell's death and then shot Julie Ann to eliminate any witness and thereby
avoid identification.
Julie Anns parents filed a civil action for damages against the parents of
Wendell, for their vicarious liability under Art. 2180 CC. The trial court
dismissed the complaint. The CA held that Wendells parents are liable.
During the trial, petitioner Amelita Yap Libi, mother of Wendell, testified that
her husband, Cresencio Libi, owns a gun which he kept in a safety deposit
box inside a drawer in their bedroom. Each of these petitioners holds a key to
the safety deposit box and Amelita's key is always in her bag, all of which
70

facts were known to Wendell. They have never seen their son Wendell taking
or using the gun. She admitted, however, that on that fateful night the gun
was no longer in the safety deposit box.
ISSUE: WON Wendells parents are liable for Wendells crime
HELD: Wendells parents are liable for Wendells crime.
1. Wendells parents have not proven due diligence of a good father of a family.
Wendell could not have gotten hold thereof unless one of the keys to the
safety deposit box was negligently left lying around or he had free access to
the bag of his mother where the other key was.
Petitioners were gravely remiss in their duties as parents in not diligently
supervising the activities of their son, despite his minority and immaturity, so
much so that it was only at the time of Wendell's death that they allegedly
discovered that he was a CANU agent and that Cresencio's gun was missing
from the safety deposit box. Both parents were sadly wanting in their duty
and responsibility in monitoring and knowing the activities of their children
who, for all they know, may be engaged in dangerous work such as being
drug informers, even drug users.
Neither was a plausible explanation given for the photograph of Wendell,
with a handwritten dedication to Julie Ann at the back thereof, holding
upright what clearly appears as a revolver and on how or why he was in
possession of that firearm.
2. The civil liabilities under Art. 2180 CC and Art. 101 RPC are primary, not
subsidiary.
If we apply Article 2194 of said code which provides for solidary

liability of joint tortfeasors, the persons responsible for the act or
omission, in this case the minor and the father and, in case of his
death of incapacity, the mother, are solidarily liable.
For civil liability ex quasi delicto of minors, Article 2182 of the Civil
Code states that "(i)f the minor causing damage has no parents or
guardian, the minor . . . shall be answerable with his own property in
an action against him where a guardian ad litem shall be appointed."
For civil liability ex delicto of minors, an equivalent provision is
found in the third paragraph of Article 101 of the Revised Penal Code.
Under said Article 2180, the enforcement of such liability shall be

effected against the father and, in case of his death or incapacity, the
mother. This was amplified by the Child and Youth Welfare Code
which provides that the same shall devolve upon the father and, in
case of his death or incapacity, upon the mother or, in case of her
death or incapacity, upon the guardian, but the liability may also be
voluntarily assumed by a relative or family friend of the youthful
offender. However, under the Family Code, this civil liability is now,
without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor
offender. 33 For civil liability arising from quasi-delicts committed by
minors, the same rules shall apply in accordance with Articles 2180
and 2182 of the Civil Code, as so modified.
Just like the rule in Article 2180 of the Civil Code, under the foregoing
provision the civil liability of the parents for crimes committed by
their minor children is likewise direct and primary, and also subject to
the defense of lack of fault or negligence on their part, that is, the
exercise of the diligence of a good father of a family.
NOTE: The civil liability of parents for qquuaass!--ddeell!ccttss of their minor children, as
contemplated in Article 2180 of the Civil Code is primary and not subsidiary.
Also, under Article 101 of the Revised Penal Code, the civil liability of parents
for ccrr!mmeess committed by their minor children is direct and primary, subject to
the defense of acting with the diligence of a good father of a family.
Tamargo v. CA
FACTS:
Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo
with an air rifle causing injuries which resulted in her death. Jennifers
adopting parent and natural parents filed a civil complaint for damages
against respondent spouses Victor and Clara Bundoc, Adelberto's natural
parents with whom he was living at the time of the tragic incident.
Prior to the incident, the spouses Sabas and Felisa Rapisura had filed a
petition to adopt the minor Adelberto Bundoc which was granted.
Spouses Bundoc, Adelberto's natural parents claimed that they were not
indispensable parties; rather, the adopting parents, spouses Rapisura, were
indispensable parties to the action since parental authority had shifted to the
adopting parents from the moment the successful petition for adoption was
filed.
Petitioners Tamargo contended that since Adelberto Bundoc was then
actually living with his natural parents, parental authority had not ceased nor
been relinquished by the mere filing and granting of a petition for adoption.
The trial court dismissed petitioners' complaint, ruling that respondent
natural parents of Adelberto indeed were not indispensable parties to the
action.
ISSUE: WON the natural parents are the indispensable parties to a civil action
for damages because of a quasi-delict committed by a child whom, at the time of
the commission, they had not yet been formally adopted
HELD: The natural parents are the indispensable parties.
71

Art. 2180 CC imposes civil liability upon the father and, in case of his death or
incapacity, the mother, for any damages that may be caused by a mm!nnoorr cchh!lldd
who lives with them.
Parental liability is made a natural or logical consequence of the duties and
responsibilities of parents their parental authority which includes the
instructing, controlling and disciplining of the child.
The civil liability imposed upon parents for the torts of their minor children
living with them, may be seen to be based upon the parental authority vested
by the Civil Code upon such parents. The civil law assumes that when an
unemancipated child living with its parents commits a tortious acts, the
parents were negligent in the performance of their legal and natural duty
closely to supervise the child who is in their custody and control.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle
occurred when parental authority was still lodged in respondent Bundoc
spouses, the natural parents of the minor Adelberto. It would thus follow that
the natural parents who had then actual custody of the minor Adelberto, are
the indispensable parties to the suit for damages.
Liability of Parents Through Their Own Acts
Art. 59. (PD 603) Crimes. - Criminal liability shall attach to any parent who:
(1) Conceals or abandons the child with intent to make such child lose his
civil status.
(2) Abandons the child under such circumstances as to deprive him of the
love, care and protection he needs.
(3) Sells or abandons the child to another person for valuable consideration.
(4) Neglects the child by not giving him the education which the family's
station in life and financial conditions permit.
(5) Fails or refuses, without justifiable grounds, to enroll the child as required
by Article 72.
(6) Causes, abates, or permits the truancy of the child from the school where
he is enrolled. "Truancy" as here used means absence without cause for more
than twenty schooldays, not necessarily consecutive.
It shall be the duty of the teacher in charge to report to the parents the
absences of the child the moment these exceed five schooldays.
(7) Improperly exploits the child by using him, directly or indirectly, such as
for purposes of begging and other acts which are inimical to his interest and
welfare.
(8) Inflicts cruel and unusual punishment upon the child or deliberately
subjects him to indignitions and other excessive chastisement that embarrass
or humiliate him.
(9) Causes or encourages the child to lead an immoral or dissolute life.
(10) Permits the child to possess, handle or carry a deadly weapon, regardless
of its ownership.
(11) Allows or requires the child to drive without a license or with a license
which the parent knows to have been illegally procured. If the motor vehicle
driven by the child belongs to the parent, it shall be presumed that he
permitted or ordered the child to drive.
"Parents" as here used shall include the guardian and the head of the
institution or foster home which has custody of the child.
L.
Emancipation
ARTICLE 234.
Emancipation takes place by the attainment of majority.
Unless otherwise provided, majority commences at the age of twenty-one
years.
Emancipation also takes place:
(1)
By the marriage of the minor; or
(2)
By the recording in the Civil Register of an agreement in a public
instrument executed by the parent exercising parental authority and the
minor at least eighteen years of age. Such emancipation shall be irrevocable.
(397a, 398a, 400a, 401a)
ARTICLE 235.
The provisions governing emancipation by recorded
agreement shall also apply to an orphan minor and the person exercising
parental authority but the agreement must be approved by the court before it
is recorded. (404a, 405a, 406a). (n)
ARTICLE 236.
Emancipation for any cause shall terminate parental
authority over the person and property of the child who shall then be
qualified and responsible for all acts of civil life. (399a)
ARTICLE 237.
The annulment or declaration of nullity of the marriage of a
minor or of the recorded agreement mentioned in the foregoing. Articles 234
and 235 shall revive the parental authority over the minor but shall not affect
acts and transactions that took place prior to the recording of the final
judgment in the Civil Register. (n)
1.
Age of Majority
RA 6809
AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE TO

EIGHTEEN YEARS, AMENDING FOR THE PURPOSE EXECUTIVE ORDER
NUMBERED TWO HUNDRED NINE, AND FOR OTHER PURPOSES
SECTION 1.
Article 234 of Executive Order No. 209, the Family Code of
the Philippines, is hereby amended to read as follows:
"Art. 234.
Emancipation takes place by the attainment of majority.
Unless otherwise provided, majority commences at the age of eighteen years."
SECTION 2.
Articles 235 and 237 of the same Code are hereby repealed.
72

SECTION 3.
Article 236 of the same Code is also hereby amended to read
as follows:
"Art. 236.
Emancipation shall terminate parental authority over the
person and property of the child who shall then be qualified and responsible
for all acts of civil life, save the exceptions established by existing laws in
special cases.
"Contracting marriage shall require parental consent until the age of twentyone.
"Nothing in this Code shall be construed to derogate from the duty or
responsibility of parents and guardians for children and wards below twentyone years of age mentioned in the second and third paragraphs of Article 2180
of the Civil Code."
SECTION 4.
Upon the effectivity of this Act, existing wills, bequests,
donations, grants, insurance policies and similar instruments containing
references and provisions favorable to minors will not retroact to their
prejudice.
SECTION 5.
This Act shall take effect upon completion of its publication
in at least two (2) newspapers of general circulation.
Approved: December 13, 1989
CARE AND EDUCATION OF MINORS (Art. 3 PD 603)
Articles 356 to 363 are not repealed nor amended by the Family Code. However,
these provisions are rendered nugatory by the Child and Youth Welfare Code
(PD 603).
For purposes of this subject only Article 3 of PD 603 is essential.
Art. 3. Rights of the Child. - All children shall be entitled to the rights herein
set forth without distinction as to legitimacy or illegitimacy, sex, social status,
religion, political antecedents, and other factors.
(1) Every child is endowed with the dignity and worth of a human being from
the moment of his conception, as generally accepted in medical parlance, and
has, therefore, the right to be born well.
(2) Every child has the right to a wholesome family life that will provide him
with love, care and understanding, guidance and counseling, and moral and
material security.
The dependent or abandoned child shall be provided with the nearest
substitute for a home.
(3) Every child has the right to a well-rounded development of his personality
to the end that he may become a happy, useful and active member of society.
The gifted child shall be given opportunity and encouragement to develop

his special talents.
The emotionally disturbed or socially maladjusted child shall be treated with
sympathy and understanding, and shall be entitled to treatment and
competent care.
The physically or mentally handicapped child shall be given the treatment,
education and care required by his particular condition.
(4) Every child has the right to a balanced diet, adequate clothing, sufficient
shelter, proper medical attention, and all the basic physical requirements of a
healthy and vigorous life.
(5) Every child has the right to be brought up in an atmosphere of morality
and rectitude for the enrichment and the strengthening of his character.
(6) Every child has the right to an education commensurate with his abilities
and to the development of his skills for the improvement of his capacity for
service to himself and to his fellowmen.
(7) Every child has the right to full opportunities for safe and wholesome
recreation and activities, individual as well as social, for the wholesome use
of his leisure hours.
(8) Every child has the right to protection against exploitation, improper
influences, hazards, and other conditions or circumstances prejudicial to his
physical, mental, emotional, social and moral development.
(9) Every child has the right to live in a community and a society that can offer
him an environment free from pernicious influences and conducive to the
promotion of his health and the cultivation of his desirable traits and
attributes.
(10) Every child has the right to the care, assistance, and protection of the
State, particularly when his parents or guardians fail or are unable to provide
him with his fundamental needs for growth, development, and improvement.
(11) Every child has the right to an efficient and honest government that will
deepen his faith in democracy and inspire him with the morality of the
constituted authorities both in their public and private lives.
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(12) Every child has the right to grow up as a free individual, in an
atmosphere of peace, understanding, tolerance, and universal brotherhood,
and with the determination to contribute his share in the building of a better
world.
M. Retroactivity of Family Code
Exception: Vested Rights
Aruego v. CA
FACTS:
In March 1983, minors, private respondent Antonia and Evelyn Aruego, filed
a Complaint for Compulsory Recognition and Enforcement of Successional
Rights, represented by their mother and natural guardian, Luz M. Fabian.
Named defendants therein were Jose E. Aruego, Jr. and the 5 minor children
of the deceased Gloria A. Torres, represented by their father and natural
guardian, Justo P. Torres, Jr., now the petitioners.
The main basis of the action is their alleged open and continuous possession
of the status of illegitimate children i.e., regular support and educational
expenses, allowance to use his surname; payment of maternal bills etc.
Meanwhile, the Family Code was made effective on August 3, 1988.
Petitioners submit that with the advent of the FC the trial court lost
jurisdiction over the complaint of private respondent on the ground of
prescription, considering that under Article 175, paragraph 2, in relation to
Article 172 of the New Family Code, it is provided that an action for
compulsory recognition of illegitimate filiation, if based on the open and
continuous possession of the status of an illegitimate child, must be brought
during the lifetime of the alleged parent without any exception, otherwise the
action will be barred by prescription.
ISSUE: WON the Family Code applies
HELD: The Family Code does not apply.
Art. 256 FC provides that the FC shall have retro effect insofar as it
does not prejudice or impair vested or acquired rights in accordance
with the CC or other laws. The phrase vested or acquired rights
under Art. 256, is not defined by the FC, thus leaving it to the courts to
determine what it means as each particular issue is submitted to them.
The action brought by private respondent Antonia for compulsory

recognition and enforcement of successional rights was filed prior to
the advent of the Family Code. Therefore, it must be governed by
Article 285 of the Civil Code and not by Article 175, paragraph 2 of the
Family Code.
The present law cannot be given retroactive effect because its

application will prejudice the vested right of private respondent to
have her case decided under Article 285 of the Civil Code. The right
was vested to her by the fact that she filed her action under the regime
of the Civil Code.
The action was not yet barred, notwithstanding that it was brought
when the putative father was already deceased, since private
respondent was then still a minor when it was filed, an exception to the
general rule provided under Article 285 of the Civil Code. Hence, the
trial court, which acquired jurisdiction over the case by the filing of the
complaint, never lost jurisdiction over the same.
Rep. v. Miller
FACTS:
On July 29, 1988, spouses Claude A. Miller and Jumrus S. Miller, both
American Citizens, filed with the R T C of Angeles City a verified petition to
adopt the minor Michael Madayag. The D S W D recommended approval of
the petition on the basis of its evaluation that respondents were morally,
emotionally and financially fit to be adoptive parents and that the adoption
would be to the minors best interest and welfare. On May 12, 1989, the trial
court rendered decision granting the petition for adoption. In due time, the
Solicitor General, in behalf of the Republic, interposed an appeal to the CA
which certified the case to the Supreme Court on pure questions of law.
ISSUE: WON the court may allow aliens to adopt a Filipino child despite the
prohibition under the family code, effective August 3, 1988 when the petition
for adoption was filed on July 29, 1988, under the provision of the Child and
Youth Welfare Code which allowed aliens to adopt
HELD: An alien qualified to adopt under the Child and Youth Welfare Code,
which was in force at the time of the filing of the petition, acquired a vested
right which could not be affected by the subsequent enactment of a new law
disqualifying him. The enactment of the Family Code will not impair the right
of the respondents who are aliens to adopt a Filipino child because the right has
become vested at the time of filing of the petition for adoption and shall be
governed by the law then in force.
A. Funerals
PART III
ARTICLE 305.
The duty and the right to make arrangements for the funeral
of a relative shall be in accordance with the order established for support,
under article 294. In case of descendants of the same degree, or of brothers
74

and sisters, the oldest shall be preferred. In case of ascendants, the paternal
shall have a better right.
YES. The persons who are preferred in the right to make funeral arrangements
may waive this right expressly or impliedly.
Q: What is the purpose for this particular title on Funerals?

This is intended to solve the controversies among members of a family in
connection with the burial of the dead, which have increased the bereavement
of the family and marred the proper solemnity which should prevail in every
funeral.
Q: In case the person(s) preferred in the making of funeral arrangements should

waive such right, to whom will the right devolve?
The right and duty immediately descends upon the person next in the order
prescribed by the law.
Q: What are the different purposes for the juridical protection given to the
corpse?
1. To protect the feelings of those related to the deceased
2. To avoid dangers to the health of the living, and
3. To allow scientific investigation and study
Q: Who has the right and the duty to make funeral arrangements for the
deceased?
Those who are bound to give support as provided in Article 199 of the Family
Code have the right and duty to make the funeral arrangements for the
deceased. They are as follows:
1. Spouse
2. Descendants (nearest degree)
3. Ascendants (nearest degree)
4. Brothers and sisters
Q: What are the rules in case the contending parties belong to the same class of
relatives?
1. In case of descendants of the same degree, the oldest shall be preferred.
2. In case of brothers and sisters, the oldest should be preferred
3. In case of ascendants, the paternal shall have a better right.
Q: Who does the law refer to when it mentions the spouse?
The law refers to the legitimate spouse.
Q: In making funeral arrangements, who has the better right as between or
among descendants of the same degree and between brothers and sisters?
In both cases, the oldest shall be preferred in the making of funeral
arrangements.
Q: In making funeral arrangements, who has the better right among ascendants?
The paternal ascendants have a better right.
Q: May the right to make funeral arrangements be waived?
Q: Give an example of a waiver of the right to make the funeral arrangements.

In the case of the wife, who was living separate from the husband at the time of
his death, or who neglects or refuses to assume the trust incident to the right, a
waiver is implied, and the right and duty to make arrangements for the funeral
immediately passes to the next relative.
Q: Can the right be implied outright?
NO. The right will not be considered as having been waived or renounced,
except upon clear and satisfactory proof of conduct indicative of a free and
voluntary intent to that end.
Q: Is the right to make funeral arrangements broad enough to cover the right to
exclude the friends and other relative of the deceased from the funeral?
NO. The person entitled to the custody of the corpse cannot exclude the friends
and other relatives of the deceased; such exclusion, without just cause, would be
an abuse of right prohibited by Art. 19 of the Civil Code; or an act contrary to
good customs under Art. 21. The members of the family of the deceased cannot
be excluded, because they would have an inherent right to witness the
interment.
ARTICLE 306.
the deceased.
Every funeral shall be in keeping with the social position of
Q: What kind of funeral must be made for the deceased?

The funeral arrangements must be in harmony with the social standing of the
deceased.
Q: Can a surviving spouse who spends lavishly on the funeral, disproportionate
to the social position of the deceased and the small estate of the latter be
sanction for her actions?
YES. Although Art. 306 does not provide for a sanction for its enforcement, the
sanctions may be found under other provisions of the law. The other heirs may
question the deduction of the whole amount of the expenses from the mass of
the hereditary estate.
75

Q: What if instead, the surviving spouse gives a very miserable funeral to the
deceased even through the latter left a sufficiently large estate and enjoyed a
prominent social position in life, what will be the remedy of the relatives of the
deceased?
The deceaseds other relatives may treat the act of the surviving spouse as one
of disrespect to the dead and recover damages under Art. 309.
ARTICLE 307.
The funeral shall be in accordance with the expressed
wishes of the deceased. In the absence of such expression, his religious
beliefs or affiliation shall determine the funeral rites. In case of doubt, the
form of the funeral shall be decided upon by the person obliged to make
arrangements for the same, after consulting the other members of the family.
Q: What is the order of preference with regard to how the funeral of a deceased
should be made?
The funeral shall be made according to the following order of preference:
1. Expressed wishes of the deceased in keeping with his social standing
2. Religious beliefs or affiliation of the deceased
3. Desire of person obliged to make funeral arrangements after consulting
the other members of the family.
Q: Must the expressed wishes of the deceased be followed in all circumstances?
NO. It is necessary that the wishes of the deceased not be contrary to law. Those
that are found contrary to law cannot be followed.
Q: What are some provisions of law which would constitute limitations on the
wishes of the deceased?
The Revised Administrative Code prohibits burial in unauthorized places,
requires certificate of death before the burial of the deceased, and prohibits
unenbalmed bodies to remain unburied for a period longer than 48 hours,
among others.
ARTICLE 308.
No human remains shall be retained, interred, disposed of
or exhumed without the consent of the persons mentioned in articles 294 and
305.
Q: What are the acts involved in this article?
1. The acts involved in this article are: (RIDE)
2. Retaining
3. Interring
4. Disposing
5. Exhuming
Q: What is necessary before the acts enumerated above may be made over the
corpse?
Before the acts enumerated may be performed, it is necessary to get the consent
of the following persons:
1. Legitimate spouse
2. Descendants of the nearest degree
3. Ascendants of the nearest degree
4. Brothers and sisters
Q: Must the consent of the persons who have the right to control the burial of
the deceased be always obtained for the retention of the corpse?
NO. The law must prevail over the will of the persons who have the right to
control the burial of the deceased. In case of necessity incident to investigation
of crime, the authorities may retain a corpse and delay the burial.
Q: Must the consent of the persons who have the right to make the funeral
arrangements for the deceased be always obtained for the exhumation of the
corpse?
NO. The right of such persons must yield to public interest when the
exhumation appears to be absolutely essential to the administration of justice.
Q: What are the two kinds of autopsies and what is necessary for the
performance of both?
1. Private
- cannot be performed without the consent of the persons
having a right to the corpse
2. Official
- necessary for the detection and prevention of deseases and
for the discovery and prevention of crimes
May be performed regardless of the wishes of the persons entitled to
the corpse
Public official performing the same shallnot be liable for damages, so
long as the autopsy is done in an ordinary careful manner, without any
willful or wanton mutilation of the body
ARTICLE 309.
Any person who shows disrespect to the dead, or
wrongfully interferes with a funeral shall be liable to the family of the
deceased for damages, material and moral.
Q: What are the acts made punishable by this article?
The acts punishable under this article are:
1. Showing disrespect to the dead
2. Wrongfully interfering with a funeral
76

Q: What are the civil liabilities of a person who does the acts punishable under
this article?
The person may be made liable for damages, both material and moral, to the
family of the deceased.
If the injury is wanton and malicious, the results of gross negligence or reckless
disregard of the rights of others equivalent to an intentional violation of them,
exemplary damages may also be awarded.
Q: Are there any criminal liabilities for disrespect and wrongful interference?
YES. The person may be subject to criminal action in case of damage to property
as a consequence of the disrespect and wrongful interference and should the act
constitute libel, the latter being a crime which may be committed on a person,
living or dead.
ARTICLE 310.
The construction of a tombstone or mausoleum shall be
deemed a part of the funeral expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the spouses.
Q: What is the nature of the expenses for the construction of tombstones and
mausoleums?
The expense for the construction of tombstones and mausoleums are deemed
funeral expenses.
Q: To whom does the expenses mentioned in this article devolve?
The expenses shall be chargeable to the conjugal partnership property, if
deceased is one of the spouses. Otherwise it shall be chargeable to the estate of
the deceased.
Eugenio v. Velez
FACTS:
Private respondents Vargases filed a petition for hhaabbeeaass ccoorrppuuss alleging that
their sister Vitaliana was forcibly taken from her residence sometime in 1987
and confined by herein petitioner in his palacial residence in Jasaan, Misamis
Oriental. Despite her desire to escape, Vitaliana was allegedly deprived of her
liberty without any legal authority. At the time the petition was filed, it was
alleged that Vitaliana was 25 years of age, single, and living with petitioner
Tomas Eugenio.
The respondent court issued the writ of hhaabbeeaass ccoorrppuuss, but the writ was
returned unsatisfied. Petitioner refused to surrender the body of Vitaliana to
the respondent sheriff. Petitioner also alleged that Vitaliana died of heart
failure due to toxemia of pregnancy in his residence on 28 August 1988. As
her common law husband, petitioner claimed legal custody of her body.
Private respondents were granted leave to amend their petition. Claiming to

have knowledge of the death of Vitaliana only or after the filing of the hhaabbeeaass
ccoorrppuuss petition, private respondents alleged that petitioner was wrongfully
interfering with their (Vargases') duty to bury her as the next of kin in the
Philippines.
ISSUE: WON petitioner, the common-law spouse, is the rightful custodian of
Vitablianas body
HELD: Petitioner is not the rightful custodian.
After the fact of Vitaliana's death was made known to the petitioners in the
hhaabbeeaass ccoorrppuuss proceedings, aammeennddmmeenntt of the petition for hhaabbeeaass ccoorrppuuss, nnoott
dd!ssmm!ssssaall,, was proper to avoid multiplicity of suits. Amendments to pleadings
are generally favored and should be liberally allowed in furtherance of justice
in order that every case may so far as possible be determined on its real facts
and in order to expedite the trial of cases or prevent circuity of action and
unnecessary expense, unless there are circumstances such as inexcusable
delay or the taking of the adverse party by surprise or the like, which justify a
refusal of permission to amend.
Petitioner has a subsisting marriage with another woman, a legal impediment
which disqualified him from even legally marrying Vitaliana.
The provisions of the Civil Code, unless expressly providing to the contrary
as in Article 144, when referring to a "spouse" contemplate a lawfully wedded
spouse. Petitioner vis-a-vis Vitaliana was not a lawfully-wedded spouse to
her; in fact, he was not legally capacitated to marry her in her lifetime.
Custody of the dead body of Vitaliana was correctly awarded to her surviving
brothers and sisters (the Vargases). Section 1103 of the Revised
Administrative Code provides that the immediate duty of burying the body
of a deceased person shall devolve upon his/her nearest of kin, if the
deceased was unmarried or a child and if the nearest of kin be adults and
within the Philippines and in possession of sufficient means to defray the
necessary expenses.
B.
Surname
Q: What is the reason why the law regulates the use of names?
1. To prevent confusion in identity
2. To prevent the use of names to evade criminal responsibility
By Children
ARTICLE 364.
Legitimate and legitimated children shall principally use
the surname of the father.
77

ARTICLE 365.
An adopted child shall bear the surname of the adopter.
ARTICLE 366.
A natural child acknowledged by both parents shall
principally use the surname of the father. If recognized by only one of the
parents, a natural child shall employ the surname of the recognizing parent.
ARTICLE 367.
Natural children by legal fiction shall principally employ
the surname of the father.
ARTICLE 368.
Illegitimate children referred to in article 287 shall bear the
surname of the mother.
ARTICLE 369.
Children conceived before the decree annulling a voidable
marriage shall principally use the surname of the father.
Child
1. legitimate child
2. Legitimated child
3. Adopted child
4. Illegitimate
5.Coceived prior to the annulment of
the marriage
6. Conceived after the annulment of
the marriage
Surname
Fathers surname
Fathers surname
Adopters surname
Mothers surname
Fathers surname
ARTICLE 371.
In case of annulment of marriage, and the wife is the guilty
party, she shall resume her maiden name and surname. If she is the innocent
spouse, she may resume her maiden name and surname. However, she may
choose to continue employing her former husband's surname, unless:
(1)
The court decrees otherwise, or
(2)
She or the former husband is married again to another person.
ARTICLE 372.
When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal separation.
ARTICLE 373.
A widow may use the deceased husband's surname as
though he were still living, in accordance with article 370.
Wife
1. valid marriage (before the husband
dies)
Mothers surname
Q. Is it possible for one to be allowed to use the surname of his parent not in
accordance with the rules?
Yes. By jurisprudence, persons whose names recorded in the Civil Registry
carry the surname of the wrong parent and have for some time been using such
surname for almost all purposes, including school records and pubic records,
may be allowed by the courts to retain the use of such surname. To ask them to
revert to the proper surname may lead to more confusion.
2. Annulled marriage
a. wife is the guilty party
b. wife is the innocent party
Thus, what is essential is the period of time that elapsed since the use thereof to
the time the irregularity was discovered.
ARTICLE 370.
A married woman may use:
(1)
Her maiden first name and surname and add her husband's surname,
or
(2)
Her maiden first name and her husband's surname or
(3)
Her husband's full name, but prefixing a word indicating that she is
his wife, such as "Mrs."
3. Legally separated
4. Divorce (at least if they allow it later
Surname
a. maiden first name and surname +
her husbands surname
e.g. Marife Lomibao Tan
b. maiden first name + her husbands
surname
e.g. Marife Tan
c. her husbands full name, but
prefixing a word indicating that she is
his wife
e.g. Mrs. Happy Tan
d. retain the use of her maiden name
and surname (use if husband
surname is not a duty but merely an
option of the wife)
-she shall resume her maiden name
and surname
- choices;
1. resume using her maiden name and
surname
2. continue employing her former
husbands surname, unless:
a. the court decrees otherwise, or
b. the wife of the former husbands is
married again to another person
-she shall continue using the name
and surname she was employing prior
to the legal separation (Tolentino vs.
CA)
-choices (same as widowed spouse)
78

or for those who got divorced during
the Japanese occupation)
5. widowed
1) continue using her husbands

surname
2)resume using her maiden name and
surname (old reviewer)
-choices:
1. continue using her husbands
surname as though he were still living
2. surname using her maiden name
and surname
3. add the prefix Vda. De
Tolentino v. CA
FACTS:
In 1931, respondent Consuelo David was legally married to Arturo Tolentino.
The marriage was dissolved and terminated pursuant to the law during the
Japanese occupation in 1943 by a decree of absolute divorce granted by the
CFI. Thereafter, Arturo Tolentino married a certain Pilar Adorable, who
however, died soon after their marriage. Tolentino subsequently married
petitioner Constancia in 1945. Consuelo David, on the other hand, continued
using the surname Tolentino after the divorce and up to the time of the filing
of this complaint.
Respondent has given proof that she entered into contracts with third
persons, acquired properties and entered into other legal relations using the
surname Tolentino.
ISSUE: WON a woman who has been legally divorced from her husband may
be enjoined by the latter's present wife from using the surname of her former
husband.
HELD: She may not be enjoined from using her former husbands surname.
The action has prescribed. All actions, unless an exception is provided, have a
prescriptive period. Unless the law makes an action imprescriptible, it is
subject to bar by prescription and the period of prescription is five (5) years
from the time the right of action accrues when no other period is prescribed
by law (Civil Code, Art. 1149). The petitioner should have filed her complaint
at once when it became evident that the private respondent would not accede
to her demands instead of waiting for 20 years.
There is no merit in the petitioner's claim that to sustain the private
respondent's stand is to contradict Articles 370 and 371 of the Civil Code. Our
laws have no provisions for and consequently, the use of surnames by a
divorced wife is not provided for. Senator Tolentino himself in his
commentary on Art. 370 of the Civil Code states that "the wife cannot claim
an exclusive right to use the husband's surname. She cannot be prevented
from using it; but neither can she restrain others from using it." Art. 371 is not
applicable to the case at bar because Art. 371 speaks of annulment while the
case before us refers to absolute divorce where there is a severance of valid
marriage ties.
The private respondent has established that to grant the injunction to the
petitioner would be an act of serious dislocation to her. She has given proof
that she entered into contracts with third persons, acquired properties and
entered into other legal relations using the surname Tolentino. The petitioner,
on the other hand, has failed to show that she would suffer any legal injury or
deprivation of legal rights inasmuch as she can use her husband's surname
and be fully protected in case the respondent uses the surname Tolentino for
illegal purposes.
Comments: Tolentino vs. CA enunciated the doctrine that the wife cannot
exclude by injunction another woman from using the surname of her husband
from whom the latter was divorced. Art. 371 is not applicable to the case at bar
because Art. 371 speaks of annulment while the present case speaks of absolute
divorce where there is a severance of a valid marriage ties. The effect of divorce
is more akin to the death of the spouse where the deceased woman continues to
be referred to as the Mrs. Of her husband even if the latter has remarried rather
than to annulment since the latter case, it is as if there had been no marriage at
all.
Note: Dean, however, begs to differ from the ruling in the Tolentino case. The
ruling allowing the wife divorced from her husband to continue employing the
former husbands surname as in the case of widowed spouses created an
absurdity as in the situation of the Tolentinos. There are two Mrs. Tolentinos.
Dean opines that the better rule is to adopt the rule with respect to wives of
annulled marriages.
Q: Is the right of the wife to use her husbands surname exclusive?
No, the right of the wife to use her husbands surname is not exclusive. Mere
use of the surname of the husband by another is not an actionable right of the
wife.
However, if another woman should misrepresent herself as the wife by using
the husbands name with the prefix Mrs. The wife can restrain the woman
from using the prefix as that amounts to usurpation of status.
Q. If after marriage, the wife adopts the surname of her husband, can she
resume the use of her maiden name later on?
No, although as a general rule, a married woman may always use her maiden
name, if she started using her husbands name, it may be confusing to allow her
to revert to her maiden name. She may petition the court to allow her to resume
79

using her maiden name. Jurisprudence has proven, however, that such a
petition is not meritorious. (old reviewer)
Q. What is the reason for the rule requiring wives who are legally separated to
retain the use of name adopted before the decree of legal separation?
Legal separation is simply a decree of separation from bed and board. For all
intents and purposes, the couple who are legally separated are still very much
married to each other. Besides, allowing the wife to resume using her maiden
name may give rise to numerous cases of adulterous relationship as the wife is
made to appear single by the use if her maiden name.
NO. A persons ability to change his name is not a matter of right, but of
judicial discretion. The State has an interest in the names borne by individuals
for purposes of identification.
Q: What is the nature of the ability to change ones name through judicial
intervention?
The ability to change name is personal in nature, such that the wife cannot
petition for a change of the spelling of her husbands surname; it is the husband
who should initiate the proceedings.
ARTICLE 374.
In case of identity of names and surnames, the younger
person shall be obliged to use such additional name or surname as will avoid
confusion.
It is for the reason that a change in the name of the husband does not
automatically result in the change of name of his wife and children. His wife
and children cannot by the simple expedient of filing a petition to have the
order for the change of name of the husband be carried over to them, have their
names changed. It is necessary that a petition be filed by each person seeking to
have his name changed.
ARTICLE 375.
In case of identity of names and surnames between
ascendants and descendants, the word "Junior" can be used only by a son.
Grandsons and other direct male descendants shall either:
(1)
Add a middle name or the mother's surname, or
(2)
Add the Roman numerals II, III, and so on.
Q: What is the nature of petitions for change of name?

Petitions for change of name are proceedings !nn rreemm. Therefore, strict
compliance with the requirements of publication is essential, for it is by such
means that the courts acquire jurisdiction to hear and determine petitions
therefore.
1. Between persons
-younger person is obliged to use such

additional name or surname as to avoid
confusion,
1. son may use the word Junior
e.g. Marife Lomibao-Tan, Jr.
Q: What are some procedural requirements for a petition for change of name?
1. 3 years residency in the province where change is sought prior to the
filing;
2. must not be filed within 30d prior to an election;
3. the petition must be verified
2. grandsons and other direct male

descendants shall either
2.1 add a middle name
eg Happy Chris Tan
2.2 add the mothers surname
eg Happy Lomibao-Tan
2.3 add the roman numerals II, III & so on
Q: What is necessary in order for a petition for change of name be granted?

The petitioner must not only show proper or compelling reason which may
justify such change, but also he will be prejudiced by the use of his true and
official name.
Identity of names and surnames
2. Between ascendants and

Descendants
Change of names
ARTICLE 376.
authority.
No person can change his name or surname without judicial
Q: What is the true and official name of a person?

The true and official name of a person is that which is recorded in the civil
register.
RP v. Marcos
FACTS:
Pang Cha Quen filed a verified petition to change the name of her daughter
from May Sia, aall!aass Manman Huang, to Mary Pang De la Cruz.
Q: Is a petition for change of name a matter of right for the petitioner?
80

Pang Cha Quen alleged that she is a Chinese citizen, married to Alfredo De la
Cruz, a Filipino citizen. By a previous marriage to Sia Bian aall!aass Huang Tzeh
Lik, a Chinese citizen, she gave birth to her daughter, May Sia aall!aass Manman
Huang in Manila. Pang Cha Quen had her daughter registered as an alien
under the name Mary Pang, i.e., using her maternal surname, because the
childs father had abandoned them, and that her daughter had always used
the name Mary Pang at home and in her school, the Baguio Chinese Patriotic
School. As her daughter has grown to love and recognize her stepfather,
Alfredo De la Cruz, as her own father, she desires to adopt and use his
surname "De la Cruz" in addition to her name "Mary Pang" so that her full
name shall be Mary Pang De la Cruz. Pang Cha Quen alleged that Alfredo De
la Cruz gave his conformity to the petition by signing at the bottom of the
pleading.
The reasons for the petition to change her daughters name are: (1) that her
daughter grew up with, and learned to love and recognize Alfredo de la Cruz
as her own father (2) to afford her daughter a feeling of security and (3) that
Alfredo de la Cruz agrees to this petition, and has signified his conformity at
the foot of this pleading.
The respondent Judge issued an order setting the hearing of the petition and
directing that it be published at the expense of the petitioner in the Baguio
and Midland Courier, a newspaper of general circulation in Baguio City and
Mountain Province, once a week for three (3) consecutive weeks, the first
publication to be made as soon as possible. The caption of the verified petition
and the published order of the trial court read:
IN RE: PETITION FOR CHANGE OF NAME OF THE MINOR MAY SIA ALIAS
MANMAN HUANG TO MARY PANG DE LA CRUZ.,
PANG CHA QUEN,
Petitioner.
Nobody opposed the petition during the hearing. The respondent judge
granted the petition. However, the Solicitor General appealed to the
Supreme Court, arguing that: (1) the petition and the published order
contain a jurisdictional defect because their captions did not include the
name Mary Pang as one of the names that the minor has allegedly been
using and that (2) petitioner Pang Cha Quen failed to state a proper and
reasonable cause for changing the name/names of her daughter.
ISSUES:
1. WON the petition and published order contained a jurisdictional defect
2. WON the petitioners reasons are proper and reasonable causes for changing
the name/s of her daughter
HELD: The respondent court committed grave abuse of discretion in granting

the petition.
1. The court did not acquire jurisdiction over the subject of the proceedings
because the caption of the order and the publication omitted the aall!aass Mary
Pang.
For a publication of a petition for a change of name to be valid, the title
thereof should include his real name and aliases, if any. The reason for this
rule is that the probability is great that an ordinary reader will not notice the
other names or aliases of the applicant if they are mentioned only in the body
of the order or petition.
2. The reasons cited by the petitioner are not proper and reasonable causes for
changing her daughters name. The general rule is that a change of name
should not be permitted if it will give a false impression of family relationship
to another where none actually exists.
3.
The petition was not filed by the proper party.
According to Sections 1 and 2, Rule 103, the petition for change of name must
be filed by the person desiring to change his/her name, even if it may be
signed and verified by some other person in his behalf.
In this case, the petition was field by Pang Cha Quen not by May Sia. Hence,
only May Sia herself, when she shall have reached the age of majority, may
file the petition to change her name.
It must be her personal decision. The reason is obvious. When she grows up
to adulthood, she may not want to use her stepfathers surname, nor any of
the aliases chosen for her by her mother.
The State has an interest in the name borne by each individual for purposes of
identification and the same should not be changed for trivial reasons like the
instant case. A change of name is a mere privilege and not a matter of right.
The following are valid grounds for a change of name:
1. When the name is ridiculous dishonorable, extremely difficult to write
or pronounce
2. When the change results as a legal consequence, as in, legitimation
3. When the change will avoid confusion
4. Having continuously used and been known since childhood by a
Filipino name, unaware of his alien parentage
5. Sincere desire to adopt a Filipino name to erase signs of former
alienage all in good faith and not to prejudice anybody.
Republic v. CA and Maximo Wong
FACTS:
Maximo Wong is the legitimate son of Maximo Alcala, Sr. He was then
known as Maximo Alcala, Jr. With the consent of their parents and by order of
81

the court, he and his sister were adopted by the spouses Wong, naturalized
Filipinos
Upon reaching the age of 22, Maximo Wong filed a petition to change his
name to Maximo Alcala, Jr. He averred that his use of the surname Wong
isolated him from his relatives and friends, as it suggests a Chinese ancestry
when in truth and in fact he is a Muslim Filipino residing in a Muslim
community, and he wants to erase any implication of alien nationality; that he
is being ridiculed for carrying a Chinese surname, thus hampering his
business and social life; and that his adoptive mother does not oppose his
desire to revert to his old surname.
The TC granted Maximo Wongs prayer to change his name. On appeal, and
over the opposition of the Republic through the SG, the decision of the TC
was affirmed in full, hence, this petition for review on cceerrtt!oorraarr!.
The SG contends that the allegations of Maximo Wong were unsubstantiated
and cannot justify the petition for change of name. He claims that for Maximo
Wong to cast aside the name of his adoptive parents is crass ingratitude.
Further, that the reversion of Maximo Wong to his old name violates Art. 341
and 365 of the CC, which requires an adopted child to use the surname of the
adopter
In refutation, Maximo Wong argues that he did as the law required, that is,
upon adoption he used the surname of the adopter. However, being already
emancipated, he can now decide what is best for himself.
ISSUE: WON Maximo Wong may be allowed to change his name even if the law
which requires the adopted child to bear the surname of the adopter.
HELD: Maximo Wong may be allowed.
Article 365 mandates that "an adopted child shall bear the surname of the
adopter," in correlation with Article 341 on the effects of adoption, among
which is to "entitle the adopted person to use the adopter's surname." This
same entitlement of an adopted child is maintained in the Child and Youth
Welfare Code and in the Family Code. The purpose of an adoption
proceeding is to effect a new status of relationship between the child and its
adoptive parents, the change of name which frequently accompanies
adoption being more an incident than the object of the proceeding.
It is not fair to construe the desired reversion of Maximo Wong to the use of
the name of his parents by nature as cross ingratitude. His reason for
changing his name is valid: he experiences embarrassment to his friends and
has few customers in his furniture business in a Muslim community because
they think hes a Chinese and not a Muslim. Furthermore, his adopting
mother consented to the change of name.
Q: What are some reasons why some courts have disallowed a petition for
change of name?
1.
2.
3.
The petitioner has always been known by such name;

the petitioner has violated the law regarding the use of aliases
the petitioner has prior criminal convictions-it is the courts duty to
consider carefully the consequences of the change of name, and to
deny the same unless weighty reasons are shown. A person with a
prior criminal conviction obviously desires to obliterate said unsavory
record.
Q: What is the effect of a change of name granted by the court?

What is altered is only the name, which is distinguished from other and which
he bears as the label or appellation, for the convenience of the world at large in
addressing him, or in speaking of or dealing with him.
A change of name does not by itself define, or affect a change in ones existing
family relations, or in the rights and duties following therefrom; nor does it
create new family rights and duties where none before were existing. It does
not alter ones legal capacity, civil status, or citizenship.
Prohibited Acts
ARTICLE 377.
Usurpation of a name and surname may be the subject of an
action for damages and other relief.
Q: When is the usurpation of name?
The usurpation of name and surname may be the subject of an action for
damages and other relief.
Q: What are the elements of usurpation of name?
1. there is an actual use of anothers name by the defendant
2. the use is unauthorized
3. the use of anothers name is to designate personality or identity of a
person
Q: What is the rationale for the right to protect ones name?
The right to a name is one of the rights of personality. It is intended to
safeguard one of the elements in the manifestation of personality.
Q: What actions are available against the usurper to the person whose name has
been usurped?
1. civil (insofar as private persons are concerned)
1.a. Injunction
1.b. Damages (actual and moral)
2. criminal (when public affairs are prejudiced)
82

Q: What is covered by this prohibition?

Tolentino opines that this article covers cases where ones name is used by
another, but not for the purpose of designating personality or identifying a
person. Examples would be, when the name is used to call a dog or for a villain
in a drama, or a trade-mark for some merchandise.
Q: When is the use of ones surname by another actionable?
The use of ones surname is actionable when the use is unauthorized or
unlawful.
Q: Is the fact that the use of the surname gives a better reputation a defense in
an action by the owner of the surname?
NO. The act would still be unlawful even if the effect of the use of the surname
is to give it a better repute.
ARTICLE 379.
The employment of pen names or stage names is permitted,
provided it is done in good faith and there is no injury to third persons. Pen
names and stage names cannot be usurped.
ARTICLE 380.
Except as provided in the preceding article, no person shall
use different names and surnames.
ARTICLE 378.
The unauthorized or unlawful use of another person's
surname gives a right of action to the latter.
Q: When is the use of another name not actionable?
When the name is used as a stage, screen or pen name, provided:
1. use of name in good faith; and
2. by using the name of another, no injury is caused to that persons right
(Dean)
3. when use is motivated by modesty, a desire to avoid unnecessary
trouble, or other reason not prohibited by law or morals. (Tolentino)
C.
1.
Absence
Provisional Absence
ARTICLE 381.
When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to administer his
property, the judge, at the instance of an interested party, a relative, or a
friend, may appoint a person to represent him in all that may be necessary.
This same rule shall be observed when under similar circumstances the
power conferred by the absentee has expired. (181a)
ARTICLE 382.
The appointment referred to in the preceding article having
been made, the judge shall take the necessary measures to safeguard the
rights and interests of the absentee and shall specify the powers, obligations
and remuneration of his representative, regulating them, according to the
circumstances, by the rules concerning guardians. (182)
Q: When is there provisional absence?
There is Provisional absence when the following circumstances occur.
1. A person disappears from his domicile
2. His whereabouts are unknown
3. (a) he did not leave any agent
(b) he left an agent but agents power has expired
There is no prescriptive period required before a person can be considered
provisionally absent. In fact, provisional absence can take place immediately
after a person disappears under the conditions specified above unless an agent
is left to take care of the absentees affairs. If an agent is left by the person who
disappeared as when he issued a Special Power of Attorney in favor of the other
to manage his affairs or business, the intention to be absent for such period of
time is obvious and no uncertainty enters as to the principals existence.
However, once the Special Power of Attorney expires and the principal cannot
be found, uncertainty enters the picture and the principal can be considered
provisionally absent. Such absence is called provisional because is not yet
certain whether it is a case of legal absence or not.
Q: Is a court ruling necessary at this stage?
NO. However, the courts assistance is necessary when legal representation is
required to validate certain transactions. For example, the present spouse who
desires to sell conjugal partnership property but who cannot do so without the
consent of the absent spouse can ask the court for an appointment of a legal
representative who is authorized to give such consent.
NOTE: In this case, there is no declaration of absence yet for what is being
prayed for is the appointment of a legal representative. Declaration of absence
cannot yet prosper because compliance with the prescriptive period of two
years has not been accomplished. As such, appointment has just disappeared
until the lapse of the two-year period.
Q: He disappeared in 1979 leaving a wife and nine kids, In 1980, his wife had to
sell a parcel of land in Mindoro to supply the needs of their family. She asked
that she, be declared Hs legal representative and such request was granted by
the court. After a year, she wanted to sell their house in Manila. Will her
83

appointment as legal representative on 1980 suffice to authorize her to sell a
different piece of property a year after?
NO. The power of the legal representative appointed during his proceeding is
not general. The legal representative by virtue of his proceeding does not
represent the absentee for all transactions and for all actions against the person
who disappeared. It must be noted that Article 382 states that the appointment
order of the court shall specify the powers and obligations of the representative.
As such, appointment of the court is valid only for a specific transaction as
stated in its order.
ARTICLE 383.
In the appointment of a representative, the spouse present
shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any
competent person may be appointed by the court. (183a)
Q: Who is preferred in the appointment of a representative?
1. If the absentee is married, the spouse is preferred. However,
when the absent spouse and the present spouse are legally
separated then no preference is given to the present spouse
NOTE: That the spouse is a minor is not really an exception because by virtue
of R.A. 6809, it is not possible for a minor to get married. Hence, the only
exception to the rule is when the spouses are legally separated.
2.
If the absentee is not married then there is no priority and any

competent person can be appointed legal representative.
Q: A and B got married and their marriage annulled, A then disappeared. B

needing money for the support of their children, wanted to sell a parcel of land
formerly belonging to the conjugal property but was adjudicated to A. B went
to court asking for an appointment of legal representative. The court appointed
C. B appealed the order claiming that the court erred in not giving preference to
her as the spouse of A. Is her contention correct?
NO. By virtue of the annulment of their marriage, B is no longer the spouse of
A and thus is not entitled to any preference in the appointment of a legal
representative. The court can appoint any person who it considers the most
competent without giving due preference to any person.
Reyes v. Alejandro
FACTS:
In 1969, Erlinda Reynoso filed a petition praying for the declaration of the
absence of her husband Roberto L. Reyes alleging that her husband had been
absent from their conjugal dwelling since April 1962 and since then had not
been heard from and his whereabouts unknown. The petition further alleged
that her husband left no will nor any property in his name nor any debts.
She alleged that she and Roberto L. Reyes were married in 1960. Sometime in
April 1962 her husband left the conjugal home due to some misunderstanding
over personal matters. Since then petitioner has not received any news about
the whereabouts of her husband; that they have not acquired any properties
during their marriage and that they have no outstanding obligation in favor
of anyone; that her only purpose in filing the petition is to establish the
absence of her husband, invoking the provisions of Rule 107 of the New Rules
of Court and Article 384 of the Civil Code.
The court quo dismissed the petition on the ground that since Roberto L.
Reyes left no properties there was no necessity to declare him judicially an
absentee.
ISSUE: WON the husband may be declared absent under Rule 107
HELD: The husband may not be declared absent under Rule 107.
For the purposes of the civil marriage law, it is not necessary to have the
former spouse judicially declared an absentee.
The declaration of absence made in accordance with the provisions of the
Civil Code has for its sole purpose to enable the taking of the necessary
precautions for the administration of the estate of the absentee.
The need to have a person judicially declared an absentee is when:
o he has properties which have to be taken cared of or administered by a
representative appointed by the Court (Article 384, Civil Code);
o the spouse of the absentee is asking for separation of property (Article 191,
Civil Code) or
o his wife is asking the Court that the administration of an classes of property
in the marriage be transferred to her (Article 196, Civil Code).
The petition to declare the husband an absentee and the petition to place the
management of the conjugal properties in the hands of the wife may be
combined and adjudicated in the same proceedings.
Comments: Now, there is a need to have a person declared presumptively dead
for purposes of remarriage by virtue of Article 41, 2nd part of the Family Code.
Discussion below
2.
Declaration of Absence
ARTICLE 384.
Two years having elapsed without any news about the
absentee or since the receipt of the last news, and five years in case the
84

absentee has left a person in charge of the administration of his property, his
absence may be declared. (184)
Q: When may absence be judicially declared?
1. Absence without administrator after the lapse of two years
without any news about the absentee or since the receipt of the lat
news;
2. Absence with administrator after the lapse of five years without
any news about the absentee or since the receipt of the last news.
Q: Why is the absence with an administrator given a longer period of time than
an absence without an administrator?
The reason for longer period of time is the greater probability that the estate or
property is being well taken-cared of, if a manager or administrator had been
left in charge of the property. (In re Szatraw, cited Paris p.831)
Q: What is the reason behind this 2-year or 5-year rule?
The disappearance of a person may give rise to several possibilities. One
possibility is that he is dead. Other possibilities include his going on vacation,
his desire to be alone or his wanting to escape from his nagging wife etc. Thus
from the time he disappeared until the lapse of two-years or five-years period,
the probability that he is alive is greater than the probability that he is dead.
However, if he does not return after two years or five years as the case may be,
the possibility that something unfortunate happened to him is more probable
than his being alive, thus, he may be judicially declared absent after the
expiration of the period.
Q: A disappeared. Before he disappeared, he appointed B as his administrator.
Such appointment is embodied in a Special Power of Attorney which has no
expiration date. After five years, the heirs of A filed to declare A an absentee
and for the appointment of an administrator. B opposes such action contending
that the five year period must be counted from the expiration date and since his
SPOA has no expiration date then the five year period cannot be considered to
have lapsed. Is Bs contention correct?
NO. The period of five years is counted from the time a person disappeared
without any news or since the receipt of last news regardless of whether the
agency or the SPOA has expired. The law considers the period of five years as
sufficiently long for an agent to continue managing the affairs of the absentee.
Q: Is a court ruling necessary at this stage?
YES, the court is necessary at this stage. The action to be filed is an action to
declare a person an absentee and for an appointment of an administrator of the
absentee. Also, this action can be combined with other proceedings such as the
transfer of administrator of conjugal partnership/absolute community property
or all other cases wherein court approval is required.
ARTICLE 385.
The following may ask for the declaration of absence:
(1)
The spouse present;
(2)
The heirs instituted in a will, who may present an authentic copy of
the same;
(3)
The relatives who may succeed by the law of intestacy;
(4)
Those who may have over the property of the absentee some right
subordinated to the condition of his death. (185)
Q: Who may ask for the declaration of absence?
(1) the spouse
(2) voluntary heirs
(3) intestate heirs
(4) those who may have over the property of the absentee some right
subordinated to the condition of the absentees death
All the persons enumerated are presumptive heirs or have interests in the
property of the absentee conditioned upon his death. (Paras)
Q: Are the persons mentioned in Art. 385 preferred in the appointment of an
administrator?
NO. Article 385 merely provides a list of persons who may ask for a declaration
of absence and appointment of an administrator. It does not create a rule of
preference in the appointment of an administrator.
Note: The wife still preferred however, by virtue of Art 387 and not 385.
ARTICLE 386.
The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of general circulation.
(186a)
Q: When does judicial declaration of absence becomes effective?
Judicial declaration becomes effective six months after its publication in a
newspaper of general circulation. The period of six months is given to enable
those who may have heard of the absentee in the meantime to give their
information to the parties or persons concerned, and if said absentee should
reappear within such period, then the judicial declaration of his absence will not
have any effect at all.
ARTICLE 387.
An administrator of the absentee's property shall be
appointed in accordance with article 383. (187a)
85

Q: Is any person preferred in the appointment of a representative?

YES. By virtue of Art 387s cross reference to Art 383, the spouse is given
preference if there is no legal separation.
Q: Does the administrator have powers of disposition?
NO. Since he is merely an administrator his powers are limited to acts of
administration. However, he may still dispose of the properties but only after
obtaining court approval to that effect.
ARTICLE 388.
The wife who is appointed as an administratrix of the
husband's property cannot alienate or encumber the husband's property; or
that of the conjugal partnership, without judicial authority. (188a)
Q: What are the restrictions provided by law if the wife is appointed
administratrix?
The wife who is appointed administratrix because of the judicial declaration of
her husbands absence must always obtain judicial permission or authority in
order that:
(a) She can alienate or encumber the husbands property
(b) She can alienate or encumber the conjugal property.
ARTICLE 389.
The administration shall cease in any of the following cases:
(1)
When the absentee appears personally or by means of an agent;
(2)
When the death of the absentee is proved and his testate or intestate
heirs appear;
(3)
When a third person appears, showing by a proper document that he
has acquired the absentee's property by purchase or other title.
In these cases the administrator shall cease in the performance of his office,
and the property shall be at the disposal of those who may have a right
thereto. (190)
In these cases, the administrator shall cease in the performance of his office, and
the property shall be at the disposal of those who may have a right thereto.
Q: What is the effect if death of the absentee is proved?
If the death of the absentee is proved, then the administration will cease and
instead there will be the settlement of his/her estate, whether s/he had
previously executed a will or not.
3.
Presumption of Death
ARTICLE 390.
After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order that
his succession may be opened. (n)
FC Article 41. par. 2. For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive death
of the absentee, without prejudice to the effect of reappearance of the absent
spouse.
Q: Is an action necessary to declare a person presumably dead?
Majority of the commentators are of the opinion that there is no such to declare
a person presumably dead. They think that compliance with the requirements
of the law is sufficient to presume that a person is dead for the court does not
require a court proceeding. Also, they opine that a judgment declaring a person
presumably dead does not really become final, since the person involved may
actually turn out to be still alive. This was the ruling of the Supreme Court in
three cases (Jones vs Hortiguela, 64 Phil 179: In re Szatraw, 81 Phil. 461 and
Lukban v. Rep 52 O.G. 1441) wherein it held that unless the reason involved the
distribution of property, a declaration of presumptive death would not be made
by the court because such presumption is already made in the law.
With the advent of the Family Code, however, another exception is added.
Article 41, 2nd paragraph of the FC provides for purpose of remarriage the
spouse present must --------This provision is intended to protect the present spouse from a criminal
prosecution for bigamy under Article 349 of The Rev Penal Code because with
the judicial declaration that the missing spouse is presumably dead, the good
faith of the present spouse in contracting a second marriage is already
established.
a.
Ordinary & Extraordinary Absence
ARTICLE 391.
The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1)
A person on board a vessel lost during a sea voyage, or an aeroplane
which is missing, who has not been heard of for four years since the loss of
the vessel or aeroplane;
(2)
A person in the armed forces who has taken part in war, and has
been missing for four years;
86

(3)
A person who has been in danger of death under other circumstances
and his existence has not been known for four years. (n)
Q: Differentiate the Family Code provisions and the New Civil Code provisions
on presumption of death
Q: What are the two kinds of absence?

1 Ordinary Absence (Art 390)
2 Extraordinary Absence (Art 391)
Application
Q: Distinguish ordinary absence from extraordinary absence?

Ordinary absence is absence under circumstances where there is no danger of
death while extraordinary absence is absence under circumstances where there
is danger of death. Since the likelihood of death is greater, in extraordinary
absence, the law provides for a shorter period of four years vv!ss aa vv!ss the seven
years in ordinary absence.
Q: From when should one start computing the period of absence under
ordinary circumstance?
The computation of the prescriptive period begins not from the declaration of
absence nor from the publication in the Official Gazette, but on the date on
which the last news concerning the absentee is received (Jones vs Hotriguela, 64
Phil 179)
Q: From when should one start computing the period of absence under the
extraordinary circumstances?
(1) if a person rode an airplane or a sea vessel, from the time of loss of the
airplane or sea vessel.
(2) If a person joined the armed forces; from the time he is considered
missing in action;
(3) Under other circumstances, from the time of disappearance
Q: Mr. A rode an airplane which crashed. According to eyewitness accounts,
all passengers disintegrated and different parts of the body were scattered
around the site. Nobody, however, could identify the body of Mr. A nor of any
other passenger. Is this a case of presumptive death under extraordinary
circumstances?
NO. This is a case of ACTUAL DEATH and no presumption is needed to
establish the death of Mr. A. As long as there is evidence that a plane crashed
and that the missing person is inside the plane, there is no need to presume that
he is dead for this is a case
of actual death. However, the airplane disappears and one cannot find traces of
Mr. As body nor of the airplane and nobody knows what happened to the
airplane or Mr. A then this is a case of presumptive death.
Court declaration
Ordinary absence
Extraordinary absence
New Civil Code

For all purposes other
than marriage
Not necessary
7 years
Except: 1. Succession
10
years
2. 75 yrs old 5
years
4 years
Family Code
Only for purposes of
remarriage
Must file an action to
declare a person
presumably dead
4 years
2 years
NOTE: Until the third stage there is still an uncertainty on whether or not the
person is alive or dead. If proof of death appears then one need even resort to
the rules on presumption of death.
ARTICLE 392.
If the absentee appears, or without appearing his existence
is proved, he shall recover his property in the condition in which it may be
found, and the price of any property that may have been alienated or the
property acquired therewith; but he cannot claim either fruits or rents. (194)
FC: ARTICLE 41. A marriage contracted by any person during the subsistence
of a previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-founded belief that the
absent spouse was already dead. In case of disappearance where there is
danger of death under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse. (83a)
Q: What happens if the absentee reappears?
If the absentee reappears personally or through his agent during the 2nd stage
i.e., after he has been judicially declared absent and after an administrator has
been appointed, then the administration, will cease and the absentee will
87

recover his property from the administrator in the condition in which it may be
found.
If there has been dispositions with court approval, the he can recover the
properties disposed of from whoever is the present possessor. If the properties
were sold and the price is still there then he is entitled to the price. However,
the persons who have acquired properties from the administrator are not
entitled to pay interest nor damages and is not required to return the fruits
acquired from the moment they had possession over the property until the time
they have to return it because they are considered possessors in good faith. But
they must return the property with the right of action to recover whatever they
have paid from the administrator.
If there is already a presumption of death, the absentee still has the right to
recover back his properties from the persons who have acquired such
properties. This is because succession has not really taken place. However,
extraordinary prescription,(must be extraordinary prescription in view of the
absence of just title) may prevent recovery. In other words, the heir may have
acquired the property not by succession but by prescription.
In death is proven, however, then the administration of the absentees asset will
have to be converted into an administration of the estate of a deceased person.
Administration will continue until such time that it can be partitioned to the
heirs, or the State if there are no heirs.
ARTICLE 395.
The provisions of the preceding article are understood to be
without prejudice to the action of petition for inheritance or other rights
which are vested in the absentee, his representatives or successors-in-interest.
These rights shall not be extinguished save by lapse of time fixed for
prescription. In the record that is made in the Registry of the real estate which
accrues to the coheirs, the circumstance of its being subject to the provisions
of this article shall be stated. (197)
ARTICLE 396.
Those who may have entered upon the inheritance shall
appropriate the fruits received in good faith so long as the absentee does not
appear, or while his representatives or successors-in-interest do not bring the
proper actions. (198)
In sum:
Stages of
Absence
1. Provisional
Absence
ARTICLE 393.
Whoever claims a right pertaining to a person whose
existence is not recognized must prove that he was living at the time his
existence was necessary in order to acquire said right. (195)
When to file
From the time of
disappearance to
two year
Any interested
person
After three months

from the time of
disappearance
Spouse
Spouse
Spouse
Q: X was presumed dead in 1957. Y seeks to claim certain properties from the
administrator under the pretext that he has acquired said lands from X. What
must Y do so that his claim will be recognized?
Y must prove that X was still alive when he bought it after X has been presumed
dead) or that he bought such properties before X was presumed dead. Thus, Y
must prove that X was alive on 1958 when he bought such property or that he
bought such property on 1945 when X was still alive. Otherwise, it will be part
of the estate of the deceased if there is proof that the absentee has died or the
estate subject to administration if there is no proof of death.
ARTICLE 394.
Without prejudice to the provision of the preceding article,
upon the opening of a succession to which an absentee is called, his share
shall accrue to his coheirs, unless he has heirs, assigns, or a representative.
They shall all, as the case may be, make an inventory of the property. (196a)
Who may file
Stages of
Absence
2. Declaration of
Absence
When to file
1. Without
AdministratorTwo years from
the time of
disappearance
2. With
Remedy
Appointment of
representative as a
provisional
measure (spouse
shall be preferred)
Receivership
(Art. 128, FC)
Judicial Separation
of Property (Art
128, FC)
Authority to be
sole administrator
of then conjugal
partnership
property (Art 128,
FC)
Who may file
Remedy
1. The spouse
2. Voluntary
heirs
3. Intestate heirs
4. Those who
may have over
Declaration of
Absence and
Appointment of
Administrator
(Spouse shall be
preferred, Art 387
88

Administrator
Five years from
the time of
disappearance
Stages of
Absence
3. Presumption
of Death
When to file
Ordinary
Absence:
-7 years
-4 years for
purposes of
remarriage
Exception:
1. Succession - 10
Years
2. 75 years of age
- 5 years
the property of
the absentee
some right
subordinated to
the condition of
the absentees
death
Who may file

spouse
NCC) but only

under the ff. cases:
(1)
when the
absentee has
properties which
have to be taken
cared of or
administered by a
representative
appointed by the
Court (Art. 384
NCC);
(2)
When
the spouse of the
absentee is asking
for separation of
property (Art 135,
FC);
(3)
When
the spouse of
the absentee is
asking the
Court that the
administration
of ail classes of
property in the
marriage be
transferred to
her (Art. 142,
FC).
Remedy
Action to declare
a person
presumptively
dead only when
the spouse of the
absentee wants to
remarry (Art 41,
2nd par., FC
Extraordinary
Absence: 4 years
2 years for
purposes of
remarriage
D. Civil Register
ARTICLE 407.
Acts, events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register. (325a)
ARTICLE 408.
The following shall be entered in the civil register:
(1)
Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a
minor; and (16) changes of name. (326a)
Q: What does the civil registry record?
The civil registry records the story of ones life because everything that affects
the civil status of a person is recorded on it. It is the official entry of every
persons
(1) birth;
(2) marriage;
(3) death;
(4) legal separation;
(5) annulment of marriage;
(6) judgments declaring marriage void from the beginning;
(7) legitimation;
(8) adoption;
(9) acknowledgement of natural children
(10) naturalization
(11) loss, or
(12) recovery of citizenship;
(13) civil interdiction
(14) judicial determination of filiation
(15) voluntary emancipation of a minor; and
(16) change of name
Q. What is the probative value of the entries in the Civil Registry?
89

Entries in the Civil Registry are considered as one of the best evidence regarding
the civil status of a person. They are not, however, conclusive because such
entries may be inaccurate, erroneous or fraudulent and the entries may be
corrected or cancelled after sufficient proof submitted.
ARTICLE 409.
In cases of legal separation, adoption, naturalization and
other judicial orders mentioned in the preceding article, it shall be the duty of
the clerk of the court which issued the decree to ascertain whether the same
has been registered, and if this has not been done, to send a copy of said
decree to the civil registry of the city or municipality where the court is
functioning. (n)
ARTICLE 410.
The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be prima
facie evidence of the facts therein contained. (n)
ARTICLE 411.
Every civil registrar shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person suffering
damage thereby. However, the civil registrar may exempt himself from such
liability if he proves that he has taken every reasonable precaution to prevent
the unlawful alteration. (n)
ARTICLE 412.
No entry in a civil register shall be changed or corrected,
without a judicial order. (n)
Q. What is the rule regarding changes or corrections in the entries of the Civil
Registry?
Prior to o1986, the rule has been that the corrections contemplated in Article 412
include only correction of mistakes that are clerical in nature or those harmless
and innocuous changes such as the correction of names clearly misspelled, e.g.
Pidro to Pedro, occupation of parents errors that are visible to the eye or
obvious to the understanding, errors made be a clerk or transcriber, or a mistake
in copying or writing, As such, if the purpose of the petition is merely to correct
the clerical errors which are visible to the eye or obvious to the understanding,
the court may, under a summary procedure, issue an order for the correction of
mistake. In fact, Rule 108 of the Rules of Court was precisely adopted to provide
for such summary procedure. However, changes which may affect the civil
status from legitimate to illegitimate, from married to single, or from Chinese or
Filipino, are substantial and controversial alterations which can only be allowed
after appropriate adversary proceedings were instituted depending on the
nature of the issue involved. For example, if one wants to change his civil status
from illegitimate to legitimate, the proper action is an action to claim legitimacy;
if one wants to change his/her citizenship from Chinese to Filipino, s/he must
first undergo the process of acquiring citizenship. The option is predicated upon
the theory that the procedure contemplated in Article 412 is summary in nature
which does not cover cases involving controversial issues. It has further been
stated that if Rule 108 were extended to cover substantial as well as
controversial changes, it would thereby become unconstitutional, for it is
beyond the scope of our rule-making power to increase or modify substantive
rights.
This rule was changed in the 1986 case of RReeppuubbll!cc vvss.. VVaalleenncc!aa (GR No. L-32181,
March 5, 1986). In VVaalleenncc!aa,, the Supreme Court liberalized the meaning of an
adversarial proceeding. It stated that as long as there is compliance with the
requirements of due process, there has been representation from both sides, and
all the issues have been litigated upon, there has been representation from both
sides, and all the issued have been litigated upon then the proceeding partakes
of the nature of an adversarial proceeding allowing the correction of substantial
errors. Thus, even under Rule 108 of the RoC which has been traditionally
recognized as a summary proceeding, corrections on substantial matters may be
made as long as the requirements were complied with.
Q. What are the requirements of an adversarial proceeding?
(1) presence of opposing parties;
(2) Notice to both parties;
(3) Relevant facts have been fully and properly developed;
(4) Opposing counsel was given an opportunity to demolish the opposite party;s
case (not eexx ppaarrttee)
(5) Evidence has been thoroughly weighed and considered;
(6) Compliance with the publication requirement.
ARTICLE 413.
All other matters pertaining to the registration of civil status
shall be governed by special laws. (n)
Republic v. Labrador
FACTS:
Respondent Gladys C. Labrador filed a Petition for the correction of entries in
the record of birth of Sarah Zita Erasmo, her niece. In her Petition, respondent
alleged that her sister, who is presently residing in the US, had a common law
relationship with a certain Degoberto Erasmo, and during such cohabitation,
her sister begot 2 illegitimate children, one of which is SARAH ZITA B.
ERASMO. During the registration of the birth of SARAH ZITA, her sister told
the respondent Local Civil Registrar that she was not legally married to the
father of SARAH ZITA but the respondent erroneously entered the name of
Sarah Zita in her birth record as SARAH ZITA C. ERASMO, instead of
SARAH ZITA CAON and the name of petitioner's sister, being the mother,
was also erroneously written by the herein respondent as Rosemarie Caon,
90

instead of Maria Rosario Caon. The trial court granted Respondent
Labrador's Petition.
ISSUE: WON a change in the record of birth in a civil registry, from
"legitimate" to "illegitimate" may be granted in a summary proceeding under
Rule 108
HELD: Such change may not be granted in a summary proceeding under Rule
108.
1. An adversarial proceeding is essential in order to fully thresh out the
allegations in respondent's petition.
A petition for a substantial correction or change of entries in the civil registry
should have as respondents the civil registrar, as well as all other person who
have or claim to have any interest that would be affected thereby. It further
mandates that a full hearing or adversarial proceeding be conducted.
The changes sought by Respondent Labrador were substantial: (1) change of
name from "Sarah Zita Erasmo" to "Sarah Zita Caon," thereby transforming
the filiation of the child from legitimate to illegitimate; (2) change of name of
the mother from "Rosemarie" to "Maria Rosario." Sarah Zita and her
purported parents should have been parties to the proceeding. It would affect
her legitimacy, as well as her successional and other rights. The change may
also embarrass her because of the social stigma of illegitimacy. The rights of
her parents over her and over each other would also be affected. A change of
name would affect not only the mother but possibly creditors, if any.
2. The evidence presented by the respondent was not enough to fully
substantiate her claim that Sarah Zita was illegitimate.
Her evidence consisted mainly of her testimony and a certification from the
civil registry of Cebu City that such office had no record of a marriage
between Rosemarie/Maria Rosario Caon and Degoberto Erasmo.
Respondent Labrador was not able to prove the allegations in her petition.
Respondent correctly cites Article 176 of the Family Code, which states that
"illegitimate children shall use the surname[s] . . . of their mothers." But to
enforce such provision, the proper recourse is an adversarial contest.
Lee v. CA
FACTS:
Lee Tek Sheng (LEE) had 2 sets of kids. He married Keh Shiok Cheng (KEH)
in China. Out this marriage were born 11 kids (Kehs kids).
Lee, facilitated the arrival in the Philippines from China of a young girl
named Tiu Chuan (TIU). She was introduced as their new housemaid but far
from becoming their housemaid, she became Lee's mistress. As a result of
their illicit relations, Tiu Chuan gave birth to 8 kids (Tius kids). Every time
Tiu gave birth, Lee falsified the entries in their records of birth by making it
appear that their mother was Keh.
After Keh died, Lee insisted that the names of all his children, including those
of Tius, be included in the obituary notice of Kehs death that was to be
published in the newspapers. This seemingly irrational act piqued Kehs kids
curiosity.
Through an NBI investigation, Kehs kids found out that Lee made it appear
that the birth mother of Tius kids was Keh. The NBI investigation gave
mention to different factors which made it impossible for Tius kids to have
been born to Keh. Instances such as the variance of age between the Keh and
Tiu as per medical report ( as in the case of Marcelo who was the supposed
12th kid of Keh but as per medical report the birth mother was on only 17
and gave birth for the first time, the NBI said that Keh was already 38!) was
presented.
Kehs kids filed a petition, invoking Art. 412CC and Rule 108 on the
cancellation or correction of entries in the civil registry petitioned the court to
reflect the true mother of the parties in the registry.
Tius kids opposed the petition saying that Art. 412 only considers mere
clerical errors, prescription and that the court did not have jurisdiction. They
also raised the defense of jurisprudence supporting their theory of the
operation of article 412 (as held in the Ty Kong Tin doctrine limiting its
operation to summary proceedings and clerical errors).
ISSUES
1. WON the proceedings taken in the petition for cancellation and/or correction
of entries in the records of birth of Tius kids in the lower courts are
appropriate adversary proceedings
2. WON article 412 is merely limited to corrections of clerical errors
HELD:
1. Yes, the proceedings were appropriate.
A petition was filed by Kehs kids and pursuant to the order of the RTCManila, a copy of the order setting the case for hearing was ordered published
once a week for 3 consecutive weeks in a newspaper of general circulation in
the Philippines. In the RTC-Kalookan, there was an actual publication of the
order setting the case for hearing in "Media Update" once a week for 3
consecutive weeks. In both cases notices of the orders were ordered served
upon the Solicitor General, the Civil Registrars of Manila and Kalookan and
upon Tius kids. Both orders set the case for hearing and directed the Civil
Registrars and the other respondents in the case below to file their
oppositions to the said petitions. A motion to dismiss was consequently filed
by Tius kids. Thus the petition could very well be regarded as that proper
suit or appropriate action.
2.
No, Art. 412 is not limited merely to corrections of clerical errors.
91

Article 412 provides: ""NNoo eennttrryy !nn aa cc!vv!ll rreegg!sstteerr sshhaallll bbee cchhaannggeedd oorr ccoorrrreecctteedd,,
ww!tthhoouutt aa jjuudd!cc!aall oorrddeerr.."" It does not provide for a specific procedure of law to
be followed. As such, it cannot be gleaned therefrom that the procedure
contemplated for obtaining such judicial order is summary in nature.
Article 412 uses both the terms "corrected" and "changed". In its ordinary
sense, to correct means to make or set right"; "to remove the faults or errors
from" while to change means "to replace something with something else of the
same kind or with something that serves as a substitute". The provision
neither qualifies as to the kind of entry to be changed or corrected nor does it
distinguish on the basis of the effect that the correction or change may have.
Hence, it is proper to conclude that all entries in the civil register may be
changed or corrected under Article 412. The entries in the civil register are the
ff:
AArrtt.. 440077.. AAccttss,, eevveennttss aanndd jjuudd!cc!aall ddeeccrreeeess ccoonncceerrnn!nngg tthhee cc!vv!ll ssttaattuuss ooff ppeerrssoonnss sshhaallll bbee rreeccoorrddeedd
!nn tthhee cc!vv!ll rreegg!sstteerr..
AArrtt.. 440088.. TThhee ffoollllooww!nngg sshhaallll bbee eenntteerreedd !nn tthhee cc!vv!ll rreegg!sstteerr::((11)) BB!rrtthhss;; ((22)) mmaarrrr!aaggeess;; ((33)) ddeeaatthhss;; ((44))
lleeggaall sseeppaarraatt!oonnss;; ((55)) aannnnuullmmeennttss ooff mmaarrrr!aaggee;; ((66)) jjuuddggmmeennttss ddeeccllaarr!nngg mmaarrrr!aaggeess vvoo!dd ffrroomm tthhee
bbeegg!nnnn!nngg;; ((77)) lleegg!tt!mmaatt!oonnss;; ((88)) aaddoopptt!oonnss;; ((99)) aacckknnoowwlleeddggmmeennttss ooff nnaattuurraall cchh!llddrreenn;; ((1100))
nnaattuurraall!zzaatt!oonn;; ((1111)) lloossss,, oorr ((1122)) rreeccoovveerryy ooff cc!tt!zzeennsshh!pp;; ((1133)) cc!vv!ll !nntteerrdd!cctt!oonn;; ((1144)) jjuudd!cc!aall
ddeetteerrmm!nnaatt!oonn ooff ff!ll!aatt!oonn;; ((1155)) vvoolluunnttaarryy eemmaanncc!ppaatt!oonn ooff aa mm!nnoorr;; aanndd ((1166)) cchhaannggeess ooff nnaammee..
The specific matters covered by the preceding provisions include not only
status but also nationality. Therefore, the Ty Kong Tin pronouncement that
Article 412 does not contemplate matters that may affect civil status,
nationality or citizenship is erroneous.
RA 9048 substantially amended Article 412 of the New Civil Code, to wit:
SSEECCTTIIOONN 11.. AAuutthhoorr!ttyy ttoo CCoorrrreecctt CClleerr!ccaall oorr TTyyppooggrraapphh!ccaall EErrrroorr aanndd CChhaannggee ooff FF!rrsstt NNaammee oorr
NN!cckknnaammee.. NNoo eennttrryy !nn aa cc!vv!ll rreegg!sstteerr sshhaallll bbee cchhaannggeedd oorr ccoorrrreecctteedd ww!tthhoouutt aa jjuudd!cc!aall oorrddeerr,,
eexxcceepptt ffoorr cclleerr!ccaall oorr ttyyppooggrraapphh!ccaall eerrrroorrss aanndd cchhaannggee ooff ff!rrsstt nnaammee oorr nn!cckknnaammee wwhh!cchh ccaann bbee
ccoorrrreecctteedd oorr cchhaannggeedd bbyy tthhee ccoonncceerrnneedd cc!ttyy oorr mmuunn!cc!ppaall cc!vv!ll rreegg!ssttrraarr oorr ccoonnssuull ggeenneerraall !nn
aaccccoorrddaannccee ww!tthh tthhee pprroovv!ss!oonnss ooff tthh!ss AAcctt aanndd !ttss !mmpplleemmeenntt!nngg rruulleess aanndd rreegguullaatt!oonnss..
Clerical or typographical errors in entries of the civil register are now to be

corrected and changed without need of a judicial order and by the city or
municipal civil registrar or consul general. The obvious effect is to remove
from the ambit of Rule 108 the correction or changing of such errors in entries
of the civil register. Hence, what is left for the scope of operation of Rule 108
are substantial changes and corrections in entries of the civil register. This is
precisely the opposite of what TTyy KKoonngg TT!nn and other cases of its ggeennrree had
said.
Barco v. CA
FACTS:
Private respondent Nadina Maravilla married Francisco Maravilla. Eventually

they opted to live separately, and obtained an ecclesiastical annulment of
marriage issued by the Catholic Diocese of Bacolod City.
Nadina gave birth to a daughter named June Salvacion. Junes birth certificate
listed Francisco Maravilla as the father, and Maravilla as the childs surname.
Despite the notation in Junes birth certificate, Nadina subsequently claimed
that all along, the real father of her child was Armando Gustilo, a former
Congressman with whom she maintained a relationship. At the time of Junes
birth, Gustilo was married to one Consuelo Caraycong, who would later
perish in the MV Don Juan naval accident of 1981. In 1982, Nadina and
Gustilo were married in the United States. This marriage took place two and a
half years before Nadinas marriage to Francisco was alleged to have been
annulled in the Philippines. On 12 March 1985, Nadina apparently was able to
obtain a judicial declaration annulling her marriage to Francisco.
Nadina filed a Petition for Correction of Entries in the Certificate of Birth of
her daughter June. She prayed that the Local Civil Registrar of Makati be
directed to correct the birth certificate of June to the effect that the latters full
name be made June Salvacion C. Gustilo, and that the name of her father be
changed from Francisco Maravilla to Armando Gustilo. Francisco affixed
his signature to the Petition signifying his conformity thereto.
The RTC set the case for hearing and directed that a copy of the order be
published once a week for three consecutive weeks in a newspaper of general
circulation.
Gustilo died. Two estate proceedings arose from his death. Petitioner
Milagros Barco filed in her capacity as the natural guardian and/or guardian
aadd ll!tteemm of her daughter, Mary Joy Ann Gustilo, a Motion for Intervention
with a Complaint-in-Intervention attached thereto. Barco alleged that Mary
Joy had a legal interest in the annulment of the RRTTCC OOrrddeerr as she was likewise
fathered by Gustilo out of a relationship since 1967.
The appellate court held that neither Jose Vicente nor Barco were able to
establish the existence of lack of jurisdiction and extrinsic fraud, the two
grounds that would justify the annulment of a final judgment.
ISSUE: WON the RTC had acquired jurisdiction
HELD:
1. RTC has jurisdiction over Barco and all other indispensable parties to the
petition for correction.
The essential requisite for allowing substantial corrections of entries in the
civil registry is that the true facts be established in an appropriate adversarial
proceeding. This is embodied in Section 3, Rule 108 of the Rules of Court.
Barco is among the parties who have or claim any interest which would be
affected under Section 3 of Rule 108. Her interest was affected by the petition
for correction, as any judicial determination that June was the daughter of
92

Armando would affect her wards share in the estate of her father. It cannot
be established whether Nadina knew of Mary Joys existence at the time she
filed the petition for correction. Indeed, doubt may always be cast as to
whether a petitioner under Rule 108 would know of all the parties whose
interests may be affected by the granting of a petition.
Even though Barco was not impleaded in the petition, the Court of Appeals
correctly pointed out that the defect was cured by compliance with Section 4,
Rule 108, which requires notice by publication once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province. The
purpose precisely of Section 4, Rule 108 is to bind the whole world to the
subsequent judgment on the petition.
2. The Makati RTC had jurisdiction over the subject matter.
Substantial corrections to the civil status of persons recorded in the civil
registry may be effected through the filing of a petition under Rule 108.
3. Barco correctly notes that the RTC erred in directing that the name of
Nadinas daughter be changed from June Salvacion Maravilla to June
Salvacion Gustilo. Following the trial courts determination that Gustilo was
the father of June, but prescinding from the conclusive presumption of
legitimacy for the nonce assuming it could be done, the child would
obviously be illegitimate. The applicable laws mandate that June, as an
illegitimate child, should bear the surname of her mother, and not the father.
Tan Co v. Civil Reg. of Manila
FACTS:
Hubert Tan Co was born on March 23, 1974. His sister, Arlene, was born on
May 19, 1975. In their certificates of birth, it is stated that their parents are
Chinese citizens.
Thereafter, their father filed an application for his naturalization as a citizen of
the Philippines under LOI No. 270. His application was granted and was
conferred Philippine citizenship under PD No. 1055. Thus, on February 15,
1977, Co Boon Peng took oath as a Philippine citizen. In the meantime,
Hubert and Arlene Co finished college and earned their respective degrees.
On August 27, 1998, they filed with the RTC a petition under Rule 108 of the
RC for correction of entries in their certificates of birth.
The Solicitor General asserts that the childrens contention that the
naturalization of their father is an event affecting and concerning their civil
status envisaged in Article 407 of the CC has no basis.
TC: issued an order dismissing the petition on the ground that their father
was conferred Philippine citizenship under PD No. 1055 and not under
Commonwealth Act No. 473. Under said Act, minor children of persons
naturalized who have been born in the Philippines shall be considered
citizens thereof.
ISSUE: WON the petitioners recourse to Rule 108 is appropriate.
HELD:
YES. Under Article 412 of the CC, no entry in a civil register shall be changed
or corrected without a judicial order. The law does not provide for a specific
procedure of law to be followed. But the Court approved Rule 108 of the RC
to provide for a procedure to implement the law. The entries envisaged in
Article 412 of the CC are those provided in Articles 407 and 408 which
includes naturalization.
The acts, events, or factual errors envisaged in Article 407 of CC include even
those that occur after the birth of the petitioner. However, in such cases, the
entries in the certificates of birth will not be corrected or changed. The
decision of the court granting the petition shall be annotated in the certificates
of birth and shall form part of the civil register in the Office of the Local Civil
Registrar.
To correct simply means to make or set right; to remove the faults or error
from. To change means to replace something with something else of the same
kind or with something that serves as a substitute. Article 412 of the CC does
not qualify as to the kind of entry to be changed or corrected or distinguished
on the basis of the effect that the correction or change may be. Such entries
include not only those clerical in nature but also substantial errors. After all,
the role of the Court under Rule 108 of the Rules of Court is to ascertain the
truths about the facts recorded therein.
The proceedings in Rule 108 of the Rules of Court are summary if the entries
in the civil register sought to be corrected are clerical or innocuous in nature.
However, where such entries sought to be corrected or changed are
substantial such as the status and nationality of the petitioners or the
citizenship of their parents, the proceedings are adversarial in nature.
After the hearing, the court shall issue an order either dismissing the
petition or issue an order granting the same. In either case, a certified copy
of the judgment shall be served upon the civil registrar concerned who
shall annotate the same in the certificate of birth of the petitioners. The
judgment of the court shall form part of the records of the local civil
register.
Republic v. Benemerito
FACTS:
Petronio L. Benemerito filed a verified petition asking for the correction of
certain entries in the record of birth of his son, Joven Lee, on file with the
Local Civil Registrar of Nueva Ecija. The entries sought to be corrected
included the date of marriage of the parents, name of the father.
A notice of hearing was issued by the trial court directing that the notice be
published for three consecutive weeks in a newspaper of general circulation.
TC: granted the petition.
The Republic appealed contending that the petition should not have been
granted since indispensable parties themselves were not notified of the
93

proceedings and that substantial changes such as the date of marriage of
parents, name of the father, or filiation of the child and whether legitimate or
illegitimate, could only be threshed out in adversarial proceedings.
CA: affirmed TC.
ISSUE: WON the proceedings before the TC is adversarial despite the failure of
respondent to notify the indispensable parties including the wife of the
respondent or the grandparents of the child.
HELD:
NO. A case does not amount to an adversarial proceeding simply because an
opportunity to contest the petition is afforded by the publication of the
petition in a newspaper of general circulation. The corresponding petition
should also implead as respondents the civil registrar and all other persons
who may have or may claim to have any interest that would be affected
thereby. The proceedings conducted by the TC in this instance fell much too
short of the requirements. Nowhere in the records would it appear that all
possible indispensable parties were duly notified of the proceedings.
The corrections sought to be made by respondent in the birth certificate of
Joven Lee could hardly qualify as just clerical errors. In order to effect the
desired changes, it would be essential to establish that Peter Laurente
Benemerito, the person named as being the father of Joven Lee, and Petronio
L. Benemerito, herein respondent, refer to the same person. The intended
correction of the date of marriage of the parents of Joven Lee from 01
September 1989, appearing in the certificate of birth, to 25 january 1998,
would, in effect, change the status of the child, Joven Lee, born on 01 June
1990 at a time when he and his wife were not as yet legally married, from
being legitimate son to being instead the legitimated child.
The changes in the entry in the Certificate of Live Birth of Joven Lee, which
can possibly affect successional and other rights of persons related to either or
both respondent and his wife, as well as that of Joven Lee himself, are simply
too substantial to be dealt with in summary, instead of the regular adversarial
proceedings, where all interested parties are impleaded, or at least notified,
and allowed to be heard before the proposed changes in the birth certificate
are effected.
PART IV
A. Classification of Property
ARTICLE 414. All things which are or may be the object of appropriation
are considered either:
(1)
Immovable or real property; or
(2)
1.
Movable or personal property. (333)

Immovable Property
ARTICLE 415.
The following are immovable property:
(1)
Land, buildings, roads and constructions of all kinds adhered to the
soil;
(2)
Trees, plants, and growing fruits, while they are attached to the land
or form an integral part of an immovable;
(3)
Everything attached to an immovable in a fixed manner, in such a
way that it cannot be separated therefrom without breaking the material or
deterioration of the object;
(4)
Statues, reliefs, paintings or other objects for use or ornamentation,
placed in buildings or on lands by the owner of the immovable in such a
manner that it reveals the intention to attach them permanently to the
tenements;
(5)
Machinery, receptacles, instruments or implements intended by the
owner of the tenement for an industry or works which may be carried on in a
building or on a piece of land, and which tend directly to meet the needs of
the said industry or works;
(6)
Animal houses, pigeon-houses, beehives, fish ponds or breeding
places of similar nature, in case their owner has placed them or preserves
them with the intention to have them permanently attached to the land, and
forming a permanent part of it; the animals in these places are included;
(7)
Fertilizer actually used on a piece of land;
(8)
Mines, quarries, and slag dumps, while the matter thereof forms part
of the bed, and waters either running or stagnant;
(9)
Docks and structures which, though floating, are intended by their
nature and object to remain at a fixed place on a river, lake, or coast;
(10)
Contracts for public works, and servitudes and other real rights over
immovable property. (334a)
Q: What is property?
The New Civil Code ford not define that property is. It merely classifies
property into immovable and movables and provides for the qualification that
they are things that are or may be the subject of appropriation. A thing is not
property if it is not subject to appropriation. Caguiao would say that things are
considered as such before they are appropriated and become property only
when appropriated. Dean, however, says that things are property if they are
susceptible of appropriation.
Q: Is a dead person property?
No, because of moral reasons. However, the cadaver may be donated to schools
and hospitals for medical or educational purposes. Dead bodies can be donated
94

but they can never be part of commercial transactions (outside the commerce of
man).
Q: Is blood property?
It depends. While it is still in or part of theh body, it is not yet property but once
it is separated from the bode, it becomes property.
Q. Should property always be material?
No. Property can be intangible like the right if usufruct.
Q. Is air property?
As it is, air is not property but if it is placed in an oxygen tank, it becomes
property.
Q. What are real properties? See Art. 415.
Q. What are the four basic classifications of immovable property?
1. immovable by nature
2. immovable by incorporation
3. immovable by destination
4. immovable by analogy
Q. What are immovable by nature?
These include those that cannot be transported per se. Ex. Land (not soil).
Q. What are immovable by incorporation?
The test is whether they are permanently attached to the immovable such that if
you remove them, there is damage to the material or deterioration of the object
of immovable to which they are attached permanent adherence. Ex. Buildings,
These immovable are properties which have no intrinsic value unless they are
on a fixed place. Buildings and other structures permanently adhered to the soil
are immovable by incorporation. Flyovers, roads, etc. are immovable by nature
traditionally, but modern technology may make them immovable by
incorporation.
These include #s 1,2,3,4,6 and 7 of Art 415.
Q. Is ownership as issue in immovable by incorporation such that which is
attached must have the same owner as that to which it is attached?
No. Ownership is immaterial. The case of Prudential Bank exemplifies this
doctrine.
Prudential Bank v. Panis
FACTS:
Sps. Magcale secured a loan from Prudential Bank and executed a Real Estate
Mortgage over a residential building with a warehouse. Another loan was
made with another REM on the same properties.
The land on which the property stands was later the subject of Miscellaneous
sales Patent issued by the Secretary of Agriculture, meaning it was not yet
owned by Sps. Magcale when they constituted the REM on the building.
Sps. Magcale failed to pay their obligations thus, the mortgaged property was
foreclosed.
TC: the deeds of REM were null and void.
ISSUE: WON a valid REM can be constituted on the building erected on the
land belonging to another
HELD:
YES. In the enumeration of properties under Article 415 of the CC, it is
obvious that the inclusion of building separate and distinct from the land, in
said provision of law can only mean that a building is by itself an immovable
property.
Thus, while it is true that a mortgage of land necessarily includes, in the
absence of stipulation of the improvements apart from the land on which it
has been built. Such a mortgage would be still a REM for the building would
still be considered immovable property even if dealt with separately and
apart from the land. In the same manner, the SC also established that
possessory rights over said properties before title is vested on the grantee
may be validly transferred or conveyed as in a deed of mortgage.
As to the first mortgage, the execution was valid because such was made on
the building owned by Sps. Macale when the land still belongs to the
government. Said mortgage was executed before the issuance of the final
patent and before the government was divested of its title to the land.
However, the second mortgage executed after the issuance of the sales patent
is void since it violates the requirements of the Public Land Act that the land
would not be encumbered within a certain period of time.
Q. What is the rule with respect to the machinery?
By their nature, they are movable property. They are immovable of they are
attached to some immovable with permanency. (test of incorporation). This
would fall under #1 and 3 of Art 415 that may be permanently adhered to the
soil or another immovable property. However, they may also fall under #5
where they will be considered immovable if:
(1) they are intended by the owner of the tenement (or the building) for an
industry of works;
(2) which may be carried on in a building or on a piece of land;
(3) tend directly to meet the needs of the said industry or works.
95

Yap v. Taada
FACTS:
Goulds Pumps Intl filed a complaint against the Yap spouses for the recovery
of an amount representing the balance of the price and installation costs of a
water pump.
The City court favored Golds Pump. Thus, Yap appealed but failed to appear
at the pre-trial.
The sheriff levied upon the pump.
Yap argues that the sale was made without the notice requirement (section 18
of Rule 39 of the Rules of Court) notice by publication in case of execution
sale of real property, the pump and its accessories being immovable because it
is attached to the ground with the character of permanency.
ISSUE: WON the pump is immovable
HELD:
NO. The CC considers as immovable property, among others, anything
attached to an immovable in a fixed manner, in such a way that it cannot be
separated therefrom without breaking the material or deterioration of the
object. The pump does not fit this description. It could be, and was in fact
separated from Yaps premises without being broken or suffering
deterioration. Obviously the separation or removal of the pump involved
nothing more complicated than the loosening of bolts or dismantling of other
fasteners.
Note: in some houses, the water pump may not be easily removable thus taking
on the nature of an immovable by virtue of #3 of Art. 415. Some are even
cemented to the soil in order to avoid loss by robbery or theft,
5. Machinery, receptacles, instruments or implements intended by the
owner of the tenement for an industry or works which may be carried on
in a building or on a piece of land, and which tend directly to meet the
needs of the said industry or works;
4. Statues, reliefs, paintings or other objects for use or ornamentation,
placed in buildings or on lands by the owner of the immovable in such a
manner that it reveals the intention to attach them permanently to the
tenements.
Q. What are the requisites under this paragraph?
1. for use or ornamentation
2. placed on the building or on the land
3. placed by the owner of the immovable (principal)
4. owner intended to attach them permanently to the tenement
5. ownership of the statue is immaterial
Q. Does ornamentation include plants? Yes, but plants are potted, they are
movables.
Q: Does this include wall-to-wall carpeting? Yes, this is considered an
immovable because of the owner of the buildings intent to place it permanently
on the floor.
6.
Animal houses, pigeon-houses, beehives fish ponds or breeding

places of similar nature in case their owner has placed them or
preserves them with the intention to have them permanently
attached to the land and forming a permanent part of it, the animals
in these places are included.
the animals are considered immovable also except it they are sold
where they become personal property. However, if the animal house is
sold together with the animals, this would involve a sale of real
property. If the animals are temporarily outside of their houses, they
are still considered real property if the intention of returning to their
respective animal houses (pigeons).
7.
Fertilizer still in the barn or even those already on the ground but
still wrapped in some newspaper pr any other covering is still
considered personal property. They have not yet been actually used
or spread over the land.
9.
Docks, structures which, though floating, are intended by their

nature and object to remain a fixed place jn a river, lake or coast;
Q: Under#5 of Art 415, the test is not permanent adherence. What is the test?
The test is destination or use of the machine that has to be placed there by the
owner. Here the machine becomes immovable by reason of destination,
Q. Give Examples of machines that would be considered immovable.
1. Machine of breweries used in the manufacture of liquor and soft
drinks, although movable by nature, are immobilized because they are
essential to the said industries
2. sewing machines of garment factories
3. computers of a software company, exclusion computers as
merchandise, or computers at the office of the law school
4. chairs and tables in the law school
5. kitchen appliances in the restaurant
6. cash registers, typewriters, etc., usually found and used in hotels,
restaurants, theatres, etc. are merely incidentals and should not be
96

7.
considered immobilized by destination since said business may run

without the mentioned equipment.
machines in a repair shop of a transportation business because a
transportation business is carried outside the tenement
According to the case of Board of Assessment Appeals, QC vs.
Meralco, (10 SCRA 68) the steel towers or poles of Meralco are
considered PERSONAL property since:
1.
2.
3.
they do not come under par. 1 of Art. 415 because they are
neither buildings or constructions adhered to the soil.
Also, they do not come under par. 3 because they are not
attached to an immovable in a fixed manner, that is, they can
be separated without breaking the material or causing
deterioration of the object to which they are attached.
Furthermore, they do not come under par. 5 because they are
not machineries, receptacles, or instruments. But even if they
are, they are not intended for an industry to be carried on in
the tenement of the owner.
Q: What is an immovable by reason of destination?

They are immovables by reason of intent of the owner. Ex. Industrial sewing
machines that are cemented to the ground. These are properties which by their
nature are not immovables but are placed on something permanent and became
immovable by reason of the intention of the owner to use them permanently.
Here ownership is relevant.
Ex. #4, #5, #6. Animals included in #6 are considered as immovables!
Q: In a school, what are the immovables by destination?
The tables and desks that are attached to the floor, and the blackboards. (note
that this is based on intent and use)
Q: Are floating restaurants and floating casinos immovables?
No. It moves around. However, if it floats in a stationary place and is intended
not to move, they are considered as immovables. Cruises along Manila Bay are
movable.
Makati Leasing & Finance Corp. v. Wearever Textile Mills, Inc.
FACTS:
In order to obtain financial accomodations from Makati Leasing, Wearever
Textile Mills, Inc. discounted and assigned several receivables witht he former
under a Receivable Purchase Agreement. To secure the collection of the
receivables assigned, Wearever executed a Chattel Mortgage over certain raw
materials inventory as well as a machinery described as an Artos Aero Dryer

Stentering Range.
Due Wearevers default, Makati Leasing filed a petition for extrajudicial
foreclosure of the properties mortgaged to it. However, the Deputy Sheriff
assigned to implement the foreclosure failed to gain entry into Wearevers
premises and was not able to effect the seizure of the machinery. Thereafter,
Makati leasing filed a complaint for judicial foreclosure with the CFI.
Acting on Makati Leasings application for replevin, the TC issued a writ of
seizure, the enforcement of which was however subsequently restrained upon
Wearevers filing of MR. After several incidents, the TC finally issued an
order lifting the restraining order for the enforcement of the writ of seizure
and an order to break open the premises of Wearever Textile.
On July 13, 1981, the sheriff enforcing the seizure order, repaired to the
premises of private respondent and removed the main drive motor of the
subject machinery.
CA: set aside the orders of the TC on the ground that the machinery in suit
cannot be the subject of replevin, much less of a chattel mortgage, because it is
a reap property pursuant to Article 415 of the new CC, the same being
attached to the ground by means of bolts and the only way to remove it from
Wearevers plant would be to drill out or destroy the concrete floor. CA
rejected Makati Leasings argument that Wearever is estopped from claiming
that the machine is real property by constituting a chattel mortgage thereon.
ISSUE: WON the machinery is real or personal property from the point of view
of the parties
HELD:
The machinery is personal property. Where a chattel mortgage is constituted
on machinery permanently attached to the ground the machinery is to be
considered as personal property and the chattel mortgage constituted thereon
is not null and void, regardless of who owns the land.
The characterization of the subject machinery as chattel by Wearever is
indicative of the intention and impresses upon the property the character
determined by the parties. It is undeniable that the parties to a contract may
by agreement treat as personal property that which by nature would be real
property, as long as no interest of third parties would be prejudiced thereby.
Furthermore, the status of the subject machinery as movabe or immovable
was never placed in issue before the lower court and the CA except in a
supplemental memorandum in support of the petition filed in the appellate
court. Even granting that the charge is true, such fact alone does not render a
contract void ab initio but can only be a ground for rendering said contract
voidable, or annullable pursuant to Article 1390 of the new CC, by proper
action in court.
97

If a house of strong materials, like what was involved in the above Tumalad
case, may be considered as personal property for purposes of executing a chattel
mortgage thereon as long as the parties to the contract so agree and no innocent
third party will be prejudiced thereby, there is absolutely no reason why a
machinery, which is movable in its nature and becomes immobilized only by
destination or purpose, may not be likewise treated as such. This is really
because one who has so agreed is estopped from denying the existence of the
chattel mortgage.
It must be pointed out that the characterization of the subject machinery as
chattel by the private respondent is indicative of intention and impresses upon
the property the character determined by the parties. As stated in Standard Oil
Co. of New York vs. Jaramillo, 44 Phil. 630, it is undeniable that the parties to a
contract may by agreement treat as personal property that which by nature
would be real property, as long as no interest of third parties would be
prejudiced thereby.
DEANs notes: This case involved machinery permanently commented to the
ground. The owner of the machinery is not the owner of the building. The
owner of the machine is a mere lessee. The property (machine) is in fact
immovable because of permanent adherence (by incorporation) despite different
owners. Applying #1 of Art. 415, the ownership issue is totally IRRELEVANT.
Issue of ownership comes only if you start using #5 of Art. 415. Here, it must be
the owner who places the machinery in the building or land. Also remember the
case of TTuummaallaadd vv.. VV!cceenncc!oo where the principle of estoppel is applied.
2. Trees, plants, and growing fruits, while they are attached to the land or
form an integral part of an immovable;
They cease to be immovables when you cut or gather them (i.e. logs). For as
long as they are still standing on the ground, they are considered as immovables
by incorporation. Growing crops are considered as movables under the Chattel
Mortgage Law. For purposes of the Chattel Mortgage Law, and only for that
purpose, growing crops are chattels. In all other cases, if growing crops are still
adhered to the soil, they are considered immovables.
8. Mines, quarries and slag dumps, while the matter thereof forms part of the
bed and waters either running or stagnant.
Once they are removed from the land and soil, they become movables. If still
part of the ground, they are considered immovables.
Slag dumps are the dirt and the soil taken from a mine and piled upon the
surface of the ground. Inside the dump can be found the minerals.
The waters referred to are those still attached to or running through the soil or
ground. But water itself as distinguished from waters is clearly personal
property. On the other hand, canals, rivers, lakes, and such part of the sea as
may be the object of appropriation, are classified as real property.
Q: What are immovables by analogy?
This is the catch-all provision.
This refers to #10 of Art 415 Contracts for public works and servitudes and
other real rights over immovable property. These are the properties that cannot
fall under the other three classifications.
2.
Movable Property
ARTICLE 416.
The following things are deemed to be personal property:
(1)
Those movables susceptible of appropriation which are not included
in the preceding article;
(2)
Real property which by any special provision of law is considered as
personalty;
(3)
Forces of nature which are brought under control by science; and
(4)
In general, all things which can be transported from place to place
without impairment of the real property to which they are fixed. (335a)
ARTICLE 417.
The following are also considered as personal property:
(1)
Obligations and actions which have for their object movables or
demandable sums; and
(2)
Shares of stock of agricultural, commercial and industrial entities,
although they may have real estate. (336a)
ARTICLE 418.
Movable property is either consumable or nonconsumable.
To the first class belong those movables which cannot be used in a manner
appropriate to their nature without their being consumed; to the second class
belong all the others. (337)
Q: What are movables?
Those not found under the list in Art. 415 are movable properties
Q: What are classifications of movable property on the basis of physical
dimension?
1.) Tangible Movables
2.) Intangible Movables
Q: What are the tests to determine if the properties are movables?
1.) Test of Exclusion ---if not found under Art. 415
98

2.) By reason of Special Law --- Movables, but by nature immovables, only
for the purpose of the special law. (i.e. growing crops)
3.) Forces of Nature
4.) Test of Mobility
((NNOOTTEE:: tthhoossee ww!tthh cchheecckk mmaarrkkss aarree tthhee mmoosstt !mmppoorrttaanntt tteessttss))
Q: What are movables by reason of analogy?
These are those enumerated by Art. 417. Shares of stock are generally
considered as movables. The nature of business of the corporation is not
anymore relevant. Securities are also considered as movables. Even if the
corporation is a realty company, the shares issued by said corporation are
considered as movables.
According to the handwritten note, contracts are also movables
((NNOOTTEE:: TThheerree aarree nnoo mmoovvaabblleess bbyy rreeaassoonn ooff !nnccoorrppoorraatt!oonn oorr ddeesstt!nnaatt!oonn))
Q: How is property classified according to intent or purpose?
1.) Fungibles
2.) Non-fungibles
Q: How is property classified according to nature?
1.) consumables
2.) nonconsummables
Q: What are fungibles and non-fungibles?
Quality of being fungible depends upon the possibility, because of their nature
or the will of the parties, of being substituted by others of the same kind, not
having a distinct individuality. These are generally the things whose
individuality can be determined by counting, weighing, or measuring. Ex. Ten
heads of cattle, 100 copies of a newspaper of a certain date. Money is fungible.
Non-fungibles are those which have their own individuality and do not admit
of substitution.
Ex. Joyces glasses, Alexs tattoo, Felixs cat etc
Q: Distinguish between Consumables and Fungibles
A classification of things into fungibles and non-fungibles is a classification
according to intent /purpose, depending on whether they can be substituted by
other things of the same kind, quality and quantity. The classification into
consumables or non-consumables is according to the nature of things.
According to the handwritten notes:

1.) consumables cannot be changed by agreement
of parties (not based on intent)
2.) moreover, classification of consumables and
fungibles can only apply to movables
3.) Civil Code uses these 2 interchangeably.
Q: What if you are somebodys partner and, in your business of selling cars, the
partnership bought a garage and a display store. Is your participation (share) in
that partnership real or personal property?
Personal. All shares in all juridical persons should be considered personal
property for there is no reason in discriminating between shares in a
corporation and shares in other juridical persons like a partnership.
Q: If instead of a partnership, you and your friend are co-owners of the
building. What then is your interest in that building? Real.
Q: Why is it that in a partnership, your interest is personal while in a coownership your interest is real?
It is so because the partnership is interposed between partners and the building,
while in a co-ownership, both are actually owners, hence their interests are real.
3.
According to Ownership
Art. 419. Property is either of public dominion or of private ownership. (338)

Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals, rivers, torrents, ports
and bridges constructed by the State, banks, shores, roadsteads, and others of
similar character;
(2) Those which belong to the State, without being for public use, and are
intended for some public service or for the development of the national
wealth. (339a)
Art. 421. All other property of the State, which is not of the character stated in
the preceding article, is patrimonial property. (340a)
Art. 422. Property of public dominion, when no longer intended for public
use or for public service, shall form part of the patrimonial property of the
State. (341a)
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Art. 423. The property of provinces, cities, and municipalities is divided into
property for public use and patrimonial property. (343)
1.) properties for public use these are the properties available to anyone
indiscriminately. (ex. Roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores and other similar character like
public streams, natural beds of rivers, river channels, waters of rivers,
creeks.)
Art. 424. Property for public use, in the provinces, cities, and municipalities,
consist of the provincial roads, city streets, municipal streets, the squares,
fountains, public waters, promenades, and public works for public service
paid for by said provinces, cities, or municipalities.
These may not be sold or leased out. They are not available for disposition.
Toll, which is exactly for road use, is not payment of rent/lease but
payment for road maintenance. No one can be excluded from use of
public road, unlike in the case wherein the road is leased.
All other property possessed by any of them is patrimonial and shall be

governed by this Code, without prejudice to the provisions of special laws.
(344a)
2.) Properties for public service these are properties used to render
service and not accessible to just about anyone, but only to those so
authorized by law.
Art. 425. Property of private ownership, besides the patrimonial property of

the State, provinces, cities, and municipalities, consists of all property
belonging to private persons, either individually or collectively. (345a)
3.) Patrimonial property of the State properties owned by the State in

their patrimonial character, used for business, etc. This classification
gives way with regard to lands of the public domain.
PROVISIONS COMMON TO THE THREE PRECEDING CHAPTERS

Art. 426. Whenever by provision of the law, or an individual declaration, the
expression "immovable things or property," or "movable things or property," is
used, it shall be deemed to include, respectively, the things enumerated in
Chapter 1 and Chapter 2.
Whenever the word "muebles," or "furniture," is used alone, it shall not be
deemed to include money, credits, commercial securities, stocks and bonds,
jewelry, scientific or artistic collections, books, medals, arms, clothing, horses
or carriages and their accessories, grains, liquids and merchandise, or other
things which do not have as their principal object the furnishing or
ornamenting of a building, except where from the context of the law, or the
individual declaration, the contrary clearly appears. (346a)
Q: How would you classify property according to ownership?
Property of public dominion and property of private ownership
a.
Public Dominion
Q: What are the properties of public dominion?

In a sense, public dominion means ownership by the State in that the state has
control and administration. In another sense, public dominion means ownership
by the public in general in that not even the state or its subdivision may make
them the object of commerce as long as they remain properties for public use.
They are:
Q: What are lands of the public dominion1?

These are the same as lands of public domain under the Constitution. These are
owned by the government.
Villanueva v. Castaeda
FACTS:
This case involves the strip of land in the vicinity of the public market of San
Fernando, Pampanga on which stands a conglomeration of vendors stalls
together forming what is commonly known as a talipapa wherein the
petitioners claim they have a right to remain in and conduct business in this
area by virtue of a previous authorization granted to them by the municipal
government.
The dispute goes back to 11/0/61, when the municipal council of San
Fernando adopted Resolution No. 218 authorizing some 24 members of the
Fernandino United Merchants and Traders Association to construct
permanent stalls and sell in the said place.
The action was protested on 11/10/61, in Civil Case No. 2040, where the CFI
issued a writ of preliminary injunction that prevented the defendants from
constructing the said stalls until final disposition of the controversy.
On 01/18/64, while the case was pending, the municipal council of San
Fernando adopted Resolution No. 29 which declared the subject area as the
parking place and as the public plaza of the municipality, thereby impliedly
1
According to the handwritten note, its the same as public domain.
100

revoking Resolution No. 218. Four years later, the CFI decided the case and
held that the land occupied by the petitioners, being public in nature, was
beyond the commerce of man and therefore could not be the subject of private
occupancy. However, the decision was apparently not enforced.
After an investigation conducted by the municipal attorney, the office of the
mayor issued a resolution requiring the municipal treasurer and the
municipal engineer to demolish the stalls in the subject place.
The basic contention of the petitioners is that the disputed area is under lease
to them by virtue of contracts they had entered into with the municipal
government, insofar as the original occupants were concerned, and later with
them and the other petitioners by virtue of the space allocations made in their
favor in 1971 for which they saw they are paying daily fees.
Issue: WON the talipapa is public property
HELD:
YES. There is no question that the place occupied by the petitioners and from
which they are sought to be evicted is a public plaza as found by the trial
court in the Civil Case 2040. A public plaza is beyond the commerce of man
and so cannot be subject of lease or any other contractual undertaking.
The petitioners had no right in the first place to occupy the disputed premises
and cannot insist in remaining there now on the strength of their alleged lease
contracts. They should have realized and accepted this earlier, considering
that even before the said case was decided, the municipal council of San
Fernando had already adopted Resolution No. 29, declaring the area as the
parking place and public plaza of the municipality.
Even assuming a valid lease of the property in dispute, the resolution could
have effectively terminated the agreement for it is settled that the police
power cannot be surrendered or bargained away through the medium of a
contract. In fact, every contract affecting the public interest suffers a
congenital infirmity in that it contains an implied reservation of the police
power as postulate of the existing legal order. This power can be activated at
any time to change the provisions of the contract, or even abrogate it entirely,
for the promotion or protection of the general welfare. Such an act will not
militate against the impairment clause, which is subject to and limited by the
paramount police power.
Maneclang v. IAC
Facts:
Petitioners Maneclang filed a case for quieting of title over an alleged
fishpond.
TC: dismissed the complaint upon a finding that the body of water traversing
the titled properties of plaintiffs where the fishpond is located is a creek
constituting a tributary of the Agno River, therefore public in nature and not
subject to private appropriation.
It is the contention of the petitioners that after the National Irrigation

Administration had built the dike around the land, no water gets in or out of
the land hence, the said portion should be owned by them.
During the pendency of the appeal, a Compromise Agreement was entered
into by the petitioner and Alfredo Maza, the awardee in the public bidding of
the said fishpond.
ISSUE: WON the body of water subject of this suit is public dominion
HELD:
YES. A creek, defined as a recess or arm extending from a river and
participating in the ebb and flow of the sea, is a property belonging to the
public domain which is not susceptible to private appropriation and
acquisitive prescription, and as a public water, it cannot be registered under
the Torrens System in the name of any individual and considering further
that neither the mere construction of irrigation dikes by the National
Irrigation Administration which prevented the water from flowing in and out
of the subject fishpond, nor its conversion into a fishpond, alter or change the
nature of the creek as a property of he public domain, the Court finds that the
Compromise Agreement null and void and of no legal effect, the same being
contrary to law and public policy.
Q: What are patrimonial properties of the state?
Article 421 provides a description. It says that all other property of the State not
of the character for public use or service are patrimonial in nature. When
property of public dominion is no longer intended for public use or service, it
shall become patrimonial property. It is wealth owned by the State in its private,
as distinguished from public, capacity.
Q: Do LGUs follow the same classification as lands of the public domain and
patrimonial property?
Under the NCC, all properties of LGUs are either patrimonial or property for
public use (see Art. 423 424). Under the LGC and the Constitution, however,
the classification of property to public dominion and patrimonial properties
exist. We follow the latter since the LGC is a special law and the Constitution is
the supreme law of the land.
b.
Private Ownership
Q: What are properties of private ownership?

Article 425 provides that property of private ownership, besides the patrimonial
property of the State, province, sities and municipalities (and now barangays),
consists of all property belonging to private persons, either individually or
collectively.
101

Director of Lands v. MERALCO
FACTS:
Meralco filed an amended application for registration of a parcel of land in
Taguig. On August 17, 1976, applicant acquired the land applied for
registration by purchase from Ricardo Natividad who in turn acquired the
same from his father Gregorio Natividad as evidenced by a Deed of Original
Absolute Sale executed on December 28, 1970. Applicants predecessors-ininterest have possessed the property under the concept of an owner for more
than 30 years. The property was declared for taxation purposes under the
name of the applicant and the taxes due thereon have been paid.
TC: ordered the registration of the property; thus, the Director of Lands
interposed this petition raising the issue of registration of land by a
corporation
ISSUE: WON a corporation may indeed register alienable land of the public
domain in its name
HELD:
YES. In Acme decision, the court upheld the doctrine that open, exclusive,
and undisputed possession of alienable public land for the period prescribed
by law creates the legal fiction whereby the land, upon completion of the
requisite period ipso jure and without the need of judicial or other sanction,
ceases to be public land and becomes private property.
The confirmation proceedings such as in this case would in truth be little
more than a formality, at the most limited to ascertaining whether the
possession claimed is of the required character and length of time; and
registration thereunder would not confer title, but simply recognize a title
already vested. The proceedings would not originally convert the land from
public to private land, but only confirm such a conversion already affected
from the moment the required period of possession became complete.
In this case, if the land was already private at the time Meralco bought it from
Natividad, then the prohibition in the 1973 Constitution against corporations
holding alienable lands of the public domain except by lease does not apply.
B.
Ownership
ARTICLE 427.
Ownership may be exercised over things or rights. (n)
Q: Define Ownership.
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 restriction except those imposed by the state or private persons, without
prejudice to the provisions of law.
Q: What may be the subject of ownership?
Only properties may be the subject of ownership.

Ownership refers to either RIGHTS or THINGS. Rights and things are
considered as properties as long as they can be appropriated.
Q: Can persons be owned?
NO. One cannot own a person because persons are not considered properties.
Q: What are the different kinds of ownership?
1. Full Ownership (dominium or jus in re propria) this includes all the
rights of an owner.
2. Naked Ownership (nuda proprietas) this excludes the right to use the
property and to appropriate the fruits thereof.
3. Sole Ownership where the ownership is vested in only one person
4. Co-Ownership or tenancy in common when the ownership is vested
in two or more persons.
1.
Rights of Ownership/Limitations
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. (348a)
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. (n)
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. (388)
ARTICLE 431.
The owner of a thing cannot make use thereof in such
manner as to injure the rights of a third person. (n)
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. (n)
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. (n)
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. (n)
102

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. (349a)
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)
Q: What are the rights of an owner under Roman Law?
a. Right to use (jus utendi)
b. Right to abuse or to consume (jus abutendi)
c. Right to dispose (jus disponendi)
d. Right to possess (jus possidendi)
e. Right to the fruits (jus fruendi)
f. Right to recover (jus vendicandi)
Q: Is the right of ownership absolute?
NO, the right of ownership is not absolute. Thereare limitations which are
imposed for the benefit of humanity.
Q: What is the general limitation on the right of ownership?
Under Article 431 of the Civil Code, one cannot use his property in such
manner as to injure the rights of other people.
Q: Avelino was going to be the opening act of the Backstreet Boys comeback
concert in Manila. Every night he practices on his sound system, full volume,
belting out his rendition of Malaki ang Titik O. Henry his next door
neighbour threatened to sue him for noise pollution. Does he have the right to
sue Avelino?
YES. Even if Avelino owns the sound system, he still has to respect the right of
Henry to a peaceful environment.
Q: What are the limitations on the right of ownership under the Philippine
Constitution?
The limitations are:
a. Right of eminent domain
b. police power of the State
c. provisions on the National Patrimony and Economy of the State
d. taxation
Q: What are the limitations on the right of ownership under the New Civil
Code?
The limitations are:
a. provisions against nuisances
b. right of way and easements/ waters
c. restrictions on party walls
d. contractual rights which can limit ones right of ownership
Q: Give an example of s contractual right limiting ones right of ownership.
A negative pledge. This is a contract or promise made by one person not to
encumber or enforce any form of collateral or security his property. This is
usually made when a loan is applied for.
2.
Doctrines of Incomplete Privilege/Self-Help
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. (n)
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. (n)
Q: What are the protections given to the rights of owners?
These are:
a. Doctrine of Self-Help
b. Doctrine of Incomplete Privilege
c. The right to file a legal action to recover property either on the basis of a
better right to possess or as an incident to the right of ownership.
Q: What is the Doctrine of Self-Help?
If there is a real or imminent danger to ones property, the owner is entitled to
use reasonable force to repel the attack or aggression
REQUISITES:
1. reasonable force
2. prevent /repel actual invasion or interference
3. imminent danger)
103

Example: if X sees a thief about to steal his car, he can use reasonable force to
drive the thief away.
Note that the doctrine of self-help is only a means to defend ones self from
unlawful taking of property. It cannot be used as an act of aggression. (Like a
Jedi uses the Force for knowledge and defense, never for attack.)
Q: When can the doctrine of self-help be invoked?
It can only be used if one has not yet been deprived of his possession. When
possession is lost, one has to institute the proper legal remedy to recover
possession of his property.
Q: What is the Doctrine of Incomplete Privilege?
Under Art. 432 of the Civil Code, a property owner cannot prevent an
interference on his property if such is necessary to avert an imminent and great
danger to other peoples properties provided that the threatened danger is
much greater than the damage suffered by the property owner of the
interference
For example: A house is burning in the middle of rows of houses. The firemen
can tear down the adjacent houses to prevent the spread of fire. The owners of
the adjacent houses have the right to demand indemnity from those benefited.
Q: What are the legal remedies to recover possession of ones property?
Recover of PERSONAL Property
1.) Replevin
Recovery of REAL property

1.) Forcible Entry (possession de facto)
2.) Unlawful Detainer
3.) Accion Publiciana (right to better
possession)
4.) Accion Reivindicatoria (recovery of
ownership)
Q: What actions are common to both recovery of real and personal property
1.) Writ of preliminary mandatory injunction
2.) Writ of possession
Q: What are the actions that an owner may file to recover property?
The following are actions to recover property:
PARTICULA
PRESCRIPTIVE
PROPE
ISSUE
NATURE OF
RS
PERIOD
R
PROCEEDIN
COURT
GS
Its a
In personam
REPLEVIN a Can be filed from
RTC if
possessor
provisional
the commencement
value
y action,
remedy when
of the action or at
sought
applicant
the complaint
anytime before
to be
prays for the
answer (RULES of
recovere need not
be the
recovery of
COURT Sec 1 RULE
d is
holder of
the possession 60)
more
the legal
of personal
than
title.
property
P200K
(P400K
if Metro
Manila)
, if its
less than
that its
the
MTC
In personam
Within 1 year of the
MTC
Issue
FORCIBLE
dispossession, but in
involves
ENTRYa
case of strategy or
mere
summary
stealth, should be
physical
action to
counted from
possessio
recover
discovery.
n and not
material or
juridical
physical
possessio
possession of
n nor
real property
ownershi
when a person
p
originally in
possession
deprived
thereof by
FISTS (force
intimidation,
strategy,
threat or
stealth
UNLAWFUL
Must be brought
MTC
Issue
In personam
DETAINER within 1 year from
involves
104

This is 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.
ACCION
PUBLICIANA
This is the
action for the
recovery of
the better
right to
possess
mere
physical
possessio
n and not
juridical
possessio
n nor
ownershi
p
the time the

possession becomes
unlawful
1. one year from the
expiration of lease
2. if the reason is
non-payment of
rent, one year from
demand to vacate
Must be brought
within 10 years
RTC
The issue
involved
is who
has a
better
right to
possess;
de jure
and not
de facto
possessio
n is the
personam
ACCION
REIVINDICATORIA
an action to
recover
ownership
over real
property
WRIT of
PRELIMINAR
Y
MANDATOR
Y
INJUNCTION
available in
the case of
forcible entry
and during
the appeal in
the case of
unlawful
detainer.
(in provrem,
PMI is an
order
requiring a
party litigant
to perform a
particular act
in order to
restore the last
actual
peaceable
uncontested
status which
preceded the
controversy)
WRIT of
10 or 30 years
depending on
whether party seeks
to obtain ownership
through
ordinary/extraordin
ary prescription
RTC
where
the
propert
y is
located
Sec 2
Rule 58
Rules of
Court
says
MTC,
RTC CA
and SC.
issue here
ownershi
p
(conflicting
notes and
reviewer!)2
provision
al
remedy
But in a
forcible
entry
case,
case
under
Art 539
of the
Civil
Code
and BP
129, its
the
MTC
which
has
original
jdxn.
The reviewer handwritten note said quasi-in rem while in CivPro it was said
to be in personam.
105

POSSESSION
an order
directing the
sheriff to
place a
successful
registrant
under the
Torrens
System in
possession of
the property
covered by a
decree of the
court.
Art. 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. (n)
3.
Presumption of Ownership
Art. 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. (n)
Q: What is required to raise a disputable presumption of ownership under 433?
1.) actual possession
2.) claim of ownership
Q: What is the presumption of ownership under Art. 433 of the Civil Code?
There is a presumption that the person who has possession of a property is the
owner of such property. However, this is only a disputable presumption. Any
person who claims that the possessor is not the owner has the burden of
proving such assertion.
Q: To what kinds of property does the presumption apply?
The presumption applies to both movable and immovable properties. It is
however more useful in case of movable properties. Any person who has
possession of a movable property is presumed to be its owner. As regards
immovable properties, it is more difficult to impugn ownership since a title is
issued to owner. In case of lands covered under the Torrens System, the fact of
possession becomes more irrelevant because the issue of ownership can be

resolved on the basis of the Torrens certificate.
Q: In an action to recover a lost property, may the plaintiff rely on the
presumption established in Article 433?
NO. Only the defendants may rely on the presumption, not the plaintiffs.
Q: When can the true owner resort to judicial process to recover his property?
The true owner can resort to judicial process o recover his property only if the
possessor does not want to surrender the property to him after proper request
or demand has been made.
Art. 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. (350a)
Q: What is meant by the surface right of a land owner?
If a person owns a piece of land, it is understood that he also owns its surface up
to the boundaries of the land with the right to make thereon allowable
constructions, plantings and excavations subject to:
1.) servitudes or easements
2.) special laws (i.e. Mining Law)
3.) ordinances
4.) reasonable requirements of aerial navigation
5.) principles on human relations and the prevention of injury to the rights
of third persons
6.) reasonable requirements of underground shelters and depots with
proper state permissions, as long as the surface right is not
substantially disturbed.
Q: What are the boundaries of ones ownership of a piece of land?
On the surface, the boundaries of real property are indicated by the mo-on (a
small rounded thing for the purpose of showing where the boundary ends; the
mo-ons are known as the monuments of title). Going up, ownership extends
even to air space, subject to the requirements of aerial navigation, as well as the
restrictions provided in the title (e.g. restrictions on the height of the building).
Going down, ownership extends to the land beneath the surface. This however
is subject to the Regalian Doctrine. Thus the owner of the land does not own the
water, oil, or minerals found underneath the soil, because they belong to the
state.
4.
Rule on Hidden Treasure
106

Art. 438. Hidden treasure belongs to the owner of the land, building, or other
property on which it is found.
Nevertheless, when the discovery is made on the property of another, or of
the State or any of its subdivisions, and by chance, one-half thereof shall be
allowed to the finder. If the finder is a trespasser, he shall not be entitled to
any share of the treasure.
If the things found be of interest to science of the arts, the State may acquire
them at their just price, which shall be divided in conformity with the rule
stated. (351a)
Art. 439. By treasure is understood, for legal purposes, any hidden and
unknown deposit of money, jewelry, or other precious objects, the lawful
ownership of which does not appear. (352)
Q: What is hidden treasure?
There are 3 elements in the definition of hidden treasures
x
Hidden or unknown deposits
x
Consists of money, jewelry or other precious objects
x
Their lawful ownership does not appear
Under this definition hidden treasure refers to processed items like money,
jewelry and other precious objects (i.e. gold bar, silver coins). It does not refer to
raw materials which are considered of value (e.g. oil or gold in their raw stage)
these are called natural resources.
Q: What is the meaning of other precious objects?
Following the rule of ejusdem generis, the phrase other precious objects
should be understood to refer to those of the same class as money or jewelry,
(finished/processed things) and should not therefore include property
imbedded in the soil or part of the soil, like minerals.
Q: What is the meaning of the phrase lawful ownership of which does not
appear? It means that the owner of the treasure must be unknown.
Q: Are precious objects deliberately hidden by the owner considered as hidden
treasure?
NO, they are not. Even if another person discovers them, hey will still not be
considered hidden treasure as long as the true owner can prove his ownership.
If, however, the true owner has forgotten where he kept the precious objects and
has given up hope of recovering it, the precious objects may now be considered
hidden treasure.
Q: If the owner of the precious object is known, but is already dead, will it be
considered hidden treasure?
NO, because the lawful owner is not unknown. In this case, the treasure must go
to the heirs of the deceased owner.
Q: Who has the right to own the hidden treasure found in a land, building or
other property?
1. If it is found in ones own property, the owner of the land,
building or other property where the treasure was found shall
own the treasure
2. If it is found in another persons property, shall go to the
finder and the other half shall go to the owner of the property
where the treasure was found.
Q: Will discovered treasure always go to the owner of the property and the
finder of treasure?
NO. If the thing found is of archaeological or historic value, the treasure will go
to the State.
Q: If hidden treasure is found by chance under a municipal plaza who owns the
treasure?
Half will go to the finder, and the other half to the municipality. However, if the
treasure is scientifically or artistically valuable, the finders half has to be given
to the municipality or to the state, which in turn will give him a just price
therefor. The acquisition here by the municipality or by the state is a form of
eminent domain or expropriation, hence the procedure thereon should be
substantially followed.
Q: What happens if the owner or finder is a married person?
The share of the owner or the finder will go to the absolute community or
conjugal partnership, as the case may be. This is considered as property
acquired through industry.
Q: A husband discovered hidden treasure on the land of his wife by chance.
Who owns the treasure?
The half pertaining to the husband as finder belongs to the absolute community
or conjugal partnership. The other half pertaining to the wife as owner o the
property also belongs to the ACP or CPG.
Q: What are the requirements before one can be considered a finder of hidden
treasure?
The requirements are:
107

1.
2.
he must not be a trespasser (i.e. he has the right and authority to enter
the property because he has been allowed by the owner, as in the case
of a lessee or any other possessor of the property who has been given
permission by the owner)
he must find the treasure by chance
Q: What is the meaning of finding it by chance?

According to Justice Paras it means by good luck
It doesnt matter whether there was a deliberate search for the treasure or not, as
long as there was no prior agreement on how the treasure, if found, would be
divided.
Dean: It is not necessary that the finder has accidentally stumbled upon the
treasure. Even if he deliberately looked for it, it may still be considered as
having been found by chance because even if he was aided by a map, he is
still not sure of finding it.
Q: What is the rule on treasure hunts?
A treasure hunt is an express search for hidden treasure. An owner of land may,
for example, contract with a group of men who would look for the treasure.
Should discovery be made, the actual finders will not necessarily be entitled to
half. Instead, they will be given what has been stipulated in the contract.
Q: Inx is the owner of a piece of land where hidden treasure was believed to be
buried. Mace who owns a mechanical device used in detecting hidden treasure,
was given permission by Inx to use the device on her land. After some effort,
Mace discovered jewelry and other precious objects. To whom should the
treasure belong?
Both Inx and Mace will have a 50-50 share in the treasure. Even if there was
deliberate search for the treasure, it will still be considered as having been found
by chance defined as good luck, in conformity with the intent of the Code
Commission.
Q: Robert, believing Felixs land contained hidden treasure, asked the latters
permission to look for it. Felix gave permission which resulted to Robert having
found a chest full of pearl necklace and Spanish gold doubloons. How much of
the treasure should go to Robert?
Justice Paras believes that the treasure should be divided equally between the
finder and the owner even if finding was the result of a deliberate hunt. Equity
demands the equal sharing because if the landowner did not give his
permission, the treasure would never have been found; and conversely, if there
was no seeker, the same would not have been discovered.
Q: What is the rule if the finder is a paid labourer of the land owner?
A distinction must be made. If he discovered the treasure by chance, he gets
half. If on the other hand, he has been employed precisely to look for the
treasure, he will get nothing insofar as the treasure is concerned, but is entitled
to his wage or salary.
Q: What are the rights of a usutructuary over hidden treasure found on land he
is using?
Art. 566 of the Civil Code provides that with respect to hidden treasure which
may be found on the land or tenement, the usufructuary shall be considered as a
stranger. It means that the usufructuary does not get a share in the hidden
treasure. If he found the treasure, he gets half as finder; but if another person
finds it, such person gets half as finder and the naked owner gets the other half
as owner. Same rule applies to tenant/lessee.
C.
Accession
ARTICLE 440.
The ownership of property gives the right by accession to
everything which is produced thereby, or which is incorporated or attached
thereto, either naturally or artificially. (353)
Q: What is accession?
Accession is the right of a property owner to everything which is:
1. produced thereby (accession discreta) or
2. which is incorporated or attached thereto either naturally or artificially
(accession continua or accession non-interrumpida)
Q: What are the divisions of accession continua?
1. natural accession (accession natural)
2. artificial accession (accession artificial or accession industrial)
Q: What are the different classifications of accession?
Accession is classified into:
A. Accession Discreta (to the fruits)
1. Natural fruits
2. Industrial fruits
3. Civil fruits
108

B. Accession Continua (attachment or incorporation)
1. w/ ref to REAL PROP
2. w/ ref to PERSONAL PROP
(a)
adjunction or conjunction
(a) accession industrial
1. inclusion (engravement)
1. building
2. soldadura (attachment)
2. planting
3. tejido (weaving)
3. sowing
4. pintura (painting)
5. escritura (writing)
(b) accession natural (act
of nature)
1. alluvium
(b)
mixture
2. avulsion
1. confusion (liquid)
3. change of
2. commixtion (solids)
course of
rivers
(c) specification
4. formation of
islands
Q: Is accession a mode of acquiring ownership?
No, because accession presupposes a previously existing ownership by the
owner over the principal. It is only an incident of ownership.
Q: What is the rule as to the right to accession?
In general, the right to accession is automatic (ipso jure), requiring no prior act
on the part of the owner of the principal.
Q: What is the general rule on accession?
The general rule is that the accessory follows the principal
1.
Accession Discreta
ARTICLE 441.
To the owner belongs:
(1)
The natural fruits;
(2)
The industrial fruits;
(3)
The civil fruits. (354)
Q: What is accession discreta?
It is the right to the ownership of the fruits produced by our property.
Q: Who is the owner of the fruits?
Under Art. 441, the owner of the land owns the fruits.
Q: Are there any exceptions to this rule?
Yes. In the following cases, the owner of the land is not the owner of the fruits,
but somebody else like
1. possessor in good faith (he owns the fruits already received by
provision of law)
2. usufructuary
3. lessee (he gets the fruits of the land but the owner of the land gets the
civil fruits in the form of rentals)
4. antichretic creditor (he gets the fruits, although ofcourse, said fruits
should be applied first to the interest, if any is owning, and then to the
principal amount of the loan)
a.
Natural Fruits
ARTICLE 442.
Natural fruits are the spontaneous products of the soil, and
the young and other products of animals.
Industrial fruits are those produced by lands of any kind through cultivation
or labor.
Civil fruits are the rents of buildings, the price of leases of lands and other
property and the amount of perpetual or life annuities or other similar
income. (355a)
Q: What are natural fruits?
Natural fruits are those that are spontaneous in nature and does not require the
intervention of human hands. Anything that grows in the soil without being
cultivated or planted there.
Q: What are the two kinds of natural fruits?
a. The spontaneous products of the soil
b. The young and other products of animals, whether brought about
by scientific means or not.
Q: With respect to the young of animals, who is the owner of the young animal
if the parent animals belong to different owners?
The owner of the mother animal is the owner of the young, unless there is
contrary custom or speculation.
Q: Ave leased a female cow from Vic. During the period of the lease, the cow
produced a calf. Who owns the calf?
Ave owns the calf since the contract of lease is onerous. In a contract of lease, the
general rule that the owner of the female animal is also the owner of the young
gives way.
Q: Supposing in the preceeding problem, Ave was merely given the cow by way
of commodatum (gratuitous borrowing), would the answer be the same?
109

No. This time Vic retains ownership in view of the gratuitous contract.
Q: Will the rule be different if the young was produced through the inducement
of man? No there is no distinction.
b.
Industrial Fruits
Q: Joyce is the owner of a piece of land of which fruits were grown, raised,
harvested, and gathered by Mr. X in bad faith. Who should be considered owner
of the fruits?
Joyce, since she is the owner of the land and Mr. X is in bad faith. But she must
reimburse Mr. X for the expense for production, gathering and preservation.
Q: What are industrial fruits?

Industrial fruits are those produced by lands of any kind thru cultivation or
labor.
Q: What is the reason for reimbursing Mr. X even though he is in bad faith?
This article is merely in consonance with the principle no one may enrich
himself unjustly at anothers expense.
*No distinction as to annual and perennial crops
Q: Under Article 449, He who builds, plants, or sows in bad faith on the land of
another, loses what is built, planted or sown without right to indemnity. How
do we reconcile that with the previous answer?
c.
Civil Fruits
Q: What are civil fruits?

Civil fruits are those derived from the use of the property or income from the
property itself. They consist of rent of buildings, price of lessees of land and
other property (even if personal property), the amount of perpetual or life
annuities or other similar income, interests and dividends.
How to compute amount of civil fruits
1.) if you are the original owner (no owner before you)you own all the
civil fruits
2.) if acquired from someone (i.e. purchase)compute on a daily basis
from the time you own it until your ownership terminates
ARTICLE 443.
He who receives the fruits has the obligation to pay the
expenses made by a third person in their production, gathering, and
preservation. (356)
Q: Who is liable to pay the expenses for the gathering, production and
harvesting of fruits?
The general rule is that the owner of the land is liable for these expenses because
he owns the property that bears the fruits. However, in the case where the
owner has parted with the right to receive fruits, the person who is entitled to
the fruits is liable for the expenses.
Q: Does this provision also refer to fruits not yet harvested?
No. Art 443 applies only to gathered fruits. (reason: use of the word receives)
Q: Does Art 443 apply to planter or sower in good faith? No. because in this
case, he is entitled to the fruits already received and hence, there is no necessity
of reimbursing him. His compensation is the fruits already gathered.
Art 449 applies only if the crops have not yet been gathered. On the other hand,
Art. 443 applies when the crops have already been gathered.
According to handwritten
notes: 443 applies to possessor
in bad faith to prevent unjust
enrichment, but not to those in
good faith since they are
already entitled to the fruits
and thus need not be paid.
Q: What are the expenses referred to in this provision?

Expenses must have been used for the production, gathering or preservation
and not for the improvement of the property. They must have been necessary
and useful, not luxurious or excessive.
Q: Suppose the expenses exceeded the value of the fruits (i.e. typhoons have
damaged the crops), must there still be reimbursement for expenses?
Yes, if the owner insists on being entitled to the fruits.
ARTICLE 444.
Only such as are manifest or born are considered as natural
or industrial fruits.
With respect to animals, it is sufficient that they are in the womb of the
mother, although unborn. (357)
Q: What are the two kinds of crops and when are they deemed manifest?
110

1.) Annual crops (those which have to be planted each year like
cereals, grains, rice, corn or sugarcane) are deemed manifest
or existing the moment their seedlings appear from the
ground, although the grains have not yet actually appeared.
2.) Perennial crops (those growing each season without need of
replanting like oranges, apples, mangoes, coconuts) are
deemed to exist only when they actually appear on the trees.
Q: What about the young of animals, when are they deemed existing?
They are considered existing even if still in the maternal womb. But doubt may
arise whether they are already in the womb or not, so Manresa suggests that
they should be considered existing only at the commencement of the maximum
ordinary period of gestation.
Q: Distinguish civil fruits from natural and industrial fruits.
Civil fruits accrue daily and are therefore considered in the category of personal
property; natural and industrial fruits while still growing, are real property.
Civil fruits can be pro rated, natural and industrial fruits ordinarily cannot.
2. Accession Continua
a. On Real Property
a.1 Accession Industrial
ARTICLE 445.
Whatever is built, planted or sown on the land of another
and the improvements or repairs made thereon, belong to the owner of the
land, subject to the provisions of the following articles. (358)
Q: Art 445 deals with accession continua, more specifically with accession
industrial. When is there accession continua?
When the attachment or incorporation is permanent in character that separation
will cause damage to the property
Q: What are the basic principles of accession continua
1. To the owner of the principal must belong also the accessions, in
accordance with the principle the accessory follows the principal
2. The union or incorporation must, with certain exceptions, be
effected in such a manner that to separate the principal from the
accessory would result in substantial injury to either.
3. He who is in good faith may be held responsible but he should not
be penalized
4. HE who is in bad faith must be penalized
5. No one should enrich himself unjustly at the expense of another
6.
Bad faith of one party neutralizes the bad faith of the other so both
should be considered in good faith.
Q: What is the rule enunciated in this article?

The general rule is that the owner of the land is also the owner of whatever is
built, planted or sown thereon, subject to certain rules
(There is an exception, but it was blacked out impossible to read / but the
handwritten note said what is built, planted or sown on separate property
belongs to CPG, and upon dissolution of the marriage ownership will depend
on the liquidation)
Q: What is the meaning of planting?
It is something that is permanent in nature and does not need to be planted
every season
(perennial plants)
Q: What about building?
It is the act of constructing a permanent structure
Q: What is sowing?
It is the act of depositing seeds which give rise merely to a single crop or
harvest. It implies planting, harvesting and then re-planting
Q: What is the importance of making a distinction between the builder, planter
or sower?
The reason is that the landowner has the right to make the builder or planter to
acquire the land in case where they are applicable. If it is a case of planting, the
landowner may get the value of the land, then require the planter to purchase
the land from him while the sower merely pays the rent and can not be
compelled to purchase even if in bf.
Q: What is the rule in accession industrial?
Whatever is built, planted or sown and whatever constructions, or
improvements or repairs made on the property belong to the owner of the land.
Q: What is the exception?
(certain parts too blackened to read) reverse accession where the accessory
still follows the principal(cant be read) but the land is considered the
accessory and the building is considered the principal.
111

Rules When The Owner Of The Land, Owner Of The Materials, And Builder,
Planter, Sower Are Three Different Persons
LANDOWNER (LO)
AA.. GGoooodd FFaa!tthh
1.
Acquire
works
provided
he
pays
indemnity
a) value of what has
been built, planted, or
sown;
b)
value
of
the
materials; including;
c) necessary expenses;
d) useful expenses;
and
e) luxurious expenses
if he appropriates the
luxurious
items,
valuation is on entry of
possession by the LO.
Subsidiarily liable to
OM.
2. Oblige BPS to buy the
land unless the value
thereof is considerably
more than the value of
the works.
If BPS is unable to pay,
may demand removal of
what has been built,
planted or sown.
For this option, there
is no liability to OM
BUILDER, PLANTER,
SOWER (BPS)
OWNER OF THE
MATERIALS (OM)
1. Receive indemnity
from the LO.
Right of retention over
the land until the LO
pays.
from the BPS who is
principally or primarily
liable.
If BPS is insolvent, he
may demand indemnity
from
LO
who
is
subsidiarily liable.
No right of retention
against LO or BPS
2. Purchase the land

otherwise pay rentals.
2. Receive value from

BPS only; LO has no
subsidiary liability; Has
no right of retention
against LO or BPS.
OR
Remove if there is no
injury to principal.
Has material rent lien
(in case BPS is insolvent,
the proceeds of works
will be allocated to OM).
BB.. GGoooodd FFaa!tthh
BB.. GGoooodd FFaa!tthh
BB.. BBaadd FFaa!tthh
1. Acquire after paying

indemnity. (same as
A.1)
with right of retention.
(same as A.1)
1. No Rights Since In Bad

Faith.
2. Sell the land. (same as

A.2)
CC.. GGoooodd FFaa!tthh
2. Acquire the land.

(same as A.1)
CC.. BBaadd FFaa!tthh
1.
Acquire
works
without
paying
indemnity
except
necessary and luxurious
expenses if he decides to
appropriate it.
1. Receive necessary
expenses and luxurious
expenses if LO acquires
it.
No right of retention.
No right of removal
even if there is no injury.
Pay damages.

BPS only.
No subsidiary liability
of LO.
No right to remove
materials.
2. Sell the land.
2. Purchase the land.
3. Demand demolition
or removal.
3. Must remove.

BPS and right to remove
without injury.
3.
Liable
for
consequential damages
to whoever ends up
owning the principal.
DD.. GGoooodd FFaa!tthh
DD.. BBaadd FFaa!tthh
DD.. GGoooodd FFaa!tthh
1. Acquire works after

paying indemnity.
Pay damages.
and damages.
Right of removal even
with injury.
2. Sell the land.

EE.. BBaadd FFaa!tthh

EE.. GGoooodd FFaa!tthh

paying indemnity.
Pay damages.
and damages.
with injury.
Luxurious
expenses
valued at time of
construction.
Cannot
insist
on
purchasing the land.
1. Receive value of
materials
principally
from
BPS
and
subsidiarily from LO if
BPS is insolvent.
EE.. BBaadd FFaa!tthh
1. No rights whatsoever.
112

FF.. BBaadd FFaa!tthh
FF.. BBaadd FFaa!tthh
FF.. GGoooodd FFaa!tthh

paying indemnity.
Subsidiarily liable to
OM.
and damages.
Right of retention.
2. Sell the land.

If BPS cannot pay,
may demand removal.
No liability to OM.
1.
Receive
value
principally from BPS and
subsidiarily from LO if
BPS is insolvent.
No right of removal.
Receive damages from
BPS.
2. Receive value and
damages from BPS.
with injury.
ARTICLE 446.
All works, sowing, and planting are presumed made by the
owner and at his expense, unless the contrary is proved. (359)
Q: What are the two (2) disputable presumptions under this article?
1. The works, sowing and planting were made by the owner of the land.
2. Whatever is built, planted, or sown was made at the owners expense.
ARTICLE 447.
The owner of the land who makes thereon, personally or
through another, plantings, constructions or works with the materials of
another, shall pay their value; and, if he acted in bad faith, he shall also be
obliged to the reparation of damages. The owner of the materials shall have
the right to remove them only in case he can do so without injury to the work
constructed, or without the plantings, constructions or works being
destroyed. However, if the landowner acted in bad faith, the owner of the
materials may remove them in any event, with a right to be indemnified for
damages. (360a)
Q: When does this article apply?
This article applies when the land owner (LO) build, plants, sows using the
materials of another person (OM).
Q: When is the LO who is also the builder, planter, or sower (BPS) in good faith?
The LO-BPS is in good faith if he believes that the land belongs to him and he is
ignorant of any defect or flaw in his title. He does not know that he has no right
to use such materials. But when his good faith is couples with negligence, he is
liable for damages.
Q: When is the LO-BPS is bad faith?
If he makes use of the land or materials which he knows belong to another.
Q: When is the OM in good faith?

If he did not know that another was using his materials. If he informed the user
of the ownership and made the necessary prohibition if he has knowledge.
Q: When is the OM is bad faith?
If he allows another to use the materials without informing him of the
ownership thereof.
Q: Who has the option to exercise his rights? The one who is in good faith.
Q: What are the rights and obligations of the LO-BPS who acted in good faith?
He becomes the owner of the materials but he must pay for their value. The only
exception is the owner decides to remove them if there would be no injury to
the work constructed, or without the plantings, constructions or works being
destroyed.
Q: What if the LO-BPS is in bad faith?
He becomes the owner of the materials but he must pay for their value and
damages. The only exception when the owner of the materials decides to
remove them whether or not destruction would be caused.
Q: What are the rights and obligations of the OM if the LO-BPS is in good faith?
He is entitled to reimbursement provided he does not remove them. He is also
entitled to removal provided no substantial injury is caused.
Q: What are the rights and obligations of the OM if the LO-BPS is in bad faith?
In such case, the OM is entitled to the absolute right of removal, whether or not
substantial injury is caused. He is also entitled to damages. In case he chooses
not to remove the materials, he is entitled to reimbursement and damages.
Q: What if the OM is in bad faith and the LO-BPS is in good faith?
There is no provision of law on this point, but it would seem that the landowner
would not only be exempted from reimbursement but he would also be entitled
to consequential damages. (i.e. when the materials are of an inferior quality).
Moreover, the OM would lose his materials and all rights to them such as the
right of removal.
Q: What if both the OM and LO-BPS are in bad faith?
Consider them both to be in good faith.
Q: What is the measure of damages?
Indemnification for damages shall comprehend not only the value of the loss
suffered but also that of the profits which the obligee failed to realize.
113

Q: Suppose the LO-BPS wants to remove the materials instead of reimbursing

their value, may this be done even without the consent of the owner of the
materials?
It depends:
1. If no damage has been made to the materials, or they have not been
transformed as a result of the construction they may be returned at the LOs
expense.
2. If damage has been made or there has been transformation, they cannot be
returned anymore.
Q: Suppose the LO-BPS has already demolished or removed the plantings,
constructions, or works, is the OM still entitled to them?
There are different opinions on this matter but the best rule seems to be that the
OM is still entitled to get them since the law makes no distinction. Moreover,
the LO may insist on returning them for evidently there is no accession.
Q: Tess built a house on her own land using the materials of Blanche. Later, Tess
sold the house and land to Shennan. Against whom will Blanche have a right of
action?
The law is silent but it would seem that the right of action should be directed
against Shennan since it was she who benefited from the accession.
Rules When The Landowner Makes Constructions Or Plantings
With The Materials Of Another
LANDOWNER (LO) BUILDER, PLANTER
OR SOWER (BPS)
OWNER OF MATERIALS (OM)
1. Acquire the materials provided he

pays for the value thereof.
1. Receive value of the materials.

OR
Remove the materials only if there is
no injury to the work done (i.e. no
accession)
1. Acquire the materials provided he

pays for the value thereof and
damages.
1. Receive value of the materials and

damages.
OR
CC.. GGoooodd FFaa!tthh

1. Acquire the materials without
paying for the value thereof and
entitled to consequential damages due
to defects of the materials.
Remove the materials even with

injury to the work done and receive
damages.
1. Loses the materials completely
without receiving indemnity.
Treat them as if both are in good faith.

ARTICLE 448.
The owner of the land on which anything has been built,
sown or planted in good faith, shall have the right to appropriate as his own
the works, sowing or planting, after payment of the indemnity provided for
in articles 546 and 548, or to oblige the one who built or planted to pay the
price of the land, and the one who sowed, the proper rent. However, the
builder or planter cannot be obliged to buy the land if its value is
considerably more than that of the building or trees. In such case, he shall pay
reasonable rent, if the owner of the land does not choose to appropriate the
building or trees after proper indemnity. The parties shall agree upon the
terms of the lease and in case of disagreement, the court shall fix the terms
thereof. (361a)
Q: When does this obligation apply?
This article applies when the BPS build, plants, or sows on the land of another
person.
Q: In applying this rule, who should be given the first option?
If the LO is in good faith, he should have the first option because he is the
owner of the land especially if he is dealing with a person in bad faith.
Q: Why is the option given to the LO?
Its because his right is older. The principle of accession entitles him to the
ownership of the accessory.
Q: When is the LO considered in good faith?
He is in good faith if he is ignorant of the BPS acts. In case he has knowledge,
he expressed his objection or believed that the BPS has the right to construct,
plant or sow. Otherwise, he is in bad faith.
Q: When is the BPS is good faith?
114

He is in good faith if he thought the land was his.
Q: What are the options of the LO is good faith against the BPS in good faith?
1. To appropriate for himself what has been built, planted, or sown upon
payment of the proper indemnity for necessary expenses, useful expenses, and
luxurious expenses (if he appropriates the luxurious improvements);
- OR
2. To compel the BP to pay the price of the land unless the value of the land be
considerably more than the value of the building or trees OR for S to pay the
proper rent.
Q: Can the LO force demolition if he does not want to adopt any of the above
options?
If the BPS is in good faith, the LO must choose between the two options only.
Demolition is given only to a LO in good faith against a BPS in bad faith.
Q: If the landowner chose option #2 (to sell the land) and the BP fails to pay
does he now have the right to demolition and removal?
Yes, if the BP fails to pay, he should not be allowed to continue using it to the
detriment of the owner.
Q: If the landowner chose option #2 and the BP fails to pay, does this
automatically make him the owner of the improvements or accession?
No. Article 448 merely gives the landowner an option to appropriate for
himself the improvement upon payment of proper indemnity. Ownership over
the accessory passes only after the payment of the indemnity.
Q: What are the rights and obligations of the BPS in good faith to the LO in
good faith?
1.
If the landowner acquires the improvements, he has the right of
retention until indemnity is paid and he cannot be required to pay for
rent while the property is retained; he can also remove, as part of the
right of retention, useful improvements provided there is no injury to
the principal thing; and if LO does not acquire the luxurious
improvements, he can remove them provided there is no injury to the
principal thing;
2.
If the LO chooses to sell the property, he may pay the FMV of the
land. In the absence or failure to reach an agreement, the court may
fix the value. If the BP cannot pay the value of the land, he can be
required to remove what has been built or planted. But he cannot be
compelled to buy the land if the value of the land is considerably more
than the value of the building or trees. In such case, he shall pay
reasonable rent under a voluntary or forced lease agreement.
Q: What happens if the BPS cannot pay rent to the LO?
If he cannot pay rent, he can be ejected and the rights to the improvements will
depend on the contract of lease. In the contract of lease, if there is no stipulation
as to the improvements, the landowner can only be required to pay half of the
cost.
RULES WHEN THE BPS BUILDS, PLANTS OR SOWS ON THE LAND OF ANOTHER
LANDOWNER
Both in Good Faith
BPS
1.
Option 1: to appropriate or acquire

whatever has been BPS after paying
indemnity which includes:
a. necessary expenses
b. useful expenses
c. luxurious expenses IF the
landowner
wishes
to
appropriate the luxurious
improvements.
2.
3.
4.
1.
Option 2: Oblige the BP to pay the
price of the land and the S to pay the
proper rent unless the value of the land
is considerably more than that of the
building or trees.
2.
Entitled to receive indemnity

for necessary, useful and
luxurious expenses IF the
landowner appropriated the
luxurious expenses; and
Has a right to retention over
the land without having to
pay for the rent until the LO
pays the indemnity;
He
can
remove
useful
improvements provided it
does not cause any injury to
the principal property (this is
a part of the right of
retention);
if the LO does not appropriate
the luxurious improvements,
he can remove the same
provided there is no injury to
the principal thing.
to purchase the land at FMV
when the value is not
considerably more than the
value of the building or
trees.
if the value of the land is
considerably more than the
value of the building or
trees,
he
cannot
be
115

3.
4.
LANDOWNER
LO in Good Faith; BPS in Bad Faith
Option 1: Acquire whatever has been
built, planted or sown, without
paying for indemnity except necessary
expenses for the preservation of the
land only and luxurious expenses if he
decides
to
acquire
luxurious
improvements plus damages
Option 2: Compel the BP to pay the

price of the land and S to pay the
proper rent plus damages.
Option 3: Demand demolition or
removal of the work at the expense of
compelled to buy the land,

and in such case, he shall
pay reasonable rent if the LO
does not choose option 1.
If he cannot pay the
purchase price of the land,
the LO can require him to
remove what has been built
or planted.
If he cannot pay the rent, the
LO can eject him from the
land.
BPS
1.
2.
loses what had been BPS;

entitled to reimbursement for
necessary expenses for the
preservation of the land but
has no right of retention;
3. not entitled to reimbursement
for useful expenses and
cannot remove the useful
improvements even if the
removal will not cause any
injury;
4. not entitled to reimbursement
for luxurious expenses except
when LO acquires luxurious
improvements, the value of
which is the one at the time
the LO enters possession (the
depreciated value);
5. can
remove
luxurious
improvements if it will not
cause injury and LO does not
want to acquire them.
Must pay the price of the land and rent
plus damages.
Must remove and demolish at his
expense and pay damages.
the BPS plus damages.

LANDOWNER
Both in Bad Faith
BPS
ARTICLE 449.
He who builds, plants or sows in bad faith on the land of
another, loses what is built, planted or sown without right to indemnity. (362)
ARTICLE 450.
The owner of the land on which anything has been built,
planted or sown in bad faith may demand the demolition of the work, or that
the planting or sowing be removed, in order to replace things in their former
condition at the expense of the person who built, planted or sowed; or he may
compel the builder or planter to pay the price of the land, and the sower the
proper rent. (363a)
ARTICLE 451.
In the cases of the two preceding articles, the landowner is
entitled to damages from the builder, planter or sower. (n)
ARTICLE 452.
The builder, planter or sower in bad faith is entitled to
reimbursement for the necessary expenses of preservation of the land. (n)
ARTICLE 453.
If there was bad faith, not only on the part of the person
who built, planted or sowed on the land of another, but also on the part of the
owner of such land, the rights of one and the other shall be the same as
though both had acted in good faith.
It is understood that there is bad faith on the part of the landowner whenever
the act was done with his knowledge and without opposition on his part.
(364a)
Q: What are the indemnities to be paid?
1. Necessary expenses, or those made for the preservation of the thing or
those without which the thing would deteriorate or be lost, including
necessary repairs;
2. Useful expense, or those that augment the income of the thing upon
which they are spent, or add value to the property, but doe not include
the value of farming implement or working animals which do not
remain on the land.
3. Luxurious expenses, if the LO desires to appropriate the luxurious
improvements.
Q: What is the rule as to Luxurious Expenses?
General Rule: No indemnity for luxurious expenses, and the luxurious
improvements may be removed if no damage will result to the building.
116

Exception: If the LO desires to appropriate the luxurious improvements, he
must pay their value which is the value at the time he enters possession/
Q: What are the options of the LO in GF if the BPS is in BF?
The landowner has the following options:
1.
To acquire what has been BPS without paying for indemnity except
necessary expenses for the preservation of the land and luxurious
expenses, if he desires to acquire the luxurious improvements and
collect damages from the BP; or
2.
To compel the BP to pay the price of the land and to the S to pay the
proper rent plus damages; or
3.
To demand the demolition or removal of the work at the expense of
the BPS plus damages.
Q: If the LO chooses option 2, and the BP refused to buy the land, can the LO
sell it to the others? No. If he sells the land to others, the same shall be
rescissible.
Q: What are the obligations of the LO in this case?
He has to pay for the necessary expenses for preservation. AS to the gathered
fruits, these are owned by him but subject to reimbursement. As to the standing
fruits, these are owned by him without need for reimbursement.
Q: Can the BPS compel the landowner to sell the land if the latter is in BF?
No, the law does not allow this. Bawal.
Q: What are the rights and obligations of a BPS in BF as against the LO in GF?
1. If option 1 was chosen by the LO, the BPS loses what has been BPS
without any right to indemnity except for necessary expenses for the
preservation of the land, but he has no right of retention. He is not
entitled to reimbursement for useful expenses, and he cannot remove
the same even if its removal will not cause any damage to the principal
thing. As to luxurious improvements, apply the applicable rule. He is
also liable for damages.
As to the gathered fruits, he is not entitled to retain them but he shall
be reimbursed for his expenses, for cultivation. As to standing fruits,
he is not entitled to gather or retain them, nor is he entitled to
reimbursement.
2.
If option 2 was chosen by the LO, the BPS must pay the value of the
land, or the rent as the case may be, plus damages
3.
If option 3 is chosen by the LO, the BPS must remove the work at his
expense and pay damages.
Q: Why is the BPS in bad faith not entitled to indemnity for useful expenses and
to removal or useful improvements?
Because there is a total lack of provision in this matter. Thus, as SC held that
with respect to useful improvements the BPS in bad faith has to leave the same
and he is not entitled to indemnity.
Q: What happens if both the LO and the BPS are in bad faith?
Their rights and obligations shall be the same as though both had been in good
faith.
ARTICLE 454.
When the landowner acted in bad faith and the builder,
planter or sower proceeded in good faith, the provisions of article 447 shall
apply. (n)
Q: What if the LO acted in bad faith and the BPS acted in good faith?
Article 477 shall be applicable.
ARTICLE 455.
If the materials, plants or seeds belong to a third person
who has not acted in bad faith, the owner of the land shall answer
subsidiarily for their value and only in the event that the one who made use
of them has no property with which to pay.
This provision shall not apply if the owner makes use of the right granted by
article 450. If the owner of the materials, plants or seeds has been paid by the
builder, planter or sower, the latter may demand from the landowner the
value of the materials and labor. (365a)
Q: In applying Art 455, who are the parties involved?
The parties involved are:
1. LO
2. BPS
3. OM (Owner of the materials)
Q: Will the rights of the LO and BPS be affected? No, because their rights are
already established by the preceding articles.
Note: In determining their rights as against the others, do it step by step.
Remember that the rights of the OM is always primarily against the BPS. The
LO is only subsidiarily liable to the OM because there is no privity between
them.
Q: What does material rent lien mean?
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It means that in case of insolvency of the BPS, the proceeds of the liquidation of
the building must be first allocated to the OM because he is a preferred creditor
with respect to the building.
Q: Can the OM go directly to the LO for the payment of his materials?
No, he must sue the BPS first and if the latter is unable to pay or is insolvent, the
LO can be made subsidiarily liable.
Q: When is the LO subsidiarily liable to the OM?
It is only when the LO chooses option 1 that he becomes subsidiarily liable in
case the BPS is insolvent. The reason is that by acquiring the building, the
materials which form part of the building now belongs to him.
Q: What if the LO has already paid the BPS the value of the materials?
It is unfortunate but he must still pay the OM subject to recovery from the BPS.
Payment to the BPS shall not affect the right of the OM to proceed against the
LO. The LO should have retained some proportion of the payment or required
the BPS to give a bond as security.
Q: In determining whether there is subsidiary liability on the part of the LO, is
it necessary to take into consideration the good faith or bad faith of the LO and
the good faith/bad faith of the OM?
Yes, but only as to the good faith/bad faith of the OM. The reason is that once
the OM is in bad faith, he loses his materials with no right to indemnity. If the
OM is in bad faith, and the BPS is in good faith, he cannot recover indemnity
from the BPS. And since there is no principal debtor (the BPS) there is also no
subsidiary debtor (the LO)
Q: When can the OM exercise the right of removal?
The right of removal can only be exercised by the OM as against the BPS
provided the latter ends up acquiring the lan; that is, when the LO chooses
option 2. He cannot exercise the right as against the LO even if the latter
chooses option 1. His right of removal is only against the BPS who used his
materials. And he can only exercise it when it will not cause injury to the
property to which it is attached.
Besides, the liability of the LO to the OM is only for the value of the materials
when he is subsidiarily liable. He is never required to give up the materials in
favour of the OM.
ARTICLE 456.
In the cases regulated in the preceding articles, good faith
does not necessarily exclude negligence, which gives right to damages under
article 2176. (n)
i) Builder/Planter/Sower in Good Faith
Depra v. Dumlao
FACTS:
Depra and Dumlao each own lands adjoining one another. When Dumlao
constructed his house on his lot, the kitchen encroached on an area of 34
square meters of Depras property. After the encroachment was discovered in
a relocation survey of Depras lot, his mother Beatriz Derla after writing a
demand letter asking for Dumlao to move back from his encroachment, filed
an action for unlawful detainer against Dumlao. This complaint was later
amended to include Depra as plaintiff.
The municipal court ruled that Dumlao was builder in good faith, applied art
448 of the CC, and ordered a forced lease for a rent of five pesos a month.
From said decision, neither party appealed. But even then, Depra didnt
accept payment so that Dumlao deposited such rentals with the Municipal
Court. Depra filed a complaint for Quieting of Title against Dumlao
involving the very same 34 square meters of land. Dumlao in his answer
admitted the encroachment, but alleged that the present suit is barred by res
judicata by virtue of the prior decision of the Municipal Court. After the pretrial, parties submit a joint motion for judgment, to which the court issued
judgment, affirming the ownership of Depra of the land in dispute. Rebutting
the argument of res judicata, Depra claimed that the first decision of the
Municipal court was null and void because its jurisdiction is limited to the
sole issue of possession, whereas decisions affecting lease, which is an
encumbrance on real property may only be rendered by CFI.
ISSUE: WON Municipal court had jurisdiction to issue the decision ordering a
forced lease between the parties
HELD: NO. Municipal court overstepped its bounds when it imposed upon the
parties a situation of forced lease, which is like forced co-ownership which is not
favoured in law.
A lease is an interest in real property, jurisdiction over which belongs to CFI.
Therefore, the decision cannot operate as res judicata to the subject complaint
for Quieting of Title. Besides, the cause of action in the Municipal Court was
the deprivation of possession, while in the action to quiet title, the cause of
action was based on ownership.
As conceded the Stipulation of Facts between the parties, Dumlao was a
builder in good faith. Pursuant to this, and in relation to article 448 of the CC,
Depra has the option to either pay for the encroaching part of Dumlaos
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kitchen or sell the encroached 34 meters of his lot to Dumlao. It was an error
for the MC to have ruled that Depra is entitled to possession, without more, of
the disputed portion implying thereby that he is entitled to have the kitchen
removed. He is entitled to such removal only when after having chosen to
sell his encroached land, Dumlao fails to pay for the same.
Sarmiento v. Agana
FACTS:
While Ernesto Valentino was still courting his wife, the latters mother had
told him the couple could build a residential house on a lot in Paranaque. He
constructed on the land a house (P8 to P10K) on the assumption that the
wifes mother was the owner of the land and that eventually it would
somehow be transferred to the spouses.
However, the land had been titled in the name of Sps. Santos who sold such
to Leonila Sarmiento. Sarmiento, being the rightful owner, asked Ernesto and
wife to vacate the property and filed an ejectment suit against them. During
the hearings, Sarmiento submitted the deed of sale in her favor which showed
the price of P15K while Ernesto testified that the cost of the Residential House
would be from P30K to P40K. Such figures were not questioned by
Sarmiento.
MTC found that Ernesto was in good faith and ordered him to vacate the land
after Sarmiento has paid them the sum of P20K. Sarmiento was required
within 60 days to exercise the option to reimburse Ernesto or the option to
allow them to purchase the land for P25K. Nonetheless, Sarmiento did not
exercise any of the two options.
Since Sarmiento did not exercise her right to choose, Ernoesto was allowed to
deposit the sume of P25K with the court as the purchase price of the lot.
Thus, Sarmiento instituted the certiorari proceedings.
ISSUE: WON the landowner on which a building has been constructed in good
faith by another has to exercise his option
HELD:
YES. The owner of the building erected in good faith on a land owned
by another, is entitled to retain the possession of the land until he is paid the
value of his building. The owner of the land, on the other had, has the option
either to pay for the building or to sell his land to the owner of the building. But
he cannot refuse both to pay for the building and to sell the land and later on
compel the owner of the building to remove it from the land where it is erected.
Ballatan v. CA
FACTS:
Case arose from a dispute over 42 square meters of residential land

belonging to petitioners. Parties are owners of adjacent lots in Araneta Village
Malabon. Lot 24 is registered in the name of Eden Ballatan and spouses Betty
Martinez and Chong Chy Ling. Lots 25 and 26 in the name of respondent Go.
On lot 25, respondent Winston Gp, son of Gonzalo Go constructed his house.
Adjacent to Lot 26 is Lot 27, 417 square meter in area and is registered in the
name of Li Ching Yao.
Ballatan she noticed when she was having her house constructed in
Lot 24 that the concrete fence and side pathway of the adjoining house of
respondent Wnston Go encroa ched on the entire length of the eastern side of
her property. Building contractor informed her that the area of her lot was
actually less than that described in the title. Ballatan informed respondent Go of
the discrepancy and his encroachment on her property. Go however claimed
that his house including fence and pathway were built within the parameters of
his fathers lot and his lot was surveyed by the authorized surveyor of Araneta
Institute of Agriculture. Ballatan called the attention of the AIA to the
discrepancy of the land area in her title and the actual land area received from
them. AIA authorized another survey of the land by Eng. Quedding. Eng.
Quedding reported that the lot are of Ballatan was less by a few meters and that
of Yao was increased by 2 meters. A third party relocation survey was made
upon the request of the parties, again Quedding found: Lots 25, 26 and 27
moved westward to the eastern boundary of Lot 24: Lo 24 lost approximately 25
square meters on its eastern boundary, that Lot 26 while found to have
encroached on Lot 24 didnt lose or gain an area, and Lot 26 lost some 3 square
meters which however were gained by Lot 27 on the western boundary.
Petitioner made a written demand on respondents Go to remove their
improvements on lot 24. Go refused. They tried settling the case amicably, but
even before the barangay, it didnt get resolved, so Ballatan filed for recovery of
possession. GO filed a third party complaint, impleading Li Ching Yao and
Engineer Quedding.
RTC: ordered the Gos to vacate the subject portion of Lot 24, demolish
their improvements and pay petitioner actual damages. Third party claim was
dismissed.
CA: modified the decision of the TC. Affirmed the dismissal of the
third party complaint. However instead of ordering Go to demolish their
improvements, they were ordered to pay Ballatan and Respondent Li to pay Go
a reasonable amount for the portion of the lot which they encroached, the value
to be fixed at the time of the taking. Ordered Quedding to pay Go for erroneous
survey.
HELD: On the Third Party Complaint; Go and Yao: BUILDERS IN GOOD
FAITH
Correctly dismissed. it was the erroneous survey by Engineer Queddign that
triggered the discrepancies. Go relied upon it in constructing his house on his
fathers land. he built his house in the belief that it was entirely within the
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parameters of his fathers land. Go had no knowledge that they encroached
on petitioners Lot. They therefore are builders in good faith, until the time
Ballatan informed the of their encroachment on her property. Ching Yao built
his house before all other parties. There was no evidence that he was aware
that a portion of a land not his was encroached upon when he had his house
constructed. He is presumed to be in Good faith.
Petitioners may choose to purchase the improvement made on their land or
sell to respondents Go the subject portion. If buying the improvement is
impractical as it may render Gos house useless, then petitioners may sell to
Go a portion of Lot 24 on which their improvement stands. If the Gos are
unwilling and unable to buy the lot, then they must vacate the lot. Petitioners
cannot compel respondents Go to buy the land if its value is considerably
more than the portion of their house constructed thereon. In such case, Go
must pay reasonable rent. If they dont agree on the terms of the lease, then
the Court may fix it. If petitioners elect to sell, the price must be fixed at the
prevailing market value at the time of payment, not at the time of the taking:
this is a case of an owner who has been paying real estate taxes on his land
but has been deprived of the use of a portion of this land for years. It is but
fair to fix compensation at the time of payment.
Nuguid v. CA
FACTS:
Pedro Pecson owned a commercial lot located at 27 Kamias Road, Q.C., on
which he built a 4-door 2-storey apartment building. For failure to pay realty
taxes, the lot was sold at public auction by the City Treasurer of Q.C. to
Mamerto Nepomuceno, who in turn sold it for P103K to Spouses Nuguid.
Pecson challenged the validity of the auction sale before the RTC.
TC: upheld the spouses title but declared that the 4-door 2-storey apartment
building was not included in the auction sale.
In its Order, the TC, relying upon Article 546 of the CC, ruled that:
o Sps. Nuguid were to reimburse Pecson for his construction cost of P53K,
following which, the spouses were entitled to immediate issuance of a writ
of possession over the lot and improvements.
o Pecson to pay the same amount of monthly rentals to the Nuguids as paid
by the tenants occupying the apartment units; and
o Offset of the amount of P53K due from the spouses against the amount of
rents collected by Pecson from the tenants of the apartment.
CA: Affirmed but relied upon Article 448.
SC:
o Article 448 may be applied by analogy;
o Current market value of the improvements should be made as the basis of
reimbursement;
o Pecson entitled to retain ownership of the building and the income;
o CA erred not only in upholding the TCs determination of indemnity but

also in ordering Pecson to account for the rentals of the apartment.
On the basis of the SC decision, Pecson filed a Motion to Restore Possession
and a Motion to Render Accounting which, however, was denied by the RTC.
After paying the balance of the value of the improvements to Pecson, Sps.
Nuguid prayed for the closure and termination of the case, as well as the
cancellation of the notice of lis pendens on the title of the property on the
ground that Pedro Pecsons claim for rentals was devoid of factual and legal
bases.
After conducting a hearing, the TC issued an Order directing the spouses to
pay the sum of P1,344,000 as reimbursement of the unrealized income of
Pecson for the period beginning November 22, 1993 (when Pecson was
dispossessed of the premises) up to December 1997 (the time of the full
payment of the value of the improvements). The sum was based on the
computation of P28K/ month rentals.
CA: reduced the amount to P280K wherein said amount represents accrued
rentals from the determination of the current market value on January 31,
1997 until its full payment on December 12, 1997.
ISSUE: WON CA erred in holding Sps. Nuguid liable to pay rent over and
above the current market value of the improvement when such was not
provided for in the dispositive portion of the earlier ruling of the SC
HELD:
NO. It is not disputed that the construction of the 4-door 2-storey apartment,
subject of the dispute, was undertaken at the time when Pecson was still the
owner of the lot. When Sps. Nuguids became the uncontested owner of the
lot on June 23, 1993 by virtue of the entry of judgment, the apartment building
was already in existence and occupied by tenants.
The Court declared the rights and obligations of the litigants in accordance
with Articles 448 and 546 of the CC. Under Art. 448, the landowner is given
the option, either to appropriate the improvement as his own upon payment
of the proper amount of indemnity or to sell the land to the possessor in good
faith. Relatedly, Art. 546 provides that a builder in good faith is entitled to
full reimbursement for all the necessary and useful expenses incurred; it also
gives him right of retention until full reimbursement is made.
While the law aims to concentrate in one person the ownership fo the land
and the improvements thereon in view of the impracticability of creating a
state of forced co-ownership, it guards against unjust enrichment insofar as
the good-faith builders improvements are concerned. The right of retention
is considered as one of the measures devised by the law for the protection of
builders in good faith.
Its object is to guarantee full and prompt
reimbursement as it permits the actual possessor to remain in possession
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while he has not been reimbursed for those necessary expenses and useful
improvements made by him on the thing possessed.
Accordingly, a builder in GF cannot be compelled to pay rentals during the
period of retention nor be disturbed in his possession by ordering him to
vacate. In addition, as in this case, the owner of the land is prohibited from
offsetting or compensating the necessary and useful expenses with the fruits
received by the builder-possessor in good faith. Otherwise, the security
provided by law would be impaired. This is so because the right to the
expenses and the right to the fruits both pertain to the possessor, making
compensation juridically impossible; and one cannot be used to reduce the
other.
In this case, since Sps. Nuguid opted to appropriate the improvements for
themselves as early as June 1993, when they applied for a writ of execution
despite knowledge that the auction sale did not include the apartment
building, they could not benefit from the lots improvement, until they
reimbursed Pecson in full, based on the current market value of the property.
Sps. Nuguid took advantage of the situation to benefit from the highly
valued, income-yielding, 4-unit apartment building by collecting rentals
thereon, before they paid for the cost of the apartment building. It was only 4
years later that they finally paid its full value to Pecson.
Ruling: Reinstatement of the decision of the RTC requiring the payment of
P1,344,000.
ii) Builder/Planter/Sower in Bad Faith
MWSS v. CA
FACTS:
The City of Dagupan filed a complaint against NAWASA for recovery

of the ownership and possession of the Dagupan Waterworks System.
NAWASA interposed as one of its special defenses RA 1383 which vested upon
it the ownership, possession and control of all waterworks systems throughout
the Philippines and as one of its counterclaims the reimbursement of the
expenses it had incurred for necessary and useful improvements amounting to
P255K.
TC: in favor of the CITY and found NAWASA to be a possessor in bad

faith and hence not entitled to the reimbursement claimed by it. CA: affirmed
TCs decision.
ISSUE: WON NAWASA has the right to remove all the useful improvements it
introduced to the Dagupan Waterworks System, notwithstanding the fact that
NAWASA was found to be a possessor in bad faith
HELD:
NO. Article 449 of the CC provides that he who builds, plants or sows in
bad faith on the land of another, loses what is built, planted or sown without
right to indemnity. As a builder in bad faith, NAWASA lost whatever useful
improvements it had made without right to indemnity.
Moreover, under Article 546 of CC, only a possessor in good faith shall be
refunded for useful expenses with the right of retention until reimbursed and
under Article 547 only a possessor in good faith may remove useful
improvements if this can be done without damage to the principal thing and
if the person who recovers the possession does not exercise the option of
reimbursing the useful expenses.
The right given a possessor in bad faith is to remove improvements applies
only to improvements for pure luxury or mere pleasures, provided the thing
suffers no injury thereby and the lawful possessor does not prefer to retain
them by paying the value they have at the time he enters into possession.
Alviola v. CA
FACTS:
Victoria Tinagan purchased from Mauro Tinagan 2 parcels of land situated in
Negros Oriental. Thereafter, Victoria and her son Agustin Tinagan took
possession of said parcels of land.
In 1960, the Alviolas occupied portions thereof whereat they built a copra
dryer and put up a store wherein they engaged in the business of buying and
selling copra.
When Victoria and Agustin, they were survived by their heirs. Sps. Alviola
filed a complaint for partition and damages claiming to be an acknowledged
natural child of deceased Agustin Tinagan. TC dismissed the case on the
ground that recognition of natural children may be brought only during the
lifetime of the presumed parent. Such decision was appealed but the same
was denied.
Tinagan, on the other hand, filed a complaint for recovery of possession
against Sps. Alviola and that the former be declared absolute owners of the
sais parcels of land and that the spouses ordered to vacate such land and to
remove their copra dryer and store to pay damages, litigation expenses and
attorneys fees.
Spouses Alviola contend that they own the improvements in the disputed
properties which are still public lands and are qualified to be beneficiaries of
the comprehensive agrarian reform program and are rightful possessors by
occupation of said land for more than 20 years.
TC: in favor Tinagan. CA: affirmed TCs decision.
ISSUE: WON the disputed land re public land
WON the Tinagans can remove the improvements placed by the
spouses in their land
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HELD:
NO. Tinagan produced overwhelming evidence to prove their ownership
and possession of the parcels of land. Moreover, the tax declarations showed
by the spouses stated that the house and copra dryer are located on the land
of Victoria and Agustin Tinagan. The Tinagans merely tolerated the spouses
stay in the land as evidence shows that Victoria Tinagan permitted they to
build a copra dryer on the land when they got married.
YES. Spouses Alviola are in bad faith since they constructed the copra dryer
and store on the disputed portions knowing that they are not the owners of
the land. However, the copra dryer and the store as determined by the TC are
transferable in nature. As noted by Tolentino: to fall within the provisions of
the Article 448, the construction must be permanent in character, attached to
soil with an idea of perpetuity but if it is of a transitory character or
transferable, there is no accession and the builder must remover the
construction.
PROPER REMEDY OF THE LANDOWNER IS AN ACTION TO EJECT THE
BUILDER FROM THE LAND.
Benitez v. CA
FACTS:
Private respondents brought against the petitioners a case for the recovery of
possession of an encroached portion of the lot they purchased from Cavite
Development Bank. The parties were able to compromise in which the
private respondent sold the encroached potion to petitioner at the acquisition
cost of 1K/square meter. Private respondent then purchased another
property adjacent to the lot of the petitioners. After a relocation survey was
conducted, private respondents discovered that some 46.50 square meter of
their property was occupied by the petitioners house. Despite verbal and
written demands, petitioners refused to vacate. Private respondents then
filed with MeTC Of San Juan a case for ejectment against petitioners.
MeTC: ordered the surrender of possession of the subject premises to the
owner, and for payment of 930.00/mo until the place has been vacated finally.
RTC: affirmed. CA: appeal was without merit.

Petitioners: MeTC has no jurisdiction over the case because its real nature is
accion publiciana or recovery of possession, not unlawful detainer. It is not
forcible entry because private respondents didnt have prior possession of the
land. it is not unlawful detainer coz petitioners were not unlawfully
withholding the possession thereof. Said also has no jurisdiction to impose
rentals as there is no lessor-lessee relationship between parties. They claim
that due to their good faith, they have a pre-emptive right to purchase the
subject matter land.
Private Respondents:
petitioners are estopped from questioning the
jurisdiction of the MeTC. That there is no law giving the petitioners the
option to buy the encroached property, that petitioners acted in bad faith
because they waived in their deed of sale the usual sellers warranty as to the
absence f any an all liens and encumbrance on the property, thereby implying
that they had knowledge of the encroachment at the time of the purchase.
HELD:
MeTC has jurisdiction. That the petitioners occupied the land prior to private
respondents purchase does not negate the case for ejectment. Prior
possession is not always a condition sine qua non in ejectment. this is one of
the distinctions between forcible entry and unlawful detainer.
The award of 930 is not rental but damages. Damages arise from the loss of
the use and occupation of the property and not the damage private
respondents may have suffered but which have no direct relation to their loss
of material possession.
The option to sell, and not to buy is the landowners choice. Not even a
declaration of the builder, planter, or sowers bad faith shifts this option to
him per art 450. This advantage in Art 448 is accorded the landowner because
his right is older and because by the principle of accession, he is entitled to
ownership of accessory thing. There can be no pre-emptive right to buy even
as a compromise, as this prerogative belongs solely to the landowner. No
compulsion can be legally forced on him.
Petitioners not in good faith. The mere fact that they bought their property
ahead of the private respondents does not establish good faith. Nor does it
prove that petitioners didnt have knowledge of the encroachment when they
purchased the property. Reliance on the presumption on art 526 is misplaced
n view of the declaration of the CA that petitioners were not builders in good
faith.
a.2 Accession Natural
Q; What are the forms of accession natural?
1. Alluvium
2. Avulsion
3. Change of course of rivers
4. Formation of island
Alluvium
ARTICLE 457.
To the owners of lands adjoining the banks of rivers belong
the accretion which they gradually receive from the effects of the current of
the waters. (366)
122

Q: What is alluvium?
Alluvium is the soil deposited or added to the land adjoining the banks of rivers
and gradually received as an effect of the current of the waters.
Q: What are the essential requisites of alluvium?
1. the deposit should be gradual and imperceptible as a process
2. cause is the current of the river
3. current must be that of the river
4. the river must continue to exist
5. the increase must be comparatively little/
Q: According to the Dean, what are the elements of alluvium?
1. It is a gradual deposit of soil
2. it is deposited along the banks of a river
3. the cause of the deposit is the natural flow and current of a river.
Q: To whom is the alluvium granted?
By law, the accretion is owned by the owner of the estate fronting the river bank
(the riparian owner)
Q: Distinguish alluvium from accretion.
Accretion is the process whereby the soil is deposited; alluvium is the soil
deposited.
Accretion is a broader term because alluvium, strictly speaking, applies only to
the soil deposited on river banks.
Q: Why is alluvium granted to the riparian owner?
1. to compensate him for the loss he may suffer due to erosion of the
destructive force of the water and danger from floods;
2. to compensate him because the property is subject to
encumbrances and legal easements;
3. the interest of agriculture requires that the soil be given to the
person who is in the best position to cultivate the same;
4. since it cannot be said with certainty from whom the soil came, it
may just as well be logically given to him who can best utilize the
property.
Note: If the cause of the deposit is not the natural current of the river, and it is
man-made, then it is not a case of alluvium.
It includes rivers, lakes, streams and creeks BUT DOES NOT INLCUDE PONDS
AND LAGOONS. Geesh big deal!
Q: What is a river?
A river is a natural stream of water, of greater volume than a creek or rivulet3
flowing in a more or less permanent bed or channel between defined banks or
walls with a current which may either be continuous in one direction or affected
by the ebb and flow of the tide.
Q: What is a lake?
A lake is a body of water formed in depressions of the earth, ordinarily fresh
water, coming from rivers, brooks, or springs connected with the sea by them.
Q: What is a creek?
A creek is a small stream less than a river, a recess or inlet in the shore of a river
and not a separate or independent stream, though it is sometimes used in the
latter sense.
Q: To whom does the accretions on the bank of a lake belong?
Belongs to the owners of the estate to which they may have been added.
Q: What about the accretion on the bank of an island formed in non-navigable
river?
This accretion belongs to the owner of the island.
Q: What about accretion on a sea bank?
Article 457 cannot apply. This accretion forms part of the public domain.
Q: What if accretion occurs on the bank of Manila Bay?
Then it will form part of the public domain because Manila Bay is a sea.
Q: What is a bay?
A bay is a body of water forming part of the sea.
Q: What if the property was registered can the owner of said property
successfully claim that any part of the property lost by him thru accretion still
remains his by virtue of the Torrens Certificate of Title?
No, accretions of the character of alluvium are natural incidents of land
bordering running streams or rivers and are therefore not affected by
registration laws. Registration does not protect the riparian owner against the
Q: What are included in Article 457?

3
stream, brook, creak, gully
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diminution of the area of his land thru gradual changes in the course of
adjoining streams, rivers, lakes and creeks.
Q: Assume that Witos land is covered by a TCT and Raisas land is covered
also by a TCT. If part of Witos land is transferred gradually to the other side of
the river fronting Raisas land, is the land automatically registered in Raisas
name?
No. The ownership of the alluvium is automatic in favour of Raisa but its
registereation is not. Raisa has to apply for additional registration.
Q: What is the effect if RAisa does not register the alluvium?
Raisa still owns the alluvium but she can lose her right of ownership to third
persons thru prescription.
Q: If Joan buys a parcel of land on installment, who will own the alluvial
deposit that may accrue before full payment is made?
Joan, for she is the one who has beneficial and equitable title over the property.
Q: In the case of the lahar, can there be an accretion?
Yes, it can be owned by the owners of the adjoining properties but not based on
alluvium or accretion (Deans opinion).
ARTICLE 458.
The owners of estates adjoining ponds or lagoons do not
acquire the land left dry by the natural decrease of the waters, or lose that
inundated by them in extraordinary floods. (367)
Q: When is this article applicable?
It applies when the estate adjoins a pond or a lagoon.
Q: What is a pond?
A pond is a body of stagnant water without an outlet, larger than a puddle and
smaller than a lake, or a like body of water with a small outlet.
Q: What is a lagoon?
A lagoon is a small lake ordinarily of fresh water and not very deep fed by
floods the hollow bed of which is bounded by the elevations of the land.
Q: Mickey owns a land bordering a lagoon. Because of an extraordinary blood
a portion of the land was inundated. Has he lost that said portion of the land?
No, because of Art 458. However, in time, he may lose it by prescription.
Avulsion
ARTICLE 459.
Whenever the current of a river, creek or torrent segregates
from an estate on its bank a known portion of land and transfers it to another
estate, the owner of the land to which the segregated portion belonged retains
the ownership of it, provided that he removes the same within two years.
(368a)
Q: What is avulsion?
Avulsion is the process whereby the current of a river, creek, or torrent
segregates from an estate on its bank a known portion of land and transfers it to
another estate, the owner of the land to which the segregated portion belonged
retain the ownership of it, provided that he removes the same within 2 years.
Q: What is a torrent?
A torrent is a violent rushing, or turbulent stream.
Q: Distinguish Alluvium from Avulsion
1. In alluvium, the deposit of the soil is gradual, while in avulsion, a
sudden abrupt process may be seen.
2. In alluvium, the soil cannot be identified, while in avulsion, it is
identifiable or verifiable;
3. Alluvium belongs to the owners of the property to which it is
attached/added, while avulsion belongs to the owner from whose
property it was detached.
Q: According to the Dean, what are the requisites of avulsion?
1. The transfer must be sudden and abrupt;
2. the land transferred must be identifiable
Q: Who owns the land transferred by avulsion?
The owner of the land from where that piece of land was detached remains to be
the owner of the land.
Q: In case of avulsion, when does the original owner of the detached property
lose ownership of said portion?
The original owner loses tile over the said portion once it is abandoned or after
the expiration of two years without the owner claiming it.
Q: Is it enough that the owner says the land is his but leaves it in the estate of
another?
No, he has to remove it within 2 years.
Q: If the owner of the detached property fails to claim it, who becomes the
owner of the said portion?
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This will be considered a case of accretion given to the owner of the adjoining
property.
Q: If instead of being uprooted, the trees still remain attached to the land that
has been carried away, does this article apply? No, Art 459 governs.
Q: Suppose the detached portion is placed on top and not alongside or adjacent
to anothers land, will this article apply?
Q: Must Abby be given compensation?

It depends. If she has incurred expenses for the preservation of the trees, she is
entitled to indemnification. If she has done nothing, she cannot demand
indemnification unless she has suffered in any way, and Lanie has benefited, in
that, for example, the trees were not carried away by the current.
In avulsion, it is essential that the detached portion be known or identifiable.

Therefore., merely placing on top will not make the article inapplicable as long
as identification is still possible.
Change of Course of Rivers

Q: Suppose the detached portion is not attached to anothers land but is simply
in the middle of the river, what rule applies?
Ownership still remains with the person from whose land it has been detached,
as in Article 463.
ARTICLE 460.
Trees uprooted and carried away by the current of the
waters belong to the owner of the land upon which they may be cast, if the
owners do not claim them within six months. If such owners claim them, they
shall pay the expenses incurred in gathering them or putting them in a safe
place. (369a)
Q: Because of the force of the river current, some trees on the estate of Lanie
were uprooted and cast on the estate of Abby. Who owns the trees?
Lanie is still considered as the owner of the uprooted trees, provided she claims
them within 6 months. But if she does not claim them within 6 months, Abby
will become the owner. If Lanie makes the claim, she will have to shoulder the
expenses for gathering and putting the same in a safe place. Failure to make the
claim within 6 months will bar any future action to recover the trees.
Q: What if the trees have been transplanted by the owner of the land upon
which they have been cast, does Lanie lose ownership?
No, ownership is still retained by Lanie provided that the claim was made
properly.
Q: What if Lanie made a claim within 4months but made no steps to recover the
trees, may an action still be filed afterwards for the recovery of the trees?
Yes, provided the action is brought within the period set by law for prescription
of movable property (ordinary prescription is 4 years). The 6-month period
given should be considered only as a condition precedent, In other words,
Lanie has to make the claim within 6 months. If no claim was made within said
period, the ownership changes and Abby acquires the trees.
ARTICLE 461.
River beds which are abandoned through the natural
change in the course of the waters ipso facto belong to the owners whose
lands are occupied by the new course in proportion to the area lost. However,
the owners of the lands adjoining the old bed shall have the right to acquire
the same by paying the value thereof, which value shall not exceed the value
of the area occupied by the new bed. (370a)
Q: What is the rule in the change of ownership?
When there is natural change in the river course, the abandoned river bed now
belongs to the owner of the land where the new river course is flowing.
Q: What are the requisites for this article to apply?
1. the change must be so sudden in order that the old river bed may be
identified;
2. the changing of the course must be more or less permanent;
3. the change of the riverbed must be natural;
4. there must be definite abandonment by the government;
5. the river must continue to exist, that is, it must not completely dry up
or disappear.
Q; What if the change in the river course is due to man made causes?
The rule in the change of river course does not apply because not all the
requisites are complied with.
Q: What is the effect of the change of river bed?
The abandoned river is given to the prejudiced owner to the extent of his loss;
any excess is owned by the government, but the adjoining owner can purchase
the excess.
Q: Does the prejudiced owner acquire the entire abandoned riverbed? Yes.
Q: SO when does the rule in proportion to the area lost apply?
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IT applies only when there are two or more owners who have lost a portion of
their lots. In such case, the entire abandoned riverbed will go to them
proportionately, that is, in proportion to the area each has lost.
Q: Supposing Mababaw River change its course entering the estate of Joyce. If
the abandoned riverbed is between the estates of Donna and JC, what are the
rights of the two owners of the estate?
IF they want to acquire the abandoned riverbed, Donna and JC can but it from
Joyce who is now its owner.
Q: What if Joyce does not want to sell it?
The option is with Donna and JC, not with Joyce. While the abandoned
riverbed is considered as Joyces, the adjoining owners are given the option to
acquire it for practical reasons.
Q: What happens if Donna and JC cannot agree on how to apportion the land?
They can divide the land equally.
Q: What if due to the change of river course, the owner of an estate Franco loses
a portion of his land but there was no drie3d up river bed, can the prejudiced
owner demand compensation from the government for his loss?
No. He is not entitled to monetary compensation from the government because
the loss was due to the natural formation of rivers.
Note: The provision of Art 460 has been affected by the Water Code. The Water
Code entitles the government to do some structures and implement some works
in order to bring back the river to its old bed. It is the option of the State to do
this in order not to disrupt the existing ownership in the properties. The option
of the State is primordial over all the rights of the private owners. The Water
Code does not, however, repeal the provisions of the Civil Code on this matter.
ARTICLE 462.
Whenever a river, changing its course by natural causes,
opens a new bed through a private estate, this bed shall become of public
dominion. (372a)
Q: What is the rule if the new river bed in on a private estate?
Even if the new bed is on private property, the bed forms part of the public
domain, just as the old bed had been of public dominion before the
abandonment. The new river banks shall likewise be of public dominion.
Q: What if the new river bed is itself abandoned?
The owner of the land flooded by the new change of course would own the
newly abandoned bed. If the river goes back to its old course, the owner of the
land originally flooded would get back the ownership of the land which he had
lost.
ARTICLE 463.
Whenever the current of a river divides itself into branches,
leaving a piece of land or part thereof isolated, the owner of the land retains
his ownership. He also retains it if a portion of land is separated from the
estate by the current. (374)
Q: What does this art refer to?
To the formation of island by the branching off of a river as distinguished from
the formation of islands by successive accumulation of alluvial deposits referred
to in Arts 464 and 465. In the first, no accession takes place, the owner retaining
the ownership of the segregated portion and in the second, accession takes
place/
Q: Does this article apply when the river is navigable?
Yes. This article applies whether the river is navigable or not, for in both cases,
the owner should not be deprived of his dominion over the segregated or
isolated property.
Formation of Islands
ARTICLE 464.
Islands which may be formed on the seas within the
jurisdiction of the Philippines, on lakes, and on navigable or floatable rivers
belong to the State. (371a)
ARTICLE 465.
Islands which through successive accumulation of alluvial
deposits are formed in non-navigable and non-floatable rivers, belong to the
owners of the margins or banks nearest to each of them, or to the owners of
both margins if the island is in the middle of the river, in which case it shall
be divided longitudinally in halves. If a single island thus formed be more
distant from one margin than from the other, the owner of the nearer margin
shall be the sole owner thereof. (373a)
Q: Who owns the island formed by unidentifiable accumulated deposits?
It depends:
1. if formed on the sea:
a. Within the territorial waters or maritime zone or
jurisdiction of the Phils----STATE
b. Outside of our territorial jurisdictionTHE FIRST
COUNTRY TO EFFECTIVELY OCCUPY THE SAME.
2. if formed on lakes, or navigable or floatable rivers---STATE
126

3.
if formed on non-navigable or non-floatable rivers

a. If nearer in margin to one bankOWNER OF NEARER
MARGIN IS THE SOLE OWNER.
b. If equidistant, ISLAND SHALL BE DIVIDED
LONGITUDINALLY IN HALVES, EACH BANK
GETTING HALF.
Q: What is navigable or floatable rivers?

Rivers are considered navigable or floatable if useful for floatage and commerce
whether the tide affect the water or not should benefit trade and commerce.
Q: Who determines whether a river is navigable or not? The State.
Q: What is the rule to be followed if a new island is formed between the older
island and the bank?
In this case, the owner of the older island is considered a riparian owner, and if
the new island is nearer in margin to the older island, the owner of the older
island should be considered also the owner of the new island.
Reynante v. CA
FACTS:
Reynante was taken as tenant of Don Cosme Carlos, owner and father-in-law
of private respondents, over a fishpond in Bulacan.
During the tenancy, Reynante constructed a nipa hut where he and his family
lived and took care of the nipa palms he planted on lots 1 and 2, the lots are
located between the fishpond and the Liputan River.
Petitioner harvested and sold said nipa palms without interference and
prohibition from anybody. Neither did the late Don question his right to
plant the nipa palms near the fishpond or to harvest and appropriate them as
his own.
After the death of Don, his heirs entered into a written agreement with
Reynante whereby the latter for and in consideration of the sum of 200K
turned over the fishpond he was tenanting to the heirs of Don and
surrendered all his rights therein as caretaker.
Petitioner surrendered the fishpond and the two huts to private respondents.
Private respondent thereafter leased the said fishpond to Carlos de la Cruz.
Reynante continued to live in the nipa hut constructed by him in lots 1 and 2
and to take care of the nipa palms he had planted therein.
Private respondents formally demanded from the petitioner to vacate said
portion since according to them, petitioner had already been indemnified for
the surrender of his rights as tenants.
Private respondents filed a complaint for forcible entry with preliminary
injunction against petitioner alleging that the latter by means of strategy and
stealth took over the physical, actual and material possession of lots 1 and 2
by residing in one of the kubos bordering the Liputan River and cutting off
and /or disposing of the sasa or nipa palms adjacent thereto.
TC: dismissed complaint and found that petitioner had been in prior
possession of lots 1 and 2. CA: affirmed TC.
ISSUE: WON the disputed lots belong to the private respondents as a result of
accretion
HELD: Reynante wins
The questioned lots are not included in the TCT as verified by the Forest
Management Bureau, DENR. CA ordered that the lots 1 and 2 were created by
alluvial formation. However granting that lots were created by alluvial
formation, this does not stop another person other than the riparian owner
from acquiring the land formed by accretion via prescriptive acquisition.
Assuming that Carlos had acquired the alluvial deposit by accretion, their
failure to register the said accretion for 50 years subjected such accretion to
prescriptive acquisition by third persons
An action for forcible entry is a merely quieting process and actual title to the
property is never determined. A party who can prove prior possession can
recover such possession even against the owner himself. Whatever the
character of the of his prior possession if he has in his favour priority in time,
he has the security that entitles him to remain on the property until he is
lawfully ejected by a person having a better right by accion publiciana or
accion reinvidicatoria.
Accretion benefits a riparian owner when the ff requisites occur

1. that the deposit be gradual and imperceptible
2. that it resulted from the effects of the current of the water
3. that the land where accretion takes place is adjacent to the bank of the
river
Vda. de Nazareno v. CA
FACTS:
Before he died, Antonio Nazareno caused the approval by the Bureau of
Lands of the survey plan designated, with a view to perfecting his title over
the accretion area being claimed by him.
Before the approved survey plan could be released to the applicant, however,
it was protested by private respondents before the Bureau of Lands.
Land Investigator Avelino G. Labis conducted an investigation and rendered
a report to the Regional Director recommending that survey plan of the
subject land in the name of Antonio Nazareno, be cancelled and that private
respondents be directed to file appropriate public and applications.
Based on said report, respondent Regional Director of the Bureau of Lands
rendered a decision ordering the amendment of the survey plan in the name
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of Antonio Nazareno by segregating therefrom the areas occupied by the

private respondents who, if qualified, may file public land applications
covering their respective portions.
Antonio Nazareno filed a motion for reconsideration with respondent
Undersecretary of the Department of Natural Resources and Officer-inCharge of the Bureau of Lands who denied the motion.
Respondent Director of Lands then ordered him to vacate the portions
adjudicated to private respondents and remove whatever improvements they
have introduced thereon. He also ordered that private respondents be placed
in possession thereof.
Upon the denial of the late Antonio Nazareno's motion for reconsideration,
petitioners Desamparado Vda. De Nazareno and Leticia Tapia Nazareno, filed
a case before the RTC, for annulment of the following: order of investigation
by respondent Gillera, report and recommendation by respondent Labis,
decision by respondent Hilario, order by respondent Ignacio affirming the
decision of respondent Hilario and order of execution by respondent Palad.
The RTC dismissed the complaint for failure to exhaust administrative
remedies, which resulted in the finality of the administrative decision of the
Bureau of Lands. On appeal, the Court of Appeals affirmed the decision of the
RTC.
Petitioners claim that the subject land is private land being an accretion to his
titled property, applying Article 457 of the Civil Code which provides: "To the
owners of land adjoining the banks of rivers belong the accretion which they
gradually receive from the effects of the current of the waters."
ISSUES: WON subject land a public land

WON rules on alluvion should apply
HELD:
The accretion was man-made or artificial. Petitioners admit that the accretion
was formed by the dumping of boulders, soil and other filling materials on
portions of the Balacanas Creek and the Cagayan River bounding their land
the requirement that the deposit should due to the effect of the current of the
river is indispensable. This excludes from Art. 457 of the Civil Code all
deposits caused by human intervention It cannot be claimed, therefore, that
the accumulation of such boulders, soil and other filling materials was
gradual and imperceptible, resulting from the action of the waters or the
current of the Balacanas Creek and the Cagayan River. "Current" indicate the
participation of the body of water in the ebb and flow of waters due to high
and low tide. Alluvion must be the exclusive work of nature. Where the land
was not formed solely by the natural effect of the water current of the river
bordering said land but is also the consequence of the direct and deliberate
intervention of man, it was deemed a man-made accretion and, as such, part
of the public domain.
The subject land was the direct result of the dumping of sawdust by the Sun
Valley Lumber Co. consequent to its sawmill operations. even if it were to be
taken into consideration petitioners' submission that the accretion site was
the result of the late Antonio Nazareno's labor consisting in the dumping of
boulders, soil and other filling materials into the Balacanas Creek and
Cagayan River bounding his land, the same would still be part of the public
domain. Petitioner's submission not having met the first and second
requirements of the rules on alluvion, they cannot claim the rights of a
riparian owner.
Accretion, as a mode of acquiring property under Art. 457 of the Civil Code,
requires the concurrence of these requisites:
1. that the deposition of soil or sediment be gradual and imperceptible;
2. that it be the result of the action of the waters of the river (or sea); and
3. that the land where accretion takes place is adjacent to the banks or
rivers (or the sea coast). These are called the rules on alluvion which if
present in a case, give to the owners of lands adjoining the banks of
rivers or streams any accretion gradually received from the effects of
the current of waters.
Petitioners are estopped from denying the public character of the subject land,
as well as the jurisdiction of the Bureau of Lands when the late Antonio
Nazareno filed his Miscellaneous Sales Application .Mere filing of said
Application constituted an admission that the land being applied for was
public land, having been the subject of Survey Plan which was conducted as a
consequence of Antonio Nazareno's Miscellaneous Sales Application wherein
said land was described as an orchard. Said description by Antonio Nazareno
was, however, controverted by respondent Labis in his investigation report to
respondent Hilario based on the findings of his ocular inspection that said
land actually covers a dry portion of Balacanas Creek and a swampy portion
of Cagayan River. The investigation report also states that, except for the
swampy portion which is fully planted to nipa palms, the whole are is fully
occupied by a part of a big concrete bodega of petitioners and several
residential houses made of light materials, including those of private
respondents which were erected by themselves sometime in the early part of
1978.
Bagaipo v. CA
FACTS:
Bagaipo is the registered owner of an agricultural land in Davao City.

Lozano is the owner of a registered parcel of land located across and opposite
the southeast portion of the petitioners lot facing the Davao river.
Lozano acquired and occupied the property in 1962 when his wife
inherited the land from her father who died that year.
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Bagaipo filed a complaint for Recovery of Possession with Mandatory

Writ of Preliminary Injunction and Damages against Lozano for the surrender
of possession by Lozano of a certain portion of land which is supposedly
included in the area belonging to Bagaipo, and recovery of a land which
Bagaipo allegedly lost when the Davao River traversed her property..
Bagaipo contended that a result of a change in course of the said river,

her property became divided into three lots, Lot 415-A, 415-B and 415-C. in the
resurvey lot of 415 and presented before the trial court a survey plan prepared
by Magno, a Geodetic Engineerm and the survey plan showed that the area
presently occupied by Baigpo now had an are of only 79,843 square meters; lot
415-B with an area measuring 37, 901 square meters which cut across Bagaipos
land was taken up by the new course of the Davao River, and the area of 29,162
square meters designated as lot 415-C was illegally occupied by respondent
Lozano.
Engineer Magno concluded that the land presently located across the
river and parallel to Bagaipos property still belonged to the Bagaipo and not to
Lozano, who planted some 350 fruit-bearing trees on lot 415-C and the old
abandoned river bed.
Bagaipo presented Corias. a former barangay captain and long time

resident to prove her claim that the Davao River had indeed changed its course,
he testified that the occurrence was caused by a big flood in 1968 and a bamboo
grove which used to indicate the position of the river was washed away. The
river which flowed previously in front of a chapel located 15 meters away from
the riverbank with Bagaipos property now flowed behind it.
Lozano: insisted that the land claimed by Bagaipo is actually accretion

to their titled property. He asserted that the Davao River did not change its
course and that the reduction in Bagaipos domain was caused by gradual
erosion due to the current of the Davao River Lozano added that it is also
because of the rivers natural action that silt slowly deposited and added to his
land over a long period of time.
He further averred that the accretion continues up to the present and

that the registration proceedings instituted by him over the alluvial formation
could not be included precisely because it continued to increase in size.
He presented 3 witnesses: Lozanos brother in law, Atty. Castillo who

said that the land occupied by Lozano was transferred to his sister Ramona
when they extra-judicially partitioned their parents property, and that he filed a
land registration case involving the accretion that formed on the property and
submitted a survey plan, which remains as a pending case since the complaint
had to be amended to include the continuing addition to the land area.
Another witness Pasanday testified that he has continuously worked as

tenant of the Atty. Castillos & Castillos, and the land he tilled was opposite the
land of the Lozanos and adjacent to the Davao River, which decreased
throughout the years, to its present size which is about 1 ha. He said that each
time theres flood, the soil on the bank of the river and the coconut trees he
planted would be carried away. this similar erosion occurs on the properties of
Bagaipo since the elevation of the riverbank on their property is higher than the
elevation on Lozanos side.
Catucag the last witness also was a tenant of the Castillos, and said that
the land he occupies was given to Ramona, Lozanos wife. it was only 1 ha but
has increased to 3 has due to soil deposits from the mountains and river..
Catucag said that Bagaipos property was reduced to half since it is in the curve
of the river and its soil erodes and gets carried away by the river water.
TC: decide for Lozano; conducted an ocular inspection and concluded

that the applicable law is 457 and not 461. the reduction of land was caused by
erosion and not by a change in course of the Davao River. CA: affirmed.
ISSUE: WON petitioner owns the abandoned river bed pursuant to article 461
of the CC
HELD: Lozano wins. Bagaipo cannot own said land expansion. ARTICLE 461 is
INAPPLICABLE as expansion was caused by both erosion and accretion
The decrease on the petitioners land and the corresponding expansion of
respondents property were the combined effect of erosion and accretion.
Article 461 is inapplicable. The petitioner cannot claim ownership over the
old abandonment because the same is inexistent. Riverbeds former location
cannot even be pinpointed with particularity since the movement of the
Davao River took place gradually over an unspecified period of time.
As discovered by the TC, the banks located on petitioners land are sharp,
craggy and very much higher than the land on the other side of the river.
Riverbank on respondents side is lower and gently sloping. Lower land
therefore naturally received the alluvial soil carried by the river current.
The petitioner didnt demonstrate that lot 415-C was within her titled
property. The survey plan commissioned by the petitioner was not approved
by the director of lands was property discounted by the CA.
In the absence of the evidence that the change in the course of the river was
sudden or that it occurred through avulsion, the presumption is that the
change was gradual and was caused by alluvium or erosion
The requisites were proven in favor of Lozano. Requisites for accretion to
benefit the riparian owner:
1. deposit is gradual and imperceptible.
2. resulted from the effects of the current of the water.
3. land where accretion takes place is adjacent to the bank of the river.
ON PERSONAL PROPERTY:
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ARTICLE 466.
Whenever two movable things belonging to different
owners are, without bad faith, united in such a way that they form a single
object, the owner of the principal thing acquires the accessory, indemnifying
the former owner thereof for its value. (375)
Q: What is adjunction or conjunction?
It is the process by virtue of which two movable things belonging to different
owners are united in such a way that they form a single object. They remain,
however, identifiable from each other.
Ex: A varnishes the chair using the varnish if B.
Q: What are the different kinds of adjunction?
1. Inclusion (diamond set on a ring)
2. Soldering (joining legs made of lead to a body also made of lead)
3. Escritura (writing)
4. Pintura (painting)
5. Weaving
Q: Anne in good faith used the varnish of Glenda in varnishing her table. What
are their rights?
Anne will become the owner of the varnish, in fact the whole varnished table.
But she must indemnify Glenda for the value of the varnish.
ARTICLE 467.
The principal thing, as between two things incorporated, is
deemed to be that to which the other has been united as an ornament, or for
its use or perfection. (376)
ARTICLE 468.
If it cannot be determined by the rule given in the preceding
article which of the two things incorporated is the principal one, the thing of
the greater value shall be so considered, and as between two things of equal
value, that of the greater volume.
In painting and sculpture, writings, printed matter, engraving and
lithographs, the board, metal, stone, canvas, paper or parchment shall be
deemed the accessory thing. (377)
Q: What is the test to determine which is the principal and which is the
accessory?
To determine the principal, the following tests are applied (in the order of
preference):
1. Intent: to which another is attached as an ornament, or for its use
or perfection regardless of the value or volume is considered as
principal.
2. Value: the thing greater in value is the principal.
3.
Volume: If the value as equal, the greater in volume is the

principal.
If they are not of the same volume, there is no provision or rule on how
to decide it. Paras (daw) mentions of a fourth test, which speaks of that
which has greater merits from the combined consideration of utility
and volume.
Q: What is the exception to the test of intention?
The exception is that if the accessory (the one attached) is such that it is more
valuable than the principal, they retain their character as principal and
accessory but the owner of the accessory has the right to ask for the physical
separation of the accessory regardless of the damage it may bring to the
principal (Dean).
Q: In such case, who bears the expenses for the separation?
If both are in good faith, it is the owner of the thing who caused the union of the
two things.
Q: What are the exceptions to the test?
1. In painting, the work place in the canvass is considered the principal
and the canvass the accessory.
2. In writing, the principal is the writings and the paper is considered the
accessory.
3. In sculpture, printed matter, engraving, and lithographs, the board, the
metal, the stone, or parchment shall be deemed the accessory.
Q: What is the reason behind the rule and theses exceptions?
This is because the law puts more value to intellectual property.
Q: What if the adjunction concerns three or more things?
In this case, determine which is really the principal; all the rest should be
considered accessories. If there be two principals, still it should be determined
which, as between them, should be considered the principals and which is the
accessory.
ARTICLE 469.
Whenever the things united can be separated without
injury, their respective owners may demand their separation.
Nevertheless, in case the thing united for the use, embellishment or
perfection of the other, is much more precious than the principal thing, the
owner of the former may demand its separation, even though the thing to
which it has been incorporated may suffer some injury. (378)
Q: What is the general in an adjunction and its exception?
130

The general rule is that the accessory follows the principal. The owner of the
principals can acquire the accessory. The exception in the accessory is much
more precious in term is of value than the principal. In such case, the owner of
the accessory may demand the separation even if the principal suffers some
injury at his expense.
Ex: a diamond stone and a ring of inferior quality if the value of the diamond
is more than the value of the ring, owner of the diamond can ask for separation.
ARTICLE 470.
Whenever the owner of the accessory thing has made the
incorporation in bad faith, he shall lose the thing incorporated and shall have
the obligation to indemnify the owner of the principal thing for the damages
he may have suffered.
If the one who has acted in bad faith is the owner of the principal thing, the
owner of the accessory thing shall have a right to choose between the former
paying him its value or that the thing belonging to him be separated, even
though for this purpose it be necessary to destroy the principal thing; and in
both cases, furthermore, there shall be indemnity for damages.
If either one of the owners has made the incorporation with the knowledge
and without the objection of the other, their respective rights shall be
determined as though both acted in good faith. (379a)
Q: After determining which is the principal and the accessory, what are the
rules to be followed?
If the owner of the principals and the owner of the accessory acted both in good
faith, the former can acquire the principal and accessory but the must indemnity
the latter for the value of the accessory.
Q: What if the owner of the principal acted in bad faith while the owner of the
accessory in good faith?
The owner of the accessory loses the accessory to the owner of the principal
without indemnity from him and is liable to pay damages.
ARTICLE 471.
Whenever the owner of the material employed without his
consent has a right to an indemnity, he may demand that this consist in the
delivery of a thing equal in kind and value, and in all other respects, to that
employed, or else in the price thereof, according to expert appraisal. (380)
Q: How is indemnity is paid by the owner of the prinicipal?
Indemnity is paid is either by:
1. delivery of a thing equal in kind and value (quantity or quality); or
2. payment of price as appraised by expert
In determining the proper value, sentimental value must be taken into
account.
Mixture
ARTICLE 472.
If by the will of their owners two things of the same or
different kinds are mixed, or if the mixture occurs by chance, and in the latter
case the things are not separable without injury, each owner shall acquire a
right proportional to the part belonging to him, bearing in mind the value of
the things mixed or confused. (381)
ARTICLE 473.
If by the will of only one owner, but in good faith, two
things of the same or different kinds are mixed or confused, the rights of the
owners shall be determined by the provisions of the preceding article.
If the one who caused the mixture or confusion acted in bad faith, he shall
lose the thing belonging to him thus mixed or confused, besides being
obliged to pay indemnity for the damages caused to the owner of the other
thing with which his own was mixed. (382)
Q: What is a mixture?
It is a combination or union of material where the respective identities of the
compenent elements are lost.
Q: What are the kinds of mixture?
1. Commixtion if solids are mixed
2. Confusion if liquids are mixed
Q: What are the rules followed in case of mixture?
First step determine how the things are mixed
a. by chance or will of one party
b. by will of both parties
c. by accident
Second step apply the applicable rule:
a.
if the mixture is caused by the will of both parties, meaning there
is an agreement between them, the mixed property will be owned
by them in accordance with their agreement;
b. if the mixture is caused by the will of one party who acted in good
faith, then co-ownership results and each owner acquires an
interest or right to the mixed property in proportion to the value
of the individual materials. If the party who caused the mixture
acted in bad faith, he loses his materials in favor of the other and
is liable to pay damages.
c.
If the mixture is caused by accident, divide the mixed property on
the basis of co-ownership.
131

Q: What is the rule if the parts mixed are of the same kind, quality and
quantity?
Then all you have to do is divide the mixture in equal parts.
Q: What if the mixture is caused by the negligence of one of the parties?
The party negligent is liable for culpa aquiliana and should indemnify the other
party for damages. Good faith does not necessarily exclude negligence.
Q: Supposing 1 liter of lard is mixed with liter of water, is there confusion?
None because they can still be identified and segregated from each other. This
is therefore a case of adjunction.
Specification
ARTICLE 474.
One who in good faith employs the material of another in
whole or in part in order to make a thing of a different kind, shall appropriate
the thing thus transformed as his own, indemnifying the owner of the
material for its value.
If the material is more precious than the transformed thing or is of more
value, its owner may, at his option, appropriate the new thing to himself, after
first paying indemnity for the value of the work, or demand indemnity for
the material.
If in the making of the thing bad faith intervened, the owner of the material
shall have the right to appropriate the work to himself without paying
anything to the maker, or to demand of the latter that he indemnify him for
the value of the material and the damages he may have suffered. However,
the owner of the material cannot appropriate the work in case the value of the
latter, for artistic or scientific reasons, is considerably more than that of the
material. (383a)
Q: What is specification?
It is the giving of a new form to another matter thru the application of labour.
The material undergoes a transformation or change of identity.
Ex: Baking a cake with flour of another.
Exception: If the material is more valuable than the thing produced, the owner
of the materials has the option to:
1. acquire the thing produced by paying for the labour; or
2. demand indemnity for the material.
HOWEVER, to option to acquire the work is not available if the value of the
resultant work is more valuable for artistic or scientific reasons.
Ex: if Picasso were alive and made painting using a canvass and paint
belonging to you.
Q: What if its the owner of the materials who is in bad faith?
Then he loses the materials without payment for its value and he must also pay
damages.
Q: What if its the worker who acted in bad faith?
Since the owner of the materials is in good faith, he still has the option to:
1. Acquire the work but he must pay for the labour; or
2. Demand indemnity for the value of the materials plus damages.
Q: Distinguish specification from adjunction and mixture:
1. Adjunction
a. Involves at least two things;
b. As a rule, accessory follows the principal;
c. The things joined retain their nature.
2. Mixture:
a. Involves at least two things
b. As a rule, co-ownership results;
c. Thing things mixed or confused may either retain or lose their
respective natures.
ARTICLE 475.
In the preceding articles, sentimental value shall be duly
appreciated. (n)
Q: What is the general; rule under this provision?

The rule is that the accessory follows the principal with labour being considered
the principal and the materials as the accessory.
Q: What are the rights of the worker who acted in good faith and the owner of
the materials who also acted in good faith?
The worker can acquire the new thing but he must indemnify the owner of the
materials for the value of the materials.
132

A. Quieting of Title
ARTICLE 476.
Whenever there is a cloud on title to real property or any
interest therein, by reason of any instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective but is in truth and in fact
invalid, ineffective, voidable, or unenforceable, and may be prejudicial to
said title, an action may be brought to remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud from being cast upon title to
real property or any interest therein.
ARTICLE 477.
The plaintiff must have legal or equitable title to, or interest
in the real property which is the subject matter of the action. He need not be
in possession of said property.
ARTICLE 478.
There may also be an action to quiet title or remove a cloud
therefrom when the contract, instrument or other obligation has been
extinguished or has terminated, or has been barred by extinctive prescription.
ARTICLE 479.
The plaintiff must return to the defendant all benefits he
may have received from the latter, or reimburse him for expenses that may
have redounded to the plaintiff's benefit.
ARTICLE 480.
The principles of the general law on the quieting of title are
hereby adopted insofar as they are not in conflict with this Code.
ARTICLE 481.
The procedure for the quieting of title or the removal of a
cloud therefrom shall be governed by such rules of court as the Supreme
Court shall promulgated.
B.
Co-Ownership
ARTICLE 484.
There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons.
In default of contracts, or of special provisions, co-ownership shall be
governed by the provisions of this Title. (392)
Q: What is co-ownership?
Co-ownership is that sate where an undivided thing or right belongs to two or
more persons; it may pertain to real or personal property as well as to tangible
or intangible property rights.
Q: What are the elements of co-ownership?
1. Plurality of subjects: there are more than one subject or owners
2. Unity of object: There is one physical whole divided into ideal shares;
3.
Recognition of the ideal shares by the co-owners which determine their

rights and obligations.
Each ideal share is definite in amount, but is not physically segregated from the
whole.
CO-OWNERSHIP vs. PARTNERSHIP
Co-ownership
no separate and distinct personality
from its owners
Partnership
has a separate and distinct
personality from its partners
nowhere to register
may be created not only by
agreement but also by law, etc.
not personal in character
cannot terminate it because 1 coowner had died because the
deceased co-owners heirs take over
registration with SEC

created only by agreement
1.
you choose your partners

dissolved when one of the partners
dies
Elements
Robles v. CA
FACTS:
Leon Robles owned the land situated in Kay Taga, Lagundi, Morong, Rizal
and occupied it same openly and adversely. He also declared the same in his
name for taxation purposes as early as 1916 and paid taxes. When he died, his
son Silvino inherited the land, took possession and declared it in his name for
taxation purposes and paid taxes. Upon his death in 1942, his widow Maria
de la Cruz and his children inherited the property. They took adverse
possession of said property and paid taxes. The task of cultivating the land
was assigned to plaintiff Lucio Robles who planted trees and other crops. He
also built a nipa hut on the land. The plaintiffs entrusted the payment of the
land taxes to their co-heir and half-brother, Hilario Robles.
In 1962, for unknown reasons, the tax declaration of the parcel of land in the,
name of Silvino was canceled and transferred to one Exequiel Ballena, father
of Andrea Robles who is the wife of defendant Hilario Robles. Thereafter,
Exequiel Ballena secured a loan from the Antipolo Rural Bank, using the tax
declaration as security. Somehow, the tax declaration was transferred to the
name of Antipolo Rural Bank and later on, was transferred to the name of
defendant Hilario Robles and his wife.
133

In 1996, Andrea secured a loan from the Cadona Rural Bank, Inc., using the
tax declaration as security. She testified that somebody else, not her husband
Hilario Robles, signed the loan papers because Hilario Robles was working in
Marinduque at that time as a carpenter.
For failure to pay the mortgage debt, foreclosure proceedings were had and
defendant Rural Bank emerged as the highest bidder during the auction sale
in October 1968. The spouses Hilario Robles failed to redeem the property
and so the tax declaration was transferred in the name of defendant Rural
Bank. On September 25, 1987, defendant Rural Bank sold the same to the
Spouses Vergel Santos and Ruth Santos.
In September 1987, plaintiff discovered the mortgage and attempted to
redeem the property, but was unsuccessful.
Petitioners Robles filed a case for quieting of title. The TC ruled in their favor
and declared Silvino as the absolute owner. In reversing the trial court, the
Court of Appeals held that petitioners no longer had any title to the subject
property at the time they instituted the Complaint for quieting of title.
ISSUES:
1. nature of remedy of quieting of title
2. validity of the real estate mortgage
3. efficacy of the free patent granted to the Santos spouses
HELD:
1. Hilario mortgaged the disputed property to the Rural Bank of Cardona in his
capacity as a mere co-owner. The transaction did not divest petitioners of their
title to the property at the time of the institution of the complaint.
An action to quiet title is a common-law remedy for the removal of any cloud
or doubt or uncertainty on the title to real property. It is essential for the
plaintiff or complainant to have a legal or an equitable title to or interest in the
real property. The deed, claim, encumbrance or proceeding that is being
alleged as a cloud must be shown to be in fact invalid or inoperative despite
its prima facie appearance of validity or legal efficacy.
In this case, there is an instrument or a document which, on its face, is a valid
and efficacious. Petitioners allege that their title as owners and possessors of
the disputed property is clouded by the tax declaration and, subsequently, the
free patent thereto granted to Spouses Santos.
The CA failed to consider irregularities in the transactions involving the
disputed property: (1) while it was declared in the name of Exequiel in 1962,
there was no instrument or deed of conveyance evidencing its transfer from
the heirs of Silvino to him; (2) Exequiel was the father-in-law of Hilario, to
whom petitioners had entrusted the payment of the land taxes; (3)
considering that the subject property had been mortgaged by Exequiel to the
Rural Bank of Antipolo, and that it was foreclosed and in fact declared in the
bank's name in 1965, why was he able to sell it to Spouses Hilario and Andrea
in 1966?; (4) inasmuch as it was an unregistered parcel of land, the Rural Bank
of Cardona, Inc., did not observe due diligence in determining Hilario's title
thereto.
The failure to show the indubitable title of Exequiel to the property is vital to
the resolution of the present Petition. It was from him that Hilario had
allegedly derived his title as owner, an allegation which thereby enabled him
to mortgage it to the Rural Bank of Cardona. The deed of conveyance
purportedly evidencing the transfer of ownership and possession from the
heirs of Silvino to Exequiel should have been presented as the best proof of
that transfer. No such document was presented, however.
Therefore, there is merit to the contention of the petitioners that Hilario
mortgaged the disputed property to the Rural Bank of Cardona in his
capacity as a mere co-owner thereof. Clearly, the said transaction did not
divest them of title to the property at the time of the institution of the
complaint for quieting of title.
Hilario effected no clear and evident repudiation of the co-ownership. A coowner cannot acquire by prescription the share of the other co-owners, absent
any clear repudiation of the co-ownership. In order that the title may
prescribe in favor of a co-owner, the following requisites must concur: (1) the
co-owner has performed unequivocal acts of repudiation amounting to an
ouster of the other co-owners; (2) such positive acts of repudiation have been
made known to the other co-owner; and (3) the evidence thereof is clear and
convincing.
In the present case, Hilario did not have possession of the subject property;
neither did he exclude the petitioners from the use and the enjoyment thereof,
as they had indisputably shared in its fruits. His act of entering into a
mortgage contract with the bank cannot be construed to be a repudiation of
the co-ownership. As absolute owner of his undivided interest in the land, he
had the right to alienate his share, as he in fact did. Neither should his
payment of land taxes in his name, as agreed upon by the co-owners, be
construed as a repudiation of the co-ownership. The assertion that the
declaration of ownership was tantamount to repudiation was belied by the
continued occupation and possession of the disputed property by the
petitioners as owners.
2. The Rural Bank of Cardona, Inc., in not fully ascertaining his title thereto,
failed to observe due diligence and, as such, was a mortgagee in bad faith.
It should not have relied solely on the Deed of Sale purportedly showing that
the ownership of the disputed property had been transferred from Exequiel
Ballena to the Robles spouses, or that it had subsequently been declared in the
name of Hilario. Because it was dealing with unregistered land, and the
circumstances surrounding the transaction between Hilario and his father-in-
134

law Exequiel were suspicious, the bank should have exerted more effort to
fully determine the title of the Robleses.
Considering that Hilario can be deemed to have mortgaged the disputed
property not as absolute owner but only as a co-owner, he can be adjudged to
have disposed to the Rural Bank of Cardona, Inc., only his undivided share
therein. The said bank, being the immediate predecessor of the Santos
spouses, was a mortgagee in bad faith.
3. In the light of their open, continuous, exclusive and notorious possession and
occupation of the land, petitioners are deemed to have acquired, by operation of
law, a right to a grant, a government grant, without the necessity of a certificate
of title being issued. The land was segregated from the public domain.
Accordingly, the director of lands had no authority to issue a free patent thereto
in favor of another person. Verily, jurisprudence holds that a free patent
covering private land is null and void.
2.
How created
Q: How are co-ownership created? (CLOCT)

(a) By law
party walls, property regimes of common-law
spouses
(b) By contract
voluntary agreement of the parties
(c) By Chance
e.g. commixtion, confusion, hidden treasure
(d) By Occupation
e.g. a wild beast caught by several persons
(e) By Succession or will in case of heirs of undivided property before
partition
(f) testamentary disposition testator/donor prohibits partition for a certain
period of time
Q: What does an undivided thing or right mean?
This means that there is one physical whole that is not segregated. The parts are
not physically segregated but there are ideal portions which belong to different
portions. For example, property is owned by A, B, C and D. They are considered
as co-owners. This means that each of them is an owner of an ideal share. In so
far as the ideal share is concerned, it is divided among them but the physical
whole itself is not divided. Contrast this with joint tenancy where there is no
ideal share and each of the owner owns the physical whole.
Q: Since physical whole is not divided, what conclusions can we derive from
this?
(1) Each co-owner does not own a definite portion of the physical whole.
(2) Each co-owner cannot sell the entire thing.
(3) Each co-owner can sell his ideal share. He can do anything he wants with
his ideal share. He need not ask the permission of the other co-owners
provided that there are no personal rights involved.
(4) The other co-owners do not have a say on who should buy the ideal share
sold by a co-owner. The most that they could undertake is a right of
redemption whereby preference is given to the other co-owners in buying
the property.
(5) One cannot sue under the name of the co-ownership except for an action of
ejectment. A co-ownership is not a juridical person.
(6) The share of each co-owner in the fruits and charges is proportionate to
their ideal share. Agreement to the contrary is void.
(7) It is presumed that each of them has an equal share unless the contrary is
proven.
(8) Each co-owner may use the physical thing as long as he does not prejudice
the interest of the co-ownership and he does not prevent another co-owner
from the use of the thing. For example: A,B,C and D co-own a house and B,
C and D are abroad. A can occupy the house. If B comes back, A cannot
prevent him from using the house.
(9) Each one can file an action for ejectment. This is an act of preservation
where each of the co-owners can act without having to wait for the others
decisions. There is a presumption that a case instituted by one is really in
behalf of all. Ejectment cases are urgent and summary in character.
(10) If the co-owners want to use the property all at the same time, they are all
entitled to do so. But with regard to what particular portion to use, as in a
house, then an agreement has to be reached by the co-owners.
(11) A larger share does not necessarily mean a larger use of the property.
(12) A co-owner can compel the other co-owners to contribute to the expenses
for preservation (without which, the thing would deteriorate). These
expenses do not include expenses for improvements where the rule of
financial majority prevails. Expenses for improvement have to be approved
by the co-owners representing majority of the interest in the property and
not majority of the number of co-owners.
(13) If anyone does not want to contribute to the expenses for the preservation,
he may renounce his share in the property equivalent to his share of the
expenses. But renunciation is a positive act and so, mere objection or silence
is not tantamount to renunciation.
3.
a.
Rights of Co-owners
Ownership over whole property
ARTICLE 485.
The share of the co-owners, in the benefits as well as in the
charges, shall be proportional to their respective interests. Any stipulation in
a contract to the contrary shall be void.
135

The portions belonging to the co-owners in the co-ownership shall be
presumed equal, unless the contrary is proved. (393a)
(3) In such a way as not to prevent the other co-owners from using it
according to their rights.
Q: What is the interest of each co-owner in the co-owned property itself?

The general rule is that each co-owners share is determined by the amount of
his interest in the property.
Q: Joan and patty are the co-owners of a two story building in the heart of
Binondo. The second floor was used for residential units and the ground floor
was rented out to various merchants. One day, Joan decided to: (a) move into a
second floor unit and live there, and (b) open a hopia store on the ground floor,
called Jo-Land Hopia. Can Patty demand rent from Joan?
For example: Happy, Marife, and Abby co-own a P 15,000 house. Each of them
contributed P 5,000 to purchase the house. Thus, each has a 1/3 interest in the
house.
Exception: The co-owners are free to stipulate that each co-owners interest may
be different from the amount he actually contributed.
For example: While Happy, Marife and Abby each contributed P5,000, they can
agree that Happy will get a interest in the house, Marife a interest, and
Abby interest.
BUT: If the existence of the co-ownership is proven, but there is no proof as
regards the interest of each co-owner, the law presumes that they all have equal
interest in the property.
Q: What are the shares of the co-owners in the benefits and charges arising from
the co-owned property?
The rule with respect to division of benefits and charges is that each co-owner
shares in the same in proportion to his interest in the property. There can be no
exception to this, because any stipulation to the contrary is void.
ARTICLE 486.
Each co-owner may use the thing owned in common,
provided he does so in accordance with the purpose for which it is intended
and in such a way as not to injure the interest of the co-ownership or prevent
the other co-owners from using it according to their rights. The purpose of the
co-ownership may be changed by agreement, express or implied. (394a)
Q: Does each co-owner have the right to use the entire property? YES.
Q: What are the limitations to this right?
The thing owned in common should be used only:
(1) In accordance with the purpose for which it is intended. (e.g. if what is
co-owned is a residential house, each co-owner can only use the house
for residential purposes)
BUT: If the co-owner wishes to use the thing for a new or different
purpose, this requires the consent of all the other co-owners, as it
amounts to an alteration of the property.
(2) In such a way so as not to injure the interest of the co-ownership; and
(a) With respect to Joans use of the second floor unit for residential
purposes, she cannot be charged rent therefore, since she was merely
exercising her right as a co-owner. Joans living on the second floor
was in accordance with art. 486.
(b) With respect to the hopia store, Joan should be charged rent for her
use of the space in the ground floor. It would be prejudicial to patty to
allow Joan to use the space gratuitously since the ground floor is to be
rented out for commercial purposes.
ARTICLE 487.
(n)
Any one of the co-owners may bring an action in ejectment.
Q: What does the term action in ejectment comprehend?

(1) Forcible Entry
(2) Unlawful detainer
(3) Accion publiciana
(4) Accion reinvindicatoria
(5) Quieting of title
(6) Replevin (if movables are co-owned)
N.B. (1) Any one of the co-owners may bring any of the above-mentioned
actions; even without the consent of the other co-owners.
(2) If the judgment is favorable to the co-ownership, all the co-owners are
benefited thereby.
But: if the judgment is adverse to the co-ownership, the other co-owners will
NOT be bound thereby unless they GAVE THEIR CONSENT to bringing the
action.
Thus: A decision is a suit brought by a co-owner is not necessarily res-judicata
with respect to the other co-owners.
ARTICLE 491.
None of the co-owners shall, without the consent of the
others, make alterations in the thing owned in common, even though benefits
for all would result therefrom. However, if the withholding of the consent by
one or more of the co-owners is clearly prejudicial to the common interest, the
courts may afford adequate relief. (397a)
136

Q: What are acts of alteration?

The following are acts of alteration:
(1) Change in any of the purposes and use of any of the co-owned
properties.
BUT: Repairs do not change the purpose of the property (e.g. placing
wall-to-wall carpeting in the co-owned apartment does not change its
purpose).
(2) Transformation of the nature and substance of the thing.
(3) Sale, disposition or other encumbrance of the entire community
property.
BUT: If made by one co-owner without the consent of the others, the
sale is valid only up to the extent of his interest.
(4) Creation of real rights over the co-owned property. (e.g. a lease for
more than one year, or which is registered).
ARTICLE 492.
For the administration and better enjoyment of the thing
owned in common, the resolutions of the majority of the co-owners shall be
binding.
There shall be no majority unless the resolution is approved by the co-owners
who represent the controlling interest in the object of the co-ownership.
Should there be no majority, or should the resolution of the majority be
seriously prejudicial to those interested in the property owned in common,
the court, at the instance of an interested party, shall order such measures as it
may deem proper, including the appointment of an administrator.
Whenever a part of the thing belongs exclusively to one of the co-owners, and
the remainder is owned in common, the preceding provision shall apply only
to the part owned in common. (398)
Q: Who has the right of administration over the co-owned property?
The management of the property lies, in the first instance, with the co-owners
themselves. Administration is done through a vote of the co-owners with
majority interest, whose decisions are binding on the minority. However, the
administration may be delegated by the co-owners to one or more persons,
whether they be co-owners or third persons. In such case, the powers and duties
of such administrators shall be governed by the rules on agency.
If a vote by a majority interest cannot be obtained, or should the resolution of
the majority be seriously prejudicial to those interested in the property owned
in common, the court, at the instance of any interested party, may order the
appointment of an administrator.
Q: What are the examples of acts which are seriously prejudicial to the coownership?
(1) When loans are made without sufficient security.

(2) When an encumbrance or disposition is made, since this would
constitute an act of alteration and not of administration.
(3) When an abusive or inefficient administrator is not replaced.
Q: How is a majority obtained for purposes of acts of administration?
To constitute a majority, the resolution regarding the act of administration must
be approved by the co-owners who represent the controlling interest in the coowned property.
For example: Micky, Mon, and Marvin each have a 1/3 interest in a house. For
acts of administration the vote of any two of the three co-owners would
constitute a majority interest.
Q: Distinguish acts of administration from acts of alteration:
Acts of Administration
Acts of Alteration
Those which refer to enjoyment, Those acts, by virtue of which, a coexploitation, and alteration of the thing owner , in opposition to the
which do not affect its substance, form expressed or tacit agreement of all the
or purpose.
co-owners, and in violation of their
will, changes the thing from the state
in which others believed it would
remain, or withdraws if from the use
to which they believe it is intended.
Transitory in character
Permanent in character
Do not affect the substance or form of Relate to the substance or essence of
the thing
the thing itself
In relation to the right of the co-owner, Requires the consent of all the cothey require the consent or resolution owners
of the majority
Can be exercised by the co-owners Must be exercised by the co-owners
through others
themselves
Q: Indicate if the following actions upon a property commonly owned are acts
of alteration or administration.
1. repainting a house
administration
2. changing the number of rooms
administration
3. changing the water of the swimming pool
administration
4. putting fish in the swimming pool
alteration
5. mortgage of the whole property
alteration
6. sale of the whole property
alteration
7. lease of the whole property
x
If registered
alteration
x
If not registered but lasts for more than alteration
137

1 year
x
If not registered and lasts for less than administration
1 year
8. converting agricultural land to a memorial park
alteration
9. converting a rice field to an industrial park
alteration
N.B. Any act which changes the purpose of the thing is deemed to be an act of
alteration even if it is not of permanent character. Hence, even if a co-owner
only intended to use the swimming pool as a tilapia pond for six months, it is
still an act of alteration.
Q: What are the voting requirements in order to exercise: (1) acts for
preservation; (2) acts of administration; and (3) acts of alteration?
(1) Acts of preservation: Repairs for preservation may be made at the will
of one of the co-owners, but he must, if practicable, first notify the
other co-owners of the necessity of the repairs.
(2) Acts of administration: These can be performed only with the
concurrence of the majority of the co-owners representing the
controlling interest therein.
(3) Acts of alteration: These can be performed only with the concurrence
of ALL the co-owners.
b.
Sale/Alienation
ARTICLE 493. Each co-owner shall have the full ownership of his part and of
the fruits and benefits pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another person in its enjoyment,
except when personal rights are involved. But the effect of the alienation or
the mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the coownership. (399)
Q: Aside from having full ownership of his ideal share in the co-owned
property, does each co-owner have the right to exercise ownership over the
whole property?
In a sense yes, in that he is entitled to the use of the entire property and
exercises dominion over the whole. However, he cannot, on his own, exercise
such rights of ownership such as the right to dispose of the whole property.
With respect to his own ideal share, each co-owner is the absolute owner
thereof. While, prior to partition, his share does not correspond to any particular
portion of the co-owned property, it must be remembered that his interest
therein is a property right.
In addition, each co-owner has a full ownership of all the fruits and benefits of
the co-owned property to the extent of his interest.
For Example: Pitsy has a 1/3 interest in a parcel of agricultural land. He is, as a
co-owner, entitled to the use of the land according to its purpose. But, he cannot
exercise dominion over the land to the exclusion of the other co-owners. Neither
can he sell the entire land. If he does, the sale is only valid insofar as it pertains
to his interest. Thus, the buyer becomes a co-owner.
With respect to his 1/3 share, Pitsy can sell the same, mortgage it, and even
allow a third person to exercise his rights with respect thereto.
Pitsy is also entitled to 1/3 of the fruits of the land.
N.B. While each co-owner may freely dispose of his interest, this is without
prejudice to the right of legal redemption which may be exercised by the coowners. Under Arts. 1620 and 1623 of the CC.
ARTICLE 1620. A co-owner of a thing may exercise his right of redemption in
case the shares of all the other co-owners or of any of them, are sold to a third
person. If the price of the alienation is grossly excessive, the redemptioner shall
pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption, they
may only do so in proportion to the share they may respectively have in the
thing owned in common.
ARTICLE 1623. The right of legal pre-emption or redemption shall not be
exercised except within thirty days from the notice in writing by the prospective
vendor, or by the vendor, as the case may be. The deed of sale shall not be
recorded in the Registry of Property, unless accompanied by an affidavit of the
vendor that he has given written notice thereof to all possible redemptioners.
Q: Ruby, Reggie, and Shennan each have a 1/3 interest in a 12,000 sq.m. parcel
of land located in Taw-tawi. One day, Ruby needed cash to reimburse some
student council funds because there was going to be an audit of the SC accounts.
She approached Fonz and offered to sell her 1/3 share for P50,000. Fonz agreed.
Ruby, ever mindful of the law, promptly notified Reggie and Shennan of the
sale to Fonz. What are the rights of Shennan and Reggie?
Either or both Shennan and Reggie can exercise their right to redeem the share
of Ruby sold to Fonz. Thus, if either Reggie or Shennan wishes to redeem the
1/3 share, the P50,000 which Fonz paid must be paid to him. After the
redemption, one of them will have a 2/3 interest in the land.
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Cases of the Co-owners right of sale/alienation:
i)
of undivided interest
Acebedo v. Abesamis
Heirs of Acebedo filed a motion for approval of sale; A certain china man
bought the lot. The consideration of 12 million was already received by the
heirs proportionately. The china man prays that the remaining lots be sold to
him.
Administrator Acebedo was ordered to sell the remaining portions of the
subject properties despite the absence of its prior approval as a probate court.
Administrator opposed such Sale as the sale was done without his knowledge
as administrator and without approval of the probate court at a shockingly
low price.
ISSUE: WON it is within the probate courts jurisdiction to issue an order
approving the deed of conditional sale to the china man without prior court
approval and to order administrator to sell remaining portions of the lot
HELD: YES
The right of an heir to dispose of the decedent's property, even if the

same is under administration, is based on the Civil Code provision stating that
the possession of hereditary property is deemed transmitted to the heir without
interruption and from the moment of the death of the decedent, in case the
inheritance is accepted.
Where there are however, two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs.
The Civil Code, under the provisions on co-ownership, further

qualifies this right. Although it is mandated that each co-owner shall have the
full ownership of his part and of the fruits and benefits pertaining thereto, and
thus may alienate, assign or mortgage it, and even substitute another person in
its enjoyment, the effect of the alienation or the mortgage, with respect to the coowners, shall be limited to the portion which may be allotted to him in the
division upon the termination of the co-ownership.
In other words, the law does not prohibit a co-owner from selling,
alienating or mortgaging his ideal share in the property held in common.
ii)
of entire property
Paulmitan v. CA
FACTS:
Paulmitan died and left 2 parcels of land in Negros Occidental. She was
married to Agatona who soon died, had 2 kids: Pascual and Donato. Pascual
died in the same year as the Mrs. Paulmitan did. Donato had 1 daughter,
Juliana. Pascual had 7 heirs.
Agatonas estate remained unsettled. Donato executed an affidavit of
declaration of heirship, extrajudicially adjudicating unto himself lot no. 757
based on the claim that he is the only surviving heir of Agatona, filed it in the
register of deeds which canceled TCT of Agatona and issued a new one in
Donatos name.
Donato executed a deed of sale over the same in favor of daughter.
Lot No 1091 was bought by the provincial government. It was foreclosed for
non payment of taxes. At the public auction the provincial government won.
The property was redeemed by Juliana.
Pascuals kids filed a complaint. Donato et al defenses: Prescription more
than 11 years after the issuance of the TCT; Juliana: exclusive ownership due
to redemption.
TC: dismissed complaint. TC: Pascual heirs (lot 1091). Redemption did not
vest Juliana with exclusive ownership but gave her right to be reimbursed for
the amount paid to redeem. TC ordered partition. CA affirmed
HELD: Decision affirmed.

Right of representation not applicable: Pascual did not predecease his mother.
When Agatona died rights went to the children, Donato and Pascual (Art 777)
not their children. When Pascual died, rights went to his 7 kids, forming a coownership between Pascual heirs and Donato. When Donato sold lot to
Juliana the former sold his SHARE of the lot to the latter. Juliana is a co-owner
with the pascual heirs.
Juliana redeeming lot from the provincial government, Juliana and pascual
heirs became co-owners.
Del Campo v. CA
FACTS:
The Bornales were the original co-owners of a lot. It was divided among the 8
co-owners. Salome sold her 4/16 share to Soledad. Salome, Consorcia and
Alfredo sold to Soledad a portion of the lot describing the metes and bounds
of the portion to be sold. Soledad took immediate possession of the land; built
a house. Later mortgaged it to Regalado for a loan of P400.
Salome, Consorcia and Alfredo sold 24,993 sq m. of the lot to Regalado.
Heirs of Soledad paid the mortgage debt, redeemed the property from
Regalado, sold the redeemed portion to Del Campo et al.
Regalado caused the reconstitution of the original certificate of title. Initially
reflected the shares of the original co-owners. Title was transferred later to
Regalado who subdivided the entire property into smaller lots, each covered
by a title in his name.
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Del campo filed a complaint repartition, resurvey and reconveyance against
the heirs of Regalado. He claimed that they owned the area of 1,544 sqm
located in the lot which was erroneously included in the TCT in Regalados
name and alleged that they occupied the disputed area as residential dwelling
ever since they purchased the property.
Regalado defaulted in the proceeding.
TC: dismissed the complaint and ruled that Salome could alienate her proindiviso share in the lot, she could not validly sell an undivided part by metes
and bounds to Soledad, from whom Del Campo derived their title. Del
Campo could not have a better right to the property even if they were in
physical possession of the same and declared the property for taxation
purposes because mere possession cannot defeat the right of the Regalados
who had a Torrens title. CA: affirmed.
HELD: affirmed
The mere fact that Salome transferred a portion of the co-owned lot by metes
and bounds to Soledad does not per se render the sale a nullity. No doubt that
the transaction entered into by Salome and Soledad could be legally
recognized in its entirety: Sale expressly stated that Soledad will take
Salomes 4/16 share VALID. Co-owner cannot rightfully dispose of a
particular portion of co-owned property prior to partition among all the coowners should NOT mean that the venedee does NOT acquire anything at
all in case a physically segregated area of the co-owned lot is in fact sold.
HENCE Salome, et al could NOT have sold the entire lot to Regalado because
the consolidated shares of the 3 (10/16) was already sold to Soledad.
Regalado merely became a new co-owner of the lot to the extent of the shares
which Salome, et al could validly convey. Soledad retained her right as coowner and could validly transfer her share to Del Campo. Subject matter
already segregated from the mother lot even before title was issued in favor of
Regalado.
Twenty-six years have lapsed (Del Campos purchase to
Regalados procurement of the TCTs). During the intervening years: Regalado
never questioned Del Campos right over the land in dispute.
Del Campos were deprived of their dominical rights through fraud and with
evident bad faith on the part of Regalado. Failure and intentional omission to
disclose the fact of actual physical possession by another person during
registration proceedings constitutes actual fraud. We are convinced that
Regalado knew of the fact that he did not have a title to the entire lot and
could not have validly registered the same in his name alone because he was
aware of Del Campos possession of the subject portion as well as the sale
between Salome and Soledad. Regalado had notice that the lot was under
claim of ownership by Del Campo and the latters predecessor is beyond
question. Regalado never questioned the ownership of the lot given by
Soledad as security for P400 debt and he must have at least known that
Soledad bought the subject portion from Salome since he could not have
reasonably accepted the lot as security for the mortgage debt if such were not
the case. By executing a Release of Mortgage upon payment of the debt, he
recognized Soledads ownership. Hence respondents are estopped from
asserting that they own the subject land in view of the Deed of Mortgage and
Discharge of Mortgage executed between Regalado and Soledad. They are
barred from making this assertion under the equitable principle of estoppel
by deed.
Although Regalados title became indefeasible, fraud in its issuance created
an implied trust in favor of Del Campo and gave them the right to seek
reconveyance of the parcel wrongfully obtained by the former. Such right of a
true and real owner is imprescriptible, nature of quieting of title
Q: What is the remedy of the co-owners who did not consent to the sale of the
entire property?
The appropriate recourse is an action for partition under Rule 69 of the Rules of
Court. The reason for this is the fact that the sale is valid with respect to the coowner/vendees undivided interest in the property. Thus, the vendor becomes a
co-owner. The only way to get read of him is to ask for partition of the coowned property, either totally or not only with respect to the vendee.
Thus, since the vendor becomes the co-vendor, an action for reconveyance or
restitution against him cannot prosper since he would be a legitimate possessor
in joint ownership of the common property.
iii) redemption by other co-owners
e.g.1
A, B and C are co-owners of a property, each having 1/3 undivided shares. If A
sells his share to B, C has no protection against this kind of dilution of shares
because the law does not like co-ownership. The law has a prejudice against coownership.
e.g.2
A is a stranger while B and C are co-owners of a property. Here, if C
sells his undivided share to A, B has a right of redemption because the right of
redemption will constrict the ownership. If a co-owner has a right of
redemption, there will only be 2 co-owners: A and B or A and C. If a co-owner
has no right of redemption, there will be 3 co-owners: A, B and C.
The right of redemption may be exercised within 30 days from consumption of
sale, by paying the same price that the stranger paid for the share. If you cant
prove the exact date of the sale, you reckon it from the date of registration.
140

A, B and C are co-owners, each having 1/3 undivided share in a property. A
sells his share to S, a stranger to the co-ownership. B can redeem As share to
the extent of of 1/3 of the property while C can redeem to the extent of of
1/3 of the property.
Q: If C does not exercise the right of redemption, will B get Cs right? Some
cases would say yes, as he does so in behalf of the co-owner, C. If B cant get Cs
right, the co-ownership will not be constricted.
Villanueva v. Florendo
FACTS:
Macario and Basilia owned a 165 sq.m. parcel of land. Basilia died intestate,
leaving Macario and her 5 children as legitimate heirs. Despite the absence of
any partition, Macario sold a designated portion of the property to Erlinda,
who was the wife of one of the 5 children.
Having been informed of the sale, the other children signified their intention
to redeem the portion sold by Macario. Erlinda refused alleging that since she
was the wife of one of the co-heirs, she was not the third person or stranger
against whom the right of legal redemption could be exercised.
Thereafter, a petition for the recession of the sale and for legal redemption
was filed.
TC: ruled in favor of Erlinda
ISSUE: Does the right of legal redemption lie?
HELD:
YES. It is not disputed that co-ownership exists but the lower court
disallowed redemption because it considered the vendee, Erlinda, a co-heir,
being married to Concepcion Villanueva, and the conveyance was held valid
since it was in favor of the conjugal partnership of the spouses in the absence
of any statement that it is paraphernal in character.
Within the meaning of Article 1620, the term third person or stranger refers
to all persons who are not heirs in succession, and by heirs are meant only
those who are called either by will or the law to succeed the deceased and
who actually succeeds. In short, a third person is any one who is not a coowner. In this case, the vendee is related merely by affinity to the deceased
by reason of her marriage to one of the heirs and such does not entitle the
vendee to inherit or succeed in her own right. She is not an heir of the
decedent.
The co-owners should therefore be allowed to exercise their right to exercise
their right to redeem the property sold to Erlinda. To deny the petitioners the
right of redemption recognized in Art. 1620 is to defeat the purpose of
minimizing co-ownership and to contravene public policy.
Macario, as co-owner and before partition, has the right to freely sell and
dispose of his undivided interest or his ideal share but not a divided part and
one with boundaries as what was done in this case. It is an inherent and
peculiar feature of co-ownership that although the co-owners may have
unequal shares in the common property quantitatively speaking, each coowner has the same right in a qualitative sense as any one of the other coowners. In other words, every co-owner is the owner of the whole and over
the whole, he exercises the right of dominion, but he is at the same time the
owner of a portion which is truly abstract because until division is effected,
such portion is not correctly determined.
Adille v. CA
FACTS:
The land in question originally belonged to one Felisa Alzul as her own
private property; she married 2x in her lifetime; the first, with one Bernabe
Adille, with whom she had one child (herein defendant); in her second
marriage with Procopio Asejo, her children were herein plaintiffs.
In 1939, Felisa sold the property in pacto de retro to certain 3rd persons, period
of repurchase being 3 years, but she died in 1942 without being able to
redeem and after her death, but during the period of redemption, defendant
repurchased, by himself alone, and after that, he executed a deed of extrajudicial partition representing himself to be the only heir and child of Felisa
with the consequence that he was able to secure title in his name alone.
In 1955, after some efforts of compromise had failed, his half-brothers and
sisters filed this case for partition with accounting on the position that he was
only a trustee on an implied trust when he redeemed and this is the evidence,
but as it also turned out that one of the plaintiffs, Emeteria Asejo was
occupying a portion, defendant counterclaimed for her to vacate.
Contention of defendant: the property subject of dispute devolved upon him
upon the failure of this co-heirs to join him in its redemption within the
period required by law. He relies on the provisions of Article 1613 of the CC,
giving the vendee a retro the right to demand redemption of the entire
property.
ISSUE: May a co-owner acquire exclusive ownership over the property held in
common?
HELD:
NO. The right of repurchase may be exercised by a co-owner with respect to
his share alone. While the records show that petitioner redeemed the
property in its entirety, shouldering the expenses therefore, that did not make
him the owner of all of it. In other words, it did not put to end the existing
state of co-ownership.
Under the CC, necessary expenses may be incurred by one co-owner, subject
to his right to collect reimbursement from the remaining co-owners. There is
no doubt that redemption of property entails a necessary expense.
141

The result is that the property remains to be in a condition of co-ownership.
While a vendee a retro, under Article 1613 of the CC, may not be compelled
to consent to a partial redemption, the redemption by one co-heir or coowner of the property in its totality does not vest in him ownership over it.
Failure on the part of all the co-owners to redeem it entitles the vendee a retro
to retain the property and consolidate title thereto in his name. But the
provision does not give to the redeeming co-owner the right to the entire
property. It does not provide for a mode of terminating a co-ownership.
The mere fact that he was able to secure a TCT in his own name does not
terminate the co-ownership. It must be remembered that registration is not a
mode of acquiring ownership. The co-heirs, however, are liable to him for
their share in the redemption expenses.
It is therefore no argument to say that the act of registration is equivalent to

notice of repudiation, assuming there was one, notwithstanding the longstanding rule that registration operates as a universal notice of title.
While actions to enforce a constructive trust prescribes in 10 years, reckoned
from the date of the registration of the property, the Court in this case is not
prepared to count the period from such date. The Court noted the efforts of
petitioner to get hold of the property exclusively for himself beginning with
his fraudulent misrepresentation in his unilateral affidavit of extrajudicial
settlement that he is the only heir and child of Felisa with the consequence
that he was able to secure title in his name also. Accordingly, the right of his
half-siblings commenced from the time they actually discovered petitioners
act of defraudation. Thus, prescription has not set in.
ISSUE: Did the registration of the property in his own name create an implied
trust?
HELD:
YES. Under Article 1456 of the CC, if property is acquired through mistake or
fraud, the person obtaining it is, by force of law, considered a trustee of an
implied trust for the benefit of the person from whom the property comes.
According to the SC, the fact that he pretended to be Felizas sole heir
betrayed a clear intention to defraud his half siblings.
N.B. Because of the special circumstances of the Adille case, it should not be
considered as authority that prescription for implied trusts begins to run only
from the date of actual discovery. The general rule will be discussed under
Article 894. (Old reviewer)
ISSUE: Since the issuance of the TCT in 1955 created an implied trust, which
prescribes in 10 years, and the case filed in 1974, did prescription set in?
HELD:
NO. According to the SC, in order for prescription to terminate a coownership, it must have been preceded by repudiation thereof. Repudiation,
in turn, is subject to the following conditions:
1. A co-owner repudiates the co-ownership;
2. Such an act of repudiation is clearly made known to the other coowners;
3. The evidence thereon is clear and conclusive; and
4. He has been in possession through open, continuous, exclusive,
and notorious possession of the property for the period required
by law.
In this case, the SC held that defendant had not openly repudiated the coownership, since he deliberately kept his half-siblings in the dark by feigning
sole heirship. He cannot therefore be said to have made known his efforts
to deny the co-ownership. Moreover, one of the respondents, Emeteria, is
occupying a portion of the land up to the present, yet, he has not taken pains
to eject her. As a matter of fact, he sought to recover possession of that
portion she is occupying only as a counterclaim, and only after his halfsiblings had first sought judicial relief.
Q: Did Rusticos registration of the property in his own name create an implied
trust?
Yes. Under Art. 1456 of the CC, if property is acquired through mistake or
fraud, the person obtaining it is, by force of law, considered a trustee of an
implied trust for the benefit of the person from whom the property comes.
According to the SC, the fact that Rustico pretended to be Felizas sole heir
betrayed a clear intention to defraud his half siblings.
Q: Since the issuance of the TCT in1955 created an implied trust, which
prescribes in 10 years, and the case filed in 1974, did prescription set in?
No. According to the SC, in order for prescription to terminate a co-ownership,
it must have been preceded by repudiation thereof.. Repudiation in turn, is
subject to the following conditions:
(1) A co-owner repudiates the co-ownership;
(2) The repudiation is clearly made known to the other co-owners;
(3) The evidence thereon is clear and conclusive; and
(4) He has been in possession through open, continuous, exclusive, and
notorious possession of the property for the period required by law.
In Rusticos case, the SC held that he had not openly repudiated the coownership, since he deliberately kept his half-siblings in the dark by feigning
sole heirship. Moreover, his half-sister continued to occupy a portion of the land
even after the TCT was issued, yet Rustico never sought to have her ejected.
Finally, the SC held that while registration under the Torrens system is
constructive notice of title, the Torrens system cannot be used as a shield for
142

fraud. Thus, the act of registration will not be considered in this case as notice of
repudiation.
That is why the SC did not consider the action to enforce the implied trust as
having prescribed. While generally the action to enforce such a trust prescribes
in 10 years, counted from the date of registration, the fact that Rustico
underhandedly sought control over the entire parcel of land led the SC to hold
that prescription began to run, not for registration, but from the time the halfsiblings actually discovered Rusticos fraud. The CA even noted that they seem
to have discovered the fraud only after the action for partition had been filed.
N.B. Because of the special circumstances of the Adille case, it should not be
considered as authority that prescription for implied trust begins to run only
from the date of actual discovery. The general rule will be discussed under Art.
894.
iv) prescription
ARTICLE 494.
No co-owner shall be obliged to remain in the coownership. Each co-owner may demand at any time the partition of the thing
owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period
of time, not exceeding ten years, shall be valid. This term may be extended by
a new agreement.
A donor or testator may prohibit partition for a period which shall not exceed
twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his coowners or co-heirs so long as he expressly or impliedly recognizes the coownership. (400a)
Q: What is the effect of prescription on the co-owned property?
Prescription bars any demand on the co-owned property held by one of the coowners following the required number of years. In that event, the party in
possession acquires title to the property and the state of co-ownership is ended.
Q: When can a co-owner become the exclusive owner of entire property through
acquisitive prescription?
The requirements are:
(1) He must make known to the other co-owners that he is definitely
repudiating the co-ownership and the he is claiming ownership over
the entire property.
(2) The evidence of repudiation and knowledge on the part of the others
must be clear and convincing.
(3) The other requirements of prescription (continuous, open, peaceful,

and adverse possession for the proper period of time) must be present.
(4) The period of prescription shall start to run only from the time of
repudiation.
Q: What is the rule on constructive trusts with respect to co-owned property?
A constructive trust results from the repudiation by the co-owner of the coownership. When he repudiates the co-ownership, he holds the property in trust
for the other co-owners. Thus, the other co-owners have a right of action against
him to enforce the trust. However, this right of action must be exercised within
10 years from the time the trust was created, or from the time the others knew
thereof, either actually or constructively. If they fail to take action within 10
years, prescription sets in and they can no longer enforce the trust.
Delima v. CA
FACTS:
Dino Delima during his lifetime acquired Lot 7758 a friar land. he left as his
only heirs his three brothers and a sister, Eulalio, Juanita, Galileo and Vicenta.
After his death, the title for the property was issued in the name of the Legal
Heirs of Lino Delima, represented by Galileo Delima. Galileo Delima
executed an affidavit which caused the cancellation of the title and another
one only in the name of Galileo Delima was issued. Galileo Delima declared
the lot in his name for taxation purposes and paid the taxes thereon since
then. The petitioners who are the surviving heirs of Eulalio and Juanita filed
an action for reconveyance and/or partition of property and for the
annulment of the TCT issued in the name of Galileo. Vicenta was joined as a
defendant for her refusal to join the petitioners in their action.
TC: title was declared null and void. CA: reversed TC, upheld the claim of
Galileo Delima and all the other brothers and sisters of Lino Delima had
already relinquished and waived their rights to the property in his favour
considering that it was only Galileo who paid for the balance of the purchase
price of the land and paid taxes thereon.
ISSUE: WON petitioners action for partition is already barred by the statutory
period provided by law which shall enable Galileo to perfect his claim for
ownership by acquisitive prescription to the exclusion of petitioners from their
shares in the disputed land.
HELD: Yes.
The issuance of the new title in the name of Galileo constituted an open and
clear repudiation of the trust or co-ownership and the lapse of ten years of
adverse possession by Galileo was sufficient to vest title in him by
prescription. The certificate of title was notice to the whole world of his
143

exclusive title to the land; such rejection was binding on the other heirs and
started against them the period of prescription. When petitioners filed their
action for reconveyance and/or partition was already barred by prescription.
As a rule, possession by a co-owner will not be presumed to be adverse to the
others, but will be held to benefit of all. The co-owner or co-heir who is in
possession of an inheritance pro-indiviso for himself and in representation of
his co-owners or co-heirs, if as such owner, he administers or takes care of the
rest thereof with the obligation of delivering it to his co-heir or co-owners, is
under the same situation as a depository, a lessee or a trustee. Thus, an action
to compel partition maybe filed at any time by any of the co-owners against
the actual possessor. No prescription shall run in favour of a co-owner
against his co-owners or co-heirs so long as he expressly or impliedly
recognizes the co-ownership.
The imprescriptibility of the action for partition can no longer be invoked or
applied when one of the co-owners has adversely possessed the property as
exclusive owner for a period sufficient to vest ownership by prescription.
When a co-owner of the property executed a deed of partition and on the
strength thereof obtained the cancellation of the title in the name of their
predecessor and the issuance of a new one wherein he appears as the new
owner in effect denying or repudicating the ownership of the other co-owners
over their shares, the stature of limitations started to run for the purposes of
the action instituted by the latter seeing a declaration of the existence of the
co-ownership and of their rights thereunder.
Since an action for
reconveyance of land based on implied or constructive trust prescribes under
10 years it is from the date of the issuance of such title that the effective
assertion of adverse title for purposes of the statute of limitations is counted.
Mariategui v. CA
FACTS:
Lupo Mariategui died without a will. During his lifetime, Lupo contracted 3
marriages. With his first wife, Eusebia (who also died), he begot 4 children.
Ireneo, one of the son of Lupo and Eusebia also died and left a son named
Ruperto. With his second wife, Flaviana, he begot a daughter named
Cresenciana.
Lupo and Felipa (his 3rd wife) got married sometime in 1930. They had 3
children. Felipa died in 1941.
At the time of Lupos death, he left certain properties which he acquired
when he was still unmarried.
On12/2/67, Lupos descendants by his first and second marriages executed a
deed of extrajudicial partition whereby they adjudicated unto themselves the
Muntinlupa Estate. Thereafter, OCT No. 8828 was issued in the name of the
said heirs. Subsequently, the registered owners caused the subdivision of
said properties for which separate TCTs were issued to the respective parties.
On 04/23/73, Lupos children by his 3rd marriage filed with the lower court
an amended complaint with the adjudication of the disputed lot to their coheirs, they were deprived of their respective shares in the lots. They prayed
for partition of the estate of their deceased father and annulment of the deed
of extrajudicial partition.
The defendants (now petitioners) filed an answer with counterclaim.
Thereafter, they filed a motion to dismiss on the grounds of lack of cause of
action and prescription.
CA: declaring all the children and descendants of Lupo, including appellants
as entitled to equal shares in the estate of Lupo.
ISSUE: WON the action for partition prescribed?
HELD:
No. Respondents are legitimate children and heirs of Lupo and therefore,
prescription does not run against private respondents with respect to the
filing of the action for partition so long as the heirs for whose benefit
prescription is invoked, have not expressly or impliedly repudiated the coownership. In other words, prescription of an action for partition does not
lie except when the co-ownership is properly repudiated by the co-owner.
A co-owner cannot acquire by prescription the share of the other co-owners
absent a clear repudiation of co-ownership duly communicated to the other
co-owners. Furthermore, an action to demand partition is imprescriptible and
cannot be barred by laches. On the other hand, an action for partition may be
seen to be at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the property
involved.
Prescription, as a mode of terminating a relation of co-ownership, must have
been preceded by repudiation of the co-ownership. The act of repudiation, in
turn, is subject to certain conditions:
5. A co-owner repudiates the co-ownership;
6. Such an act of repudiation is clearly made known to the other co-owners;
7. The evidence thereon is clear and conclusive; and
8. He has been in possession through open, continuous, exclusive, and
notorious possession of the property for the period required by law.
In this case, there was no valid repudiation. In spite of petitioners
undisputed knowledge of their relationship to respondents who are therefore
their co-heirs, petitioners fraudulently withheld respondents share in the
estate of Lupo. According to respondent, since 1962, he had been inquiring
from petitioner about their (respondents) share in the property left by their
deceased father and had been assured by the latter not to worry because they
will get some shares. As a matter of fact, sometime in 1969, respondent
(Jacinto) constructed a house where he now resides without any complaint
from petitioners. Inasmuch as petitioners registered the properties in their
names in fraud of their co-heirs prescription can only be deemed to have
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commenced from the time respondents discovered the petitioners act of
defraudation.
Q: In the final analysis, when does prescription begin to run in case a co-owner
procures the issuance of a TCT in his own name?
It is respectfully submitted that the general rule should be that which was
applied in the Delima case. That is, since registration of title is constructive
notice to the whole world, the act of procuring a TCT in the name of only one of
the co-owners should be considered as an act of repudiation, which creates an
implied trust. It creates an implied trust because unless the other co-owners
agreed thereto, the co-owners who gets a TCT in his own name clearly acts
fraudulently. As such, the 10-year period should begin to run from the date the
TCT was issued. This is consistent with the rule that registration is constructive
notice to the whole world and serves to bind third persons.
The ruling in Adille and Mariatequi should be considered as exceptional cases
because there were other facts which served to militate against the issuance of
the TCT as an act of repudiation. Note that in both cases, one or some of the
other co-owners continued to stay, or was allowed to stay on the property even
after the devious co-owner had obtained a TCT. Also, it seems that in both cases,
the scheming co-owners actively suckered their co-owners, in that the former
still acted as if they recognized the co-ownership. That is why in these two
cases, the 10-year period would only begin from the time of actual knowledge of
the fraud, i.e., the issuance of the TCT in the evil co-owners name.
c.
d.
Benefits, fruits, interest, income

Use/possession
Sering v. Plazo
FACTS:
Sering filed an action for forcible entry against the spouses Plazo. The MTC
decided against the Plazos, so they appealed to the RTC. During the
pendency of the appeal, the Plazos discovered that Sering was merely a coowner of the property involved in the case. Thus, the Plazos moved to
implead the other co-owners as party plaintiffs, claiming they were
indispensable parties. The RTC judge granted the motion.
Sering demurred, claiming that any one of the co-owners could bring suit for
ejectment without joining the others. The Plazos, on the other hand, contend
that this rule only applies to actions for unlawful detainer and not to actions
for forcible entry.
Due to Serings failure to amendhis complaint, the RTC dismissed it.
ISSUE: Did Sering have to impleadall the other co-owners?
HELD: NO. Any one of the co-owners may bring action for both forcible entry
and for unlawful detainer. The action need not be brought I the name of all the
co-owners. In these types of cases, the only issue is that of prior physical
possession. As long as it has been alleged in the complaint that the plaintiff/coowner was in actual possession of the property, he could file the complaint
alone.
e.
Management/administration
i)
distinguished from alteration
4.
a.
Partition
Demandable anytime
ARTICLE 494.
No co-owner shall be obliged to remain in the coownership. Each co-owner may demand at any time the partition of the thing
owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period
of time, not exceeding ten years, shall be valid. This term may be extended by
a new agreement.
A donor or testator may prohibit partition for a period which shall not exceed
twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his coowners or co-heirs so long as he expressly or impliedly recognizes the coownership. (400a)
ARTICLE 495.
Notwithstanding the provisions of the preceding article, the
co-owners cannot demand a physical division of the thing owned in common,
when to do so would render it unserviceable for the use for which it is
intended. But the co-ownership may be terminated in accordance with article
498. (401a)
Q: What is partition?
Partition is the act of dividing a co-owned property according to the portions
shared by the co-owners.
Q: Who can make the demand? Anyone of the co-owners.
Q: Should partition be made in any particular form?
NO. Partition can be done formally, as when entering a judicial or extrajudicial
partition. Or informally, as when one executes any act which puts an end to
indivisionthus terminating the co-ownership. For example, selling ones
share in a co-owned house.
Q: Does one who wants to have a partition have to have justifiable reason?
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NO. Since the intent of the law is to discourage co-ownership, a co-owner can
demand partition even if he has no reason for so wanting.
Q: Armel, Blanche, Tess and Loy co-own an apartment unit. One week after,
Armel woke up and realized that he had been living in an all-girls dorm.
Fearing for his virginity, Armel decided to get out. In asking for a partition,
must the unit be subdivided into 4 smaller rooms?
NO. Even if Blanche, Tess and Lay can not stop Armel from leaving the co
ownership, Armels demand for partition doesnt necessarily mean that Blanche,
Tess and Loy will have to part ways too. They can remain in the co-ownership.
They dont have to break the unit up. All they have to do is return Armels share
in the unit.
Q: Can co-ownership remain in existence for 50 years?
YES. So long as nobody asks for partition, the co-ownership will remain.
Q: What are these 10 and 20 year limits?
The 10-year period is the maximum length of time co-owner can agree not to
partition the property. After 10 years, the agreement not to partition will no
longer bind the parties. For example, Jo, Patty and Lucille agree not to partition
the work given to them by Chairman Mao for 50 years. Because of this
provision, that agreement will only be valid for 10 years. After1q0, years, Jo can
demand her share in the work, despite the 50 year agreement. Of course, they
can renew the agreement every 10 years. In fact, they can renew the agreement
indefinitely, so long as each agreement does not exceed 10 years.
The 20 year period is the longest time a testator can validly impose the nonpartition of this estate to his heirs. For example, Lolo Pitsy wrote in his will,
Children, I want you to stay together, so dont divide my house for 20 years.
Such a provision is valid. If on the other hand, Lolo Pitsy says, Dont divide for
50 years. Such provision shall be valid only for 20 years. Unlike the first
instance, there can be no renewal because the testator will still be dead after 20
years. The heirs, however, can agree not to partition even after the twenty year
limit. And they can renew their agreement every decade thereafter.
Q: What if there was no agreement not to partition and the co-ownership goes
beyond 10 years, is it automatically terminated after 10 years?
NO. The 10 and 20 year period are periods for the validity of an agreement not
to partition. They are not periods for the validity of co-ownerships. There is no
automatic termination. So long as nobody asks, nothing will happen to the coownership.
As a general rule, it is demandable anytime. There is no prescription period. A

co-owner can ask for partition 2 days or 20 years after the co-ownership
commences.
Q: What is the exception?
Actually, there is none. It is just that the Dean wants us to read cases so she tells
us to read Vda. De Espina v. Abaya where the SC made a distinction between an
action for partition, which is imprescriptible, and an action for conveyance of an
implied trust, which prescribes in 10 years.
Q: Is the act of registration of title in the name of only one-co-owner already an
act of repudiation?
It depends. The SC flip flops on this issue. However, in the cases where the
court said that the act of registration is an act of repudiation of the rights of the
other co-owners, the act was coupled by certain acts which clearly indicate
repudiation. In such a case, one counts the prescriptive period from discovery of
registration. But if it is the mere act of registration, it is possible that you are still
acknowledging the rights of the other co-owners, thus there is no repudiation.
Q: Does partition have to come in any specific form? No.
Q: In the case of Vda. De Espina, one of the allegations was that the oral
partition was unenforceable because it was covered by the Statute of Frauds.
What did the SC say?
SC said that the allegation was not correct. The allegation argued that the
partition is an act of conveyance of real property, thus covered by statute of
frauds. And the Statute of Frauds provides that if the contract is not in writing,
it is unenforceable against the parties involved. This is incorrect because a
partition is not a conveyance of property since you are not conveying anything.
You are simply segregating your share youve owned from the beginning. There
is no transfer in favor of another co-owner. Therefore it is not covered by Statute
of Fraud.
Q: So is an oral partition valid?
YES. Partition has no particular form. There is even no particular method of
partitioning.
Q: Are there cases where partition can be denied? YES:
1) The partition is prejudicial to the co-owners. If the object is by nature
indivisible, and the actual physical partition would render the object of coownership useless, you can deny the partition. For example: the TV of Pitsy
which he broke in two. Instead, you should sell the property to another co-
Q: When is partition of co-owned property demandable?
146

2)
3)
owner or third party and divide the price according to proportionate

interest.
The Family code provides that so long as one of the beneficiaries is still a
minor, then he can deny partition of the family home.
The family code provides that in Unions w/o benefit of Marriage, you
cannot ask for partition until cohabitation has terminated.
ARTICLE 496.
Partition may be made by agreement between the parties or
by judicial proceedings. Partition shall be governed by the Rules of Court
insofar as they are consistent with this Code. (402)
Q: What is the difference between judicial and extra-judicial partition?
One can have extra-judicial partition only if there are no creditors or the
creditors agree to the partition because their claims have been satisfied or
somebody agreed to pursue the liability of the creditors. If one creditor doesnt
want to partition, the co-owners will have to resort to judicial partition.
In judicial partition, the court determines the rights of the creditor and the
manner of the settlement.
Vda. de Cabrera & Felicidad Teokemian v. CA
FACTS:
On 01/16/50, a Deed of Sale was executed by Daniel and Alberta Teokemian
in favor of Andres Orais over a parcel of unregistered land. The property was
owned in common by Daniel and Albertana and their sister Felicidad, having
inherited the same from their father, Domingo. However, the Deed of Sale
was not signed by Felicidad. On 01/26/50, the parcel of land was surveyed
in the name of Virgilia Orais, daughter of the vendee Andres Orais.
On 07/27/72, Alberto executed a Deed of Absolute Sale conveying to Elano
Cabrera, husband of Felicidad, of the lot in question which portion
supposedly corresponded to the 1/3 share of Felicidad Teokemian who was
not a party to the Deed of Sale earlier executed. It was explained by Felicidad
Cabrera that the deed of sale was signed by Albertana and not by Felicidad
because the whole lot was adjudicated to Albertana in a decision of a
cadastral court. Felicidad Cabrera and her husband immediately took
possession of the western portion.
In 1974 and 1978, Virgilia Orais broghters confronted the Cabreras of the
latters alleged encroachment and illegal occupation of their sisters land but
no concrete action on the matter was pursued by Virgilia Orais until in 1988
when she filed a case against Cabrera.
The complaint alleged that sometime in 1972 and 1973 the late Elano Cabrera
and Felicidad Cabrera, knowing that the lot was already registered in the
name of the plaintiff, prepared a document of sale and had Felicidad
Teokemain sign it conveying a portion of said lot to them, after which they
entered and possessed said portion and enjoyed the fruits thereon.
In their answer with counterclaim, Cabrera alleged that they acquired a
portion of the lot in good faith; that said portion was owned by Felicidad
Teokemain who was not a party to the Deed of Sale executed by Daniel and
Albertana in favor of Andres Orais; that not having signed the Deed of Sale,
Felicidad Teokemains 1/3 share in the said lot could not have been legally
conveyed to Andres; that Virgilia committed fraud in including the portion
owned by Felicidad Teokemian in her applying for free patent over the said
lot.
TC: rendered judgment in favor of Cabreras and against Orais, ruling that the
latter can no longer recover the western portion of the lot conveyed in 1972 by
Felicidad Teokemian in favor of the Cabreras due to laches.
CA: reversed; Although the registration made by Orais was fraudulent in
including 1/3 interest of Felicidad Teokemian, which was not included in the
sale executed by Albertana and Daniel Teokemian, it nevertheless upheld its
effects, on the justification that defendants action for reconveyance based on
implied trust had already been barred by prescription.
ISSUE: WON Felicidad waived her interest in the 1/3 portion of the property
she inherited together with her siblings due to the long period to time which
lapsed from the time Orais title was registered until the action for quieting of
title was instituted.
HELD:
NO. The Certificate of Title of the vendees Orais are, to say the least,
irregular, and were issued in a calculated move to deprive Felicidad
Teokemian of the dominical rights over the property reserved to her by her
father. Orais could not have registered the part reserved to Felicidad
Teokemian, as this was not among those ceded in the Deed of Sale between
Daniel/ Albertana Teokemian and Andres Orais. It must be remembered that
registration does not vest title, it is merely evidence of such title over a
particular property.
An action for reconveyance of a parcel of land based on implied or
constructive trust prescribes in 10 years, the point of reference being the date
of registration of the deed or the date of the issuance of the certificate of title
over the property, but this rule applies only when the plaintiff or the person
enforcing the trust is not in possession of the property, since if a person
claiming to be the owner thereof is in actual possession of the property. The
reason for this is that one who is in actual possession of a piece of land
claiming to be the owner thereof may wait until his possession is disturbed or
his title is attacked before taking steps to vindicate his right, the reason for the
rule being, that his undisturbed possession gives him a continuing right to
147

seek the aid of a court of equity to ascertain and determine the nature of the
adverse claim of a third party and its effect on his own title, which right can
be claimed only by one who is in possession.
Before the period of prescription may start, it must be shown that:
1. the trustee has performed unequivocal acts of repudiation amounting to an
ouster of the cestui que trust;
2. such positive acts of repudiation have been made known to the cestui que
trust; and
3. the evidence thereon is clear and positive
In the case at bar, Felicidad Teokemian, and thereafter, the Cabreras, were in
actual possession of the property since it was left to Felicidad by her father in
1941, which possession had not been interrupted, despite the sale of the 2/3
thereof to Orais in 1950, and the latters procurement of a Certificate of Title
over the property in 1957. Until the institution of the present action in 1988,
Cabreras, likewise, had not displayed any unequivocal act of repudiation,
which could be considered as an assertion of adverse interest from Orais,
which satisfies the above requisites. Thus, it cannot be argued that the right
of reconveyance on the part of Orais, and its use as defense in the present suit,
has been lost by prescription.
In Go Ong v. CA, the Court ruled tha the heirs, as co-owners, shall each have
the full ownership of his part and the fruits and benefits pertaining to it. An
heir may, therefore, alienate, assign, or mortgage it, and even substitute
another person in its enjoyment, except when the personal rights are
involved. But the effects of the alienation or mortgage, with respect to the coowners, shall be limited to the portion to which may be allotted to him in the
division upon the termination of the co-ownership.
Undisputed is the fact that since the sale of the 2/3 portion of the subject
property to Orais, the latter had allowed Felicidad Teokemian to occupy that
1/3 portion allotted to her. There had, therefore, been a partial partition,
where the transferees of an undivided portion of the land allowed a co-owner
of the property to occupy a definite portion thereof and has not disturbed the
same, for a period too long to be ignored the possessor is in a better
condition or right.
Ruling: Reinstate TCs decision.
Pada-Kilario v. CA
FACTS:
Jacinto Pada had 6 children. He died intestate. His estate included a parcel of
land of residential and coconut land located at Leyte. It is the northern
portion of the said land which is the subject of the controversy.
During the lifetime of Jacinto Pada, his half-brother Feliciano obtained
permission from him to build a house on the northern portion of the said
land. When Feliciano died, his son, Pastor, continued living in the house
together with his 8 children. The petitioner, one of Pastors children, has been
living in that house since 1960.
Sometime in May 1951, the heirs of Jacinto Pada entered into an extra-judicial
partition of his estate. For this purpose, they executed a private document
which they, however, never registered.
Juanita Pada sold to Engr. Ernesto Paredes, the right of his father, Ananias, as
co-owner of the lot. Likewise, Maria Pada sold the share of his father to her
first cousin (respondents in this case).
Respondents demanded that petitioners vacate the northern portion of the lot
so his family can utilize the said area. Thereafter, respondent filed in MCTC a
complaint for ejectment .
During the pendency of the case, the heirs of Amador Pada executed a Deed
of Donation transferring to the petitioner their respective shares as co-owners
of the northern portion of the lot.
In their answer, petitioner contends that the said portion had already been
donated to them by the heirs of Amador Pada.
MCTC: in favor of petitioner.
RTC: reversed; the deed of donation executed by the Heirs of Amador took
place only during the inception of the case or after the lapse of more than 40
years reckoned from the time the extrajudicial partition was made in 1951;
petitioners were asked to vacate the said property.
CA: affirmed RTCs decision
ISSUE: WON petitioners cannot be ejected from the premises considering that
the heirs of Jacinto Pada donated to them their undivided interest in the
property in dispute
HELD:
NO.
The extrajudicial partition of the estate of Jacinto Pada among his heirs made
in 1951 is valid, albeit executed in an unregistered private document. No law
requires partition among heirs to be in writing and be registered in order to
be valid. The requirement in the Rules of Court that a partition be put in a
public document and registered, has for its purpose the protection of creditors
and the heirs themselves against tardy claims. The requirements of Article
1358 of the CC that acts which have for their object the creation, transmission,
modification or extinguishments of real rights over immovable property,
must appear in a public instrument, is only for convenience, non-compliance
with which does not affect the validity or enforceability of the acts of the
parties as among themselves. The 1951 extrajudicial partition of Jacinto
Padas estate being legal and effective as among his heirs, Juanita and Maria
Pada validly transferred their ownership rights over the lot to Engr. Paderes
and respondent.
148

The belated act of the heirs of Amador Pada of donating the subject property
to petitioners after 44 years of never having disputed the validity of the 1951
extrajudicial partition that allocated the subject property to Marciano and
Ananias, produced no legal effect. In the said partition, what was allocated to
Amador Pada was not the subject property which was a parcel of residential
land in Sto. Nino, Leyte but rather of a parcel of coconut land in the interior
of Sto Nino and of a parcel of rice land in Sta. Fe, Leyte. Therefore, the
donation made is void for they were not the owners thereof. At any rate, it is
too late in the day for the heirs of Amador to repudiate the legal effects of the
1951 extrajudicial partition as prescription and laches have equally set in.
Considering that petitioners were in possession of the subject property by
sheer tolerance of its owners, they knew that their occupation of the premises
may be terminated anytime. Thus, they cannot be considered possessor nor
builders in good faith.
Maestrado v. CA
FACTS:
Lot No. 5872 was registered in the name of the deceased spouses Ramon and
Rosario Chaves who died intestate. They were survived by their heirs:
Carmen Chaves-Abaya, Josefa Chaves-Maestrado, Angel Chaves, Amparo
Chaves-Roa, Concepcion Chaves-Sanvictores and Salvador Chaves.
Angel Chaves initiated intestate proceedings to settle the estate and was
appointed as administrator of the estates. An inventory of the estates was
made and the heirs agreed on a project of partition. They filed an action for
partition which was approved by the court. However, the records of said case
was missing and respondents Jesus Roa, Ramon Chaves and Natividad
Santos failed to present a copy of said decision.
The estate was divided as follows: (1) Lot No. 3046 was distributed equally
among 4 heirs, Concepcion, Angel, Amparo and Ramon while Lots Nos. 5925,
5934, 1327 and 5872 were distributed equally between Josefa ChavesMaestrado and Carmen. At the time of actual partition, Salvador died and his
share was given to his only son, Ramon who is the namesake of Salvadors
father. In 1956, receiver Hernando Roa delivered the respective shares of the
heirs accordingly. Concepcion sold her share to Angel while Ramon sold his
share to Amparo.
Lot No. 5872 was not included in the following documents: (a) inventory of
the properties of the estate submitted to the court (b) project of partition
submitted to the court (c) properties that receiver Hernando Roa had taken
possession of which, he listed in the Constancia submitted to the court (d)
court order approving the partition. Decedent Ramon acquired Lot No. 5872
from Felomino Bautista, Sr. but he subsequently delivered it to spouses
Hernando and Amparo Chaves-Roa. It was thereafter delivered to petitioners
Josefa Chaves-Maestrado and Carmen Chaves-Abaya during the actual

partition in 1956 and they had been in possession since then.
The respondents Roa et al claimed that the omission of Lot No. 5872 was due
to the fact that they were unsure if it belonged to the decedents estate at all
and so they deferred its inclusion in the inventory as well as its distribution
pending investigation of its status. In fact, Angel filed a motion in the
proceedings for the settlement of the estate to include the said lot.
Petitioners Josefa Chaves Mestrado et al claimed that the heirs entered into an
oral partition agreement and that the proposed project of partition was
allegedly based on it but the courts order of partition failed to embody such
oral agreement due to the omission of Lot No. 5872. For some reason, the
actual partition conformed to the alleged oral partition. They also claimed
that they failed to notice that Lot No. 5872 was no included in the courts
order, having realized this fact only after Silvino Maestrado, husband of
Josefa, died, when, among his belongings, the partition order was discovered.
To set things right, petitioners prepared a quitclaim to confirm the alleged
oral agreement and Angel, Concepcion and Ramon signed a notarized
quitclaim in their favor. Amparo was unable to sign because she had an
accident and passed away the following day but her heirs signed a similarly
worded and notarized quitclaim.
Respondent Ramon claimed he was betrayed by his lawyer, Francisco Velez,
son-in-law of Josefa and that he signed without reading because his lawyer
had already read it. Angel signed the quitclaim out of respect for petitioners
while Concepcion signed because she was misled by alleged
misrepresentations in the Whereas Clauses of the quitclaim to the effect that
the lot was inadvertently omitted and not deliberately omitted due to doubts
on its status. Six years after the execution of the quitclaims, the respondents
discovered that Lot No. 5872 was still in the name of the deceased Chaves
spouses. Thus, respondents Ramon, Jesus and Natividad wrote their
respective letters to their uncle Angel Chaves to inform him the property has
not been distributed yet and requested him to distribute and deliver it to the
heirs. Angel Chaves transmitted the letters to petitioner Carmen and
requested her to respond. In response, Carmen filed an action for quieting of
title against respondents in the RTC.
RTC: Lot No. 5872 is still common property and must be divided in 6 parts,
there being 6 heirs. CA: affirmed RTC.
Petitioner Lourdes Maestrado-Lavina, in substitution of her deceased mother
Josefa and Carmen filed their respective petitions for review on certiorari,
contending that the CA erred in affirming that Lot No. 5872 was still common
property.
ISSUE: WON the CA erred in affirming that Lot No. 5872 was still common
property
149

HELD: CA erred in affirming that Lot No. 5872 was still common property.
The petitioners were the proper parties to bring the action for quieting of title.
Petitioners were in possession of the land and therefore have title to it. The
cloud on petitioners title came about only when Angel transmitted to them
the letters. However, being in possession, their right to file an action to quiet
title is imprescriptible and thus, laches do not apply.
Lot No. 5872 was no longer common property because it was acquired by
petitioners by oral partition. There was indeed an oral partition among the
heirs and the distribution of the properties was consistent with such oral
agreement. Parties had plenty of time to rectify the situation but no such
move was done until 1983 or 27 years later. The petitioners, being in
possession of Lot No. 5872, have established a superior right thereto by virtue
of the oral partition and by notarized quitclaims of the heirs. The most
persuasive circumstance pointing to the existence of the oral partition is the
fact that the terms of the actual partition and distribution of the estate are
identical to the sharing scheme in the oral partition.
The notarized quitclaims confirmed such prior oral agreement as well as the
petitioners title of ownership over Lot No. 5872. Independent of the oral
partition agreement, they are valid contract of waiver of property rights. The
notarized quitclaims are valid. The terms of the quitclaims are clear and the
heirs signature resulted into a waiver of their property rights. Being duly
notarized and acknowledged before a notary public, they deserve full
credence and are valid and enforceable in the absence of overwhelming
evidence to the contrary. The instances of fraud referred to were indications
of carelessness in the conduct of the affairs of the heirs concerned therefore do
not render the quitclaim invalid.
b.
Prohibition for indivision
Oliveros v. Lopez
FACTS:
Lorenzo Lopez died leaving Lot 4685 to his wife Tomasa Ramos and their 6
children. No move was made to legally partition the property. After about 21
years, Tomasa and Candido, the eldest son, executed a deed of absolute sale
of an undivided portion of their interests, rights and participation over said
lot in favor of the spouses Melecio Oliveras and Aniceta Minor in
consideration of P1M. On the same day Tomasa and Candido executed
another deed of absolute sale of an undivided portion in favor of the spouses
Pedro Oliveras (brother of Melecio) and Teodora Gaspar with the same
consideration of P1M. Candido also executed an affidavit stating that a
month prior to the sale, he offered his undivided portion to his adjacent
owners but none of them were allegedly in a position to purchase the
property. After the sale, the brothers Oliveras continually had possession and
paid the real estate taxes for their respective purchased properties which were
segregated by dikes. After about 13 years, the brothers Oliveras and their
wives filed a complaint for partition and damages against the heirs of
Lorenzo Lopez. Lorenzos heirs countered that specific portions of the lot
could not have been sold and so the possession of the Oliverases were illegal.
They also claim that the deed of sales were null and void and hence
unenforceable against them. In addition, they allege prescription. The lower
court ruled in favor of the Oliverases.
ISSUE: Are the deeds of sale valid considering that they pertained to designated
portions of an undivided co-owned property?
HELD: Yes. The rule is that before partition of anything owned in common, no
individual co-owner can calim title to any definite portion thereof. All the such
co-owner has is an ideal or abstract quota or proportionate share in the entire
property. HOWEVER, the duration of the juridical co-ownership is not
limitless. Co-owneship of an estate should not exceed 20 years. In addition, any
agreement to keep co-owned property indivisible should only be for 10 years.
In case the period stipulated exceeds what is set by law, such stipulation is void
as to the period beyond the maximum provided for by law. So, although the
Civil Code is silent as to the effect of indivision of property for more than 20
years, it would be contrary to public policy to sanction co-ownership beyond
the period set by law. Otherwise the limitation mandated by law would be
rendered meaningless. In this particular case, the co-ownership had been
maintained for more than 20 years. At the time Tomasa and Candido sold
definite portions of the lot, they were validly execising dominion over such
portions because the co-ownership had already ceased by operation of law. The
action for partition serves merely as a formality on Candidos accomplished act
of terminating the co-ownership.
Q: Loi managed an agricultural land belonging to her deceased husband
(Happy) until her own death. The children filed for partition of the real
properties left by their parents. One child, Aleli, however, opposed and alleged
that of the coconut trees of the agricultural land belonged to her pursuant to
an oral agreement with Loi. The partition was ordered. Can Aleli claim of the
coconut trees pursuant to the agreement with Loi?
No. The sharing agreement of Aleli and Loi is deemed superseded by the
issuance of title in the name of Loi and all of the children in pro-diviso shares.
Being expressly made of record, Loi, Aleli and her other siblings became coowners in equal shares. To give Aleli the right to the coconuts would be to
perpetuate a state of co-ownership which is contrary to Article 494 of the NCC
(limiting the period to 10 years, at the most, 20 years). [Tac-an Dano v. CA; 137
SCRA 803]
150

ARTICLE 497.
The creditors or assignees of the co-owners may take part in
the division of the thing owned in common and object to its being effected
without their concurrence. But they cannot impugn any partition already
executed, unless there has been fraud, or in case it was made notwithstanding
a formal opposition presented to prevent it, without prejudice to the right of
the debtor or assignor to maintain its validity. (403)
Q: Can the creditors of a co-owner stop or prevent a partition?
NO. Creditors cannot stop the partition. The only standing they have in court is
to make certain that they are not defrauded by the partition.
Q: What are the rights of creditors?
Creditors have the right to be duly notified of the partition proceedings. They
are entitled to file their formal oppositions or objections to the partition
proceedings.
Q: What if property had been parted before the creditor was given a chance to
disagree?
IT DEPENDS. The general rule is that the creditor can no longer question the
partition. Creditors will now only have the right to pursue the former co-owners
for their proportionate shares. (In case of assignees, they have the right to go
after the assignors). They can, however, question the partition when there is
fraud. Creditors will have to allege that surreptitiously, the co-owners
undertook partition and neither informed creditors nor protect the interest of
the creditors. In short, if there is bad faith, one can still question the partition.
Another instance is when they filed an opposition prior the partition and the
same was not acted upon.
ARTICLE 500.
Upon partition, there shall be a mutual accounting for
benefits received and reimbursements for expenses made. Likewise, each coowner shall pay for damages caused by reason of his negligence or fraud. (n)
ARTICLE 501.
Every co-owner shall, after partition, be liable for defects of
title and quality of the portion assigned to each of the other co-owners. (n)
Q: What are the rights and responsibilities of co-owners when partition is
effected?
1. Mutual Accounting of Benefits and Charges
a. Luxurious/Useful expenses
It depends on whether the luxurious expenses were incurred pursuant
to an act of administration or an act of ownership. Consent of the other
co-owners must be secured. If the required vote is not obtained, the
incurring co-owner cannot demand form the other co-owners their
proportionate share. The others may even demand him to restore the
property to its original state.
b.
Q: What is the remedy if one of the co-owners refuses to contribute to the

expenses for preservation of the property?
Any one of his other properties, including his proportionate interest in the coowned property, may be levied upon.
2.
5.
a.
b.
Obligations of Co-owner
Necessary Expenses for preservation
Useful & Luxurious expenses
ARTICLE 498.
Whenever the thing is essentially indivisible and the coowners cannot agree that it be allotted to one of them who shall indemnify
the others, it shall be sold and its proceeds distributed. (404)
ARTICLE 499.
The partition of a thing owned in common shall not
prejudice third persons, who shall retain the rights of mortgage, servitude, or
any other real rights belonging to them before the division was made.
Personal rights pertaining to third persons against the co-ownership shall
also remain in force, notwithstanding the partition. (405)
Necessary expenses
A co-owner has the right to compel the others to share in the expenses
for the preservation of the property; even if incurred without prior
notice. BUT, if practicable, co-owners must give prior notice.
Mutual warranty against defect in title and eviction

Co-owners must contribute proportionately when a co-owner is
evicted.
EXAMPLE: Cyclops, Rogue and Gambit co-owned a 18000 sq.m. of land.

Cyclops was evicted because the part belonging to him did not in fact belong to
the co-ownership. Cyclops can demand from Rogue and Gambit 2,000 sq.m.
each so that each of the three has 4000 sq.m. for a total of 12,000 sq.m. coowned.
ARTICLE 488.
Each co-owner shall have a right to compel the other coowners to contribute to the expenses of preservation of the thing or right
owned in common and to the taxes. Any one of the latter may exempt himself
from this obligation by renouncing so much of his undivided interest as may
be equivalent to his share of the expenses and taxes. No such waiver shall be
made if it is prejudicial to the co-ownership. (395a)
151

ARTICLE 489.
Repairs for preservation may be made at the will of one of
the co-owners, but he must, if practicable, first notify his co-owners of the
necessity for such repairs. Expenses to improve or embellish the thing shall
be decided upon by a majority as determined in article 492. (n)
Q: What are the obligations of co-owners concerning preservation for the thing?
Each co-owner has the obligation to contribute to the expenses of preservation
of the thing owned in common to the taxes.
Q: What are the requisites of renunciation?
1) If the renunciation is in favor of the creditor, said creditor must give his
consent.
2) If the renouncing is in favor of the other co-owners, a novation would
result, necessitating the consent of said other co-owners and of the
creditor.
Note: Renunciation cannot be implied by mere refusal to pay the proportionate
share. It must be expressed. It is also voluntary. A co-owner may not be
compelled to renounce his share.
Q: Mon, Happy and Marvin are co-owners. Each proportionate share amount to
P 1,000. Mon paid expenses amounting to P600. Can Mon sue Happy if Happy
does not contribute the P200 which he is obliged to give as co-owner?
Yes. Mon, however, has the option to renouncing so much of his undivided
interest as may be equivalent to this share of the expenses. Thus, he may
renounce 1/5 of his 1/3 share.
Q: In the question above, what if it was Patty, a third person, paid the
expenses? Can Patty claim from Happy the whole amount?
No, she cannot. The obligation of co-owners to share in the expenses is NOT
solidary.
Q: What if Happy who refused to pay Patty, renounces his share in favor of
Patty?
The transfer becomes a voluntary transfer. Patty now becomes a part of the coownership. The other co-owners may then exercise the right of legal
redemption.
ARTICLE 490.
Whenever the different stories of a house belong to
different owners, if the titles of ownership do not specify the terms under
which they should contribute to the necessary expenses and there exists no
agreement on the subject, the following rules shall be observed:
(1)
The main and party walls, the roof and the other things used in
common, shall be preserved at the expense of all the owners in proportion to
the value of the story belonging to each;
(2)
Each owner shall bear the cost of maintaining the floor of his story;
the floor of the entrance, front door, common yard and sanitary works
common to all, shall be maintained at the expense of all the owners pro rata;
(3)
The stairs from the entrance to the first story shall be maintained at
the expense of all the owners pro rata, with the exception of the owner of the
ground floor; the stairs from the first to the second story shall be preserved at
the expense of all, except the owner of the ground floor and the owner of the
first story; and so on successively. (396)
Q: The different stories of a house belong to different owners. The titles of
ownership do not specify the terms under which they should contribute to the
necessary expenses and there is no agreement on the subject. What rules shall
apply?
The following rules should be observed:
1. The main and party walls, the roof and other things used in common
shall be preserved at the expenses of all the owners in proportion to the
value of the story belonging to each;
2. Each owner shall bear the cost of maintaining the floor of his story; the
floor of the entrance, front door, common yard and sanitary works
common to all shall be maintained at the expense of all the owners pro
rate;
3. The stairs form the entrance to the first story shall be maintained at the
expense of all the owners pro rate, with the exception of the owner of
the ground floor, the stairs from the first to the second story shall be
preserved at the expense of all, except the owner of the ground floor
and the owner of the first story; and so successively.
6.
Termination
Q: How is co-ownership extinguished?

1. Partition-judicial or extrajudicial
2. Prescription- One co-owner has acquired the whole property by
adverse, continuous and exclusive possession as against all the others,
and repudiating unequivocally the co-ownership of the other
NOTE: possession must be 30 years because co-owner is always
in bad faith and the land should not be registered under the
Torrens System
3. Merger in one co-owner, whether by sale or donation
4. Loss or Destruction
5. Expropriation
152

C.
Condominium Act
RA 4726 The Condominium Act
AN ACT TO DEFINE CONDOMINIUM, ESTABLISH REQUIREMENTS

FOR ITS CREATION, AND GOVERN ITS INCIDENTS
SECTION 1.
The short title of this Act shall be "The Condominium Act".
SECTION 2.
A condominium is an interest in real property consisting of
separate interest in a unit in a residential, industrial or commercial building
and an undivided interest in common, directly or indirectly, in the land on
which it is located and in other common areas of the building. A
condominium may include, in addition, a separate interest in other portions
of such real property. Title to the common areas, including the land, or the
appurtenant interests in such areas, may be held by a corporation specially
formed for the purpose (hereinafter known as the "condominium
corporation") in which the holders of separate interest shall automatically be
members or shareholders, to the exclusion of others, in proportion to the
appurtenant interest of their respective units in the common areas.
The real right in condominium may be ownership or any other interest in real
property recognized by law, on property in the Civil Code and other pertinent
laws.
SECTION 3.
As used in this Act, unless the context otherwise requires:
(a)
"Condominium" means a condominium as defined in the next
preceding section.
(b)
"Unit" means a part of the condominium project intended for any
type of independent use or ownership, including one or more rooms or spaces
located in one or more floors (or part or parts of floors) in a building or
buildings and such accessories as may be appended thereto.
(c)
"Project" means the entire parcel of real property divided or to be
divided in condominiums, including all structures thereon,
(d)
"Common areas" means the entire project excepting all units
separately granted or held or reserved.
(e)
"To divide" real property means to divide the ownership thereof or
other interest therein by conveying one or more condominiums therein but
less than the whole thereof.
SECTION 4.
The provisions of this Act shall apply to property divided or
to be divided into condominiums only if there shall be recorded in the
Register of Deeds of the province or city in which the property lies and duly
annotated in the corresponding certificate of title of the land, if the latter had
been patented or registered under either the Land Registration or Cadastral
Acts, an enabling or master deed which shall contain, among others, the
following:
(a)
Description of the land on which the building or buildings and
improvements are or are to be located;
(b)
Description of the building or buildings, stating the number of
storeys and basements, the number of units and their accessories, if any;
(c)
Description of the common areas and facilities;
(d)
A statement of the exact nature of the interest acquired or to be
acquired by the purchaser in the separate units and in the common areas of
the condominium project. Where title to or the appurtenant interests in the
common areas is or is to be held by a condominium corporation, a statement
to this effect shall be included;
(e)
Statement of the purposes for which the building or buildings and
each of the units are intended or restricted as to use;
(f)
A certificate of the registered owner of the property, if he is other
than those executing the master deed, as well as of all registered holders of
any lien or encumbrance on the property, that they consent to the registration
of the deed;
(g)
The following plans shall be appended to the deed as integral parts
thereof:
(1)
A survey plan of the land included in the project, unless a survey
plan of the same property had previously bee filed in said office;
(2)
A diagrammatic floor plan of the building or buildings in the
project, in sufficient detail to identify each unit, its relative location and
approximate dimensions;
(h)
Any reasonable restriction not contrary to law, morals or public
policy regarding the right of any condominium owner to alienate or dispose
of his condominium.
The enabling or master deed may be amended or revoked upon registration
of an instrument executed by the registered owner or owners of the property
and consented to by all registered holders of any lien or encumbrance on the
land or building or portion thereof. The term "registered owner" shall include
the registered owners of condominiums in the project. Until registration of a
revocation, the provisions of this Act shall continue to apply to such property.
SECTION 5.
Any transfer or conveyance of a unit or an apartment, office
or store or other space therein, shall include the transfer or conveyance of the
undivided interests in the common areas or, in a proper case, the membership
or shareholdings in the condominium corporation: Provided, however, That
where the common areas in the condominium project are owned by the
owners of separate units as co-owners thereof, no condominium unit therein
shall be conveyed or transferred to persons other than Filipino citizens, or
corporations at least sixty percent of the capital stock of which belong to
Filipino citizens, except in cases of hereditary succession. Where the common
areas in a condominium project are held by a corporation, no transfer or
conveyance of a unit shall be valid if the concomitant transfer of the
appurtenant membership or stockholding in the corporation will cause the
alien interest in such corporation to exceed the limits imposed by existing
laws.
153

SECTION 6.
Unless otherwise expressly provided in the enabling or
master deed or the declaration of restrictions, the incidents of a condominium
grant are as follows:
(a)
The boundary of the unit granted are the interior surfaces of the
perimeter walls, floors, ceilings, windows and doors thereof. The following
are not part of the unit bearing walls, columns, floors, roofs, foundations and
other common structural elements of the building; lobbies, stairways,
hallways, and other areas of common use, elevator equipment and shafts,
central heating, central refrigeration and central air-conditioning equipment,
reservoirs, tanks, pumps and other central services and facilities, pipes, ducts,
flues, chutes, conduits, wires and other utility installations, wherever located,
except the outlets thereof when located within the unit.
(b)
There shall pass with the unit, as an appurtenance thereof, an
exclusive easement for the use of the air space encompassed by the
boundaries of the unit as it exists at any particular time and as the unit may
lawfully be altered or reconstructed from time to time. Such easement shall
be automatically terminated in any air space upon destruction of the unit as to
render it untenantable.
(c)
Unless otherwise, provided, the common areas are held in common
by the holders of units, in equal shares, one for each unit.
(d)
A non-exclusive easement for ingress, egress and support through
the common areas is appurtenant to each unit and the common areas are
subject to such easements.
(e)
Each condominium owner shall have the exclusive right to paint,
repaint, tile, wax, paper or otherwise refinish and decorate the inner surfaces
of the walls, ceilings, floors, windows and doors bounding his own unit.
(f)
Each condominium owner shall have the exclusive right to mortgage,
pledge or encumber his condominium and to have the same appraised
independently of the other condominiums but any obligation incurred by
such condominium owner is personal to him.
(g)
Each condominium owner has also the absolute right to sell or
dispose of his condominium unless the master deed contains a requirement
that the property be first offered to the condominium owners within a
reasonable period of time before the same is offered to outside parties;
SECTION 7.
Except as provided in the following section, the common
areas shall remain undivided, and there shall be no judicial partition thereof.
SECTION 8.
Where several persons own condominiums in a
condominium project, an action may be brought by one or more such persons
for partition thereof by sale of the entire project, as if the owners of all of the
condominiums in such project were co-owners of the entire project in the
same proportion as their interests in the common areas: Provided, however,
That a partition shall be made only upon a showing:
(a)
That three years after damage or destruction to the project which
renders material part thereof unit for its use prior thereto, the project has not
been rebuilt or repaired substantially to its state prior to its damage or

destruction, or
(b)
That damage or destruction to the project has rendered one-half or
more of the units therein untenantable and that condominium owners
holding in aggregate more than thirty percent interest in the common areas
are opposed to repair or restoration of the project; or
(c)
That the project has been in existence in excess of fifty years, that it
is obsolete and uneconomic, and that condominium owners holding in
aggregate more than fifty percent interest in the common areas are opposed to
repair or restoration or remodelling or modernizing of the project; or
(d)
That the project or a material part thereof has been condemned or
expropriated and that the project is no longer viable, or that the condominium
owners holding in aggregate more than seventy percent interest in the
common areas are opposed to continuation of the condominium regime after
expropriation or condemnation of a material portion thereof; or
(e)
That the conditions for such partition by sale set forth in the
declaration of restrictions, duly registered in accordance with the terms of this
Act, have been met.
SECTION 9.
The owner of a project shall, prior to the conveyance of any
condominium therein, register a declaration of restrictions relating to such
project, which restrictions shall constitute a lien upon each condominium in
the project, and shall insure to and bind all condominium owners in the
project. Such liens, unless otherwise provided, may be enforced by any
condominium owner in the project or by the management body of such
project. The Register of Deeds shall enter and annotate the declaration of
restrictions upon the certificate of title covering the land included within the
project, if the land is patented or registered under the Land Registration or
Cadastral Acts.
The declaration of restrictions shall provide for the management of the
project by anyone of the following management bodies: a condominium
corporation, an association of the condominium owners, a board of governors
elected by condominium owners, or a management agent elected by the
owners or by the board named in the declaration. It shall also provide for
voting majorities quorums, notices, meeting date, and other rules governing
such body or bodies.
Such declaration of restrictions, among other things, may also provide:
(a)
As to any such management body;
(1)
For the powers thereof, including power to enforce the provisions of
the declarations of restrictions;
(2)
For maintenance of insurance policies, insuring condominium
owners against loss by fire, casualty, liability, workmen's compensation and
other insurable risks, and for bonding of the members of any management
body;
(3)
Provisions for maintenance, utility, gardening and other services
benefiting the common areas, for the employment of personnel necessary for
154

the operation of the building, and legal, accounting and other professional
and technical services;
(4)
For purchase of materials, supplies and the like needed by the
common areas;
(5)
For payment of taxes and special assessments which would be a lien
upon the entire project or common areas, and for discharge of any lien or
encumbrance levied against the entire project or the common areas;
(6)
For reconstruction of any portion or portions of any damage to or
destruction of the project;
(7)
The manner for delegation of its powers;
(8)
For entry by its officers and agents into any unit when necessary in
connection with the maintenance or construction for which such body is
responsible;
(9)
For a power of attorney to the management body to sell the entire
project for the benefit of all of the owners thereof when partition of the
project may be authorized under Section 8 of this Act, which said power shall
be binding upon all of the condominium owners regardless of whether they
assume the obligations of the restrictions or not.
(b)
The manner and procedure for amending such restrictions: Provided,
That the vote of not less than a majority in interest of the owners is obtained.
(c)
For independent audit of the accounts of the management body;
(d)
For reasonable assessments to meet authorized expenditures, each
condominium unit to be assessed separately for its share of such expenses in
proportion (unless otherwise provided) to its owners fractional interest in any
common areas;
(e)
For the subordination of the liens securing such assessments to other
liens either generally or specifically described;
(f)
For conditions, other than those provided for in Sections eight and
thirteen of this Act, upon which partition of the project and dissolution of the
condominium corporation may be made. Such right to partition or dissolution
may be conditioned upon failure of the condominium owners to rebuild
within a certain period or upon specified inadequacy of insurance proceeds,
or upon specified percentage of damage to the building, or upon a decision of
an arbitrator, or upon any other reasonable condition.
SECTION 10.
Whenever the common areas in a condominium project are
held by a condominium corporation, such corporation shall constitute the
management body of the project. The corporate purposes of such a
corporation shall be limited to the holding of the common areas, either in
ownership or any other interest in real property recognized by law, to the
management of the project, and to such other purposes as may be necessary,
incidental or convenient to the accomplishment of said purposes. The articles
of incorporation or by-laws of the corporation shall not contain any provision
contrary to or inconsistent with the provisions of this Act, the enabling or
master deed, or the declaration of restrictions of the project. Membership in a
condominium corporation, regardless of whether it is a stock or non-stock
corporation, shall not be transferable separately from the condominium unit

of which it is an appurtenance. When a member or stockholder ceases to own
a unit in the project in which the condominium corporation owns or holds the
common areas, he shall automatically cease to be a member or stockholder of
the condominium corporation.
SECTION 11.
The term of a condominium corporation shall be coterminus with the duration of the condominium project, the provisions of the
Corporation Law to the contrary notwithstanding.
SECTION 12.
In case of involuntary dissolution of a condominium
corporation for any of the causes provided by law, the common areas owned
or held by the corporation shall, by way of liquidation, be transferred proindiviso and in proportion to their interest in the corporation to the members
or stockholders thereof, subject to the superior rights of the corporation
creditors. Such transfer or conveyance shall be deemed to be a full liquidation
of the interest of such members or stockholders in the corporation. After such
transfer or conveyance, the provisions of this Act governing undivided coownership of, or undivided interest in, the common areas in condominium
projects shall fully apply.
SECTION 13.
Until the enabling or the master deed of the project in
which the condominium corporation owns or holds the common area is
revoked, the corporation shall not be voluntarily dissolved through an action
for dissolution under Rule 104 of the Rules of Court except upon a showing:
(a)
That three years after damage or destruction to the project in which
the corporation owns or holds the common areas, which damage or
destruction renders a material part thereof unfit for its use prior thereto, the
project has not been rebuilt or repaired substantially to its state prior to its
damage or destruction; or
(b)
That damage or destruction to the project has rendered one-half or
more of the units therein untenantable and that more than thirty percent of
the members of the corporation, if non-stock, or the shareholders
representing more than thirty percent of the capital stock entitled to vote, if a
stock corporation, are opposed to the repair or reconstruction of the project, or
(c)
That the project has been in existence in excess of fifty years, that it
is obsolete and uneconomical, and that more than fifty percent of the
members of the corporation, if non-stock, or the stockholders representing
more than fifty percent of the capital stock entitled to vote, if a stock
corporation, are opposed to the repair or restoration or remodelling or
modernizing of the project; or
(d)
That the project or a material part thereof has been condemned or
expropriated and that the project is no longer viable, or that the members
holding in aggregate more than seventy percent interest in the corporation, if
non-stock, or the stockholders representing more than seventy percent of the
capital stock entitled to vote, if a stock corporation, are opposed to the
continuation of the condominium regime after expropriation or
condemnation of a material portion thereof; or
155

(e)
That the conditions for such a dissolution set forth in the declaration
of restrictions of the project in which the corporation owns of holds the
common areas, have been met.
SECTION 14.
The condominium corporation may also be dissolved by the
affirmative vote of all the stockholders or members thereof at a general or
special meeting duly called for the purpose: Provided, That all the
requirements of Section sixty-two of the Corporation Law are complied with.
SECTION 15.
Unless otherwise provided for in the declaration of
restrictions upon voluntary dissolution of a condominium corporation in
accordance with the provisions of Sections thirteen and fourteen of this Act,
the corporation shall be deemed to hold a power of attorney from all the
members or stockholders to sell and dispose of their separate interests in the
project and liquidation of the corporation shall be effected by a sale of the
entire project as if the corporation owned the whole thereof, subject to the
rights of the corporate and of individual condominium creditors.
SECTION 16.
A condominium corporation shall not, during its existence,
sell, exchange, lease or otherwise dispose of the common areas owned or held
by it in the condominium project unless authorized by the affirmative vote of
all the stockholders or members.
SECTION 17.
Any provision of the Corporation Law to the contrary
notwithstanding, the by-laws of a condominium corporation shall provide
that a stockholder or member shall not be entitled to demand payment of his
shares or interest in those cases where such right is granted under the
Corporation Law unless he consents to sell his separate interest in the project
to the corporation or to any purchaser of the corporation's choice who shall
also buy from the corporation the dissenting member or stockholder's
interest. In case of disagreement as to price, the procedure set forth in the
appropriate provision of the Corporation Law for valuation of shares shall be
followed. The corporation shall have two years within which to pay for the
shares or furnish a purchaser of its choice from the time of award. All
expenses incurred in the liquidation of the interest of the dissenting member
or stockholder shall be borne by him.
SECTION 18.
Upon registration of an instrument conveying a
condominium, the Register of Deeds shall, upon payment of the proper fees,
enter and annotate the conveyance on the certificate of title covering the land
included within the project and the transferee shall be entitled to the issuance
of a "condominium owner's" copy of the pertinent portion of such certificate
of title. Said "condominium owner's" copy need not reproduce the ownership
status or series of transactions in force or annotated with respect to other
condominiums in the project. A copy of the description of the land, a brief
description of the condominium conveyed, name and personal circumstances
of the condominium owner would be sufficient for purposes of the
"condominium owner's" copy of the certificate of title. No conveyance of
condominiums or part thereof, subsequent to the original conveyance thereof
from the owner of the project, shall be registered unless accompanied by a
certificate of the management body of the project that such conveyance is in

accordance with the provisions of the declaration of restrictions of such
project.
In cases of condominium projects registered under the provisions of the
Spanish Mortgage Law or Act 3344, as amended, the registration of the deed
of conveyance of a condominium shall be sufficient if the Register of Deeds
shall keep the original or signed copy thereof, together with the certificate of
the management body of the project, and return a copy of the deed of
conveyance to the condominium owner duly acknowledge and stamped by
the Register of Deeds in the same manner as in the case of registration of
conveyances of real property under said laws.
SECTION 19.
Where the enabling or master deed provides that the land
included within a condominium project are to be owned in common by the
condominium owners therein, the Register of Deeds may, at the request of all
the condominium owners and upon surrender of all their "condominium
owner's" copies, cancel the certificates of title of the property and issue a new
one in the name of said condominium owners as pro-indiviso co-owners
thereof.
SECTION 20.
An assessment upon any condominium made in accordance
with a duly registered declaration of restrictions shall be an obligation of the
owner thereof at the time the assessment is made. The amount of any such
assessment plus any other charges thereon, such as interest, costs (including
attorney's fees) and penalties, as such may be provided for in the declaration
of restrictions, shall be and become a lien upon the condominium assessed
when the management body causes a notice of assessment to be registered
with the Register of Deeds of the city or province where such condominium
project is located. The notice shall state the amount of such assessment and
such other charges thereon a may be authorized by the declaration of
restrictions, a description of the condominium, unit against which same has
been assessed, and the name of the registered owner thereof. Such notice
shall be signed by an authorized representative of the management body or
as otherwise provided in the declaration of restrictions. Upon payment of said
assessment and charges or other satisfaction thereof, the management body
shall cause to be registered a release of the lien.
Such lien shall be superior to all other liens registered subsequent to the
registration of said notice of assessment except real property tax liens and
except that the declaration of restrictions may provide for the subordination
thereof to any other liens and encumbrances.
Such liens may be enforced in the same manner provided for by law for the
judicial or extra-judicial foreclosure of mortgages of real property. Unless
otherwise provided for in the declaration of restrictions, the management
body shall have power to bid at foreclosure sale. The condominium owner
shall have the same right of redemption as in cases of judicial or extra-judicial
foreclosure of mortgages.
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SECTION 21.
No labor performed or services or materials furnished with
the consent of or at the request of a condominium owner or his agent or his
contractor or subcontractor, shall be the basis of a lien against the
condominium of any other condominium owner, unless such other owners
have expressly consented to or requested the performance of such labor or
furnishing of such materials or services. Such express consent shall be
deemed to have been given by the owner of any condominium in the case of
emergency repairs of his condominium unit. Labor performed or services or
materials furnished for the common areas, if duly authorized by the
management body provided for in a declaration of restrictions governing the
property, shall be deemed to be performed or furnished with the express
consent of each condominium owner. The owner of any condominium may
remove his condominium from a lien against two or more condominiums or
any part thereof by payment to the holder of the lien of the fraction of the
total sum secured by such lien which is attributable to his condominium unit.
SECTION 22.
Unless otherwise provided for by the declaration of
restrictions, the management body, provided for herein, may acquire and
hold, for the benefit of the condominium owners, tangible and intangible
personal property and may dispose of the same by sale or otherwise; and the
beneficial interest in such personal property shall be owned by the
condominium owners in the same proportion as their respective interests in
the common areas. A transfer of a condominium shall transfer to the
transferee ownership of the transferor's beneficial interest in such personal
property.
SECTION 23.
Where, in an action for partition of a condominium project
or for the dissolution of condominium corporation on the ground that the
project or a material part thereof has been condemned or expropriated, the
Court finds that the conditions provided for in this Act or in the declaration
of restrictions have not been met, the Court may decree a reorganization of
the project, declaring which portion or portions of the project shall continue
as a condominium project, the owners thereof, and the respective rights of
said remaining owners and the just compensation, if any, that a condominium
owner may be entitled to due to deprivation of his property. Upon receipt of a
copy of the decree, the Register of Deeds shall enter and annotate the same on
the pertinent certificate of title.
SECTION 24.
Any deed, declaration or plan for a condominium project
shall be liberally construed to facilitate the operation of the project, and its
provisions shall be presumed to be independent and severable.
SECTION 25.
Whenever real property has been divided into
condominiums, each condominium separately owned shall be separately
assessed, for purposes of real property taxation and other tax purposes to the
owners thereof and the tax on each such condominium shall constitute a lien
solely thereon.
SECTION 26.
All Acts or parts of Acts in conflict or inconsistent with this
Act are hereby amended insofar as condominium and its incidents are
concerned.
SECTION 27.
This Act shall take effect upon its approval.
Approved: June 18, 1966
NOTE: Article 490 of the NCC has not been repealed by the Condominium Act.
Said Article applies to condominium projects that are NOT registered with the
Register of Deeds.
x
x
x
x
ownership is not based on area but on the number of units you own BUT
practically a 2-bedroom unit may be considered 2 units
there is co-ownership of common areas --? Land, roof, lobby, laundry
facilities, elevators, etc.
use of a condominium corporation: takes title to the common areas; easier
to manage the condo
if a condominium corporation is not used: the common areas are owned by
the unit owners in which case, they cant have an alien owning land
o therefore, a condominium corporation is used most of the time
follows the 60-40% rule
cant just ask for partition of common areas rather, you sell the entire
condo then divide the proceeds
Q: Why was the Condominium Act enacted?

One reason was to offset an SC decision which held that a building could not be
mortgaged separately from the land on which it stood because no separate
certificate of title is issued over the building. Prior to this law, the only way to
annotate a mortgage over a building was to annotate such on the certificate of
title covering the land on which it stood.
Q: What is a condom? Its a rubber thingie that you put on a guys thingie in
order that the sperm and the egg cell will not unite. 90 % effective lang ito mga
kids kaya ingat lang or else magkaka kids kayo kids.
Q: What is a condominium?
A: Under Section 2 of RA 4726, a condominium is an interest in real property
consisting of a separate interest in a unit in a residential, industrial or
commercial building and an undivided interest in common, directly or
indirectly in the land on which it is located an in other common areas of the
building.
A condominium may include, in addition, a separate interest in other
portions of such real property. Title to common areas, including the land,
appurtenant interest in such areas, may be held by a corporation specially
157

formed for the purpose (hereinafter known as the condominium

corporation) in which the holders of separate interests shall automatically
be members or shareholders, to the exclusion of others, in proportion to the
appurtenant interest of their respective units in the common areas.
The interests in condominium may be ownership of other real rights in real
property recognized by the law of property in the NCC and other pertinent
laws.
A condo project may be vertical or horizontal. The condo units need not be
attached to each other; it is possible for a condo project to be composed of
separate units that are far apart, with the land serving as the common area.
In short: A condominium in an interest consisting of:

1. a separate interest in a unit in a residential, industrial of commercial
building as well as
2. An undivided interest in common, directly or indirectly, in the land on
which it is located an in the common areas of the building, which may
include in addition, a separate interest in other portions of such real
property (e.g. the parking lot or the swimming pool)
NOTE: Townhouses and the like are not condo projects because the land on
which the townhouses are built is leased by the unit owners themselves and not
by a condo corporation/association.
Q: What must be registered with the Register of Deeds in order that the Condo
law will be applied?
Two things must be registered with the RD:
1. Master Deed= containing the description of the land, the building, the
separate units, the common areas etc.
2. Deed of Restrictions= containing the provisions regarding the
management, expenses and other administrative regulations
What is a Master Deed?
It is also known as the ENABLING DEED. This is annotated on the certificate of
title of the land on which the building is located and includes, among others:
a) a description of the land, building and improvements
b) description of the common areas (of the entire project, except all units
or areas separately held)
c) description of the interest to be acquired by purchasers of the separate
unit
d) the purposes for which the building and units are intended of
restricted as to use
e) reasonable restrictions on the right to alienate or dispose
Q: What is a Declaration of Restrictions?

This is also annotated on the certificate of title of the land on which the building
stands. This may provide for the management of the project by any of the
following:
a)
b)
c)
a condominium corporation
an association of condominium owners
a board of governors elected by the condominium owners
d)
a management agent elected by the owner or by the board named in

the declaration
This may also provide for the powers of the managing body; the procedure for
amending the Declaration of Restrictions which shall require at least a majority
vote; independent audit of accounts of management body; has reasonable
assessments on each unit in order to meet authorized expenditures.
Q: What is the nature of ownership of individual unit owners?
The unit owners have absolute ownership of separate units and have coownership (directly/indirect) over the common areas
Q: What are the incidents of a condominium grant?
Unless expressly provided in the Master Deed/ Declaration of Restrictions, a
condominium grant shall include:
a) interior surfaces of units
b) common areas, which are held in common by the holders of units in
equal shares, one for each unit
c) easement for use of airspace within boundaries of a unit
d) non-exclusive easement for ingress, egress and support through the
common areas
e) exclusive right to paint and decorate inner surfaces of walls, windows
and doors of units
f) right to pledge, mortgage or encumber
g) right to sell or dispose UNLESS the Master Deed requires that the unit
first be offered to other owners of units (right of first refusal)
Q: What are options are available to unit owners regarding administration of
common areas? They have two options:
a) they can form a condominium corporation; or
b) they can form a condominium association
Q: What is the advantage of forming a condominium corporation over a
condominium association?
158

A condominium corporation allows foreign ownership up to 40% while a
condominium association does not allow foreign ownership absolutely. Foreign
ownership is allowed because a corporation that is at least 60% owned by
Filipinos is considered a Filipino corporation and thus is not violative of the
constitutional prohibition against foreigners owning Philippine land.
Q: Who is in charge of administration or management in case a condominium
corporation is set up?
Administration or management is lodged in the condominium corporation
although the corporation may enter into service contracts such as for janitorial
services.
Q: What law governs the condominium corporation?
The Condominium Act governs the condo corporation.
a)
b)
in stock corporations, shares of stock are issued. For every

condominium owned, one share is issued
in non-stock corporations, certificates of membership are issued
Q: What is the purpose of the condominium corporation?

The condominium corporation is limited to administering the common areas
and to holding title.
Q: What is the voting scheme in condominium corporations?
The rule is one unit-one vote. The voting rights are determined not by unit size
by the number of units owned. What is usually done however, is for a bigger
unit to be considered more than one unit to more votes. For example, a three
bedroom unit may actually be considered three units entitling the unit owner to
three votes.
Q: What is the difference between condo corporations and condo associations?
Governing Law
Administration/
Management
Foreign
Ownership
Condominium
Corporation
Condominium Act
Lodged in the condo

corporation although it
may enter into contracts
for services or the like
May be allowed up to 40%
of the corporation
Condominium
Association
Condominium Act and
pertinent provisions of the
Civil Code
The association may elect
a Board of Governors or
hire
professional
managers
Absolutely no foreign
ownership only lease
Q: What is the rule on alien holdings?

IF the common areas are in the name of the unit holders as co-owners, then no
unit may be transferred except to Filipino citizens or corporations at least 60%
Filipino owned, EXCEPT by hereditary succession.
If the common areas are in the name of a condominium corporation, then 40% of
the units may be sold or transferred to aliens, or alien entities, so long as the
stockholdings of Filipinos in the condo corp do not amount to les than 60%
Q: What are the mechanics of a condominium corporation?
1. As to form: The corporation may be stock or non-stock corporation
Q: Until when does the condominium corporation exist?

The term of existence of the condominium corporation is co-terminus with the
condominium project.
Q: What body has jurisdiction over the condominium corporation?
The SEC or Securities and Exchange Commission has jurisdiction over the
condominium corporation.
Q: What comprises the interest of a condominium unit owner in the condo
project?
The interest of a condominium unit owner in the condominium unit owner in
the condo project is directly proportional to his unit ownership. As long as he
owns one unit, he owns one share in the corporation. Membership is an
appurtenance of each unit. The moment one ceases to own a unit, he
automatically ceases to be a member or stockholder of the condo
corp/association. The only exception is when there are contrary stipulations in
the Master Deed or in the Deed of Restrictions
NOTE: The sale of a unit necessarily involves the sale of the interest/sale in the
condo project and vice-versa
Q: How is dissolution of the condo corporation effected?
1. Under voluntary dissolution, the dissolution is made under the
applicable provision of the Corporation Code. This requires the
unanimous consent of all the stockholders or members (in case of nonstock condominium corporations). The grounds are limited to those
enumerated under Sec. 13 of the Corporation Code. A voluntary
dissolution of the condo corporation implies a power of attorney from
159

2.
all to sell the entire project. The court may decree a reorganization of
the project.
Under involuntary dissolution, the dissolution is initiated by the SEC.
The dissolution serves as a penalty for ultra vires acts. Each unit owner
is allotted a pro diviso ownership in the common areas thus converting
the condo corporation into a condo association (that is co-ownership)
subject to the rights of corporate creditors. Section 8 then may become
applicable.
Q: When may partition be made by the sale of the entire property?

As a general rule, partition whether judicial or extra-judicial is not allowed
(unlike co-ownership) except on the following grounds in which case partition
may be made by the sale of the entire property:
a) three years after damages rendering material part unfit for use, and
there is refusal to rebuild by the unit owners;
b) damage extends to of units and owners with 30% interest oppose
repair;
c) project is more than 50 years, obsolete and uneconomic; and owners
holding more than 50% interest refuse to repair, rebuild and remodel
d) owners of more than 70% interest in common areas are opposed to the
continuation of the project after a portion has been expropriated
e) conditions for partition by sale embodied in the Declaration of
Restrictions have been complied with
Q: What are the effects of dissolution?
In case of dissolution, only the condominium corporation is dissolved. The
ownership of common areas are still lodged to the different unit owners. The
unit owners can thereafter decide if they want to remain as an association of if
they want to opt for partition
NOTE: Dissolution of condominium corporation is different from partition of an
association managing a condo project. In addition, partition under the Condo
Act is totally different from partition in co-ownership under the NCC. Specific
grounds are provided for under Sec. 8 of the Condo Act for partition to be had.
Other than the enumerated grounds, partition cannot be had. It is not possible
for the declaration of restrictions to provide for additional grounds. No judicial
partition is allowed. Actual partitioning can only be had if the entire project is
sold, which includes the common areas. It is not possible to sell the common
areas apart from the units. Ones interest in the common areas is inseparable
from the ownership of a unit.
Q: Who bears the expenses of administration in a condominium corporation?
Regarding sharing of expenses, assessments are made to the unit owners (for
example, expenses for the salaries of janitors or security guards; water and
electricity, repairs and maintenance of the common areas, etc.). Regarding

repairs made in or on separate units owned by individual unit owners; such
expenses shall be borne by the unit owners themselves.
___________________________________________________
D. Waters (PD 1067 The Water Code of the Philippines)
[This sub-section is dedicated to Nad Pugeda. May he always have water
supply.]
Q: What is a Waters? It is a silent waters runs deeps. Di daw tatanungin sa bar
ang Waters.
E.
Possession
ARTICLE 523.
right. (430a)
Possession is the holding of a thing or the enjoyment of a
ARTICLE 524.
another. (413a)
Possession may be exercised in one's own name or in that of
ARTICLE 525.
The possession of things or rights may be had in one of two
concepts: either in the concept of owner, or in that of the holder of the thing
or right to keep or enjoy it, the ownership pertaining to another person. (432)
ARTICLE 540.
Only the possession acquired and enjoyed in the concept of
owner can serve as a title for acquiring dominion. (447)
Q: What is possession?
Possession is the holding of a thing or the enjoyment of a right
NOTE: The holding of a thing refers to a physical object, whether real or
personal. The enjoyment of a right applies to intangible, things which have no
physical presence but over which legal rights are exercised
Q: What are the kinds or concepts of possession?
1. Right TO possession (jus possidendi)- this is a right or incident of ownership.
The ownership of any property carries with it the right to possession. Of
course, the owner of a thing can always turn over possession to another,
since the transfer of possession would be an exercise of a right of
ownership.
160

2.
Right OF possession (jus possessionis)- this is a right independent of

ownership.
This occurs when ownership belongs to one person, but the property is
held by another.
NOTE: Most of the provisions in the NCCs chapter regarding possession really
refer to the second kind of possession or Possession in independent of
ownership.
1.
Elements
Q: What are the elements or requisites of possession?

1. Holding or control of a thing/right;
2. Deliberate intention to possess (animus possidendi);
3. Possession by virtue of ones own right.
Q: How is the first element accomplished?
The element of holding or control of a thing or right is accomplished by
acquiring possession through any of the modes provided for in Article 531.
(OLD TIPS)
ARTICLE 531.
Possession is acquired by the material occupation of a thing
or the exercise of a right, or by the fact that it is subject to the action of our
will, or by the proper acts and legal formalities established for acquiring such
right. (438a)
ARTICLE 558.
Acts relating to possession, executed or agreed to by one
who possesses a thing belonging to another as a mere holder to enjoy or keep
it, in any character, do not bind or prejudice the owner, unless he gave said
holder express authority to do such acts, or ratifies them subsequently. (463)
would be signing over a deed of sale which puts the buyer in legal possession
even though he may not have actual and physical possession at that time.
Q: Felix the Cabral, the irrepressible self-appointed class clown, hid a frog in
Xtins bag. Xtin reached into her bag to get some Judge Bebol Gum and instead
withdrew the frog. Does she have legal possession of the croaker?
NO, absent a showing that she was moved by animus possidendi or a deliberate
intention to possess the frog.
Q: What if Xtin, unhappy with her spouse and a fervent believer in fairy tales,
decided to keep the frog to smooch at a later date whence it would transform
into a prince?
Now the second element of possession or the intention to possess, is present.
The next point to determine then is whether she holds the frog by virtue of her
own right. Assuming Felix did no intend to keep the frog for himself, then, yes,
she has legal possession.
Q: Explain the third element of possession by virtue of ones own right.
This is best explained through an example: where a person holds the thing
because he is a representative or an agent of another, he cannot have possession
by virtue of his own right. It is the principal who is considered as having
possession in his own right, although through the agent.
ARTICLE 530.
Only things and rights which are susceptible of being
appropriated may be the object of possession. (437)
Q: What may be the object of possession?
Only things and rights which are susceptible of being appropriated may be the
object of possession.
Q: What are the modes of acquiring possession?

1. By material occupation of the thing or the exercise of a right;
This is otherwise known as material possession and refers to actual, physical
occupation and holding of the thing.
Q: What if Xtin kept the frog, later kissed it, and it turned into a prince, the
Prince of Jaipur. Would she have possession of the man?
NO, you crazy you. Only those things which may be appropriated may be the
object of possession. One cannot appropriate people.
2. By subjection to our will;

This refers to symbolic delivery such as pointing to the thing (tradition longa
manu) or the delivery of a key which already puts one in possession even
though there is no actual or physical detention of the thing (symbolica).
ARTICLE 532.
Possession may be acquired by the same person who is to
enjoy it, by his legal representative, by his agent, or by any person without
any power whatever: but in the last case, the possession shall not be
considered as acquired until the person in whose name the act of possession
was executed has ratified the same, without prejudice to the juridical
consequences of negotiorum gestio in a proper case. (439a)
3. By proper acts and legal formalities

This refers to constructive delivery where one is placed in possession of the thing
by the execution of legal formalities and legal documents. An example here
161

ARTICLE 535.
Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of their legal
representatives in order to exercise the rights which from the possession arise
in their favor. (443)
The following persons may acquire possession:
(1) by the same person who will enjoy it, provided:
(a) there is intent to possess;
(b) capacity to possess; and
(c) the object is capable of being possessed.
(2) by his authorized representative or agent, provided:
(a) intent to possess I behalf of the principal;
(b) agent has authority or capacity to possess;
(c) principal has intent and capacity to possess.
(3) By an unauthorized person, provided:
(a) intent to possess for another (principal)
(b) capacity of principal to possess;
(c) ratification by principal
2.
Kinds of Possession according to Degree
Q: What are the kinds of possession according to degree?

(1) Possession without a right/title
(2) Possession with juridical title but not in the concept of an owner
(3) Possession with just title
(4) Possession with title of dominium.
Possession without a Right/Title
Q: Explain possession without a right/title
This is material possession. One may have actual, physical possession but
without just title at all.
It includes situations such as the possession of a thief, or someone who forces
his way into the property or intimidates another into turning over possession.
This is not per se legal possession and it cannot ripen into ownership.
Q: Why cant material possession ripen into ownership?
Material possession cannot ripen into ownership because possession as a fact

generally cannot be recognized at the same time in two different personalities
(Article 538)
And where one takes material possession of a thing through force, intimidation,
tolerance, or clandestine means, the person who has been dispossessed of the
property still remains a the one in legal possession (Arts. 536, 537)
In the situations above there would be two persons having possession (eg. On
the one hand; the person who forced is way into the property who has
material possession, and on the other hand, the person who lost possession
but is still deemed by law in legal possession) which is not permitted under
Article 538.
As only one person may have possession, and as the person dispossessed
physically of the property is deemed by law to retain his possession, the one
physically holding the property does not have possession and thus has no
basis for ownership to ripen.
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. (441a)
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. (444)
ARTICLE 538.
Possession as a fact cannot be recognized at the same time in
two different personalities except in the cases of co-possession. Should a
question arise regarding the fact of possession, the present possessor shall be
preferred; if there are two possessors, the one longer in possession; if the
dates of the possession are the same, the one who presents a title; and if all
these conditions are equal, the thing shall be placed in judicial deposit
pending determination of its possession or ownership through proper
proceedings. (445)
Q: Does the law continue to recognized the legal possession of the person who
has been dispossessed forever?
YES, for so long as such person claims the property and does not abandon it, he
will be deemed to be in legal possession.
162

Q: What happens if such person abandons the property?
If the property is a movable, it would become res nullius and may then be
acquired by occupation
If the property is an immovable, the moment it is abandoned by legal
possessor/owner without maintaining a claim thereon anymore and would
become property of the state under the regalian doctrine.
NOTE: The res nullius doctrine applies only to movable property. Also, res
nullius property cannot be acquired by prescription, since prescription
presupposes ownership in another , but by occupation.
Possession with Juridical Title
Q: Explain possession with juridical title.
This is juridical possession or possessin acquired through a legal mode but not
in the concept of an owner.
In most cases the legal mode of acquiring possession is thru a contractual
agreement with the owner or the person who has legal possession.. Examples
include possession of a lessee; pledge; depositary or bailee.
It is not possession in concept of an owner since the holder recognizes the
ownership of another or at least that another has a better right to possess. For
example, the lessee who signs a lease contract acknowledges that he has been
allowed to have use of the property by the lessor/owner.
Possession with a Just Title

Q: Explain possession with a just title
This is called real possessory right. Just title, for the purposes of prescription,
exists when the adverse claimant came into possession of the property through
one of the modes recognized by law for the acquisition of ownership or other
real rights, but the grantor was not the owner or could not transmit any right.
(Article 1129)
NOTE: Dean says on has just title when there is a mode of acquiring ownership
which ordinarily would have been sufficient to transfer ownership, but there
exists a flaw in that title.
The flaw in the title could be due to the fact that the person who
transferred ownership was not in fact the owner or had no legal right to transfer
ownership; or because of lack of consideration or some other defect.
Q: Can possession with just title ripen into ownership?
YES; this is precisely the situation contemplated for acquisitive prescription to
come into play.
Here, although there was a legal mode of acquiring ownership, ownership did
not transfer due to some flaw. But as the possessor has claim of title, acquisitive
prescription applies.
Possession with Title of Dominium
Q: Can juridical possession ripen into ownership? It depends.

NO, for as long as ownership or a better right of possession is recognized in
another.
Q: Explain possession with title of dominium.

This is possession with just title and no flaw. i.e. possession that springs from
ownership or ownership.
For instance, a tenant who continues to renew the lease contract each time it
expires recognizes that ownership over the property is vested in another and his
possession as lessee can thus never ripen into ownership.
Obviously, here there are no requirements for ownership to ripen for in fact
ownership is already with possession.
YES, if the possessor repudiates the ownership or better right of possession of

the other. Where such repudiation is made, the possessor then starts to hold the
property in the concept of owner and this becomes also the basis for acquisitive
prescription to set it.
For instance, the lessee now repudiates the relationship of lessee-lessor, claims
the property as his own, and ceases to pay rentals. This lessee in bad faith may
acquire ownership of the property after the passage of 30 years.
3.
Requirements to ripen into ownership
De Jesus v. CA
FACTS:
The property in dispute is a parcel of registered land situated in Bulacan. The
petitioners are grandchildren of the late owner of said land, Santiago de la
Cruz. They claim ownership over said lot by virtue of hereditary succession.
Santiago was married to Maria Reyes, a widow with three children from a
prior marriage one of them Guillerma, who is the mother of herein private
163

respondents, Primitiva Vicente. The respondent claims ownership over the
land through purchase of the property by her parents and failing this
argument, thru acquisitive prescription.
The trial court found in favor of the petitioners. On appeal, the CA reversed
and found for the respondent.
ISSUE: Did the respondent gain ownership of the property through acquisitive
prescription?
HELD:
NO. Firstly, possesstion, to constitute the basis of a prescriptive right, must be
possession under a claim of title or it must be adverse or in the concept of
owner.
But the possession that respondent Primitiva and her parents had over the
contested lot was neither exclusive nor in the concept of owner. It was not
exclusive as the records show that other grandchildren of the owner Santiago
de Jesus lived with them. Neither was possession in the concept of owner for
Primitiva and her parents were residing in the land by mere tolerance. In fact
when Primitivas father paid the property tax, he indicated in the tax
declaration that the house was constructed on the lot owned by Santiago.
Secondly, although the respondent eventually executed an affidavit of sole
adjudication over the property (1961), still the required prescriptive period
had not passed.
The court found Primitivas possession to be in bad faith, requiring then a 30
year open, continuous, exclusive and notorious occupation. But here the
court held that the prescriptive period commenced to run only when
Primitiva registered her affidavit of adjudication in 1974, when petitioners
became aware of a claim adverse to them (so only 19 years even up to the
time this case was decided in 1993).
Comment: It seems that the SC classified Primitivas possession as falling under
the possession with a just title and flaw, or what it called titulo colorado (such
title where, although there was a mode of transferring ownership, still
something is wrong because the grantor is not the owner). Not that under this
situation, possession can ripen into ownership thru acquisitive prescription.
4.
Acquisitive prescription
ARTICLE 526.
He is deemed a possessor in good faith who is not aware
that there exists in his title or mode of acquisition any flaw which invalidates
it.
He is deemed a possessor in bad faith who possesses in any case contrary to
the foregoing.
Mistake upon a doubtful or difficult question of law may be the basis of good
faith. (433a)
Art. 1127. The good faith of the possessor consists in the reasonable belief
that the person from whom he received the thing was the owner thereof, and
could transmit his ownership.
Art. 1128. The conditions of good faith required for possession in articles 526,
527, 528 and 529 of this Code are likewise necessary for the determination of
good faith in the prescription of ownership and other real rights.
Q: When speaking of acquisitive prescription, why is it necessary to determine
good faith or bad faith?
When speaking of possession as a means of acquiring ownership, it is always
necessary to determine whether the possessor is in good faith or in bad faith
since the required periods of possession differ on this basis, with possession in
good faith always requiring a shorter period.
Q: What are the prescriptive periods?
(1)
For movables:
4 years, if in good faith
8 years, if in bad faith;
(2)
For immovables:
10 years, if in good faith
30 years, if in bad faith
NOTE: Acquisitive prescription does not apply to registered lands
a.
in good faith
Q: Who is a possessor in good faith?

A possessor in good faith is one who is not aware that there exists in this title or
mode of acquisition any flaw or defect which invalidates it.
The requisites for possession in good faith are:
(1) possessor should have acquired the thing through some title or by some
mode of acquisition under the law;
(2) there must be a flaw or defect in such title or mode of acquisition: and
(3) possessor should not be aware of such flaw or defect.
ARTICLE 527.
Good faith is always presumed, and upon him who alleges
bad faith on the part of a possessor rests the burden of proof. (434)
Q: In the absence of proof that the possessor is aware of such flaw or defect,
how would his possession be considered?
His possession would be considered to be in good faith, as in the absence of any
evidence to the contrary, good faith is always presumed.
164

(1) The present possessor may complete the period necessary for
prescription by tacking his possession to that of his grantor or
predecessor in interest;
(2) It is presumed that the present possessor who was also the possessor
at a previous time, has continued to be in possession during the
intervening time, unless there is proof to the contrary;
(3) The first day shall be excluded and the last day included.
Further, no one is required to show evidence of good faith. It is the person who
alleges bad faith. It is the person who alleges bad faith of another that must
prove the same.
Q: How long will the possession in good faith continue?
ARTICLE 528.
Possession acquired in good faith does not lose this
character except in the case and from the moment facts exist which show that
the possessor is not unaware that he possesses the thing improperly or
wrongfully. (435a)
ARTICLE 529.
It is presumed that possession continues to be enjoyed in
the same character in which it was acquired, until the contrary is proved. (436)
NOTE: The answer Dean stressed to the above questions is that possession in
good faith continues until its interruption.
Q: What are the bases of interruption?
1.
Natural when through any cause, the possession shall cease for
more than one year (Article 1120)
2.
Civil when there is judicial summons to the possessor (Article
1123)
Q: Cite an example of civil interruption.
For instance, the moment a possessor is served judicial summons regarding the
filing of an action to recover possession by another, his possession in good faith
is interrupted; for at that point he is deemed to be provided with information
that is sufficient to alert him to question whether or not he in fact had a valid
mode of acquiring ownership.
b.
in bad faith
Q: What are the requisites for possession in bad faith.

1.
The possessor acquired the thing through some title or by some
mode of acquisition recognized by law;
2.
There is a flaw or defect in such title or more of acquisitions
3.
The possessor is aware of such flaw or defect.
c.
tacking of possession
Art. 1138. In the computation of time necessary for prescription the following
rules shall be observed:
Q: What is tacking?
Tacking is the adding on of the period of possession of a previous possessor to
the period of possession of the successor.
Q: When is tacking allowed?
Tacking is allowed only if there is privity of relationship between the
predecessor and the successor, as in the case of decedent heir, donor-donee,
vendor-vendee, etc. Thus a mere intruder or usurper cannot tack or invoke
the possession of any previous possessor.
Q: Suppose A sold his land to B. C then forged Bs signature on a deed of sale
and sold the land to himself. C sold to D. D sold to E. B, C, D and E each held
the land for 10 years. (Assume that D and E are in bad faith.)
(1)
Can E claim ownership via acquisitive prescription?
YES; as there is privity of relationship between C D, and between D E, the
periods of possession of C (10 yrs), and D (10 yrs) may be tacked on to Es
period of possession (10 yrs) for a total of 30 years, which is sufficient in case of
bad faith.
(2)
Can D claim ownership
NO; as there is no privity of relation between B C, neither As nor Bs period of

possession can be tacked on to Cs (there is a break in the link due to the
forgery). This means that D at most has held the land for only 20 years, which is
insufficient where there is bad faith.
According to Dean, another reason why neither As nor Bs period of possession
may be tacked on to Cs is that the former two predecessors held the property as
an incident of ownership, and here we are applying acquisitive prescription.
Q: What are the rules on tacking of possession?
NOTE: These rules assume privity of relation between the predecessor and the
successor.
(1)
Where both predecessor and successor are in good faith.
165

Add the periods of possession of each and determine whether

acquisitive prescription has set in: 4 years for movables and 10 years for
immovables, since there is GF.
(2)
Where both predecessor and successor are in bad faith;
Add the periods of possession of each and determine whether

acquisitive prescription has set in: 8 years for movables and 30 years for
immovables, since there is BF.
(3)
(BF):
Where predecessor is in good faith (GF) and successor is in bad faith
Comment: It is the nature of the successors possession, in good or bad faith,

that determines whether to apply ordinary or extraordinary prescriptive
periods, respectively.
Q: Given that the property is movable and the predecessor (P) held it for 3
years, how long must the successor (S) hold the property for acquiring it by
prescription in the following cases?
(1)
Where both P and S are in good faith?

S must possess the property for at least 1 years to acquire it via
prescription (4 years period for ordinary prescription of movable less 3 years of
Ps possession)
(2)
(a)
Get the ratio of the period of extraordinary prescription to the

period of ordinary prescription.
Movables Immovables -
(b)
(4)
(GF):
(8 yrs: 4 yrs)
(30 yrs: 10 yrs)
Convert possession of predecessor in GF into BF:

Movables
(c)
2:1
3:1
___ years x 2 = ___ years
Add result in (b) to the period of possession of the successor

to see whether the period for extraordinary prescription has
been met.
Where predecessor is in bad faith (BF) and successor is in good faith
(a)
Paras believes that you can apply the same concept as in rule
(2) above, except that the ratios are now in reverse (1:2, 1:3) and in the
conversion from bad faith into good faith, the period of possession of the
predecessor is now divided by either 2 or 3, depending on whether the property
is movable or immovable, respectively.
(b)
Other commentators (Caquioa, et. Al.) believe that a
predecessors possession in BF cannot be tacked on a successors possession
because under the Civil Code, in order for ordinary prescription to apply, the
entire period for adverse possession must be in good faith.
(c)
Dean seems to have no preference merely stating that the SC
has yet to make a ruling on the matter.
Where both P and S are in bad faith?

S shall possess the movable for 5 years (8 years period for
extraordinary prescription of a movable less the 3 years of Ps possession.)
(3)
Where P is in good faith and S is in bad faith?

Ps possession in GF for 3 years is equivalent to 6 years possession in
BF (applying ration 1:2). Since acquisitive prescription of a movable in BF
requires 8 yeas, S must then possess the movable for another 3 years.
(4)
Where P is in bad faith and S is in good faith?

The answer is either 2 years or 4 years; depending on which view
you hold.
(a)
Ps possession in BF for 3 years converts it to ordinary
possession in GF (applying ratio of 2:1). Since ordinary prescription (GF) of a
movable requires 4 years, S must then possess the movable for another 2
years; OR
(b)
S, who is in good faith, should hold the movable for 4 years
(ordinary prescription), completely disregarding the bad faith possession of P.
Q: Given that the property is an immovable and the predecessor (P) held if for 3
years, how long must the successor (S) hold the property for acquiring it by
prescription in the following cases?
(1)
Where both P and S are in good faith?

S must possess the property for at least 7 years to acquire it via
prescription (10 years ordinary prescription of immovable less 3 years of Ps
good faith possession)
(2)
Where both P and S are in bad faith?
166

S should possess the immovable for 27 years (30 years period for
extraordinary prescription of an immovable less the 3 years of Ps bad faith
possession).
(3)
Where P is in good faith and S is in bad faith?

Ps possession in GF for 3 years is equivalent to 9 years possession in
BF (applying ration of 1:3). Since acquisitive prescription of an immovable in
bad faith requires 30 years, S must then possess the immovable for at least 21
years.
(4)
Where P is in bad faith and S is in good faith?

Again this depends on which formula one applies:
(a)
Ps possession in BF for 3 years is equivalent to 1 years
possession in GF (applying ratio of 3:1). Since acquisitive prescription of an
immovable in good faith requires only 10 years; S must then possess the
immovable for at least 9 years; OR
(b)
Ps possession in BF should be disregarded so that S, who is in
good faith, must hold the immovable for at least 10 years for
ordinary acquisitive prescription.
5.
a.
i)
Rights of Legal Processor

Peaceful and uninterrupted possession
Co-possession
ARTICLE 538.
Possession as a fact cannot be recognized at the same time in
two different personalities except in the cases of co-possession. Should a
question arise regarding the fact of possession, the present possessor shall be
preferred; if there are two possessors, the one longer in possession; if the
dates of the possession are the same, the one who presents a title; and if all
these conditions are equal, the thing shall be placed in judicial deposit
pending determination of its possession or ownership through proper
proceedings. (445)
Q: Can possession as a fact be recognized at the same time in two different
persons?
NO. Possession as a fact cannot be recognized at the same time in two different
persons.
Q: Is there any exception to this rule on recognition of possession in only one
person?
YES. Possession as a fact can be recognized at the same time in two different
personalities in the case of
1. Co-possessor there is no conflict of interest
2. possession in different concepts or different degrees (e.g.: owner and tenant,

principal and agent, depositor and depositary, owner and administrator.)
Q: How does co-possession come about?
This may occur as in the case of heirs who succeed to the same property, when
there is a flaw in the title of their parents.
Q: What is the rule in determining a dispute on possession
1. preference is given to the present possessor;
2. if there are two possessors
the longest in possession;
3. if the dates of possession are the same
the one who presents a title;
4. if all the conditions are equal
the thing shall be placed in
judicial deposit pending
determinations of its
possession or ownership
through proper proceedings
Q: What is meant by title? Right or a document evidencing the right.
ARTICLE 543.
Each one of the participants of a thing possessed in common
shall be deemed to have exclusively possessed the part which may be allotted
to him upon the division thereof, for the entire period during which the copossession lasted. Interruption in the possession of the whole or a part of a
thing possessed in common shall be to the prejudice of all the possessors.
However, in case of civil interruption, the Rules of Court shall apply. (450a)
Q: What is the basic rule in co-possession? The possession of one benefits
everybody.
Q: supposing A, B, C and D are co-possessors in good faith of a thing since 1953
and in 1958. There is a partition. Since when is each co-possessor deemed to
have exclusively posses that part which is allotted to him?
Each co-possessor is deemed to have exclusively possessed that part which is
allotted to him since 1953 that is, form the date the co-possession started.
Q: When the law states shall be deemed, does it refer to a presumption or a
right? The phrase shall be deemed refers to a right.
Q: Taking the same example into consideration for how many more years does
each co-possessor have to possess the thing for purposes of prescription?
1. PERSONAL PROPERTY
prescription has already set it.
2. REAL PROPERTY
5 (five) more years.
167

Maglucot v. Maglucot
Lot 1639-D was originally part of Lot 1639. such lot was subdivided into 6
parts. Guillermo Maglucto rented a portion of the subject lot 1639-D.
Respondents Severo and Leopold Maglucot later rented portions of subject lot
an paying rentals of P100 to Ruperta Salma (representative of heirs of Roberto
Maglucot, Petitioners predecessor in interest). Later, respondents stopped
paying rentals claiming ownership over the lot.
Petitioner Maglucot filed a complaint for recovery of possession and damages
over lot 1639-D. TC: decided in favor of petitioner and that there was
partition; though no court order showed that 1639 was partitioned, Their was
partition based on the sketch plan presented by the petitioner; respondents
were ordered to demolish their houses. CA: decided in favor of respondents;
the sketch plan presented by the petitioner is not conclusive evidence of
partition.
Petitioners: there was partition; pointed out that respondents admitted in
their tax declarations covering the respective houses that they are constructed
on the land of Roberto Maglucot. Petitioners assert that respondents are
estopped from claiming ownership in view of their mutual agreement which
was judicially confirmed
ISSUE: WON there was a valid partition
HELD: YES THERE WAS A VALID PARTITION
The present rule is that a decision or order decreeing partition is that it is final
and appealable. The order of partition is a final determination of the co
ownership over the lot 1639 by the parties and propriety of the partition
thereof. Hence of the present rule were applied, the order not having been
appealed becomes final and executory and cannot be disturbed.
The true test to ascertain WON an order or a judgment is interlocutory or
final is: Does it Leave something to be done in the trial court with respect to
the merits of the case? If it does, it is interlocutory and if it doe not, it is final.
The proceedings of the commissioners without being confirmed by the court
are not binding upon the parties; however this rule, does not apply in case
where the parties themselves actualized the supposedly confirmed the
sketch/subdivision plan wherein this case the parties themselves
implemented the sketch plan made pursuant to a court order for partition and
actually occupying specific portions of Lot 1639 in 1952 and continue to do so
until the present until this case was filed, clearly for the purpose of the court
approval has been met. this statement is not to be taken to mean that
confirmation of the commissioners may be dispensed with but only that the
parties herein are estopped from raising this question by their own acts of
ratification of the supposedly non-binding sketch plan
PARTIES to a partition proceeding who elected to take under partition and

who took possession of the partition allotted to them are estopped from
questioning title to portion allotted to another party (bawal ang swaping in
other words!). In this case, respondents themselves already occupied the lots
in accordance with the sketch plan, this occupation continued until this action
was filed and they cannot not question who took possession of lot 1639-D also
in accordance with the sketch plan
In technical estoppel, the party to be estopped must knowingly have acted so
as to mislead his adversary and the adversary must have relied on the action
and acted as he would otherwise not have done. Ratification means that one
under no disability voluntarily adopts and gives sanction to some
unauthorized act of defective proceeding which without his sanction would
not be binding on him; it is this voluntary choice, knowingly made, which
amounts to a ratification of what was theretofore unauthorized and becomes
the authorized act of the party so making the ratification.
One who possesses as a mere holder acknowledges in another a superior right
which he believes to be ownership whether his belief be right or wrong. The
payment of rentals by respondents reveal that they are mere lessees and as
such, they possess the land not in the concept of owner. The petitioners thus
possessed the land in concept of an owner from 1952-present time.
Registration is to notify and protect the interests of strangers to a given
transaction who may be ignorant thereof, but the non-registration of the deed
does not relieve the parties of their obligations under such deed.
In cases involving oral partition under which the parties went into possession,
exercised acts of ownership or otherwise partly performed the partition
agreement, equity will confirm such partition and in a proper case decree title
in accordance with the possession in severalty. The first phase of a partition
and/or accounting suit is taken up with the determination of whether or not a
co-ownership in fact exists and may be made by voluntary agreement of all
the parties interested in the property.
It may end in an adjudgment that co-ownership exists. The parties may agree
on a partition among themselves by proper instruments of conveyance and
the court shall confirm the partition so agreed upon. In either case, the order
is final and may be appealed by any party aggrieved thereby.
The second stage commences when parties are unable to agree upon the
partition ordered by the court. Partition shall be effected for the parties by the
court with the assistance of 3 commissioners; this stage may deal with the
rendering of the accounting and its approval by the court after the parties
have been accorded the opportunity to be heard thereon and an award for the
recovery by the party or parties entitled of their just shares in the rents and
profits of the real estate in question such an order is final and appealable.
-
effect of partition
168

Q: How is partition effected in co-possession?

Partition in co-possession is effected in the same way as in co-ownership.
Q: in the ff. example how many more years must each co-possessor possess the
property before each of them can acquire ownership of the property (suppose
that they are all in good faith no knowledge of flaw in title):
3 yrs.
period of co-possession
3 yrs.
period within which they went through the process of
segregation
Each co-possessor need only to possess the property for a period of 4 more years
in order to acquire absolute ownership of the part of the property allotted them.
-
effect of interruption
ARTICLE 533.
The possession of hereditary property is deemed
transmitted to the heir without interruption and from the moment of the
death of the decedent, in case the inheritance is accepted.
One who validly renounces an inheritance is deemed never to have possessed
the same. (440)
Q: When is the heir deemed to have possessed the property?
1. If heir accepts - from the moment of death since there is no interruption
- moreover, the possession of the deceased should be
added to the possession of the heir (Art. 1138, No. 1)
ARTICLE 1138. In the computation of time necessary for the prescription the
following rules shall be observed:
(1) The present possessor may complete the period necessary for prescription
by tacking his possession to that of his grantor or predecessor in interest;
Q: What is the rule in case of interruption?

In cases of interruption, the same shall be to the prejudice of all the possessors.
2. If heir refuses (or is incapacitated to inherit) he is deemed NEVER to

have possessed the same.
1. natural interruption
co-possessor must suffer actual loss
resulting form the interruption in proportion to their interest;
Q: What is the reason for the rule of uninterrupted possession?

The purpose of this rule is to prevent a vaccum as regards possession during the
interim between the death of the decedent and the heirs acceptance.
e.g.
A own 50%
B owns 25%
C owns 25%
Interest is
co-possessors of 10,000 sq. lot
Q: When the law states is deemed, does it refer to a presumption or a right?

The phrase is deemed refers to a right.
A = 5,000 sq.
B = 2,500 sq.
C = 2,500 sq.
Q: what if the heir takes a long time to accept? Let us say, the decedent dies on
Jan. 1 (dahil naputukan ng bawang) and the heir accepts only on Jan. 15, when is
possession transmitted to the latter.
Lost: 5,000 sq.

A = 2,500 sq.
B = 1,250 sq.
C = 1,250 sq.
2. civil interruption
this is based on judicial summons
and works to the prejudice of all co-possessors; service on one is service to all
Q: When does interruption on possession of one not prejudicial to the other copossessors?
Interruption on one does not work to the prejudice of the others if there has
already been a partition because each of them is already individual and separate
owners with respect to segregated lots.
Non-Interruption of Possession
Possession is transmitted to the heir on January 1, because of the retroactive

effect of acceptance by the heir as provided for in Art. 533, par. 1.
Q: during the period after the decedent dies and before the heirs accept their
inheritance, the court appoints an administrator who takes care of the land and
is actually in possession thereof. Who is considered in possession of the
property?
The heir and the administrator are both considered in possession. The heir
possesses the thing in the concept of an owner through the administrator while
the latter possesses the same in the concept of a holder.
Q: But as between the heir and the administrator, who is to be preferred?
169

The administrator, because as an agent of the court he is entitled to possession
until the delivery of the thing to the heir.
Q:
What are the possible consequences above-situation (having an
administrator as possessor of the land in the concept of holder.
1. If and intruder should force entry into the premises, either the administrator
or the son may institute the action of forcible entry.
2. But if during the period between Jan. 1 to Jan. 15 in the above example, the
son forced himself into the premises, the administrator would have had the
right to sue him for forcible entry.
Q: Lucille bought certain property from Farmer Mon.
Does Lucille
automatically acquire possession over the property bought? Now suppose
Lucille inherited the property from Farmer Mon, would the answer still be the
same?
In the case of sale, possession is acquired by Lucille only upon the delivery of
the property to her. In the case of inheritance, however, the possession of the
heir will be counted form the death of the decedent even in there is no delivery
but the inheritance had been accepted.
Q: Suppose the Duchess despite4 having repudiated the inheritance from her
father (who go killed by a falling ring), took possession of the land prior to
giving her repudiation, is she deemed to have possessed the property during
the interim period?
NO. For all intents and purposes, the heir who repudiated is deemed never to
have been in possession. The next heir who succeeds the repudiating heir in
inheritance will be deemed to have acquired physical possession from the time
succession opened as if it were a direct inheritance from the decedent. \
Q: Enzo, Jayson and Armel inherited in equal parts a piece of land from their
father. Before partition, Enzo sold his share to Rissa (mo money, mo money!).
Jayson, on the other hand, repudiated his inheritance (No money, no money!).
Upon partition, what share of the land is Rissa entitled to?
At the time of the sale, Enzos hare was apparently 1/3 only but because Jayson
had repudiated his share, it is as if he never inherited. Hence, there were only
two heirs Enzo and Armel. Therefore, Enzos share was really since the
repudiation of Jayson has retroactive effect. Rissa is entitled to which is really
Enzos share at the moment of the fathers death.
ARTICLE 534.
One who succeeds by hereditary title shall not suffer the
consequences of the wrongful possession of the decedent, if it is not shown
that he was aware of the flaws affecting it; but the effects of possession in
good faith shall not benefit him except from the date of death of the decedent.
(442)
Q: For purposes of prescription, for how long should the heir possess the
property in order to acquire ownership?
It depends on whether the heir is in good faith or in bad faith.
Q: The decedents possession was in bad faith. What is the nature of the hiers
possession?
The heir is presumed to be in good fatih (since he should not suffer the
conseqences of the wrongful possession of the decedent) until the contrary is
proved.
Of course, the heirs possession in good faith is counted only from the moment
of the decedents death.
Q: The father who had possession of a lot in good faith for 12 years, died on July
1, 1990. the son accepted his inheritance on July 1, 1991 but was aware of a flaw
in his fathers title. Until what date must the son hold the property in order for
acquisitive prescription to take place?
The son should possess the property until June 30, 2016.
The decedents possession in good faith converts into 4 years possession in bad
faith and the heirs possession in bad faith began on July 1, 1990, when his
father died. As the period for extraordinary prescription (successor/son in BF)
of an immovable is 30 years, the son must hold the property for another 26 years
form July 1, 1990. this brings the date to June 30, 2016.
Q: The decedent possessed the property fro 3 years, after which the same was
presumable inherited by the heir. For how many years more, from the formers
death, should the latter possess the property to become its owner?
1.
PERSONAL PROERPTY (if GF = 4 years; if BF = 8 years)

a)
Both are in good faith
1 year
b)
decedent (GF)
heir (BF)
2 years
c)
decedent (BF)
heir (GF)
2 years
d)
Both are in bad faith
5 years
170

2.
REAL PROPERTY (if GF = 10 years; if BF = 30 years)

a)
Both are in good faith
7 years
b)
decedent (GF)
heir (BF)
21 years
c)
decedent (BF)
heir (GF)
9 years
d)
Both are in bad faith
27 years
ii)
Actions in case of deprivation of possession
ARTICLE 539.
Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be protected in or
restored to said possession by the means established by the laws and the
Rules of Court.
A possessor deprived of his possession through forcible entry may within ten
days from the filing of the complaint present a motion to secure from the
competent court, in the action for forcible entry, a writ of preliminary
mandatory injunction to restore him in his possession. The court shall decide
the motion within thirty (30) days from the filing thereof. (446a)
Q: To whom are the rights in Art. 539 granted?
The rights in Art. 539 are granted to every possessor (whether he be in good
faith or bad faith; or is in possession of the thing in the concept of an owner or a
holder; is in possession of the thing in ones own name or in anthers name).
Q: What is the first right accorded to the possessor under this article?
The right to be respected in his possession.
Q: What does to be respected mean? Does everybody have to say Good
Morning to him?
It means that he is not to be disturbed in his possession.
Q: What is the reason for granting such right?
1. Possession is very similar to ownership, and as a matter of fact modifies
ownership.
2. Possession most invariably gives rise to the presumption that the possessor is
the owner.
Q: What is the second right under Art. 539?
The right to be protected in or restored to said possession should he be
disturbed therein by the means established by the laws and the Rules of Court.
Q: Does this mean that the possessor can take the law in his hands and get back
his possession?
NO. The possessor should go to the court. The proper actions are forcible entry
or unlawful detainer (summary action or accion interdicta) accion publciana, accion
reivindicatoria; replevin; injunction (to prevent further acts of dispossession).
Q: for instance, the squatter in Justice Colaycos garden is ousted therefrom, is
he accorded this right?
With respect to Justice Colayco, he is not because he has no possessory rights of
any kind against the one who is really entitled to the possession of the property
into which he has intruded Justice Colayco, in this case. His possession is
merely tolerated. Thus, there is an implied promise on his part to vacate upon
demand. But with respect to another squatter, he is accorded the right because
the rights under Art. 539 is granted to every possessor, without distinction.
Where the law does not distinguish, so we must not.
Q: What is the reason for this particular right?
1.
To prevent spoliation or a disregard of public order;
2.
To prevent deprivation of property without due process of law;
3.
To prevent a person from taking the law into his own hands.
Q: What is the third right?
The right to a writ of preliminary mandatory injunction.
Q: What do you understand by preliminary mandatory injunction? What is the
possessor asking in effect?
That possession must be restored to him while the case is pending. Preliminary
because it is issued prior to final judgment. Mandatory because it requires the
performance of a particular act. It orders something to be done.
Q: What are the requisites for the issuance of the writ of preliminary mandatory
injunction?
1. In forcible entry cases (in the original court) file within 10 days form the
time the complaint for forcible entry is filed.
2. In unlawful detainer cases (in the RTC or appellate court) file within 10 days
from the time the appeal is perfected (that is, form the time the attorneys are
notified by the Court of the perfection of the appeal) only if:
2.1
the lessees appeal is frivolous or dilatory; or
2.2
the lessors appeal is prima facie meritorious.
Q: is it obligatory on the part of the court to issue such writ?
171

NO. The issuance of the writ of preliminary mandatory injunction is subject to
the courts discretion. As a rule, injunction cannot substitute for the other
actions to recover possession. This is because in the meantime, the possessor
has in his favor the presumption of rightful possession, at least, till the case is
finally decided. The exception of course is in a very clear case of evident
usurpation.
Q: What is a writ of possession?
This is an order used in connection with land registration directing the sheriff to
place the successful registrant under the Torrents system in possession of the
property covered by a decree of the Court.
Q: Against whom may the writ of possession be used against?
The writ may be used only against those person who have been defeated in
registration case, and against anyone unlawfully and adversely occupying the
land or any portion thereof, during the proceedings, up to the issuance of the
final decree.
This is not a remedy against those who may subsequently take possession of the
land.
Q: Does the right of the person awarded title to the land to avail of the writ of
possession prescribe?
NO. This right does not prescribe considering that property registered under
the Torrens system cannot be acquired by prescription.
Q: Distinguish between an action for forcible entry and unlawful detainer?
FORCIBLE ENTRY
- the possession was unlawful from
the very beginning
- question of ownership is not
involved
- proceeding in personam (binding
only on the parties and privies)
- actions quasi-in-rem (actions in
personam, involving real property)
- recovery for damages not for those
cause to the property but for those
caused by his deprivation of the use
or possession of the premises, such as
the use and collection of fruits
UNLAWFUL DETAINER
- the possession was lawful in the
beginning, but became unlawful
afterwards
- question of ownership is not
involved
- proceeding in personam (binding
only on the parties and privies)
- actions quasi-in rem (actions in
personam, involving real property)
- recovery for damages not for those
cause to the property but for those
caused by his deprivation of the use or
possession of the premises, such as the
use and collection of fruits
NOTE: Please see Table of Actions in page 172-A.

b. Fruits
i)
Civil Fruits
ii)
Natural/Industrial Fruits
iii)
Pending Fruits
Possessor in Good Faith
ARTICLE 544.
A possessor in good faith is entitled to the fruits received
before the possession is legally interrupted.
Natural and industrial fruits are considered received from the time they are
gathered or severed.
Civil fruits are deemed to accrue daily and belong to the possessor in good
faith in that proportion. (451)
Q: What is the right of a possessor in good faith?
It is the right of a possessor in good faith to receive the fruits born by the
property before the possession is legally interrupted.
Q: What kind of fruits are referred to in this article?
Those already received that is , those that are gathered or severed.
Q: For example, a possessor in good faith of a garden with mango trees gathered
the fruits therein and later on, the owner comes. Can the owner ask him to
return the fruits already received? Why?
NO. Justice demands that the fruits be retained by the possessor who thought
that he was really the owner of the property, and who, because of such thought,
had regulated his daily life, income and expenses by virtue of such fruits.
Moreover, the possessor should be rewarded for having contributed to the
INDUSTRIAL WEALTH, unlike the owner, who by his presumed negligence,
had virtually discarded his property. He was the one who cultivated the land
and harvested the fruits.
Q: What is meant by legal interruption?
Legal interruption means a complaint is filed against the possessor in good faith
and the latter receives the proper judicial summons making it known to him
that there is defect in his title.
172

TABLE OF ACTIONS IN CASE OF DEPRIVATION OF POSSESSION
Proper Action
Manner deprived of possession
action for replevin

forcible entry
(action in
personam)
Force, intimidation, strategy, threat or stealth

(FISTS)
unlawful detainer
(action in
personam)
accion publciana
(action in
personam)
accion
revindicatoria/
action for
reconveyance
(action in rem)
Lessee, vendor, or vendee unlawfully

withholds possession after expiration of the
right to hold possession by virtue of any
contract, express or implied
Property was entered forcibly or possession
thereof was unlawfully retained for a period
exceeding the 1 yr. prescriptive period for
filing an action for forcible entry or unlawful
detainer
Kind of Property
Which court
has jurisdiction
What kind of
possession is
sought to be
recovered
Prescriptive period
personal property
real property
MTC
w/in 1 yr. from the

dispossession or discovery
of such strategy or stealth
real property
MTC
real property
RTC
material/
physical
possession de
facto
material/
physical
possession de
facto
Possession de
jure better right
to possess
real property
RTC
Ownership
4 yrs. Form discovery of

fraud 10 yrs. other party
seeks property through
ordinary
prescription/based on
implied trust 30 yrs. other
party seeks it through
extraordinary prescription
w/in 1 yr. form the time

possession becomes
unlawful
w/in 10 yrs.
172-A

Q: Is the rule the same if defects in his title are made known to him by
extraneous evidence? Does this not account for bad faith?
The reason why fruits should be returned from the TIME of legal interruption is
that it is ordinarily only from said date that the possessor should be considered
in BAD FAITH. Therefore should there be proof that BAD FAITH had set in
even BEFORE legal interruption, fruits should be returned from the date of
CONVERSION into bad faith. This is because possessors in bad faith are not
entitled to fruits. As a matter of fact, the law provides that the possessor in bad
faith shall reimburse the fruits received an those which the legitimate possessor
(or owner) could have received (Art. 549)
Q: When are civil fruits considered received?
Civil fruits are deemed to accrue daily and belong to the possessor in good faith
in that proportion. The possessor in GF shall own those that matured during his
period of possession of the property regardless of when it is collected.
Q: Supposing Jay possesses a property earning a monthly rental of P300 in good
faith from Sept. 1 15 and the legitimate possessor, Bogs, comes and possesses
the same from Sept. 16 30. how much is owing to each party?
They get to receive P150 each. (P300 / 30 P10; P10 x 15 = P150)
Q: what if the same is paid on the last day of the month?
Actual receipt of the civil fruits is immaterial and so, the answer will be the
same.
Q: What is the way of computing civil fruits.
1. paid on a daily basis
add up the amount which is being
paid on a daily basis
2. paid on a monthly basis divide amount paid monthly into 30
days to get the amount of civil fruits
NOTE: From the moment that there is lawful interruption of possession, then
you stop counting. All the civil fruits which pertain to the date after the
interruption of possession will then go to the legal possessor.
ARTICLE 545.
If at the time the good faith ceases, there should be any
natural or industrial fruits, the possessor shall have a right to a part of the
expenses of cultivation, and to a part of the net harvest, both in proportion to
the time of the possession.
The charges shall be divided on the same basis by the two possessors.
The owner of the thing may, should he so desire, give the possessor in good
faith the right to finish the cultivation and gathering of the growing fruits, as
an indemnity for his part of the expenses of cultivation and the net proceeds;
the possessor in good faith who for any reason whatever should refuse to
accept this concession, shall lose the right to be indemnified in any other
manner. (452a)
Q: What kind of fruits referred to in this article? Pending natural or industrial
fruits.
Q: Supposing one possesses a property bearing natural or industrial fruits in
good faith for one month now; and the owner comes and possesses the same for
two month up to the time of harvest. How much of the net harvest is owing to
each party?
The possessor in good faith gets to receive 1/3 of the net harvest, while the
owner retains 2/3.
Q: For the same period, the possessor in good faith incurs expenses in the
amount of P300 and the owner P200. To what extent does each party have to be
reimbursed?
Each party is to be reimbursed in proportion to the time of their possession.
Hence:
P300 + P300 = P500
P500 / 3 = 1.66.6666666667
Possessor in GF (1/3) = P166
Legal possessor = P333
Clearly, the rule may in certain cases be UNFAIR because although the
possessor in good faith may have spent MORE than the owner, still he will be
entitled to a reimbursement of LESS since his possession is shorter. The better
rule would be for the expenses to be borne in proportion to what each receives
from the harvest (See Art. 443). Otherwise, unjust enrichment would result.
Q: What are charges referred to in this article?
Charges are those incurred because of the land and the fruits, like TAXES, or
INTEREST on MORTGAGES, and not those incurred on or in them such as
improvements.
Q: What is the option granted to the owner under this article
1. To take over the cultivation of the land and to share the harvest and the
expense of cultivation with the possessor in GF, in proportion to their period of
possession;
2. To allow the possessor in good faith to FINISH the cultivation and gathering
of the growing corps, as an INDEMNITY for his part of the expenses of
cultivation and the net proceeds.
173

Q: What is the reason for the second option?
The owner may not be interested in the pending fruits at all, or because he
realizes that to continue the cultivation might result in a financial LOSS for him.
Q: What if the possessor in good faith refuses?
The possessor in good faith, who for any reason whatever should refuse to
accept this concession, shall lost the right to be indemnified in any other
manner.
Q: What is the effect of unfortunate illness?
The phrase for any reason whatever in the third paragraph of Art. 545 seems
unduly harsh because it may happen that an unfortunate illness will prevent the
possessor from continuing the cultivation.
Q: Suppose the crops have already been planted but are not yet manifest at the
time there is a transfer of possession, should this article also apply?
YES, by the application of the general rules stated in Art. 443 which provides
that:
ARTICLE 443.
He who receives the fruits has the obligation to pay the expenses
made by a third person in their production, gathering, and preservation. (356)
Q: Suppose what is planted on the property are rice and corn, how is the period
of possession computed?
The period of possession is computed on the basis of the time of planting and
harvesting.
Q: If for example what are planted on the property are permanent trees, how do
you compute the period of possession? Is it counted from the time the tree is
planted up the time the fruits are harvested therefrom? Consider that there will
be subsequent harvests.
BEATS THE DEAN. There has been no solution to this problem because the law
merely says from the start of possession up to the time when the fruits are
harvested, referring only to one-time harvest)
The Dean suggests that the better alternative is for the owner to allow the
possessor to continue in possession until he has harvested everything and then
allow him to take all that he has harvested. In that manner, there will be no
need for computation.
Possessor in Bad Faith
ARTICLE 549.
The possessor in bad faith shall reimburse the fruits
received and those which the legitimate possessor could have received, and
shall have a right only to the expenses mentioned in paragraph 1 of article 546
and in article 443. The expenses incurred in improvements for pure luxury or
mere pleasure shall not be refunded to the possessor in bad faith, but he may
remove the objects for which such expenses have been incurred, provided
that the thing suffers no injury thereby, and that the lawful possessor does
not prefer to retain them by paying the value they may have at the time he
enters into possession. (445a)
Kinds of Fruits
1. civil fruits
Possessor in GF
Entitled
to
fruits
pertaining to the period
from
the
start
of
possession until it is
legally interrupted.
Possessor in BF
1. not entitled to fruits;
has a right to retain fruits
1. must account for them

and
RETURN
THE
VALUE of:
2. must pay DAMAGES

as rental from the time
he started possession
until the time his
possession is defeated
2. natural / industrial
a. gathered
a) those already received

b) those which the legal
possessor could have
received with due care
or diligence
2. must pay DAMAGES
amounting
to
a
reasonable rent for the
term of possession
LESS: necessary expense
for cultivation, gathering
and harvesting
174

1. no rights at all, not
even to expenses for
cultivation, because by
accession, all should
belong to the owner,
without indemnity
2. must pay DAMAGES
amounting
to
a
term of the possession
b. pending
Owners option
possession having the option of refunding the amount of the expenses or of

paying the increase in value which the thing may have acquired by reason
thereof. (453a)
ARTICLE 547.
If the useful improvements can be removed without damage
to the principal thing, the possessor in good faith may remove them, unless
the person who recovers the possession exercises the option under paragraph
2 of the preceding article. (n)
ARTICLE 548.
Expenses for pure luxury or mere pleasure shall not be
refunded to the possessor in good faith; but he may remove the ornaments
with which he has embellished the principal thing if it suffers no injury
thereby, and if his successor in the possession does not prefer to refund the
amount expended. (454)
Possessor in Bad Faith
1. pro-rating (based on
period of possession)
between possessor and
owner of :
a) expenses
b) net harvest; and\
c) charges
2. allow possessor to stay
in possession until after
he gathers the fruits
thereof,
which
shall
serves as indemnity for
his expenses
c.
Indemnity for Expenses/Improvements

Possessor in Good Faith
ARTICLE 546.
Necessary expenses shall be refunded to every possessor;
but only the possessor in good faith may retain the thing until he has been
reimbursed therefor.
Useful expenses shall be refunded only to the possessor in good faith with
the same right of retention, the person who has defeated him in the
ARTICLE 549.
The possessor in bad faith shall reimburse the fruits
received and those which the legitimate possessor could have received, and
shall have a right only to the expenses mentioned in paragraph 1 of article 546
and in article 443. The expenses incurred in improvements for pure luxury or
mere pleasure shall not be refunded to the possessor in bad faith, but he may
remove the objects for which such expenses have been incurred, provided
that the thing suffers no injury thereby, and that the lawful possessor does
not prefer to retain them by paying the value they may have at the time he
enters into possession. (445a)
i)
Necessary
Q: What are necessary expenses?

Necessary expenses are those without which the thing would physically
deteriorate or be lost; hence, those made for the preservation of the thing.
Q: Give examples of necessary expenses.
NECESSARY REPAIRS and those incurred for CULTIVATION, PRODUCTION
and UPKEEP.
Q: the real property of Abby, a debtor, was sold at a sheriffs sale to Portia.
Abby, under the law, had one year within which to redeem said property
(lands). But within said period, Portia, by force, took possession of the
property, planted coconut trees thereon made some extensive improvements.
Before the period for redemption expired, Abby was able to redeem the
property. Is Portia entitled to reimbursement for the coconut tees he had
planted as well as for the other improvements?
175

5.
NO. B here is a possessor in BAD FAITH for he should have waited for the
termination of the one-year redemption period before entering into the
possession of the property. He is therefore not entitled to a refund of the
USEFUL IMPROVEMENTS. On the other hand, the expense he sought to
recover were not even necessary expenses. Moreover, regarding judicial sales,
the law defines and specifies what the redemptioner is required to pay in order
to redeem, and in the absence of something unusual or extraordinary expense in
the preservation of the property (which incidentally ahs to be approved by the
court), the redemptioner will not be required to pay any other or greater
amount. (Flores v. Lim, 50 Phil. 738)
Q: Any other examples of necessary expenses?
1. The construction of a roof is a necessary expense to prevent the house from
being indundated by the rain.
2. The making of a dike is necessary to protect a house near the river from being
washed away.
3. The expense incurred in making posts to prevent the roof and ceiling from
collapsing are in the category of necessary expenses.
Q: What are NOT examples of necessary expenses?
1.
Those incurred for filling up with soil of a vacant or deep lot;
2.
A house constructed on land possessed by a stranger;
3.
Land or real estate taxes;
4.
Unnecessary improvements on a parcel of land purchased at a public
sale (made simply to prevent redemption from taking place)
ii)
Those incurred for clearing up land formerly covered with trees and
shrubbery, are all useful expenses.
iii)
Luxurious
Q: What are luxurious expenses?

They are those which add value to the thing only for certain determinate
persons in view of their particular whims. They are neither essential for
preservation nor useful to everybody in general.
Q: What are examples of ornamental expenses?
1.
hand paintings on the wall of a house
2.
a garage made of platinum
3.
water fountains in gardens
Q: What is the main distinction between useful and luxurious expenses?
If only certain or some possessors would benefit, they may be luxuries. If, in
general, every possessor gains, they are useful expenses.
Q: Are the expenses incurred for the construction of a chapel necessary, useful
or a luxurious expense?
They are useful expenses, because aside from its (the chapels) possibility of
conversion into such materialistic things as a warehouse or residence, the chapel
satisfies spiritual and religious aspirations and the attainment of mans higher
destinies. (Gongon v. Tianco, CA, 36 O.G. 822)
Expenses
1. necessary expenses
Possession in GF
1. reimbursement
Possessor in BF
1. reimbursement
2. right of retention
until such time that he
has been reimbursed
(must be set as a
counterclaim in an
action filed against him
by the owner for the
recovery of the property
2. NO right of retention;
must vacate the
property immediately
(recourse is action for
collection of amount
equivalent to necessary
expenses);
Useful
Q: What are useful expenses?

They are those that:
1.
Add value to the property
2.
Increase the objects productivity
3.
Useful for the satisfaction of spiritual and religious yearnings
4.
Give rise to all kinds of fruits
Q: Give examples of useful expenses.
1.
Those incurred for an irrigation system
2.
Those incurred for the construction of a chapel
3.
Those incurred for the making of artificial fishponds
4.
Those incurred for the construction of additional rooms in a hous, use
as a kitchen, bathroom, stable, etc.
2. useful expenses
Owners options:
3. liable for DAMAGES

amounting to a
period of possession.
NO right at all
176

1. reimbursement
ARTICLE 550.
The costs of litigation over the property shall be borne by
every possessor. (n)
a. amount spent; or
Q: What does this article mean?

It means that in every litigation, the real owner (as found by the court) will
always win and the possessor will lose. Naturally, the latter will bear the costs
of the litigation.
b. increase in value
- right of retention till
paid
3. luxurious expenses
4. deterioration/loss
ARTICLE 551.
Improvements caused by Nature or time shall always inure
to the benefit of the person who has succeeded in recovering possession. (456)
2. allow possessor to
remove provided no
substantial damage or
injury is cause to the
principal, reducing its
value.
Owners options:
Owners option:
remove the ornaments if
the principal suffers no
injury thereby
remove the ornaments if
the principal suffers no
injury thereby;
2. retains for himself the

ornament by refunding
the amount spent
2. retain for himself the

ornament by refunding
the value it has at the
time owner enters into
possession (allowance
for depreciation)
always liable, whether
due to his fault or
negligence or due to a
fortuitous event
No liability unless due

to his fault or
negligence after he had
knowledge of flaw in
his title
Q: Must the person be successful in recovering the possession of the property

reimburse the possessor for improvements caused by nature or by time? NO.
Q: In useful/luxurious expense, the possessor may remove improvements

provided it will not cause any damage or injury on the property. Supposing
removal may sue damage to the property, then possessor cannot remove it. But
what if the owner does not want to acquire it, does he still have to pay the
possessor?
NO. Possessor will not receive anything. The owner is required to pay only if
he desires to acquire the improvement.
ARTICLE 552.
A possessor in good faith shall not be liable for the
deterioration or loss of the thing possessed, except in cases in which it is
proved that he has acted with fraudulent intent or negligence, after the
judicial summons.
A possessor in bad faith shall be liable for deterioration or loss in every case,
even if caused by a fortuitous event. (457a)
Q: Is the possessor in good faith liable for loss or deterioration?
YES, even if caused by a fortuitous event.
Q: Possessor in good faith burnt a house. Later he received judicial summons to
answer a complaint filed by the lawful owner. Is the possessor liable? NO, and
therefore he need not reimburse anything.
Q: Possessor in bad faith occupied a house. Before judicial summons, the house
was destroyed by a fortuitous event. Is the possessor liable?
YES, in view of his bad faith, even if a fortuitous event had caused the loss or
destruction.
ARTICLE 553.
One who recovers possession shall not be obliged to pay for
improvements which have ceased to exist at the time he takes possession of
the thing. (458)
ARTICLE 554.
A present possessor who shows his possession at some
previous time, is presumed to have held possession also during the
intermediate period, in the absence of proof to the contrary. (459)
177

This presumption is particularly useful for prescriptive purposes.
iv)
Possession by Lessee
Q: What is the rule on possession by lessee?

The rules on Lease should be applied. The lessor and the lessee can agree on
what to do with the constructions/improvements at the end of the lease. Most
lease contracts provide that at the end of the period of lease, the lessor can
appropriate anything that has been built on the property.
If theres no stipulation:
1. necessary expenses
2. useful improvement
3. luxurious expenses
a) obligation of the lessor;

b) lessee entitled to
reimbursement if he spent for them
the lessor must pay the lessee of the
value of improvements, giving the
lessee:
a) right of retention until he has been
paid;
b) right of removal (with or without
damage)
a) lessee may be allowed to remove the
same if it does not cause any damage to
the property
b) lessor may choose to acquire it, in
which case he has to pay the value of
the ornament at the time of the
extinguishment of the lease, provided
that the improvements are still standing
there at the time the owner enters into
possession.
Once lease is extinguished, there is no implied renewal. The lessee who

continues possession shall be considered as possessor in bad faith and the rules
for possessor in bad faith shall apply.
Gabrito v. CA
FACTS:
Sps. Tan filed a complaint in the MTC against defendants Maximo Gabrito
alleging that they are the possessors and legal owners of the property located
at No. 107 Gordon Ave., New Kalake, Olongapo City. The defendants are
leasing portions of this parcel of land, each paying the corresponding

monthly rentals due thereon.
On the leased portion, the defendants constructed buildings and have
allowed other persons to sublease the same for commercial purposes.
As Sps. Tan have no other property where they could construct their house,
they notified defendants that they intend to personally use the land to build
their house thereon and gave defendants 3 months to vacate and remove the
structures and improvements which the defendant constructed thereon.
However, defendants requested for an extension of time within which to
vacate, which was granted by Sps. Tan. But, from that time on, defendants
also stopped paying monthly rentals due on the land they leased.
In the defendants answer, they alleged that they are builders in good faith
over the land as provided in Article 448; the land where their houses were
built is a public land, not yet awarded nor titled to anybody; plaintiffs
alleged predecessor-in-interest not being the owner thereof could not have
passed nor transferred ownership thereof to the plaintiffs considering that
Gloria Carillos Miscellaneous Sales Application has not yet been acted upon
by the Bureau of Lands.
MTC: ordered defendants to remove the buildings and any improvements
and to pay plaintiffs reasonable compensation for the use of the premises.
RTC and CA: affirmed
ISSUES:
1. Who has a better right to possess the land?
2. WON defendants are builders in good faith and entitled to
reimbursement of the value of their improvements
HELD:
1. Spouses Tan has the better right. In a preliminary conference held,
defendants admitted that they entered the premises as lessees and had been
paying rentals for the use of the land to Gloria Carillo, Tans predecessorin-interest. When requested to vacate the premises, Gabrito requested Sps.
Tan for an extension of time which request was granted. However, Gabrito
failed to vacate the premises and also stopped paying rentals. In view of
said admissions, Gabrito had unquestionably recognized Sps. Tans prior
right of possession over the questioned property.
2. NO. Article 448 of CC applies only where one builds on land in the belief
that he is the owner of the land, but does not apply where ones interest in
the land is that of a lessee under a rental contract. The rule is well-settled
that lessees, like Gabrito, are not possessors in good faith, because he knew
that their occupancy of the premises continues only during the life of the
lease, and 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. Their rights are governed by Article 1678 of the CC which
178

allows reimbursement of lessees up to of the value of their improvements
if the lessor so elects.
6.
Presumption of Just Title
ARTICLE 541.
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. (448a)
a.
when applicable
Q: When is the presumption that possessor has a just title applicable?

The presumption that possessor has a just tile applies if two requisites are
present:
1. He must be in possession (actual or constructive);
2. The possession must be in the concept of owner ( not mere holder).
Art. 1131. For the purpose of prescription, just title must be proved, it is never
presumed.
Q: For purposes of prescription, is presumption of just title applicable?
No.
Q: What then are the differences with respect to just title in the Chapter
POSSESSION and just title in the Chapter on PRESCRIPTION?
Just title in POSSESSION
a) just title here is presumed (title
refers either to document or right.) (4
Manresa 245) (The term show
evidently refers to a document while
the term prove refers to the right)
b) just title means titulo verdadero
valido (true and valid title sufficient
to transfer ownership)
Just title in PRESCRIPTION

a) just title here must be proved (title
refers either to document or right) (4
Manresa 245)
b) just title here means titlo Colorado

(merely colorable title although there
was a mode of transferring ownership;
the grantor was not the owner) (See
Dollendo v. Biarnesa, 7 PHIL 232)
Q: What are the reasons for the presumption?

1.) presumption that one is in good faith or that one is innocent of wrong
2.) inconvenience of carrying proofs of ownership around
Q: What are the different kinds of Titles (Titulos)

a) True and valid title (titulo verdadero valido)
Here there was a mode of transferring ownership and the grantor was the
owner. It is defined as a title which by itself is sufficient to transfer ownership
without the necessity of letting the prescriptive period lapse.
Example: Reggie bought a car from Abigail, the owner thereof. Then Abigail
delivered the car to Reggie. Reggie now has a true and valid title.
NOTE: This is the just title referred to in Art. 541. Thus, if Reggie possesses the
car and drives it around as an owner, other people cannot compel him to prove
his ownership over the same.
b) Colorable Title (titulo colorado)
That title where although there was a mode of transferring ownership, still
something is wrong because the grantor is not the owner.
Example: Carmela bought a car from Portia. Portia then delivered the car to
Carmela. But it turns out that Portia never owned the car and that somebody
else was its owner. Whether Carmela was
in good faith or in bad faith is
immaterial in deciding if she is the owner; what is important is that she is not
the owner because she did not acquire or purchase the property from the owner,
his title being merely colorado or colorable.
NOTE: In this example, Carmela may be the owner of the car by prescription.
Ordinary if in good faith: 4 years; Extraordinary if in bad faith: 8 years.
c) Putative Title (Titulo Putativo)
That title where although a person believes himself to be the owner, he
nonetheless is not, because there was no mode of acquiring ownership.
Example: Marife is in possession of a piece of property in the mistaken belief
that it had been inherited by her from Enzo (her putative father)
NOTE: In this example there was really no mode, no succession as when Enzo,
for example, is sill alive.
ARTICLE 554.
A present possessor who shows his possession at some
previous time, is presumed to have held possession also during the
intermediate period, in the absence of proof to the contrary. (459)
NOTE: This article lays down the Principle of Continuity of Possession.
179

b.
meaning of just title
Q: What is just title?

An act which has for its purpose the transmission of ownership, and which
would have actually transferred ownership if the grantor had been the owner.
(Old Reviewer)
Possession of Movables
ARTICLE 542.
The possession of real property presumes that of the
movables therein, so long as it is not shown or proved that they should be
excluded. (449)
ARTICLE 556.
The possession of movables is not deemed lost so long as
they remain under the control of the possessor, even though for the time
being he may not know their whereabouts. (461)
ARTICLE 559.
The possession of movable property acquired in good faith
is equivalent to a title. Nevertheless, one who has lost any movable or has
been unlawfully deprived thereof, may recover it from the person in
possession of the same.
If the possessor of a movable lost or which the owner has been unlawfully
deprived, has acquired it in good faith at a public sale, the owner cannot
obtain its return without reimbursing the price paid therefor. (464a)
ARTICLE 560.
Wild animals are possessed only while they are under one's
control; domesticated or tamed animals are considered domestic or tame, if
they retain the habit of returning to the premises of the possessor. (465)
ARTICLE 561.
One who recovers, according to law, possession unjustly
lost, shall be deemed for all purposes which may redound to his benefit, to
have enjoyed it without interruption. (466)
7.
a.
Possession of Movables
when lost
Q: When is possession of movables considered lost or not lost?

If the possessor has no idea at all about the whereabouts of the movable,
possession is lost, but not when he more or less knows its general location,
though he may not know its precise or definite location. In the former, he has
lost juridical control; in the latter, the object remains within his patrimony.
(Paras)
Possession of movables is not lost if they are still in control of the person
originally having possession, i.e., misplaced articles. (Art. 556) But when the
movables have been actually lost, the owner of the property has the right to
recover the property even if in possession of a third person (Art. 559)
Q: Give a summary of the Recovery or Non-Recovery Principle
(A) Owner MAY RECOVER WITHOUT REIMBURSEMENT:
1) from possessor in bad faith
2) from possessor in good faith (if owner had LOST the property or been
unlawfully deprived thereof.
(B) Owner MAY RECOVER but should REIMURSE:
1) If possessor acquired the object in good faith at a PUBLIC SALE or
AUCTION. (Because the publicity attendant to a public sale should
have been sufficient warning for the owner to come forward and claim
the property.
(C) Owner CANNOT RECOVER, even if he offers to REIMBURSE:
1) if possessor had acquired it in good faith by purchase from a merchants
store on in fairs, or markets in accordance with the Code of Commerce
and special laws (Art. 1505, Civil Code; Arts 85,86, Code of Commerce).
2) iIf owner is by his conduct precluded from denying the sellers
authority to sell (ESTOPPEL Art. 1505)
3) if possessor had obtained the goods because he was an innocent
purchaser for value and holder of a NEGOTIABLE document of title to the
goods. (Art. 1518) (Paras)
b.
unlawful deprivation
Art. 1132. The ownership of movables prescribes through uninterrupted

possession for four years in good faith.
The ownership of personal property also prescribes through uninterrupted
possession for eight years, without need of any other condition.
With regard to the right of the owner to recover personal property lost or of
which he has been illegally deprived, as well as with respect to movables
acquired in a public sale, fair, market, or from a merchants store the
provisions of articles 559 and 1505 of this Code shall be observed.
Art. 1505. Subject to the provisions of this Title, where goods are sold by a
person who is not the owner thereof, and who does not sell them under
authority or with the consent of the owner, the buyer acquires no better title
180

to the goods than the seller had, unless the owner of the goods is by his
conduct precluded from denying the sellers authority to sell.
Nothing in this Title, however, shall affect:
1) the provisions of any factors acts, recording laws, or any other provision of
law enabling the apparent owner of goods to dispose of them as if he were
the true owner thereof;
2) The validity of any contract of sale under statutory power of sale or under
the order of a court of competent jurisdiction;
3) Purchases made in a merchants store, or in fairs, or market, in accordance
with the Code of Commerce and special laws.
Q: Give the rule of unlawful deprivation of movable property;
1) The person who has been unlawfully deprived of movable property can
recover the movable without having to pay indemnity or reimbursement
provided that it is still in possession of that person who stole or unlawfully
deprived the owner of his possession.
2) During the intervening period between actual loss and its recovery, the
owner is not considered to have abandoned the thing (Continuity of
Possession). But if lost for more than one year, he is deemed to have lost
possession.
3) If present possessor in good faith acquires the property through public sale,
owner still entitled to recover provided he pays the present possessor the
amount spent by the latter to acquire that property.
4) If property found its way in a merchants store, owner can no longer recover,
subject to provisions of the Anti-Fencing Law (Old reviewer)
8.
Loss of Possession
ARTICLE 555.
A possessor may lose his possession:
(1)
By the abandonment of the thing;
(2)
By an assignment made to another either by onerous or gratuitous
title;
(3)
By the destruction or total loss of the thing, or because it goes out of
commerce;
(4)
By the possession of another, subject to the provisions of article 537,
if the new possession has lasted longer than one year. But the real right of
possession is not lost till after the lapse of ten years. (460a)
ARTICLE 556.
The possession of movables is not deemed lost so long as
they remain under the control of the possessor, even though for the time
being he may not know their whereabouts. (461)
ARTICLE 557.
The possession of immovables and of real rights is not
deemed lost, or transferred for purposes of prescription to the prejudice of
third persons, except in accordance with the provisions of the Mortgage Law
and the Land Registration laws. (462a)
Q: Does Article 555 refer both to real and personal property?
According to Paras, YES, Except in the case of par.4; for it is evident that the
possession of more than one year concerns only real property, the rule as to
movable being explicitly stated in Art. 556.
However, in the old reviewer, abandonment (par. 1) is said to be limited to
movables, the property abandoned becoming res nullius.
Q: What are the ways of losing possession?
a) Thru the Possessors Voluntary Will and Intent
1) Abandonment
2) Assignment (onerous or gratuitous conveyance)
b) Against the possessors will
1) possession of another for more than one year
2) final judgment in favor of another (with a better right)
3) expropriation
4) prescription in favor of another
5) recovery or reinvindication by the legitimate owner or possessor
c) Because of the Object
1) destruction or total loss of the thing
2) going out of commerce
3) escaping from possessors control of wild animals (Art. 560)
(PARAS)
Q: When is possession deemed lost? (Old Reviewer)
Possession de facto lost after a period of one year. This is equivalent to natural
interruption.
Possession de jure REAL PROPERTY: Good Faith 10 years
Bad Faith 30 years
MOVABLES:
Good Faith 4 years
Bad Faith 8 years
181

NOTE: After the lapse of the maximum period provided by law, possessor loses
both possession de facto and de jure and the right to own the property.
Legal interruption is also one of the grounds for loss of possession.
This is made by means of judicial summons and filing of actions against the
possessor. (Old Reviewer)
Q: What is the normal characteristic of usufruct?

The natural characteristic of usufruct is the obligation of conserving or
preserving the form and the substance of the thing. This obligation is merely a
natural requisite and not an essential requisite because the parties may stipulate
that this obligation be waived.
Q: Give an example of an application of Article 557.

Gilbert bought a parcel of land in Bulacan without Torrens Title and registered
the deed of sale in the Registry of Property. If Gilbert leaves his land Armel
possesses the same for the required period, Gilbert had lost his possession and
ownership over the same, insofar as the occupier, Armel is concerned, but not
insofar as other people as other people (strangers) are concerned. For said
strangers relying on the Registry are still privileged to consider Gilbert as the
possessor or owner.
Q: What are the accidental characteristics of usufruct?

They are those which ma be present or absent depending upon the stipulation
of the parties. For example, the parties can stipulate on whether the usufruct be
pure or conditional, the number of years it will exist , whether it is in favor of
one person or several, etc.
F.
Usufruct
ARTICLE 562.
Usufruct gives a right to enjoy the property of another with
the obligation of preserving its form and substance, unless the title
constituting it or the law otherwise provides. (467)
1.
Nature/Elements
Q: What is usufruct?
A usufruct is best defined by Article 562. It is a real right vested in a person
whereby he has the right to use and to the fruits of a piece of property belonging
to another, with the concurrent obligation to preserve the form and substance of
the property.
Q: What are the requisites of a usufruct?
There are two requisites of usufruct - the essential and the accidental. The
essential requisite is the right to enjoy the property of another while the
accidental requisite is the obligation of preserving the form and substance of
such property. The latter is accidental because the title constituting the usufruct
or the law may otherwise provide, as in the case of abnormal usufructs.
Q: What are the essential characteristics of usufruct?
It is a real right. A real right is one constituted on the property itself that may be
enforced against the whole world.
It is of temporary nature. Even if a usufruct is given to a usufructuary for his
entire life, it still remains temporary as there is a limit to his life.
Its purpose is to enjoy the benefits and derive all advantages from the object as a
consequence of normal use or exploitation.
Q: What are the classifications of usufruct?

A. According to quantity or extent of fruits or object:
(1) as to fruits:
(a) total all the fruits are given to the usufructuary
(b) partial only a part of the fruits are given to the usufructuary
(2) as to object:
(a) universal usufruct over the entire patrimony
(b) singular or particular only individual things are included in
the usufruct
B. According to the number of persons enjoying the right:
(1) simple only one usufructuary enjoys
(2) successive several usufructuary enjoys
(a) simultaneous the usufructuaries enjoy the usufruct at the same
time
(b) successive the usufructuaries enjoy the usufruct one after the
other
C. According to the quality or kind of object involved:
(1) usufruct over rights the right must be not be strictly personal or
intransmissible
(2) usufruct over things:
(a) normal usufruct involves non-consumable things where the from
and substance are preserved
(b) abnormal usufruct involves consumable property or nonconsumable things that gradually deteriorate by use
D. according to terms and conditions
(1) pure usufruct no term or condition
(2) with a term or period
(a) ex die from a day certain
182

(b) in diem up to a day certain
(c) ex die in diem from a day certain up to a day certain
(3) with a condition
Q: Why is usufruct a real right?
It is a real right because it attaches to the property itself and may be imposed
upon whoever may subsequently own the right with respect to the property. It
is a real right whether it is registered in the Registry of Properties or not. The
real right has an existence attached to but independent from the property itself
since the right itself may be alienated.
Q: What is the concurrent obligation of the usufructuary?
The usufructuary has the obligation of preserving the form and substance of the
property to which the real right of usufruct attaches. Preservation means that
the property must be used according to its purpose.
Q: What are quasi-usufructs?
These are usufructs constituted upon consumables. Note that a consumable is
used by consuming it. So, in a quasi-usufruct, you are expected to consume the
consumable. Since the ordinary usufruct would have a concurrent obligation of
preservation, the law would then provide for a different obligation in this case
that of paying the appraised value of the property instead of preservation,
where appraisal is made at the start of the usufruct.
Q: What are abnormal usufructs?
These are usufructs constituted upon non-consumables that gradually
deteriorate by use. It undergoes the normal wear and tear experienced through
use. After the usufruct is terminated, the property is returned with no
indemnity for the normal wear and tear. But abnormal wear and tear must be
accounted for.
2.
Usufruct v. Easement
USUFRUCT
1.) covers both real and personal
property
2.) all uses and fruits can be enjoyed
3.) cannot be constituted on an
easement, but it may be constituted on
a land burdened by an easement
4.) usually extinguished by the death
of the usufructuary
EASEMENT
1.) applies only to real property
2.) limited to a particular use
3.) can be constituted on a land held in
usufruct
4.) not extinguished by death of owner
of dominant estate
Usufruct v. Commodatum
USUFRUCT
1.) involves real and personal
property
2.) usufructuary has rights to the
fruits
3.) may be gratuitous or onerous
4.) must always be constituted by the
owner
5.) can be constituted on consumables
and non-consumables
COMMODATUM
1.) covers only personal property
2.) bailee has no such right
3.) always gratuitous
4.) bailor need not be the owner as long
as he has a legal right to possess the
object
5.) only non-consumables are involved,
except when it is only for exhibition
Application to Personal & Real Properties
Q: What properties does a usufruct cover?

Both immovables and movables, including rights, actions and intangibles.
a.
Usufruct v. Right to Collect

A usufruct over the right to collect means that what the usufructuary collects
belongs to him but the usufructuary doesnt own the property. The mere right
to collect may or may not mean the collector owns what was collected.
compared to other contracts
Q: Distinguish usufruct from ownership.

While ownership has for its attributes the right to enjoy (jus utendi, jus fruendi,
jus abutendi), the right to dispose (jus disponendi) and the right to vindicate or
recover the property (jus vindicandi), usufruct is limited merely to the enjoyment
of the property (jus utendi and jus fruendi).
Usufruct v. Lease
Basis
1.) extent
2.) nature
of the right
USUFRUCT
1.) covers all fruits and uses as
a rule
2.) always a REAL right
LEASE
1.) generally covers only a
particular or specific use
2.) is a real right only if, as in
the case of lease over REAL
PROPERTY, the lease is
REGISTERED, or is for MORE
THAN ONE YEAR, otherwise,
it is only a personal right
183

3.) creator
of the right
3.) created only by the owner

or by a duly authorized agent,
acting in behalf of the owner
4.) origin
4.) may be created by LAW,

CONTRACT, LAST WILL, or
PRESCRIPTION
5.) cause
6.) repairs
7.) taxes
8.) other
matters
3.
5.) The owner is more or less

passive and he allows the
usufructuary to enjoy the thing
given in usufruct deja gozar.
(Please see Paras book. I dont
know what the last phrase
means.)
6.) The usufructuary has the
duty to make ordinary repairs.
7.) The usufructuary pays for
the annual charges and taxes
ON THE FRUITS.
8.) A usufructuary may lease
the property itself to ano0ther.
See Art. 572.
3.) lessor may or may not be the

owner (as when there is a sublease or when the lessor is only
a usufructuary)
4.) may be created as a rule
only by CONTRACT and by
way of exception, by LAW (as
in the case of an implied new
lease, or when a builder has
built in good faith on the land
of another a building, when the
land is considerably worth
more in value than building,
etc.)
5.) The owner or lessor is more
or less active, and he makes the
lessee enjoy the property hace
gozar.
6.) The lessee generally has no

duty to pay repairs.
7.) The lessee generally pays no
taxes, unless contractually
agreed upon.
8.) The lessees cannot constitute
a usufruct on the property
leased.
How constituted
ARTICLE 563.
Usufruct is constituted by law, by the will of private
persons expressed in acts inter vivos or in a last will and testament, and by
prescription. (468)
Q: What are the sources of a usufruct?
1.) law
2.) by will of the owner
a.) in a contract
b.) last will and testament
3.) by prescription
Q: What is a legal usufruct? Give an example.

A legal usufruct is that constituted by law. It is the only exception to the rule
that only the owner can constitute a usufruct. Ex. Before, in the New Civil Code,
the parents have a legal usufruct over the properties of their unemancipated
children. But now, with the Family Code, this changed since the parents
administer the properties of their children and use the fruits for the benefit of
the cildren their expenses and education, and for family expenses if there is an
excess. Dean says that this, in effect, does not amount to a usufruct since the
ususfructuary (the parents) cannot choose how to se or when to apply the fruits.
Q: Give an example of a usufruct b prescription.
A possess a parcel of land in good faith, although the land actually belongs to
another. In good faith, A, by will, gives to B the naked ownership of the land
and to C the usufruct thereof. In due time, C may acquire the ownership of the
usufruct by acquisitive prescription [so called mixed since it is created both by
law and by an act of a person.]
Q: What properties would a usufruct cover?
Both movables and immovables, plus intangibles, rights and actions.
ARTICLE 564.
Usufruct may be constituted on the whole or a part of the
fruits of the thing, in favor of one or more persons, simultaneously or
successively, and in every case from or to a certain day, purely or
conditionally. It may also be constituted on a right, provided it is not strictly
personal or intransmissible. (469)
ARTICLE 565.
The rights and obligations of the usufructuary shall be
those provided in the title constituting the usufruct; in default of such title, or
in case it is deficient, the provisions contained in the two following Chapters
shall be observed. (470)
ARTICLE 566.
The usufructuary shall be entitled to all the natural,
industrial and civil fruits of the property in usufruct. With respect to hidden
treasure which may be found on the land or tenement, he shall be considered
a stranger. (471)
Q: What are simultaneous usufructs?
These are usufructs where several usufrctuaries enjoy the se and the fruits of the
property at the same time.
Ex. The death of one of the usufrcutuary in simultaneous usufructuaries would
not extinguish the usufruct, unless you agree upon a termination upon said
cause. What happens is the same as accretion in succession where the share of
the dead usufrctuary would accrue to the other live simultaneous
usufrcutuaries.
184

Q: What are successive usufructs?

These are usufructs constituted where a usufructuary is first deemed as such. A
condition is then imposed where upon the happening of said condition, another
usufructuary/ies would then follow changing the first.
Q: What rules are followed in successive usufructs?
You follow the rules on fideicommissary substitution. In sum:
1.) both transferor and transferee of usufruct must be alive or at least conceived
at the time of transfer
2.) there is only one degree of relationship between transferor and transferee
Fideicommissary Substitution Rules
Article 869. A provision whereby the testator leaves to a person the whole or
part of the inheritance, and to another the usufruct, shall be valid. If he gives
the usufruct to various persons, not simultaneously, but successively, the
provisions of Article 863 shall apply.
4. The cession of actions or rights proceeding from an act appearing in a public

document.
All other contracts where the amount involved exceeds five hundred pesos
must appear in writing, even a private one. But sales of goods, chattels or things
in action are governed by articles 1403, no. 2 and 1405.
If a usufruct is created by sale or for an valuable consideration, the Statute of
Frauds applies always, if real property is involved, or in case of an agreement
not to be performed within one year form the making thereof. [Article 1403(2)]
A usufruct by donation or by will must comply with the formalities of a
donation or will.
Q: What are the rights of action of the usufructuary?
A usufructuary has the right of action to protect the usufruct itself; and the right
of action to protect the exercise of the usufruct.
4.
Rights of Usufructuary
Article 863. A fideicommissary substitution by virtue of which the fiduciary

or first heir instituted is entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of the inheritance, shall be valid
and shall take effect, provided such substitution does not go beyond one
degree from the heir originally instituted, and provided, further, that the
fiduciary or first heir and the second heir are living at the time of the death of
the testator.
Q: What are the rights of usufructuary?

The usufructuary has the following rights
1.) right over the fruits
2.) right of possession and enjoyment of the property
3.) sale or alienation of usufructuary rights
Q: What form must be followed in constituting a usufruct?

The general rule is that no form is required. An oral usufruct may even be
constituted. However, a usufruct over real property, on order to bind third
persons must be duly registered. Nevertheless, the rule requiring public
documents is merely directory since this would fall under Article 1358.
ARTICLE 566.
The usufructuary shall be entitled to all the natural,
industrial and civil fruits of the property in usufruct. With respect to hidden
treasure which may be found on the land or tenement, he shall be considered
a stranger. (471)
Article 1358. The following must appear in a public document:

1. Acts and contracts which have for their object the creation, transmission,
modification or extinguishment of real rights over immovable property; sales of
real property or of an interest therein are governed by articles 1403, no. 2 and
1405.
2. The cession, repudiation or renunciation of hereditary rights or of those of the
conjugal partnership of gains;
3. The power to administer property, or any other power which has for its object
an act appearing or which should appear in a public document, or should
prejudice a third person;
a.
Fruits
ARTICLE 567.
Natural or industrial fruits growing at the time the usufruct
begins, belong to the usufructuary.
Those growing at the time the usufruct terminates, belong to the owner.
In the preceding cases, the usufructuary, at the beginning of the usufruct, has
no obligation to refund to the owner any expenses incurred; but the owner
shall be obliged to reimburse at the termination of the usufruct, from the
proceeds of the growing fruits, the ordinary expenses of cultivation, for seed,
and other similar expenses incurred by the usufructuary.
The provisions of this article shall not prejudice the rights of third persons,
acquired either at the beginning or at the termination of the usufruct. (472)
185

ARTICLE 569.
Civil fruits are deemed to accrue daily, and belong to the
usufructuary in proportion to the time the usufruct may last. (474)
ARTICLE 570.
Whenever a usufruct is constituted on the right to receive a
rent or periodical pension, whether in money or in fruits, or in the interest on
bonds or securities payable to bearer, each payment due shall be considered
as the proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits accruing from a
participation in any industrial or commercial enterprise, the date of the
distribution of which is not fixed, such benefits shall have the same character.
In either case they shall be distributed as civil fruits, and shall be applied in
the manner prescribed in the preceding article. (475)
Q: What is the rule with regard to fruits?
Generally, whatever is gathered and collected belongs to the usufructary during
the usufruct.
Q: what is the rule with regard to the civil fruits?
Civil fruits are computed on a daily basis. Those accruing during the period of
the usufruct will be in favor of the usufructuary.
Q: What is the rule with regard to natural and industrial fruits?
The rule with regard to natural and industrial fruits must be understood under
the proper context. There is first the distinction between gathered fruits and
pending frits.
Concerning gathered fruits, these automatically accrue in favor of the
usufructuary if gathered during the usufruct.
Concerning pending fruits, we divide. Pending frits at the start of the usufruct
will accrue to the usufructuary with no indemnity to the owner for the owners
expenses in planting and cultivation. Pending fruits at the termination of the
usufruct shall accrue to both the usufructuary and the owner. They share fruits
according to the scheme so discussed in the part on possession. The
usufructuary must be reimbursed for the expenses of planting and cultivation.
Note that the law (Article 567) provides the natural and industrial fruits growing
at the time of the termination of the usufruct (meaning pending fruits) belong to
the owner. So, Dean might be mistaken in her above statement concerning the
sharing between the owner and the usufructuary. But the usufructuary must be
reimbursed the expenses.
Note that the law favors the usufructuary more subject, of course, to contrary
contractual stipulations.
Notes:
1.) Generally, products which diminish the capital, such as stones from a quarry,
cannot be considered fruits, unless there is a contrary stipulation.
2.) As to hidden treasure, the usufructuary, not being the landowner, is entitled
only as a finder if he really is the finder. If not, then the usufructuary gets
nothing, unless the usufructuary hired the finder, I which case the usufructuary
gets his share.
3.) Fruits pending at the beginning belong to the usufructuary. But this is
without prejudice to the rights of third persons, as when the fruits had been
planted by a possessor in good faith, then the pending crop expenses and
charges shall be pro-rated between the possessor and the usufructuary.
4.) There is no such thing as pending civil fruits.
5.) The fruits referred to in Article 570 refer to civil fruits and accrue to the
naked owner and the usufuructuary proportionately for the time the usufruct
lasts. This article also applies notwithstanding the fact that the date of
distribution of benefits from participation in a commercial or industrial
enterprise is fixed. Note that Paras presents a potential problem:
PROBLEM: A gives to B in usufruct the profits of a certain factory for 10 years.
If the usufruct lasts really for 10 years, all profits indeed go to B.
Suppose B died at the end of 5 years and the following were the profits of the
factory:
year 2 P 10,000
year 3 40,000
year 8 10,000
year 10 10,000
According to PAras, it wold be unfair to give the heir of the usufructuary
P50,000 [2nd and 3rd year profits] and only P20,000 to the naked owner. To do
so would be to apply the rule on industrial and natural fruits, and furthermore,
a business is expected to have its ups and downs. He thus proposes that,
considering the term of the usufruct, while it actually lasted for only 5 years, it
would be more fair to give half of the total profits to the heirs of the
usufructuary and half to the naked owner. He says that the above rule should
also apply even if during the first 5 years, the company came out only even.
If A gives B the usufruct of As land, and As land is being rented by C, each
payment of rent shall go to B for the duration of the usufruct, each payment
being considered as part of the proceeds of the property.
b. Possession & enjoyment
186

ARTICLE 571.
The usufructuary shall have the right to enjoy any increase
which the thing in usufruct may acquire through accession, the servitudes
established in its favor, and, in general, all the benefits inherent therein. (479)
ARTICLE 572.
The usufructuary may personally enjoy the thing in
usufruct, lease it to another, or alienate his right of usufruct, even by a
gratuitous title; but all the contracts he may enter into as such usufructuary
shall terminate upon the expiration of the usufruct, saving leases of rural
lands, which shall be considered as subsisting during the agricultural year.
(480)
ARTICLE 573.
Whenever the usufruct includes things which, without
being consumed, gradually deteriorate through wear and tear, the
usufructuary shall have the right to make use thereof in accordance with the
purpose for which they are intended, and shall not be obliged to return them
at the termination of the usufruct except in their condition at that time; but he
shall be obliged to indemnify the owner for any deterioration they may have
suffered by reason of his fraud or negligence. (481)
ARTICLE 574.
Whenever the usufruct includes things which cannot be
used without being consumed, the usufructuary shall have the right to make
use of them under the obligation of paying their appraised value at the
termination of the usufruct, if they were appraised when delivered. In case
they were not appraised, he shall have the right to return the same quantity
and quality, or pay their current price at the time the usufruct ceases. (482)
ARTICLE 575.
The usufructuary of fruit-bearing trees and shrubs may
make use of the dead trunks, and even of those cut off or uprooted by
accident, under the obligation to replace them with new plants. (483a)
ARTICLE 576.
If in consequence of a calamity or extraordinary event, the
trees or shrubs shall have disappeared in such considerable number that it
would not be possible or it would be too burdensome to replace them, the
usufructuary may leave the dead, fallen or uprooted trunks at the disposal of
the owner, and demand that the latter remove them and clear the land. (484a)
ARTICLE 577.
The usufructuary of woodland may enjoy all the benefits
which it may produce according to its nature.
If the woodland is a copse or consists of timber for building, the usufructuary
may do such ordinary cutting or felling as the owner was in the habit of
doing, and in default of this, he may do so in accordance with the custom of
the place, as to the manner, amount and season.
In any case the felling or cutting of trees shall be made in such manner as not
to prejudice the preservation of the land.
In nurseries, the usufructuary may make the necessary thinnings in order that
the remaining trees may properly grow.
With the exception of the provisions of the preceding paragraphs, the
usufructuary cannot cut down trees unless it be to restore or improve some of
the things in usufruct, and in such case he shall first inform the owner of the
necessity for the work. (485)
ARTICLE 578.
The usufructuary of an action to recover real property or a
real right, or any movable property, has the right to bring the action and to
oblige the owner thereof to give him the authority for this purpose and to
furnish him whatever proof he may have. If in consequence of the
enforcement of the action he acquires the thing claimed, the usufruct shall be
limited to the fruits, the dominion remaining with the owner. (486)
ARTICLE 579.
The usufructuary may make on the property held in
usufruct such useful improvements or expenses for mere pleasure as he may
deem proper, provided he does not alter its form or substance; but he shall
have no right to be indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without damage to the property.
(487)
ARTICLE 580.
The usufructuary may set off the improvements he may
have made on the property against any damage to the same. (488)
ARTICLE 581.
The owner of property the usufruct of which is held by
another, may alienate it, but he cannot alter its form or substance, or do
anything thereon which may be prejudicial to the usufructuary. (489)
ARTICLE 582.
The usufructuary of a part of a thing held in common shall
exercise all the rights pertaining to the owner thereof with respect to the
administration and the collection of fruits or interest. Should the coownership cease by reason of the division of the thing held in common, the
usufruct of the part allotted to the co-owner shall belong to the usufructuary.
(490)
Q: Is it essential in a usufruct for the usufructuary to possess the property?
No. What is essential is that the usufrfuctuary gets the right ot use and to avail
of the fruits. Even if he were not in possession. OK lang since the fruits will have
to end up with him.
Q: What happens when the usufructuary does not furnish a bond when he is
required to do so?
The result is that the usufructuary will still receive the fruits but will not be
entitled to possession.
187

Q: What are the rules with regard to expenses incurred b the usufructuary?
The general rule is that expenses are borne by the usufructuary during the
period of the usufruct.
1.) A regards the NECESSARY EXPENSES for the normal wear and tear of the
property and those that are indispensable for its preservation, these are borne
by the usufructuary without right of reimbursement.
Q: May the naked owner construct anything on the property subject of the
usufruct?
Yes. Aside from the right to alienate, the naked owner also has the right to
construct any works, make new improvements or plantings [as to pantings, if
the land is rural] provided that the substance of the property is naltered and the
usufructuary is not prejudiced.
2.) As regards EXTRAORDINARY EXPENSES DUE TO FORTUITOTUS EVENT

AND ACCIDENT, not normal wear and tear, and necessary for the things
preservation, this is borne by te usufructuary WITH right of reimbursement.
Q: Is the use of the co-owned property subject of the usufruct exclusively

reserved for the usfructuary where the usufruct is constituted by one of the coowner only?
No. The usufruct covers the entire property, but the usufruct cannot exclude the
other co-owners, except the naked co-owner who gave him the usufruct. The
usufruct also covers only the portion of the fruits accruing to the co-owner who
constituted the usufruct.
3.) As regards USEFUL and LUXURIOUS expenses, the usufructuary can make
them provided he does not alter the form of the property. He cannot seek
indemnification from the owner but he can remove them if no damage will be
inflicted on the property, or he can avail of the set-off provision in Art. 580.
4.) If a usufructuary who has made useful or luxurious improvements can
remove the same without damage, but refuses to do so, he cannot be compelled,
according to Paras, to remove his improvements.
5.) If the usufructuary who has made such useful or luxurious improvements
wants to remove the same without causing damage, but the owner wants to
retain them and offers to pay for such, the option belongs to the
USUFRCTUARY.
6.) Before a set-off is allowed, it must be shown that:
a.) damage was caused by the usufructuary; AND
b.) the improvements augmented the value of the property.
7.) Simplified set-off rules:
a.) damage > value of improvements usufructuary liable for the
difference
b.) value of improvements > damage differencec does not go to
usufructuary, but accrues instead, in the absence of contrary stipulations, in
favor of the naked owner; otherwise, it is as if the usufructuary would be
entitled to a refund in cash.
8.) Improvements made by a usufructuary belong to him, and may therefore be
registered, not independently, but in the registration proceedings of the land
held in usufruct. Otherwise, if the property is sold to an innocent purchaser for
value, the right to remove the useful improvement cannot be enforced against
third persons since it is unregistered.
Q: What are the rules concerning Construction and Improvement on the

property subject of the usufruct?
The following are the rule on construction and improvements:
1.) Unless there is an express prohibition, the usfructuary may construct and
make improvements on the property.
2.) Limitation: Building may be required to be returned after termination on
account of duty not to alter.
3.) Removal: Usufructuary GENERALLY may remove provided no injury
would be made on the principal or if there be injury, the principal could be
restored. Cost of restoration would be borne by the usufructuary.
NOTES:
1.) Alienation of the usufructuary right does not involve property itself. When
the usufruct terminates, the transferee has no more right to the property.
Moreover, the usufructuary is liable to the naked owner for whatever damage
the transferee may cause to the property, with right of recourse against the
transferee.
c.
Lease of property
ARTICLE 568.
If the usufructuary has leased the lands or tenements given
in usufruct, and the usufruct should expire before the termination of the
lease, he or his heirs and successors shall receive only the proportionate share
of the rent that must be paid by the lessee. (473)
ARTICLE 572.
usufruct, lease
gratuitous title;
shall terminate

it to another, or alienate his right of usufruct, even by a
but all the contracts he may enter into as such usufructuary
upon the expiration of the usufruct, saving leases of rural
188

(480)
Q: The usufruct can be alienated. Can the usufructuary lease out the property
subject of the usufruct and not the usufruct itself?
A lease would not violate the usufruct unless there are provisions to the
contrary. Generally, possession is vested in the usufructuary. If one is with
possession, he can contract out the possession of something. Since the lessor in a
lease contract mainly passes on of the right to possess the leased property, then,
the usfructuary can lease out the property. The usufructuary may also lease out
the property in order to maximize the frits rent.
Q: How long should the lease last?
Generally, the lease executed by the usufructuary should terminate at the end of
the usufruct or earlier (Art. 572) except in the case of leases of rural lands
because in said case, if the usufruct ends earlier than the lease, the lease
continues for the remainder of the agricultural year.
Q: Who has the right to choose the tenant?
The usufructuary may enter into a contract where the period of lease is beyond
the period of the usufruct. However, once the usufruct terminates, the lease
should terminate, too, at the option of the owner. So, the longer lease period is
rendedred ineffective.
Q: Can you compel the naked owner to respect the lease upon the termination
of the usufruct?
No. However, if the lease is registered or annotated in the title of the property,
this makes the lease a real right. The owner of the property must respect the
lease. The rent, however, that accrues after the termination of the usufruct
belongs to the owner.
d.
Sale/Alienation of Usufructuary rights
ARTICLE 572.
usufruct, lease it to another, or alienate his right of usufruct, even by a
gratuitous title; but all the contracts he may enter into as such usufructuary
shall terminate upon the expiration of the usufruct, saving leases of rural
(480)
Q: What is the nature of the rights of the usufructuary?
The rights of the usufructuary are treated as property rights. They are separate
from the property to which it is attached. It is absolutely owned by the
usufructuary so he may dispose of or encumber the usufruct as long as it is on
his right as a usufructuary only and not on the property itself . This is of course
subject to contractual stipulations and limits that may be agreed upon by the
parties.
Q: What happens when the property itself is the one old?
The sale is void since the seller is not the owner of the property. This is a
violation of the usufruct and the bond that is required of the usufructuary, in
the absence of a contrary stipulation, may be cancelled.
Q: Can you constitute a usufruct on land which is already mortgaged or
encumbered?
Yes. This is because the mortgage remains inactive until the debt is not paid and
the mortgage is not for the purpose of limiting the use or of the fruits. The rule
is that if the usufructuary mortgages the usufruct, and the usufruct terminates
before the maturity of the mortgage, the obligation secured by the mortgage
subsists but the credit becomes unsecured.
**If the usufruct ends, the creditor cannot extend the usufruct when a mortgage
is constituted on the usufruct itself and not on the property. The creditor,
therefore, ends up with an unsecured credit.
Q: Can the usufruct be pledged?
The Dean and several commentators would say no. Note that the pledge
necessarily requires that the object pledged be placed in the possession of the
pledge. In cases where the usufructuary is not or is prohibited from possessing
the property, as in case of failure to pay the bond, then a pledge cannot be
constituted. Furthermore, a conflict may ensue where even if the property
pledged be placed in the possession of the usufructuary, the usufructuary
cannot still avail of the fruits since the pledgee is entitled to the possession not
only of the property pledged but also all accessions the fruits. There would
then be a conflict between the nature of a usufruct where the usufructuary is
entitled to the fruits and the nature of the pledge where the pledgee is entitled
to the fruits.
5.
a.
Obligations of the Usufructuary

Before the Usufruct commences
ARTICLE 583.
The usufructuary, before entering upon the enjoyment of
the property, is obliged:
(1)
To make, after notice to the owner or his legitimate representative,
an inventory of all the property, which shall contain an appraisal of the
movables and a description of the condition of the immovables;
(2)
To give security, binding himself to fulfill the obligations imposed
upon him in accordance with this Chapter. (491)
189

ARTICLE 584.
The provisions of No. 2 of the preceding article shall not
apply to the donor who has reserved the usufruct of the property donated, or
to the parents who are usufructuaries of their children's property, except
when the parents contract a second marriage. (492a)
ARTICLE 585.
The usufructuary, whatever may be the title of the usufruct,
may be excused from the obligation of making an inventory or of giving
security, when no one will be injured thereby. (493)
ARTICLE 586.
Should the usufructuary fail to give security in the cases in
which he is bound to give it, the owner may demand that the immovables be
placed under administration, that the movables be sold, that the public
bonds, instruments of credit payable to order or to bearer be converted into
registered certificates or deposited in a bank or public institution, and that
the capital or sums in cash and the proceeds of the sale of the movable
property be invested in safe securities.
The interest on the proceeds of the sale of the movables and that on public
securities and bonds, and the proceeds of the property placed under
administration, shall belong to the usufructuary.
Furthermore, the owner may, if he so prefers, until the usufructuary gives
security or is excused from so doing, retain in his possession the property in
usufruct as administrator, subject to the obligation to deliver to the
usufructuary the net proceeds thereof, after deducting the sums which may be
agreed upon or judicially allowed him for such administration. (494)
ARTICLE 587.
If the usufructuary who has not given security claims, by
virtue of a promise under oath, the delivery of the furniture necessary for his
use, and that he and his family be allowed to live in a house included in the
usufruct, the court may grant this petition, after due consideration of the facts
of the case.
The same rule shall be observed with respect to implements, tools and other
movable property necessary for an industry or vocation in which he is
engaged.
If the owner does not wish that certain articles be sold because of their artistic
worth or because they have a sentimental value, he may demand their
delivery to him upon his giving security for the payment of the legal interest
on their appraised value. (495)
ARTICLE 588.
After the security has been given by the usufructuary, he
shall have a right to all the proceeds and benefits from the day on which, in
accordance with the title constituting the usufruct, he should have
commenced to receive them. (496)
Q: What is the process of constituting a usufruct?
1.) The usufructuary is first required to come up wit an inventory of the

property subject of the usufruct. In case of consumables (movables), the
consumable property subject of the usufruct must be appraised. An immovable
subject of the usufruct must be described with particularity. The purpose of
these requirements is to ensure the return of the property in the condition that it
was given in usufruct, except in cases of quasi usufructs and abnormal
usufructs.
Exceptions to these would include instances:
1.) where there would be no prejudice to anyone;
2.) usufructs over rights; and
3.) when the owner of the property subject of the usufruct waives the right to
inventories and description
2.) Furnish a bond to guarantee the return of the property subject of the usufruct
in the condition it was received upon the termination of the usufruct.
Exceptions to these would include instances:
1.) when the owner waives giving a bond;
2.) in cases of donations where the donor donates a property but reserves the
usufruct
for himself while the donee becomes the owner; (Art. 584)
3.) legal usufructs;
4.) when no one will be injured thereby; (Art. 585)
5.) caucion juratoria this is a promise under oath in lieu of a bond; it is normally
done
when the usufruct is necessary for reasons of subsistence. This is available
only
under the conditions provided in Art. 587.
Q: What would be the effect/s be if no security is given?
If the usufructuary fails to give security in cases in which he is bond to give it,
the owner may demand:
a.) that the immovable be placed under administration (Art. 586)
b.) that the movables be sold; (Id.)
c.) that the public bonds, instruments of credit payable to order or bearer be
converted into registered certificates or deposited in a bank or public institution;
(Id.)
d.) that the capital or sums in cash and the proceeds of the sale of the movable
property be invested in safe securities; (Id.)
e.) the owner may retain in his possession the property in usufruct as
administrator subject to the obligation to deliver to the usufructuary the net
190

proceeds thereof, after deducting the sums which
may be agreed upon or
judicially allowed him for such administration; (Id.)
f.) in cases where the usfructuary wants to claim matured credits forming part
of the usufruct, he shall need the authorization of the owner, or of the court in
default thereof, to collect such credits, the usufrutuary shall be required to
invest the capital at interest upon agreement with the owner; and in every case,
with security sufficient to preserve the integrity of the capital of the usufruct
(Art. 599)
** Failure to give the bond does not result in the annulment of the usufrfuct.
Q: In a usufruct based upon caucion juratoria, what are the proper requisites?
1.) proper court petition;
2.) necessity for delivery of furniture, implements, or house included in the
usufruct;
3.) approval of the court; and
4.) sworn promise.
5.) limitation: property cannot be alienated or encumbered or leased, this means
the usufructuary does not need the property
** Usufruct through does not apply where the usufructuary is exempted from
giving security. It only applies when he is reqired but he cannot afford.
b.
During the Usufruct
Q: What is the obligations of the usufructuary during the usufruct?

1.) He cannot change or alter the form and substance of the property;
2.) To take care of the property with the diligencec of a good father;
3.) To make ordinary repairs on the property;
4.) To notify the owner in case the need for extraordinary repairs on the
property is urgent. If the usufructuary pays for the extraordinary repairs, he has
a right of reimbursement, right of retention and right to legal interest.
5.) To notify the owner of any act of a third person that may be prejudicial to the
right of ownership;
6.) To pay the expenses, costs and liabilities in suits with regard to the usufruct.
i)
Alteration
** The usufructuary has the obligation to return the property subject of the
usufruct in the original form and substance tat it was received, subject to
ordinary wear and tear.
ii)
Exercise of Diligence
ARTICLE 589.
The usufructuary shall take care of the things given in
usufruct as a good father of a family. (497)
ARTICLE 590.
A usufructuary who alienates or leases his right of usufruct
shall answer for any damage which the things in usufruct may suffer through
the fault or negligence of the person who substitutes him. (498)
ARTICLE 591.
If the usufruct be constituted on a flock or herd of livestock,
the usufructuary shall be obliged to replace with the young thereof the
animals that die each year from natural causes, or are lost due to the rapacity
of beasts of prey.
If the animals on which the usufruct is constituted should all perish, without
the fault of the usufructuary, on account of some contagious disease or any
other uncommon event, the usufructuary shall fulfill his obligation by
delivering to the owner the remains which may have been saved from the
misfortune.
Should the herd or flock perish in part, also by accident and without the fault
of the usufructuary, the usufruct shall continue on the part saved.
Should the usufruct be on sterile animals, it shall be considered, with respect
to its effects, as though constituted on fungible things. (499a)
Q: What kind of diligence must be observed by the usufructuary?
Diligence of a good father of a family.
iii) Repairs
ARTICLE 592.
The usufructuary is obliged to make the ordinary repairs
needed by the thing given in usufruct.
By ordinary repairs are understood such as are required by the wear and tear
due to the natural use of the thing and are indispensable for its preservation.
Should the usufructuary fail to make them after demand by the owner, the
latter may make them at the expense of the usufructuary. (500)
ARTICLE 593.
Extraordinary repairs shall be at the expense of the owner.
The usufructuary is obliged to notify the owner when the need for such
repairs is urgent. (501)
ARTICLE 594.
If the owner should make the extraordinary repairs, he shall
have a right to demand of the usufructuary the legal interest on the amount
expended for the time that the usufruct lasts.
Should he not make them when they are indispensable for the preservation
of the thing, the usufructuary may make them; but he shall have a right to
demand of the owner, at the termination of the usufruct, the increase in value
which the immovable may have acquired by reason of the repairs. (502a)
191

ARTICLE 595.
The owner may construct any works and make any
improvements of which the immovable in usufruct is susceptible, or make
new plantings thereon if it be rural, provided that such acts do not cause a
diminution in the value of the usufruct or prejudice the right of the
usufructuary. (503)
Q: What is the rule with regard to ordinary expenses for repairs?
The usufructuary is responsible for ordinary repairs to offset ordinary wear and
tear of the property subject of the usufruct. Ordinary repairs must be because of
normal or natural use. It must be neede for preservation. The object of the
repairs mst have occurred during the usufruct and must have happened with or
without the fault of the usufructuary. If there is fault of the usufructuary, he
must pay indemnity.
Q: What is the rule on extraordinary expenses for repair?
Extraordinary repairs shall be at the expense of the owner.
1.) Those caused by natural use but not for preservation are borne by the owner.
2.) Those caused by abnormal/exceptional events and for preservation are
borne by the owner. If the usufructuary pays for them, he gets the increase in
value and the right of retention.
3.) Those caused by abnormal events and not for preservation are borne by the
owner. However, like #1, the usufrructuary cannot compel the owner to
undergo these extraordinary repairs.
Q: When can the usufructuary make extraordinary repairs?
When there is due notification of the owner of the urgency of the extraordinary
repairs and the owner failed to make them where the repair is for preservation,
the usufrfuctuary may make extraordinary repairs. He will be reimbursed by
the owner.
Q: What about useful or luxurious expenses?
Useful or luxurious expenses shall not give to the right of reimbursement but
they can be offset.
Q: What is the effect of an increase in the value of the usufruct?
The usufructuary profits since he will be entitled to the use and fruits of the
usufruct. He does not have to pay legal interest because this is voluntary on the
part of the owner.
iv) Charges & Taxes
ARTICLE 596.
The payment of annual charges and taxes and of those
considered as a lien on the fruits, shall be at the expense of the usufructuary
for all the time that the usufruct lasts. (504)
ARTICLE 597.
The taxes which, during the usufruct, may be imposed
directly on the capital, shall be at the expense of the owner.
If the latter has paid them, the usufructuary shall pay him the proper interest
on the sums which may have been paid in that character; and, if the said sums
have been advanced by the usufructuary, he shall recover the amount thereof
at the termination of the usufruct. (505)
ARTICLE 598.
If the usufruct be constituted on the whole of a patrimony,
and if at the time of its constitution the owner has debts, the provisions of
articles 758 and 759 relating to donations shall be applied, both with respect
to the maintenance of the usufruct and to the obligation of the usufructuary to
pay such debts.
The same rule shall be applied in case the owner is obliged, at the time the
usufruct is constituted, to make periodical payments, even if there should be
no known capital. (506)
ARTICLE 599.
The usufructuary may claim any matured credits which
form a part of the usufruct if he has given or gives the proper security. If he
has been excused from giving security or has not been able to give it, or if that
given is not sufficient, he shall need the authorization of the owner, or of the
court in default thereof, to collect such credits.
The usufructuary who has given security may use the capital he has collected
in any manner he may deem proper. The usufructuary who has not given
security shall invest the said capital at interest upon agreement with the
owner; in default of such agreement, with judicial authorization; and, in
every case, with security sufficient to preserve the integrity of the capital in
usufruct. (507)
ARTICLE 600.
The usufructuary of a mortgaged immovable shall not be
obliged to pay the debt for the security of which the mortgage was
constituted.
Should the immovable be attached or sold judicially for the payment of the
debt, the owner shall be liable to the usufructuary for whatever the latter may
lose by reason thereof. (509)
ARTICLE 601.
The usufructuary shall be obliged to notify the owner of
any act of a third person, of which he may have knowledge, that may be
prejudicial to the rights of ownership, and he shall be liable should he not do
so, for damages, as if they had been caused through his own fault. (511)
ARTICLE 602.
The expenses, costs and liabilities in suits brought with
regard to the usufruct shall be borne by the usufructuary. (512)
Q: Who pays for the charges and taxes on the fruits?
192

The usfrructuary except when there is a contrary agreement with the owner.
Q: Who pays for the taxes on the property itself?
The owner pays except when there is a contrary agreement with the
usufructuary. If these is advance by the usufructuary, he should be reimbursed
without legal interest and with the right of retention.
v)
Insurance
ARTICLE 608.
If the usufructuary shares with the owner the insurance of
the tenement given in usufruct, the former shall, in case of loss, continue in
the enjoyment of the new building, should one be constructed, or shall
receive the interest on the insurance indemnity if the owner does not wish to
rebuild.
Should the usufructuary have refused to contribute to the insurance, the
owner insuring the tenement alone, the latter shall receive the full amount of
the insurance indemnity in case of loss, saving always the right granted to the
usufructuary in the preceding article. (518a)
Q: What is the effect of destruction by accident or destruction by fortuitous
event?
The usufructuary has no liability. After the accident or fortuitous event, the
usufruct may continue if it is rebuilt upon the insurance. If it is not rebuilt, the
usufructuary may collect on the insurance interests. If the usufructuary did not
share in the payment of insurance premiums, the usufructuary merely gets
interests on the insurance while the usufruct ends.
NOTE:
1.) There is no obligation to insure, but it is for the interest of both parties to
have the property insured.
2.) If both shared in the insurance, the usufruct continues if the property is lost
and rebuilt, If not rebuilt, the usufructuary is entitled to the interest on the land
from the insurance indemnity and the remaining materials.
3.) If only the owner pays for the insurance, the usufruct does not continue if the
property is lost and rebuilt. The usufructuary is only entitled to the use of the
land and the remaining materials but the owner may pay the interest
corresponding to the value of such things.
6.
Termination of Usufruct
ARTICLE 603.
Usufruct is extinguished:
(1)
By the death of the usufructuary, unless a contrary intention clearly
appears; acd
(2)
By the expiration of the period for which it was constituted, or by the
fulfillment of any resolutory condition provided in the title creating the
usufruct;
(3)
By merger of the usufruct and ownership in the same person;
(4)
By renunciation of the usufructuary;
(5)
By the total loss of the thing in usufruct;
(6)
By the termination of the right of the person constituting the
usufruct;
(7)
By prescription. (513a)
ARTICLE 604.
If the thing given in usufruct should be lost only in part, the
right shall continue on the remaining part. (514)
ARTICLE 605.
Usufruct cannot be constituted in favor of a town,
corporation, or association for more than fifty years. If it has been constituted,
and before the expiration of such period the town is abandoned, or the
corporation or association is dissolved, the usufruct shall be extinguished by
reason thereof. (515a)
ARTICLE 606.
A usufruct granted for the time that may elapse before a
third person attains a certain age, shall subsist for the number of years
specified, even if the third person should die before the period expires,
unless such usufruct has been expressly granted only in consideration of the
existence of such person. (516)
ARTICLE 607.
If the usufruct is constituted on immovable property of
which a building forms part, and the latter should be destroyed in any
manner whatsoever, the usufructuary shall have a right to make use of the
land and the materials.
The same rule shall be applied if the usufruct is constituted on a building
only and the same should be destroyed. But in such a case, if the owner
should wish to construct another building, he shall have a right to occupy the
land and to make use of the materials, being obliged to pay to the
usufructuary, during the continuance of the usufruct, the interest upon the
sum equivalent to the value of the land and of the materials. (517)
ARTICLE 608.
If the usufructuary shares with the owner the insurance of
the tenement given in usufruct, the former shall, in case of loss, continue in
the enjoyment of the new building, should one be constructed, or shall
receive the interest on the insurance indemnity if the owner does not wish to
rebuild.
Should the usufructuary have refused to contribute to the insurance, the
owner insuring the tenement alone, the latter shall receive the full amount of
the insurance indemnity in case of loss, saving always the right granted to the
usufructuary in the preceding article. (518a)
193

ARTICLE 609.
Should the thing in usufruct be expropriated for public use,
the owner shall be obliged either to replace it with another thing of the same
value and of similar conditions, or to pay the usufructuary the legal interest
on the amount of the indemnity for the whole period of the usufruct. If the
owner chooses the latter alternative, he shall give security for the payment of
the interest. (519)
ARTICLE 610.
A usufruct is not extinguished by bad use of the thing in
usufruct; but if the abuse should cause considerable injury to the owner, the
latter may demand that the thing be delivered to him, binding himself to pay
annually to the usufructuary the net proceeds of the same, after deducting the
expenses and the compensation which may be allowed him for its
administration. (520)
ARTICLE 611.
A usufruct constituted in favor of several persons living at
the time of its constitution shall not be extinguished until the death of the last
survivor. (521)
ARTICLE 612.
Upon the termination of the usufruct, the thing in usufruct
shall be delivered to the owner, without prejudice to the right of retention
pertaining to the usufructuary or his heirs for taxes and extraordinary
expenses which should be reimbursed. After the delivery has been made, the
security or mortgage shall be cancelled. (522a)
Q: Death formally ends the usufruct. Any exceptions?
1.) In the case of multiple usufructs, it ends on the death of the last
usufructuary.
2.) A period is fixed based on the number of years that would lapse before a
person would reach a certain age.
o except if the period is in consideration of the existence of such person;
so if he dies, the usufruct ends.
3.) Death of the owner does not extinguish the usufruct.
Q: What are the limits on termination by the expiration of a period?
If the usufruct is on real property or real right on real property, the period must
be recorded to bind third persons. The term should not exceed 50 years if the
usufructuary is a juridical person. Premature abandonment or dissolution
extinguishes the usufruct.
Q: In what form must the renunciation come to terminate the usufruct?
Renunciation must be voluntary.
Q: Should loss be total to terminate a usufruct?
Yes. An alternative is that the object of the usufruct must go out of commerce.
Q: Illustrate termination by the termination of the right of the person
constituting the usufruct?
If the owner is defeated in a reivindicatoria case, or otherwise ejected, the
usufruct constituted ends. This also applies in case of a pacto de retro sale when
the property was redeemed.
Q: What are the rules on prescription to terminate a usufruct?
1.) Acquisitive prescription by a stranger on the usufruct or on the ownership
terminates the usufruct.
2.) The usufrfuctuary becomes a stranger and prescription may start running if
he renounces his right of usufruct. In this case, prescription is with bad faith
period is 8 or 30 years.
3. Mere non-user does not terminate the usufruct unless it is also a renunciation.
Q: What are the other causes of termination?
1.) annulment
2.) rescission
3.) mutual withdrawal
4.) reaching of the legal age in case of a legal usufruct over the properties of the
minor child
Q: What is the obligation of the usufructuary at the end of the usufruct?
The usufructuary must return the property. However, he has a right of retention
for reimbursement of taxes on the capital, increase in value due to
improvements and extraordinary repairs and expenses. He has the right to
remove improvements made or set them off against damages that he ma have
caused.
Q: What are the obligations of the owner?
He must cancel or foreclose the security or bond or mortgage in the proper case.
In cases of rural leases, he must let the usufructuary stay until the agricultural
year.
He also has the duty to make the necessary reimbursements to the
usufructuaries in the proper cases.
G. Easements
Art. 613. An easement or servitude is an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to a different
owner.
194

The immovable in favor of which the easement is established is called the

dominant estate; that which is subject thereto, the servient estate.
Q: What is a servient estate?

It is the property subject to the easement
Art. 614. Servitudes may also be established for the benefit of the
community, or of one or more persons to whom the encumbered estate does
not belong.
Q: On what kind of property may an easement be constituted?

An easement may be constituted only on immovable property. But not all
immovable properties may be subject to easement. It only applies to land and
other immovables which are attached by incorporation to the land.
Q: Define easement.
An easement is an encumbrance imposed upon an immovable for the benefit of
a community or one or more persons or for the benefit of another immovable
belonging to a different owner
Q: What is the nature of an easement?
It is an encumbrance which limits the right of ownership. Ordinarily, an owner
has free and absolute use of his property to the exclusion of others. But if an
easement is constituted over such property, the owner is obliged to permit other
persons to use or to derive other benefits from such property.
Q: What are the characteristics of easements?
1. It is a real right
2. It is a right imposable only on anothers property. There can be no true
easement on ones own property. The merger in the same person of
the ownership of the dominant and servient estate extinguishes the
easement
3. It is a limitation or encumbrance on the servient estatefor anothers
benefit. It is essential that there be a benefit otherwise there would be
no easement. But it is not essential that the benefit is exercised. What
is vital is that it can be exercised
4. It is a right constituted over an immovable. There can be no easement
on personal property
5. It is inseparable from the land
6. It is indivisible (Art. 167)
7. It is intransmissible (unless the tenement affected be also transmitted
or alienated
8. It is perpetual
Q: May an easement be constituted on property of public dominion?

No. An easement may not be established on things which are outside the
commerce of man because these are inalienable.
Q: May an easement be constituted on another easement? No.
Q: What is the meaning of easement being a real right on property?
It means that the easement attached to the immovable whoever is the owner or
possessor of said property. The change of ownership will not affect the
easement. Thus, if the dominant estate is sold to another person, the new owner
may also be avail of the easement, unless the transfer or ownership creates a
merger between the owner of the dominant estate and the servient estate, in
which case, the easement is extinguished.
Q: May the government compel PLDT for it to enter into a contract with the
former?
No, but the Republic may in the exercise of eminent domain require PLDT to
permit interconnection between the government telephone system and PLDT
subject to the payment of just compensation. There is no reason why eminent
domain cannot be used merely to impose a burden or encumbrance upon
condemned property. (Republic v. PLDT, L-18841, Jan. 27, 1989)
Kinds of Easements
Q: Who may become beneficiaries of an easement?

It can be either:
a. another immovable (real easement), or
b. another person or community (personal easement)
Art. 615. Easements may be continuous or discontinuous, apparent or

nonapparent.
Continuous easements are those the use of which is or may be
incessant, without the intervention of any act of man.
Discontinuous easements are those which are used at intervals and
depend upon the acts of man.
Apparent easements are those which are made known and are
continually kept in view by external signs that reveal the use and enjoyment
of the same.
Q: What is a dominant estate?

It is the property in whose favor the easement is established
Nonapparent easements are those which show no external indication of their

existence.
195

Art. 616. Easements are also positive or negative.

A positive easement is one which imposes upon the owner of the
servient estate the obligation of allowing something to be done or of doing it
himself, and a negative easement, that which prohibits the owner of the
servient estate from doing something which he could lawfully do if the
easement did not exist.
Q: What are the different classification of easements?
1. As to recipient of benefit:
a. real when the easement is in favor of another immovable
b. personal when the easement is in favor of a community, or
of one or more persons to whom the encumbered estate does
not belong
2. As to source:
a. legal if established by law for public use or for the interest of
private persons
b. voluntary if established by the will of the owners
3. As to its exercise:
a. continuous those the use of which is incessant without the
intervention of any act of man (e.g., drainage, aqueduct)
discontinuous those which are used at intervals and depend
upon the acts of man
(e.g., row)
b. apparent those which are made known and are continually
kept in view of the external signs that reveal the use and
enjoyment of the same
non-apparent those which show no external signs indicating
their existence
c. positive those which impose upon the owner of the servient
estate from doing something which could lawfully do if the
easement did not exist
Q: Give an example of a continuous easement
The easement of drainage, right to support a beam on anothers wall, easement
of aqueduct
Q: Give an example of a discontinuous easement
The easement of right of way
Q: Give an example of an apparent easement
A right of way with an alley or visible path, dam, window in a party wall visible
to both owners
Q: Give an example of non-apparent easement

In general, negative negative easements, easement of not building more than a
certain height, easement of lateral and subjacent support, easement of
intermediate distances
Q: Given an example of positive easements
An easement of light and view in a party wall, right of way, duty to cut off tree
branches extending over the neighboring estates
Q: Give an example of a negative easement
Easement of light and view when the window or opening is ones own wall or
estate.
Q: What is the importance of determining whether an easement is continuous
or discontinuous, apparent or non-apparent?
It is important to determine how the easement may be acquired (see Arts. 620
and 622)
Continuous and non-apparent acquired only by virtue of title
Discontinuous cannot be acquired by prescription, only by title
Continuous and apparent can be acquired by title and prescription
Q: A alleged that he had been in the continuous use of a passageway traversing
the land f B in going to a street and the marketplace from his residential lot and
back for more than 20 years. B started constructing a chapel in the midway of
said passageway. He further fenced the way with a barbed wire thus closing it.
Can A acquire the easement by prescription?
No, because the use of easement is discontinuous since the passageway could be
used at intervals (Ronquilllo v Roco, L-10619, Feb. 28, 1958)
Easement of right of way is a discontinuous easement, thus, it cannot be
acquired by prescription
Q: Is the easement of light and view positive or negative?
It depends. If it is made on ones wall and the wall does not extend over to the
neighbors land, the easement is negative. A prohibition is required. If it is
made on ones own wall which extends over to the neighboring land (invading
its atmospheric area) or if made on a party wall, the easement is created because
of sufferance or allowance, the easement is positive
Characteristics of Easements
Q: What are the characteristics of easements?
196

a.
b.
c.
d.
Permanence
Inseparability
Indivisibility
Perpetuity
A. Permanence
Q: What is the meaning of permanence?
It means that once an easement is established, it continues even if it is not
actually used. For example: when the right of way is established, even if the
beneficiaries of the easement do not actually pass on the road or path, it will
continue permanently unless legally extinguished by any of the modes of
extinguishing an easement.
B.
Inseparability
Art. 618. Easements are indivisible. If the servient estate is divided between two
or more persons, the easement is not modified, and each of them must bear it on
the part which corresponds to him.
If it is the dominant estate that is divided between two or more persons, each of
them may use the easement in its entirety, without changing the place of its use,
or making it more burdensome in any other way.
Q: What is the meaning of indivisibility of easements?
It means that partition of division of an estate does not divide the easement.
The easement continues to be complete in that each of the dominant estates can
exercise the whole easement over each of the servient estates.
Example: The servient estate was divided into 2
servient
Art. 617. Easements are inseparable from the estate to which they actively or
passively belong.
Q: What is the meaning of inseparability?
It means that easements do not exist independently of the immovable to which
they actively or passively belong. They are merely accessory to the tenements.
However, this does not mean that they do not have a juridical existence of their
own
Q: What are the consequences of inseparability?
1. Easements cannot be sold or donated or mortgaged independently of
the real property to which they may be attached
2. Registration of the dominant estate under the Torrens system without
the registration of the voluntary easements in its favor, does not
extinguish the easements; but registration of the servient estate without
registration of the easements burdening it extinguishes said voluntary
easements.
Note that the procedure for original registration of land requires publication.
Thus, the owner of the dominant estate is deemed to have knowledge of the
registration proceedings. If the owner of the servient estate applies for
registration, the owner of the dominant estate may oppose such proceedings if
the land is registered free from any encumbrance. If he does not oppose such
registration, the easement will be extinguished
dominant
public
highway
Right of way
Originally, the servient estate consisted of the whole shaded area. When A & B
partitioned the estate (broken line), the right of way was pleaded in Bs Land. In
this case, B alone shall suffer the consequences of easement.
servient
public
highway
dominant
Right of Way
Indivisibility
197

Same facts as above, but in this case, the burden shall be proportionately shared
by A and B.
servient
dominant
public
highway
B
Right of Way
Originally, the dominant estate consisted of the whole shaded area. A, B and C
divided the estate into 3. In this case, the partition of the dominant estate will
not affect the easement. A, B and C may each use the entire easement.
Q: Give an example of indivisibility of easements?
Hacienda Rocsell, the dominant estate, is divided into 3, with owners Abby,
Marife, and Portia having determinate parts thereof. Each of the 3 may use the
easement of right of way provided that the burden is not increased.
Art. 619. Easements are established either by law or by the will of the
owners. The former are called legal and the latter voluntary easements.
Modes of Acquiring Easements
Art. 620. Continuous and apparent easements are acquired either by virtue of
a title or by prescription of ten years.
Art. 621. In order to acquire by prescription the easements referred to in the
preceding article, the time of possession shall be computed thus: in positive
easements, from the day on which the owner of the dominant estate, or the
person who may have made use of the easement, commenced to exercise it
upon the servient estate; and in negative easements, from the day on which
the owner of the dominant estate forbade, by an instrument acknowledged
before a notary public, the owner of the servient estate, from executing an act
which would be lawful without the easement.
Art. 622. Continuous nonapparent easements, and discontinuous ones,
whether apparent or not, may be acquired only by virtue of a title.
Q: What are the modes of acquiring easements?

a. by title
b. by prescription
Q: How are easements acquired?
1. If continuous and apparent by title or by prescription
2. if discontinuous and apparent by title
3. if continuous and non-apparent by title
4. if discontinuous and non-apparent by title
Q: What does title mean?
It means a juridical act or law sufficient to create the encumbrance. It does not
necessarily refer to a document.
Q: May an easement acquired by title be lost?
Yes, but it may be lost only in accordance with the terms and conditions of the
contractual agreement. So, for example if the contract creating the easement
provides that the easement shall be perpetual, it will not be extinguished
through non-use.
Q: What is the meaning of prescription as used in easements?
Article 620 provides for a special case of prescription with a period of 10 years.
The general rules for acquisitive prescription of ownership and other real rights
do not apply to easements. Prescription under Art. 620 does not require good
faith or just title on the part of the possessor (dominant estate). Adverse
possession, however, is required (i.e., possession of the easement has to be in the
concept of owner, peaceful and uninterrupted.
Q: What kind of easement may be acquired by prescription?
Only apparent and continuous easements may be acquired by prescription
Example: Downward flow of water. The elevation of Xs property is higher
than that of Y, so that water from Xs property flows down to Ys estate. If Y
does not prevent the water coming from Xs land from flowing into his
property, X will acquire the easement by prescription after 10 years.
Q: When should one begin counting the prescriptive period for the acquisition
of the easement?
If easement is positive, begin counting the period from the day the dominant
estate began to exercise it. If the easement is negative, begin counting from the
time the notarial prohibition was made on the servient estate. If easement is
non-apparent, it is usually acquired not through prescription but through title.
198

Q: Who makes the notarial prohibition or who should commence the exercise of
the easement?
The dominant estate, through its owner, usufructuary, possessor or legal
representative; in other words, any one who desires to establish the easement.
Q: Give an example of article 621.
Mon and Ceevee are neighbors and they own a party wall. If Mon makes an
opening or window in the party wall in 1986, Ceevee can close it anytime before
1996. Because if by that tiem the window is still open, Mon had already
acquired the easement of light and view by prescription of 10 years counted
from the opening of the window since this is a positive easement.
This article refers onloyh to continuous non-apparent and discontinuous

(whether apparent or not) easements.
Q: Is a written document necessary to prove title to the easement?
No, as long as one ca prove the juridical act which created the easement. An
easement may be acquired through an oral contract. The absence of a written
document does not necessarily mean that no easement exists.
Q: How may proof of the existence of the easement be given?
Proof may be (1) by deed or recognition by the servient owner
(2) by final judgment
Q: Another example?
Happy and Marvin are neighbors. On his building wall, Happy opened a
window beneath the ceiling joists to admit light in 1986. Even after 10 years
(1996), Marvin may still obstruct the light by constructing on his own lot a
building higher than Happys unless Happy makes a notarial prohibition
prohibiting Marvin from making the obstruction. (The easement being
negative, Happy is required to make a notarial prohibition in order to acquire
the easement by prescription).
Art. 624. The existence of an apparent sign of easement between two estates,
established or maintained by the owner of both, shall be considered, should
either of them be alienated, as a title in order that the easement may continue
actively and passively, unless, at the time the ownership of the two estates is
divided, the contrary should be provided in the title of conveyance of either
of them, or the sign aforesaid should be removed before the execution of the
deed. This provision shall also apply in case of the division of a thing owned
in common by two or more persons.
Q: May an easement acquired by prescription be lost? Yes, by non-use for a

period of 10 years.
Q: What do you mean by sign of easement?

Sign of easement means an outward indication that the easement exists. It
does not mean a placard or a sign post. For example, a road showing right of
way, or the existence of windows showing a right to light or view, or a right not
to have others construct taller structures that would obstruct said light and
view.
Q: When does the 10 year period for purpose of losing the easement begin?
If the easement is discontinuous it starts from the time the dominant estate
ceases to use the easement. Thus, in an easement of right of way, the
prescriptive period begins to run from the time the dominant owner stops
passing through the road used as right of way.
If the easement is continuous, the period starts from the time the owner of the
servient estate performs an act contrary to the easement. For example: X the
owner of the servient estate, is prohibited form building a structure higher than
4 stories. If X adds a 5th floor to his building, the owner of the dominant estate,
Y, may compel the demolition of the additional storey. If he does not do so
within 10 years form the time the additional storey was constructed, the
easement will be lost through prescription.
Art. 623. The absence of a document or proof showing the origin of an
easement which cannot be acquired by prescription may be cured by a deed
of recognition by the owner of the servient estate or by a final judgment.
Q: What kinds of easements do this article refer to?
Q: A sold to B a parcel of land which adjoins that of C on the bank of Pampanga

River. When A sold it to B, the land was irrigated by water from the Pampanga
River through a canal about 70 meters long, traversing Cs land. Subsequently,
C leveled a portion of the irrigation canal depriving B of the irrigation water and
preventing him from cultivating his land. Who will win in a suit between B and
C?
B will win. The existence of the irrigation canal on Cs land for the passage of
water from Pampanga River to As land prior to and at the time of the sale of
As land to B was equivalent to a title for the vendee of the land to continue
using it as provided in Article 624 of the Civil Code. The deed of sale in favor of
B included the conveyance and transfer of the water rights and improvements
appurtenant to As property. As an easement of waters in favor of B has been
established, he is entitled to enjoy it free from obstruction, or disturbance such
as Cs acct of leveling the irrigation canal to deprive him of the use of water
from the Pampanga River. (Valisno v Adriano, GR No. 337409, May 23, 1998)
199

b.
Q: When is there no easement after alienation of either or both of the estates?

1. When the title of conveyance so provides, even if the sign continues to
remain
2. When the sign is removed or if there is an agreement to this effect
Q: D, owner of a house and a warehouse gave via a will the house to E and the
warehouse to F. The house had 4 windows, receiving light from the land on
which the warehouse was situated. When D did, nothing was done about the
windows and F did not make any objection. When F sold the warehouse and
lot to G, who then destroyed the warehouse and built a 2-storey house, did Es
house acquire the easement of light and view
Yes, because upon Ds death, F did not object to the continued existence of the
windows. The existence of this apparent sign under Article 624 is equivalent to
title, it is as if there is an implied contract between the 2 new owners that the
easement should be constituted. The easement of light and view and with it,
that non-building of a higher structure was constituted at the time of the death
of the original owner of both properties (Amor v Florentino, 74 Phil 404)
Q; C was the owner of a big parcel of land. On the southern portion of the lot
was a house with doors and windows overlooking the northern portion of the
lot on which a small house was standing. C subdivided the lot into 2. She sold
the southern portion to D and the northern portion to E. E demolished the small
house and obtained permission to construct a 4-storey building which would
thus obstruct Richards view. Can Richard file an action to enjoin Ric from
constructing his building unless it is at a distance of not less than 3 meters from
the boundary line?
Yes. According to the Civil Code, the existence of an apparent sign of an
easement between 2 estates established or maintained by the owner or both
shall be considered, should either of them be alienated, as a title in order that
the easement may continue actively and passively, unless, at the time the
ownership of 2 estates is divided, the contrary should be provided in the title of
conveyance of either of them or the sign should be removed before the
execution of the deed. In this case, the apparent sign of the existence of the
easement is indicated by the doors and windows of the house in the southern
portion overlooking the northern portion. This sign was established by the
original owner. (Gargantos v. Tan Yanon, 108 Phil 888)
Q: When does Art. 624 apply?
Article 624 is applicable when:
a. whether only one or both estates are alienated
even if there be only one estate but there are 2 portions thereof, as long
as later on, there is a division of the ownership of said portion
c. even in the case of division of common property
However, this article does not apply in case both estates or both portions are
alienated to the same owner because there would be no true easement unless
there is further alienation to different owners.
Rights and obligations of the dominant and servient estates
Art. 625. Upon the establishment of an easement, all the rights necessary for
its use are considered granted.
Art. 626. The owner of the dominant estate cannot use the easement except for
the benefit of the immovable originally contemplated. Neither can he exercise
the easement in any other manner than that previously established.
Art. 627. The owner of the dominant estate may make, at his own expense, on
the servient state any works necessary for the use and preservation of the
servitude, but without altering it or rendering it more burdensome.
For this purpose he shall notify the owner of the servient estate, and shall
choose the most convenient time and manner so as to cause the least
inconvenience to the owner of the servient estate.
Art. 628. Should there be several dominant estates, the owners of all of them
shall be obliged to contribute to the expenses referred to in the preceding
article, in proportion to the benefits which each may derive from the work.
Any one who does not wish to contribute may exempt himself by renouncing
the easement for the benefit of the others.
If the owner of the servient estate should make use of the easement
in any manner whatsoever, he shall also be obliged to contribute to the
expenses in the proportion stated, saving an agreement to the contrary.
Art. 629. The owner of the servient estate cannot impair, in any manner
whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or of the
manner established for the use of the easement, the same should become very
inconvenient to the owner of the servient estate, or should prevent him from
making any important works, repairs or improvements thereon, it may be
changed at his expense, provided he offers another place or manner equally
convenient and in such a way that no injury is caused thereby to the owner of
the dominant estate or to those who may have a right to the use of the
easement.
200

Art. 630. The owner of the servient estate retains the ownership of the portion
on which the easement is established, and may use the same in such a manner
as not to affect the exercise of the easement
Q: What are the rights of the dominant estate?
1. To exercise the easement and all necessary rights for its limited use
including accessory easement (Art. 625)
2. To make on the servient estate all works necessary for the use and
preservation of the servitude, but:
a. this must be at his own expense
b. he must notify the servient owner
c. select a convenient time and manner
d. he must not alter the easement or render it more burdensome
3. To ask for a mandatory injunction to prevent impairment or
obstruction in the exercise of the easement as when the owner of the
servient estate obstructs the right of way by building a wall or fence
4. To renounce totally the easement if he desire exemption from
contribution to expenses (Art. 628)
Q: What are the obligations of the dominant estate?
1. He cannot alter the easement (Art. 627)
2. He cannot make it more burdensome (Art. 627)
a. He cannot use the easement except for movable originally
contemplated (Art. 626)
b. In the easement of right of way, he cannot increase the agreed
width of the path, nor deposit soil or materials outside of the
boundaries agreed upon. But he may allow others to use the path
except if the contrary has been stipulated
3. If there be several dominant estates, each must contribute to the
necessary repairs and expenses in proportion to the benefits received
by each estate
4. Regarding the making or repairs, see limitations in number 2 of the
preceding answer
Q: What are the rights of the servient estate?
1. To retain ownership and possession of the portion of his land affected
by the easement (Art. 630) Even if indemnity for the right is given
unless the contrary has been stipulated.
2. To make use of the easement unless deprived by stipulation provided
that the exercise of the easement is not adversely affected (Art. 630)
and provided further that he contributes to the expenses in proportion
to the benefits received, unless there is contrary stipulation (Art. 628
par. 2)
3.
To change the location of a very inconvenient easement provided that

an equally convenient substitute is made, without injury to the
dominant estate (Art. 629 par. 2)
Q: What are the obligations of the servient estate?

1. He cannot impair the use of the easement
2. He must contribute to the expenses in case he uses the easement,
unless there is a contrary stipulation.
3. In case of impairment, to restore conditions to the status quo at his
expense plus damages
4. To pay for the expenses incurred for the change of location or form of
easement
Q: What are included in necessary rights?
Necessary rights include repair, maintenance, accessory easements such as right
of way of the easement is for drawing of water
Q: How should the owner of the dominant estate use the easement?
If the easement was established without any specific purpose, the owner of the
dominant estate may use it for all the needs of the dominant estate. It may be
adopted to any new modification in the tenement itself. For example: an
easement of light and view, established without a restriction for a dwelling
house, can continue to be used even if the house is used for commercial
purposes
If the easement was established for a specific purpose, the owner of the
dominant estate may not use it for a different purpose
Q: L, owner of a sugar central, entered into a contract with several sugar
planters, whereby, she was given a right to construct a railroad passing through
the estates of the latter. It was agreed that such railroad shall be used for
transporting sugar canes to be milled in Ls sugar central. Although only sugar
canes belonging to the servient estates were transported when the railroad
commenced operating, subsequently, even sugar canes belonging to other
planters were transported. Is there now a change in the exercise of easement?
None, because in the title constituting the easement, there is no limitation with
respect to the quantity or ownership of the sugar canes to be transported
(Valderama v Negros North Sugar Co., 48 Phil 492). It would be different if
there is an agreement that only sugar canes belonging to the owners of the
servient estate shall be transported. In such case, there would be a change in the
sense that easement is now being used for the benefit of persons other than the
originally contemplated.
201

Modes of Extinguishment of Easements

Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the dominant
and servient estates;
(2) By nonuser for ten years; with respect to discontinuous
easements, this period shall be computed from the day on which they ceased
to be used; and, with respect to continuous easements, from the day on which
an act contrary to the same took place;
(3) When either or both of the estates fall into such condition that the
easement cannot be used; but it shall revive if the subsequent condition of
the estates or either of them should again permit its use, unless when the use
becomes possible, sufficient time for prescription has elapsed, in accordance
with the provisions of the preceding number;
(4) By the expiration of the term or the fulfillment of the condition, if
the easement is temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the
dominant and servient estates.
Par. 6 this is voluntary redemption, existing because of an express stipulation,

the stipulation may provide for conditions under which the easement would be
extinguished.
Q:
1.
2.
3.
4.
5.
6.
7.
What are the other causes of extinguishment of easement?

Expropriation of the servient estate
Permanent impossibility to make use of the easement
Annulment, rescission or cancellation of the title that constituted the
easement
Abandonment of the servient estate
Dissolution of the right of the grantor to create the easement
Registration of the servient estate as free, that is, although the servient
estate was registered under the Torrens system, the easement thereon was
not registered, unless there is a stipulation or actual knowledge of the
existence of easement on the part of transferee
In the case of the legal easement of right of way, the opening of the
adequate outlet to the highway extinguishes the easement, if the servient
owner makes a demand for such extinguishment
Par. 1 Merger must be absolute, complete, and not temporary
Art. 632. The form or manner of using the easement may prescribe as the
easement itself, and in the same way.
Q: A, the dominant owner sold a retro his estate to B, the servient owner. Is the
easement extinguished?
No, it is only suspended because the merger is merely temporary. It is revived
when the property is redeemed.
Art. 633. If the dominant estate belongs to several persons in common, the use
of the easement by any one of them prevents prescription with respect to the
others.
Par. 2 Non-user refers to an easement that has once been used because one
cannot discontinue using what one has never used
Par. 3 this merely suspends the easement since the possibility of use revives
the easement
Par. 4 this refers to contractual easements voluntarily entered into by the
parties
Q: Give an example of Par. 4
An easement was agreed upon to last until the owner of the dominant estate
unless the owner of the dominant easement becomes a lawyer when the
condition is fulfilled, the easement ceases.
Par. 5 renunciation must be expressed, clear and specific (otherwise, it might
be confused with non-user)
Q: What is the effect on prescription of use by one co-owner of the dominant

estate?
The use benefits the other co-owners, hence, there will be no prescription even
with respect to their own shares
Q: What is the reason for non-application of prescription in the above case?
This is because easement is indivisible
Legal Easements
Art. 634. Easements imposed by law have for their object either public use or
the interest of private persons.
Q: What are legal easements?
Legal easements are those imposed by law and which have for their objective
either:
202

a.
b.
Public use (e.g., easement for drawing water for watering animals, or
The interest of private persons
Q: What are the different legal easements?

1. easements relating to water
2. right of way
3. party wall
4. light and view
5. drainage
6. intermediate distances
7. easement against nuisance
8. lateral and subjacent support
9. aerial navigation
Art. 635. All matters concerning easements established for public or
communal use shall be governed by the special laws and regulations relating
thereto, and, in the absence thereof, by the provisions of this Title.
Q: What law shall govern public easements?
Public easements shall be governed by special laws and regulations and the
Civil Code as supplement
Art. 636. Easements established by law in the interest of private persons or for
private use shall be governed by the provisions of this Title, without
prejudice to the provisions of general or local laws and ordinances for the
general welfare.
These easements may be modified by agreement of the interested
parties, whenever the law does not prohibit it or no injury is suffered by a
third person.
Q: What govern legal easements for private interest?
Legal easements for private interest are governed by the agreement of the
parties, provided such agreement is not prohibited by law nor prejudicial to a
3rd person. In the absence of an agreement between the parties, they shall be
governed by general or local laws and ordinances, and in default thereof, by the
Civil Code.
Easement relating to waters
Q: What are the legal easements relating to waters?
1. Natural drainage of lands
2. Natural drainage of buildings
3. Easement on riparian banks for navigation, floatage, fishing, salvage
4.
5.
6.
7.
easement of a dam
easement for drawing water or for watering animals
easement of aqueduct
easement for the construction of stop lock or sluice gate
Art. 637. Lower estates are obliged to receive the waters which naturally and
without the intervention of man descend from the higher estates, as well as
the stones or earth which they carry with them.
The owner of the lower estate cannot construct works which will
impede this easement; neither can the owner of the higher estate make works
which will increase the burden.
Q: What is meant by the legal easement of drainage of waters?
The easement of drainage of waters or natural easement of waters is the legal
easement which declares that the lower estate is obliged to receive the waters
which naturally and without intervention of man from the higher estate, as well
as the stones or earth which they carry with them. In such cases, the owner of
the lower estate cannot construct works which will impede this natural flow
unless it provides an alternative method of drainage; neither can the owner of
the higher estate make works which will increase the natural flow (Art. 50 of the
Water Code)
Q: In this article, which is the dominant estate and which is the servient estate?
The higher estate is the dominant estate, while the lower estate is the servient
estate
Q: What is the lower estate obliged to receive under this article?
The lower estate is obliged to receive:
a. water which naturally and without the intervention of man descends
from the higher estate, and stones and earth carried by the waters
Q: Suppose the owner of the higher estate and his friends have a picnic near the
river which flows naturally to the lower estate. After eating, they washed their
plates in the river and they let their trash go with the flow. Is the owner of the
lower estate obliged to receive the trash?
Yes, if they are mixed with the soil so that it would be very difficult to separate
the trash form the soil. In this case, the trash became part of the soil which the
lower estate is obliged to receive.
Q: What are the duties of the servient estate?
1. He cannot construct works that would impede the easement
2. He cannot enclose the land by ditches or fences which would impede
the flow.
203

3.
But he may regulate or control the descent of water
Q: May the owner of the servient estate construct a canal on his land?
Yes, because the canal merely regulates the flow of water, the owner of the
servient estate is allowed to regulate or control of the descent of the water
Q: What are the duties of the dominant estate?
1. He cannot make works which would increase the burden
2. He may construct works preventing erosion
3. He may demand compensation for his lost or damage if the descending
water are a result of artificial development or proceed from industrial
establishment recently set-up or are the overflow of irrigation dams
Q: Is the owner of the dominant estate obliged to indemnify the owner of the
servient estate?
No. This article does not speak of any indemnity, thus, no indemnity is
required as long as the conditions laid down in the article are complied with?
[Art. 638. The banks of rivers and streams, even in case they are of private
ownership, are subject throughout their entire length and within a zone of three
meters along their margins, to the easement of public use in the general interest
of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers are,
furthermore, subject to the easement of towpath for the exclusive service of river
navigation and floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid.]
*this has been amended by Article 51 of the Water Code
Q: What banks are included in this provision subject to easement?
Both private and state-owned banks of rivers
Q: What easement are established along the banks of rivers and streams and the
shore of the seas and lakes?
They are subject to the easement of public use in the interest of recreation,
navigation, floatage, fishing and salvage. On easement of tow-path for the
exclusive service of river navigation and floatage is also established on the
banks of navigable or floatable rivers.
Art. 639. Whenever for the diversion or taking of water from a river or brook,
or for the use of any other continuous or discontinuous stream, it should be
necessary to build a dam, and the person who is to construct it is not the
owner of the banks, or lands which must support it, he may establish the
easement of abutment of a dam, after payment of the proper indemnity.
Q: A wants to get water from the river but in order to do so, she must construct
a dam whose support will rest on the land of B. A must fist ask Bs permission
or request for administrative investigation to gind out whether the building of
the dam is essential. If neither permission or investigation is present and a dam
is constructed, what will be the consequences of As action?
Since As action is tantamount to the taking of property without due process of
law, the dam or construction can be considered as a private nuisance. Thus, B
may demolish the dam for construction.
Q: What is the servient estate in the easement of abutment of a dam?
The servient estate is that which is nearer to the water source or the estate where
the support rest
River
Dams support which rests
on Bs estate
Dam
As land
Bs land
Art. 640. Compulsory easements for drawing water or for watering animals
can be imposed only for reasons of public use in favor of a town or village,
after payment of the proper indemnity.
Art. 641. Easements for drawing water and for watering animals carry with
them the obligation of the owners of the servient estates to allow passage to
persons and animals to the place where such easements are to be used, and
the indemnity shall include this service.
Q: What are the requirements for the existence of easements for drawing or for
watering animals?
1. It must be for public use
2. It must be in favor of a town or village
3. The right must not be sought by one individual but by the town or
village through its legal representative
4. There must be payment of proper indemnity
204

5.
The right of way should have a maximum width of 10 meters which

cannot be altered by the owners of the servient estates
Art. 642. Any person who may wish to use upon his own estate any water of
which he can dispose shall have the right to make it flow through the
intervening estates, with the obligation to indemnify their owners, as well as
the owners of the lower estates upon which the waters may filter or descend.
Art. 643. One desiring to make use of the right granted in the preceding article
is obliged:
(1) To prove that he can dispose of the water and that it is sufficient
for the use for which it is intended;
(2) To show that the proposed right of way is the most convenient
and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations.
Art. 644. The easement of aqueduct for private interest cannot be imposed on
buildings, courtyards, annexes, or outhouses, or on orchards or gardens
already existing.
Art. 645. The easement of aqueduct does not prevent the owner of the servient
estate from closing or fencing it, or from building over the aqueduct in such
manner as not to cause the latter any damage, or render necessary repairs and
cleanings impossible.
Art. 646. For legal purposes, the easement of aqueduct shall be considered as
continuous and apparent, even though the flow of the water may not be
continuous, or its use depends upon the needs of the dominant estate, or
upon a schedule of alternate days or hours.
Q: What is an aqueduct? What is its purpose or importance?
An aqueduct is important to agriculture. It is presumed to be continuous and
apparent and thus subject to prescription
Q: What is meant by the legal easement of aqueducts?
The easement of aqueduct is the legal easement where any person who may
wish to use upon his own estate any water of which he can dispose shall have
the right to make it flow through intervening estates with the obligation to pay
indemnity to the owners, as well as the owners of the lower estates upon which
the waters may filter or descend. For legal purposes, this easement is
considered continuous and apparent
Q: What are the requisites to acquire the easement of aqueducts?

1. Indemnity must be paid to the owners of the estate where the water
shall flow
2. If for private interests, the easement cannot be imposed on existing
buildings, courtyards, annexes, out-houses, orchards or gardens
3. There must be proof:
a. that he can dispose of the water
b. that the water is sufficient for the use for which it is intended
c. that the proposed course is the most convenient and the least
onerous to third persons and the servient estate
d. that proper administrative permission be obtained (he must
secure a water right from the National Water Resource
Council as directed by the Water Code)
Q: Give an example of a construction over an aqueduct which would not cause
the servient owner by damage
A pipeline covered by earth
Q: May the owner of the servient estate over an aqueduct made of pipe?
Yes, because the servient owner may enclose or fence the servient estate, or even
build over the aqueduct, so long as no damage is caused or repairs and
cleanings do not become impossible.
____________________________
River
Pipeline
As Estate
Servient
Bs Estate
Dominant
Art. 647. One who for the purpose of irrigating or improving his estate, has to
construct a stop lock or sluice gate in the bed of the stream from which the
water is to be taken, may demand that the owners of the banks permit its
construction, after payment of damages, including those caused by the new
easement to such owners and to the other irrigators.
Q: What are the requisites for the construction of a stop lock or sluice gate?
1. the purpose must be for irrigation or improvement
2. the construction must be on the estate of another
3. damages must be paid
4. third persons should not be prejudiced
Art. 648. The establishment, extent, form and conditions of the servitudes of
waters, to which this section refers, shall be governed by the special laws
relating thereto insofar as no provision therefor is made in this Code.
205

Easement of Right of Way
Art. 649. The owner, or any person who by virtue of a real right may cultivate
or use any immovable, which is surrounded by other immovables pertaining
to other persons and without adequate outlet to a public highway, is entitled
to demand a right of way through the neighboring estates, after payment of
the proper indemnity.
Should this easement be established in such a manner that its use
may be continuous for all the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the
cultivation of the estate surrounded by others and for the gathering of its
crops through the servient estate without a permanent way, the indemnity
shall consist in the payment of the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the immovable is
due to the proprietor's own acts.
Art. 650. The easement of right of way shall be established at the point least
prejudicial to the servient estate, and, insofar as consistent with this rule,
where the distance from the dominant estate to a public highway may be the
shortest.
Q: What is the easement of right of way?
The easement of right of way is the easement or privilege by which one person
or a particular class of persons is allowed to pass over anothers land, usually
through a particular path or line
Q: What law shall govern the easement of right of way?
If it was contractual, the provisions of contract shall govern, otherwise the law
shall govern
Q: When can a legal easement of right of way be established?
A legal easement of right of way may be established if the owners of the
dominant estate has established the existence of the following requisites:
1. The estate is surrounded by other immovables and is without adequate
outlet to a public highway
2. After payment of proper indemnity
3. The isolation was not due to the proprietors own acts
4. The right of way claimed is at a point least prejudicial to the servient estate,
and is so far as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest
5. It is demandable only by the owner or one with a real right to the property
Q: What is the basis for demanding a right of way?

Necessity and not convenience
Q: Who may demand the easement of right of way?
All persons who, by virtue of a real right, may cultivate and use the tenement,
may demand a right of way. It is not limited to the owner of the dominant
estate. Even a usufructuary may demand it. A lessee, however, cannot demand
this right because his action should be against the lessor
Q: What is meant by proper indemnity?
1. If the easement is permanent and general in the sense that its use may be
continuous for all the needs of the dominant estate, the indemnity shall
consist of the value of the land occupied and the amount of the damage
caused to the servient estate
2. If the easement is permanent but not limited to the necessary passage for
the cultivation of the dominant estate, or if the easement is merely
temporary, the indemnity shall consist only in the payment of the damage
caused by such encumbrance
Q: What are the instances where indemnity is not required?
1. When a piece of land acquired by sale, exchange or partition is
surrounded by other estates of the vendor, exchange or co-owner. In
such case, he shall be obliged to grant a right of way without indemnity
(Art. 652)
2. When a piece of land acquired by donation surrounds the estate of the
donor or grantor. In such a case, the donee or grantee shall be obliged to
grant a right of way without indemnity (Art. 653) But if the land donated
that is surrounded by the estate of the donor or grantor, although the
latter is obliged to grant a right of way, he can demand the right of way,
he can demand the required indemnity (art. 652)
Q: May the owner of the dominant estate buy the land on which the easement
of right of way has been constituted?
Yes, but he cannot compel the owner of the servient estate to sell the entire land
to him
Q: RR owns a lot which he bought from Lombos Subd. The subdivision
provided a right of way units subdivision plan for the buyers of its lots. The
road lot, however, is still undeveloped and causes inconvenience to RR when he
uses it to reach the public highway. RR filed a complaint for an easement of
right of way through Gatchalian Ave. which is owned by Gatchalian realty. Is
he entitled to such easement?
206

No. Mere inconvenience for the dominant estate is not enough to serve as its
basis. To justify the imposition of this servitude, there must be real, not
fictitious or artificial necessity for it
the construction, even the alternative route was closed. Lopez et.al. filed a
complaint assailing the closure of the passageway. Did Lopez et.al. acquire an
easement of right of way in the form of a passageway on Costabellas property?
Q: Can A demand a right of way from Bs land?
No. An easement of right of way is discontinuous and as such cannot be

acquired by prescription, thus, no easement had been validly constituted over
Costabellas property. Moreover, the owner of the dominant estate may validly
claim a compulsory right of way only after he has satisfied the existence of four
requisites, to wit:
1. the dominant estate is surrounded by other immovables and is without
adequate outlet to the public highway
2. after payment of proper indemnity
3. the isolation was not due to the proprietors own acts
4. the right of way claimed is at a point least prejudicial to the servient estate
___________________________
highway
Bs land
As land
River
highway
It depends. If A can construct a right of way over a shallow river, then he need
not demand a right of way from Bs land
Q: What does highway in this case mean?
It can be a small street. It must be enough for ingress or egress
Q: By virtue of an agreement between D and G and several others, a right of
way traversing Ds land was granted to allow access to Howmart Road. When
G subdivided his land built a wall in between, there was a need to open a new
gate aside from the existing one to have access to Howmart Road. D protested
the opening of the new gate as it opened directly to his house, exposing them to
air and noise pollution. Does G have an easement of right of way?
No, G cannot assert a right of way when by his own voluntary act, he himself
caused the isolation of his property from the access road. The construction of a
wall between the two lots leaving only a small passageway between them is an
act imputable to G which precludes him form asserting a right of way. The
opening of a new gate would definitely be convenient to G but mere
convenience is not enough to serve as basis for the assertion of a right of way.
(Dionisio v. Ortiz, 204 SCRA 745)
Q: Lopex, et.al., in going to and from their respective properties and the
provincial road, have been passing through the land owned by Costabella Corp.
When Costabella commenced the construction of a resort hotel, the passageway
was closed and a new one was opened. However, during the second phase of
The burden of proving the existence of the foregoing pre-requisites lies on the
owner of the dominant estate. In this case, Lopez, et.al. failed to prove that
there is no adequate outlet from their respective properties to a public highway,
On the contrary, they affirmed that there is another outlet to the main road, but
it will cause them great inconvenience. In this connection, the SC held that the
convenience of the dominant estate is not the gauge for the grant of compulsory
right of way. The true standard for the legal right is adequacy. Hence, when
there is already an existing adequate outlet form the dominant estate to a public
highway, even if said outlet be inconvenient, the need to open up another
servitude is entirely unjustified. (Costabell Corp. v CA, 198 SCRA 333)
Art. 651. The width of the easement of right of way shall be that which is
sufficient for the needs of the dominant estate, and may accordingly be
changed from time to time.
Q: May the width of the easement be modified?
Yes. The width may be modified form time to time depending upon the needs
of the dominant estate
Q: A roadpath which has a width of about one meter was constructed to
provide E, owner of the dominant estate, access to the highway. He had been
using that roadpath for several years when he bought an owner-type jeep. As
the jeep could not pass through the roadpath, E requested S and R, owners of
the servient estate, to sell to him 1 meters of their property to be added to the
existing pathway so as to allow passage for his jeep. S and R turned down Es
request. Is E entitled to a widening of an already existing easement of right of
way?
207

Yes. According to Art. 651 of the Civil Code, the width of the easement of right
of way shall be that which is sufficient for the needs of the dominant estate, and
may accordingly be changed from time to time. In other words, it is the needs
of the dominant property which ultimately determine the width of the
passageway, and these needs vary from time to time (Encarnacion v CA, 195
SCRA 74)
Q: Illustration in cases of Sale
highway
As land
As land sold to B
Art. 652. Whenever a piece of land acquired by sale, exchange or partition, is

surrounded by other estates of the vendor, exchanger, or co-owner, he shall be
obliged to grant a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified by the
donee for the establishment of the right of way.
B: can demand a right of way

A: no longer entitled to indemnity. He should have considered the
fact that B needs a right of way (he also benefited form the sale)
highway
Art. 653. In the case of the preceding article, if it is the land of the grantor that
becomes isolated, he may demand a right of way after paying a indemnity.
However, the donor shall not be liable for indemnity.
Q: What are the rules if the grantors or grantees land is enclosed?
If the enclosure estate is that of the grantor, the grantee does not pay indemnity
for the easement, If the enclosed estate is that of the grantor, the grantor must
pay indemnity.
Q: A sold to B a parcel of land surrounded by other estates owned by A (Estate
1,2,3). A gave B an outlet through Estate 1 without indemnity since the
purchase price presumably included the right to the easement. Later, the outlet
through Estate 1, became useless because the highway to which it led was
closed. If B demands another outlet, is he allowed to get one? If so, must he
pay indemnity?
Yes, he can demand another outlet under Art. 649 and must therefore pay
indemnity. He cannot take advantage of Art. 652 because the necessity arose
not because of the sale but because of necessity itself.
Q: A owns 2 estates. He sold the one having access to the highway to B. Later,
he sold the second estate (without access) to C. So that in order for C to gain
access to the highway, he must pass through Bs land. Does C have to pay
indemnity to B?
Yes, because B did not sell the land to C, thus, Art. 652 would not apply.
As land sold to B
As land
A: may demand a right of way
B: entitled to indemnity from A because the latter has already profited
from the sale
Q: Illustrate in cases of donation
highway
As land
As land donated to B
B: can demand right of way
A: entitled to indemnity from B since A gave the land to B out of pure
liberality
highway
As land donate to B
As land
A: may demand a right of way
B: not entitled to indemnity from A due to the gratuitous nature of the
donation to B. A need not be further burdened by the donation he made
208

Art. 654. If the right of way is permanent, the necessary repairs shall be made
by the owner of the dominant estate. A proportionate share of the taxes shall
be reimbursed by said owner to the proprietor of the servient estate.
Q: What are the rules regarding the ownership, repair and taxes on the path?
The path belongs to the servient estate and so the servient owner pays all the
taxes but the dominant estate should pay for the repairs and the proportionate
share of taxes to the servient estate.
Article 655. If the right of way granted to a surround estate ceases to be
necessary because its owner has joined it to another abutting on a public
road, the owner of the servient estate may demand that the easement be
extinguished, returning what he may have received by way of indemnity. The
interest of the indemnity shall be deemed to be in payment of rent for the use
of the easement.
The same rule shall be applied in case a new road is opened giving
access to the isolated estate.
In both cases, the public highway must substantially meet the needs
of the dominant estate in order that the easement may be extinguished.
Q: What are the causes for extinguishment of the easement of right of way?
1. the opening of a new road
2. the joining of the dominant estate to another
Q: What is the effect upon the right of way if the owner of the dominant estate
had joined his estate to another abutting on a public road if the new road is
opened and giving it access?
So long as the public highway substantially meets the needs of the dominant
estate, the owner of the servient estate, if he so desires, may demand that the
easement be extinguished, provided that he must return what he may have
received by way of indemnity. In such case, the interest on the indemnity shall
be deemed to be in payment for the use of the easement.
Q: Is there automatic extinguishment?
NO. There must be a demand to extinguish the easement.
Q: What if the right of way has become permanent?
Then damages cannot be returned. Only the value of the land should be
returned.
Article 656. If it be indispensable for the construction, repair, improvement,
alteration or beautification of a building, to carry materials through the estate
of another, or to raise thereon scaffolding or other object necessary for the
work, the owner of such estate shall be obliged to permit the act, after
receiving payment of the proper indemnity for the damages caused him.
Article 657. Easements of the right of way for the passage of livestock known
as animal path, animal trail, or any other, and those for watering places,
resting places and animal folds, shall be governed by the ordinances and
regulations relating thereto, and in the absence thereof, by the usage and
customs of the place.
Without prejudice to rights legally acquired, the animal path shall
not exceed in any case the width of 75 meters, and the animal trail that of 37
meters and 50 centimeters.
Whenever it is necessary to establish a compulsory easement of right
of way or for a watering place for animals, the provisions of this section and
those of articles 640 and 641 shall be observed. In this case, the width shall
not exceed 10 meters.
Easement of Party Wall
Article 658. The easement of party wall shall be governed by the provisions of
this title, by the local ordinances and customs insofar as they do not conflict
with the same, and by the rules of co-ownership.
Q: In an easement of party wall, what estate is servient?
The party wall itself is servient. In determining the dominant and servient
estates we should always consider the definitions in Articles 613 and 614.
according to these articles, the immovable in favor of which the easement is
established is called the dominant estate; that which is subject thereto, the
servient estate. It is clear that an easement of party wall is established in favor of
the co-owners of the party wall, while the estate which is subject to the
encumbrance is the party wall itself.
Q: Why is the party wall under the law on easement instead of another the law
on co-ownership?
Strictly speaking, a party wall is a kind of co-ownership, as a consequence of
which the laws on co-ownership are applicable. However, it has a special
characteristic which distinguishes it from all other kinds of co-ownership. In
ordinary co-ownership, a co-owner cannot do anything on the property for his
exclusive benefit, because it would impair the rights of the other co-owners,
whereas in a party wall there is no such limitation. Thus, in the latter, the law
grants to the co-owners the right to make works on the wall for their exclusive
benefit. Such a grant can have only one possible basis and that would be a right
of easement (4 Manresa 62-763). Consequently, the subject of party walls has
been placed under the law on easement instead of under the law on coownership.
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Article 659. The existence of an easement of party wall is presumed, unless

there is a title, or exterior sign, or proof to the contrary:
(1) in dividing walls of adjoining buildings up to the point of
common elevation;
(2) in dividing walls of gardens or yards situated in cities, towns, or
in rural communities;
(3) in fences, walls and live hedges dividing rural lands.
Q: How may the presumption that a wall is a party wall be rebutted?
1. title to the contrary
2. exterior signs to the contrary
3. proof to the contrary
Q: What if there is a conflict between title and an exterior sign?
A title conferring ownership prevails over a mere exterior sign.
Article 660. It is understood that there is an exterior sign, contrary to the
easement of party wall:
(1) whenever in the dividing wall of buildings there is a window or
opening;
(2) whenever the dividing wall is, on one side, straight and plumb on all
its facement, and on the other, it has similar conditions on the upper
part, but the lower part slants or projects outward;
(3) whenever the entire wall is built within the boundaries of one of the
estates;
(4) whenever the dividing wall bears the burden of the binding beams,
floors and roof frame of one of the buildings, but not those of the
others;
(5) whenever the dividing wall between courtyards, gardens and
tenements is constructed in such a way that the coping sheds the
water upon only one of the estates;
(6) whenever the dividing wall, being built of masonry, has stepping
stones, which at certain intervals project from the surface on one side
only, but not for the other;
(7) whenever lands enclosed by fences or live hedges adjoin others
which are not enclosed.
In all these cases, the ownership of the walls, fences or hedges shall be
deemed to belong exclusively to the owner of the property or tenement which
has in its favor the presumption based on any one of these signs.
Q: What if there are conflicting exterior signs?
If one owner has signs in his favor, and some against him, they gradually cancel
each other unless it can be shown from the purpose of the wall that it had been
made for the exclusive benefit of one.
Article 664. Every owner may increase the height of the party wall, doing so at
his own expense and paying for any damage which may be caused by the
work, even though such damage be temporary.
The expenses of maintaining the wall in the part newly raised or
deepened at its foundation shall also be paid for by him; and in addition, the
indemnity for the increased expenses which may be necessary for the
preservation of the party wall by reason of the greater height or depth which
has been given it.
If the party wall cannot bear the increased height, the owner desiring
to raise it shall be obliged to reconstruct it at his own expense and, if for this
purpose it be necessary to make it thicker, he shall give the space required
from his own land.
Q: What must a party do if he desires to increase the height of the party wall?
1. must do so at his own expense
2. must pay the necessary damages caused, even if the damage be
temporary
3. must bear the costs of maintenance of the portion added
4. must pay for the increased cost of preservation
5. must reconstruct if original wall cannot bear the increased height
6. must give the additional space (land) necessary, if wall is to be
thickened
Article 665. The other owners who have not contributed in giving increased
height, depth or thickness to the wall may, nevertheless, acquire the right of
part-ownership therein, by paying proportionately the value of the work at
the time of the acquisition and of the land used for its increased thickness.
Q: What is the rule with regard to the ownership of the additions to the party
wall?
The owner who introduced the additions will enjoy exclusive enjoyment of the
additions but the other owners may acquire part-ownership by paying the value
of the additions at the time of acquisition.
Article 666. Every part-owner of a party wall may use it in proportion to the
right he may have in the co-ownership, without interfering with the common
and respective uses by the other co-owners.
Easement of Light and View
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Article 667. No part owner may, without the consent of others, open through
the party wall any window or aperture of any kind.
prohibiting her to obstruct the view. In 2007 may Carmela still set up an
obstruction?
Q: Give an example of Article 667.

Rommel and Jayson are co-owners of a party wall. Rommel cannot make an
opening on the wall without the permission of Jayson. If Rommel were to do
this without Jaysons consent, there is a distinct possibility that Rommel will
later claim the whole wall as his in view of the exterior sign. Moreover, it is as if
Rommel were allowed to use the whole thickness of the wall.
Yes, because although more than 10 years have elapsed since the opening of the
window, still less than 10 years have elapsed since the notarial prohibition.
Remember that what Jing is trying to obtain is a negative easement. Indeed, no
true easement has yet been acquired. There is no true servitude or easement so
long as the right to prevent its use exists.
Q: Suppose Rommel makes the opening without Jaysons consent, what will be
Jaysons right?
Jayson can order that the opening be closed unless of course sufficient time for
prescription has elapsed 10 years from the opening of the window.
Article 668. The period of prescription for the acquisition of an easement of
light and view shall be counted:
(1) From the time of the opening of the window, if it is through a party
wall; or
(2) From the time of the formal prohibition upon the proprietor of the
adjoining land or tenement, if the window is through a wall on the
dominant estate.
Q: When is easement of light and view positive and negative?
POSITIVE if the window is through a party wall. The period of prescription
commences from the time the window is opened.
Note: It should remain opened for the entire prescriptive period.
NEGATIVE if the window is through ones own wall, that is, through a wall of
the dominant estate. Prescription should begin from the time of notarial
prohibition upon the adjoining owner.
Q: Enzo and Chelo own a party wall. Enzo, without Chelos consent, made an
opening in the party wall on 18 May 2005. May Chelo still close the opening in
2006?
Yes, because no easement has yet been acquired by Enzo. (Article 668, par. 1)
Q: Can Chelo close the windows on 19 May 2015?
NO MORE, because more than 10 years have elapsed. Enzo has already
acquired the easement. (Article 668, par. 1 and Article 620)
Q: Jing and Carmela are adjoining owners. In late 1996, Jing made an opening in
her own wall. In 2001, Jing makes a formal notarial demand on Carmela,
Q: Mullah constructed a building on a residential lot belonging to him 1 meter

distant from the boundary line with Arnels lot. On the wall directly facing
Arnels lot, Mullah opened non-regulation windows to admit light into his
building with Arnels knowledge. 15 years after, Arnel constructed a high wall 1
meter distant from the boundary with Mullahs lot thus obstructing the light
entering into Mullahs building. Mullah sued for the demolition of Arnels wall
asserting a servitude not to build beyond a certain height (altus non tollendi) in
his favor acquired by prescription by reason of which Arnel cannot build the
wall. Will Mullahs action prosper? Reasons.
Mullahs action will NOT prosper for the following reasons:
1. Since the windows were made through a wall on the dominant estate
in order that Mullah can acquire an easement of light and view,
including the corollary right of altus non tollendi, by prescription, he
should have formally prohibited Arnel from obstructing his light and
view. This requirement which is stated in the 2nd paragraph of Article
668, merely means that the prohibition must be made in a public
instrument acknowledged before a notary public pursuant to Article
621. This is as it should be. Easements constitute a limitation of the
dominical right of the owner of the servient estate. It is clear that
Mullah has not complied with this requirement. Therefore, there is no
basis for his assertion that he has acquired the easement. (Cid vs.
Javier, 108 Phil 850)
2. Besides, and this is equally important, these are non-regulation
windows. In other words, they are 1 meter distant from the boundary
line separating the 2 estates, thus violating the rule prescribed by
Article 670 that no 2 windows which afford a direct view towards an
adjoining tenement can be made without leaving a distance of 2 meters
between the wall on which they are made and such contiguous
property. According to said article, non-observance of this distance
does not give rise to prescription.
Article 669. When the distances in Article 670 are not observed, the owner of a
wall which is not a party wall, adjoining a tenement or piece of land
belonging to another, can make in it openings to admit light at the height of
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the ceiling joints or immediately under the ceiling, and of the size of 30
centimeters square, and, in every case, with an iron grating imbedded in the
wall and with a wire screen.
Nevertheless, the owner of the tenement or property adjoining the
wall in which the openings are made can close them should he acquire partownership thereof, if there be no stipulation to the contrary.
He can also obstruct them by constructing a building on his land or
by raising a wall thereon contiguous to that having such openings, unless an
easement of light has been acquired.
Q: What are the restrictions with respect to restricted windows?
1. maximum size 30 cm
2. there must be an iron grating imbedded on the wall
3. there must be a wire screen
4. the opening must be at the height of the ceiling joists or immediately
under the ceiling
Note: There may be several openings provided the restrictions are complied
with for every opening. Moreover, there can be several openings in every floor
or story, for each floor or story has a ceiling.
Q: What is the rule when proper distances are observed?
When the distances are observed in Article 670, bigger or regular windows may
be opened without the restrictions.
Q: What are the sanctions in case of violations?
Marife has made restricted windows on her own wall for light. What can the
adjoining or abutting owner do?
1. he can obstruct the light
a. by constructing a higher building on his own land
b. or by raising a blocking wall
(unless easement of light has been acquired through the 10-year
prescriptive period after a notarial prohibition)
2.
If the wall becomes a party wall, the adjoining owner can close the
window, unless there is a stipulation to the contrary.
Article 670. No windows, apertures, balconies, or other similar projections

which afford a direct view upon or towards an adjoining land or tenement
can be made, without leaving a distance of two meters between the wall in
which they are made and such contiguous property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of 60 centimeters.
The non-observance of these distances does not give rise to

prescription.
Q: About 15 years ago, Buddy constructed a house on his lot in Quezon City
adjoining a lot owned by Gerry. He provided it with several windows
overlooking Gerrys lot half a meter away from the boundary line. A month ago,
Gerry brought an action against Buddy for the closure of the windows alleging
that they violate the law on distances.
1) Has Buddy acquired an easement of light and view by prescription?
NO. In the first place, there was no formal prohibition as required by law. This
should have been done by means of an instrument acknowledged before a
notary public wherein he should have prohibited Gerry from obstructing his
light and view. He did not. In the second place, he did not observe the legal
requirement that there should be a distance of at least 2 meters between the
windows and Gerrys lot, since the view is direct. According to the CC, nonobservance of this distance does not give rise to prescription.
2) If he has not, will the action of Gerry prosper?
NO, because more than 10 years have already elapsed from the time of the
opening of the windows. Gerrys right of action has already prescribed. (may
kasunod pero malabo, sorry /)
Q: Marvin built a house on his land up to the boundary line. In the presence of
Gilbert, the adjoining owner, Marvin opened the windows with a direct view
over Gilberts lot. 12 years later, Gilbert built a house on his own lot also right
up to the boundary line.
1) Has Marvin acquired an easement of light and view by prescription?
NO, because (a) there was no formal prohibition as required by law; and (b)
Marvin did not observe the law on distances.
2)
Has Gilberts action to compel Marvin to close the windows already

prescribed?
YES. The period of prescription for such action is 10 years to be counted from
the time the windows were constructed.
Article 671. The distances referred to in the preceding article shall be
measured in cases of direct views from the outer line of the wall when the
openings do not project, from the outer line of the latter when they do, and in
cases of oblique views from the dividing line between the two properties.
Q: What are the proper distances for regular windows?
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1.
2.
For windows having DIRECT VIEWS (face to face), observe at least 2

meters distance between the wall having the windows and the
boundary line
For windows having SIDE or OBLIQUE VIEWS, observe a distance of
at least 60 cm between the boundary line and the nearest edge of the
window. (Note: It is permissible to build even up to the boundary line
provided that no regular windows are opened.)
Q: On his wall, 1 meter away from the boundary line, Punz opened regular
windows with direct views. May Punz be ordered to close them, at any time?
YES, provided that the adjoining owner makes the demand for closure within 10
years from the opening of the window, otherwise his right of closure will be
deemed prescribed.
Note: Although the right of closure prescribes at the end of 10 years, the cause
of action accruing from the date after the lapse of said 10 years, the adjoining
owner may legally obstruct the view (and light) by constructing a building on
his land or by raising a wall thereon contiguous to that having the window,
under Article 669, par. 3, because Punz has not yet acquired the easement of
view, there having been no notarial prohibition.
Q: What is meant by the phrase non-observance of these distances does not
give rise to prescription?
This simply means that the non-observance of these distances does not give rise
to prescription (wow), because this being a negative easement, a notarial
prohibition is still required before the period of prescription will commence to
run.
Article 672. The provisions of Article 670 are applicable to buildings
separated by a public way of alley, which is not less than 300 meters wide,
subject to special regulations and local ordinances.
Article 673. Whenever by any title a right has been acquired to have direct
views, balconies or belvederes overlooking an adjoining property, the owner
of the servient estate cannot build thereon at less than a distance of 3 meters
to be measured in the manner provided in article 671. Any stipulation
permitting distances less than those prescribed in article 670 is void.
Q: Suppose that an easement of light and view has been acquired, what is the
distance which must be observed by the owner of the servient estate if he
desires to construct a house on his own property?
The construction must be at least 3 meters away from the boundary line
between the 2 estates.
Q: Give an example of Article 673.
Ruby and Happy are adjoining owners. By virtue of a contract, Happy agreed to
give Ruby an easement of view over his land. In the absence of any stipulation
about the distance, Happy cannot construct a building on his own land at less
than a distance of 3m away from the boundary line (computed accdg to Article
671). The distance, however, may be increased or decreased provided that the
minimum distances (2m; 60cm) prescribed in Article 670 are observed. The same
may be said of an easement of view acquired by prescription.
Note: Article 673 applies even when the easement has been acquired under
Article 624. Thus, if an estate has easement of light and view under Article 624,
the neighbor cannot construct on his (the neighbors) lot unless he observed the
3m rule.
Drainage of Buildings
Article 674. The owner of a building shall be obliged to construct its roof or
covering in such a manner that the rain water shall fall on his own land or on
a street or public place, and not on the land of his neighbor, even though the
adjacent land may belong to 2 or more persons, one of whom is the owner of
the roof. Even if it should fall on his own land, the owner shall be obliged to
collect the water in such a way as not to cause damage to the adjacent land or
tenement.
Q: What are the restrictions with respect to the easement of drainage of
buildings?
1. A person should let the rain water fall down on his own land and not
on the adjacent land, even if he be a co-owner of the latter.
2. Rain water must be collected instead of just being allowed to drift to
the adjacent or lower land.
Note: Article 674 does not really create an easement, for it merely regulates the
use of a persons property insofar as rain water is concerned.
Q: Does the law allow the construction of a building having a roof which sheds
rainwater on the adjoining property?
NO. The provision declares that the owner of a building shall be obliged to
construct its roof in such a manner that the rainwater shall fall on his own land
or on a street or a public place, and not on the land of his neighbor. As a matter
of fact, the law goes even further by declaring that even if it should fall on his
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own land, the owner shall be obliged to collect the water in such a way as not to
cause damage to the adjacent land or tenement.
Article 675. The owner of a tenement or a piece of land, subject to the
easement of receiving water falling from the roofs, may build in such manner
as to receive the water upon his own roof or to give it to another outlet in
accordance with local ordinances or customs, and in such a way as not to
cause any nuisance or damage whatever to the dominant estate.
Note: This article also applies to voluntary easement.
Article 676. Whenever the yard or court of a house is surrounded by other
houses, and it is not possible to give any outlet through the house itself to the
rain water collected thereon, the establishment of an easement of drainage
can be demanded, giving an outlet to the water at the point of contiguous
lands or tenements where its egress may be easiest, and establishing conduit
for the drainage in such manner as to cause the least damage to the servient
estate, after payment of the proper indemnity.
Q: What are the required conditions for the article to apply?
1. there is no adequate outlet for the rain water because of the enclosure
2. the outlet must be at the easiest egress
3. must cause the least possible damage
4. payment of proper indemnity
Note: The easement referred to in this article is known as easement of drainage
of buildings.
Intermediate Distances and Works for Certain Constructions and Plantings
Article 677. No constructions can be built or plantings made near fortified
places or fortresses without compliance with the conditions required in
special laws, ordinances, and regulations relating thereto.
Q: What is the reason for this article?
Public security and safety demand that this article be complied with.
Article 678. No person shall build any aqueduct, well, sewer, furnace, forge,
chimney, stable, depository or corrosive substances, machinery, or factory
which by reason of its nature or products is dangerous or noxious, without
observing the distances prescribed by the regulations and customs of the
place, and without making necessary projective works, subject, in regard to
the manner thereof, to the conditions prescribed by such regulations. These
prohibitions cannot be altered or renounced by stipulation on the part of the

adjoining proprietors.
In the absence of regulations, such precautions shall be taken as may
be considered necessary, in order to avoid any damage to the neighboring
lands or tenements.
Q: What is the rule with respect to the construction of aqueducts, wells, sewers,
etc?
Follow the distances prescribed by the regulations (ordinances) and customs, if
there are any, otherwise take precautions.
Q: Is waiver or alteration allowed by stipulation allowed in this article? NO, for
reason of public safety.
Note: The violator is liable for damage.
Article 679. No trees shall be planted near a tenement or piece of land
belonging to another except at the distance authorized by the ordinances or
customs of the place, and in the absence thereof, at a distance of at least 2
meters from the dividing line of the estates if tall trees are planted and a
distance of at least 50 centimeters if shrubs or small trees are planted.
Every landowner shall have the right to demand that the trees
hereafter planted at a shorter distance from his land or tenement be uprooted.
The provisions of this article also apply to trees which have grown
spontaneously.
Q: What are the rules with respect to the planting of trees?
Regarding distances, follow ordinances (if any), then customs. If neither
ordinances nor customs are present at this point, the following distances must
be observed (minimum):
1. TALL TREES 2m from boundary line to center of the tree
2. SMALL TREES OR SHRUBS 30cm from boundary line to center of
the tree or shrub
(expected natural height is the criterion, purpose is to prevent intrusion into
neighboring estates)
Q: What is the remedy for any violation under this rule?
Demand uprooting of the tree or shrub.
Article 680. If the branches of any tree should extend over a neighboring
estate, tenement, garden or yard, the owner of the latter shall have the right to
demand that they be cut off insofar as they may spread over his property, and,
if it be the roots of a neighboring tree which should penetrate into the land of
another, the latter may cut them off himself within his property.
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Q: What is the rule regarding the intrusions or extensions of branches and roots?
1. BRANCHES the adjacent owner has the right to demand that they be
cut off (insofar as they spread over his property)
2. ROOTS he may cut them off himself (because by accession or
incorporation he has acquired ownership over them)
Q: Do these rights prescribe?
1. The right to demand the cutting off of the branch does not prescribe if
tolerated by the invaded owner. If demand is made, prescription runs
from the date of said demand.
2. The right to cut off the roots does not prescribe unless a notarial
prohibition is made.
Note: The owner of the tree can cut down the tree himself because he owns it.
Q: What are the rules with respect to the fruits?
1. If the fruits still hang on to the tree, the tree owner still owns them.
2. It is only after they have naturally fallen that these belong to the owner
of the invaded land.
Q: Kevin is the owner of a grove of mango trees where some of the branches of
which extend over Gerrys land.
1) Does Gerry have the right to gather the mango fruits on the branches
that extend to his land? NO. Because they have not yet naturally fallen
on his land.
2)
If Gerry cuts off the branches extending to his land which caused
Kevins fruits to stop bearing trees for a season, does Kevin have a
right of action against Gerry? Gerry is liable for cutting off the
branches. What he should have done was to make a demand and not
just take the law into his own hands.
3) If instead Gerry cuts off the roots which penetrated into his land
resulting to the trees unproductivity, does Kevin have a right of action? Gerry
had the right to cut off the roots since they were on his land.
Easement Against Nuisance
Article 682. Every building or piece of land is subject to easement which
prohibits the proprietor or possessor from committing nuisance through
noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes.
Q: Who is the servient estate in an easement against nuisance?
The proprietor or possessor of the building or piece of land who commits the
nuisance through noise, jarring, etc. is the servient owner. In another sense, the
building or land itself is the servient estate, since easement is inherent in every
building or land.
Q: Who is the dominant estate?
The general public or anybody injured by the nuisance.
Q: What are the rights of the dominant estate?
1. If PUBLIC NUISANCE, the remedies are the following:
a. Prosecution under RPC or local ordinance
b. Civil action
c. Abatement without judicial proceedings
2. if PRIVATE NUISANCE, the remedies are the following:
a. civil action
b. abatement without judicial proceedings
Artice 683. Subject to zoning, health, police and other laws and regulations,
factories and shops may be maintained provided the least possible annoyance
is caused to the neighborhood.
Lateral and Subjacent Support
Article 684. No proprietor shall make such excavations upon his land as to
deprive any adjacent land or building of sufficient lateral or subjacent
support.
Q: What are the remedies for infractions under this article?
1. injunction
2. damages
Q: Give an example of lateral support.
Bob owns a parcel of land with a house, but underneath, the soil is being used
by Kevin in connection with a tunnel. Kevin must not undermine the support of
the house by building the tunnel very close underneath the house.
Q: Distinguish lateral from subjacent support.
1. LATERAL when both the land being supported and the supporting
land are on the same plane
2. SUBJACENT when the supported land is above the supporting land
Article 686. The legal easement of lateral and subjacent support is not only for
buildings standing at the time the excavations are made but also for
constructions that may be erected.
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Article 687. Any proprietor intending to make any excavation contemplated in

the 3 preceding articles shall notify all owners of adjacent lands.
Q: What are the rules with respect to notice under this article?
1. Notice is NOT required if there is actual knowledge of the excavation.
Otherwise, notice is mandatory.
2. Even if there is notice, the excavations should not deprive the other
owners of lateral and subjacent support. This is true even if others
consent or even if the excavation is carried out skillfully.
3. Notice is required to enable adjoining owners to take proper
precautions.
Voluntary Easements
Article 688. Every owner of a tenement or piece of land may establish thereon
the easements which he may deem suitable, and in the manner and form
which he may deem best, provided he does not contravene the laws, public
policy or public order.
Q: What are the kinds of voluntary easements which may be established?
1. predial (for the benefit of the estate)
2. personal
Q: Who has the right to establish a voluntary easement?
Only the owner or someone else in the name or under the authority of the
owner, may establish a voluntary, PREDIAL servitude on his estate, for this is
an act of ownership.
The person to act for the dominant estate must be the owner or somebody else
in the name and with the authority of the owner.
In case of PERSONAL easements, any person with legal capacity to accept may
acquire the easement in his favor.
Q: What if the owner who establishes an easement has a resolutory or
annullable title?
He can create an easement over the property but it is deemed extinguished
upon resolution or annulment of the right. The same may be said of an
easement created in good faith by the will merely of the usufructuary or
possessor in good faith. Such easement naturally ends when the usufruct or
possession terminates. From one viewpoint, what had been granted is not really
an easement but merely a personal right.
Q: May an owner of a subdivision property impose on its contract selling the

lots to private owners that the buyers cannot build factories thereon?
YES. This is a valid contractual provision which, while it restricts the free use of
the land by the owner, is nonetheless contrary to public policy. But note the
ruling in the case of Presley vs. Bel-Air, where the SC held that such servitudes
must yield to the zoning laws of municipalities in the exercise of police power.
Article 689. The owner of a tenement or a piece of land, the usufruct of which
belongs to another, may impose thereon, without the consent of the
usufructuary, any servitudes which will not injure the right of the usufruct.
Q: Does the owner have a right to impose an easement over a property occupied
by a usufructuary?
The naked owner must respect the rights of the usufructuary. Hence, while he
may impose the easement of altus non tollendi (obligation not to build higher),
without the usufructuarys approval, still, insofar as the easement of the right of
way is concerned, he should try to obtain the usufructuarys consent, for here,
the latters rights may be interfered. If he does not get the consent, he may be
held liable for damages.
Article 690. Whenever the naked ownership of a tenement or a piece of land
belongs to one person and the beneficial ownership to another, no perpetual
voluntary easement may be established thereon without the consent of both
owners.
Q: What are the rules when a usufruct exists?
1. The beneficial owner may, by himself, create a temporary easement
compatible with the extent of his beneficial dominion.
2. If the easement is perpetual (i.e. easement of right of way), both the
naked and the beneficial owners must give their consent.
Article 691. In order to impose an easement of an undivided tenement or
piece of land, the consent of all co-owners shall be required.
The consent given by some only must be held in abeyance until the
last one of all the co-owners shall have expressed his conformity.
But the consent given by one of the co-owners separately from the
others shall bind the grantor and his successors not to prevent the exercise of
the right granted.
Q: What is the reason for the requirement of unanimous consent of all coowners?
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The creation of a voluntary easement is an act of ownership (the alienation not
of any aliquot part but of a qualitative part of the enjoyment of the whole
premises).
Q: Must the consent be given simultaneously?
NO. It can be given successively.
Q: Can a co-owner revoke his consent?
NO. Unless it is vitiated, as a matter of fact, his own successors cannot
ordinarily revoke the consent he has given.
Article 692. The title and, in a proper case, the possession of an easement
acquired by prescription shall determine the rights of the dominant estate
and the obligations of the servient estate. In default thereof, the easement
shall be governed by such provisions of this title as are applicable thereto.
Q: What rules govern voluntary easements?
1. If created by TITLE (i.e. contract, will, etc.), the title governs. CC
suppletory.
2. If created by PRESCRIPTION, the form and manner in which it had
been acquired. CC suppletory.
3. If created by PRESCRIPTION IN A PROPER CASE (i.e. may have been
a contract initially but the form and manner may have been extended
or decreased by prescription), the way the easement has been
possessed, i.e. the manner and form of possession. CC suppletory.
Article 693. If the owner of the servient estate should have bound himself,
upon the establishment of the easement, to bear the cost of the work required
for the use and preservation thereof, he may free himself from this obligation
by renouncing his property to the owner of the dominant estate.
Q: If the renunciation is made, should it be on the whole property?
1. According to Castan and De Buen, YES. Because maintenance is a
personal obligation, without prejudice to alienation of the estate to
others prior to such abandonment.
2. The better opinion is that a distinction must be made:
a. If the servitude is upon the WHOLE estate, i.e. easement of
waters flowing down the estate, the whole property must be
renounced
b. If the servitude affects only a PART of the estate, i.e. passage
in a right of way, then only that part affected by the easement
the passageway should be renounced. Note that the article
doesnt say whole property but merely property,
meaning maybe that which is affected by the easement. This is
true even if the easement is indivisible. The lawmakers could

not have intended otherwise.
Q: How should renunciation be made?
The one who abandoned must comply with the proper juridical form for the
transmission of ownership of real property. Hence, implied or tacit
abandonment cannot be allowed.
Quimen v. CA
FACTS:
Anastacia Quimen together with her siblings inherited a piece of property
situated in Pandi, Bulacan. They agreed to subdivide the property equally
among themselves. The share of Anastacia was located at the extreme left.
Behind her property and that of her brother Sotero is the share of their brother
Antonio which was later divided into 2 parts. Lot A is located behind
Anastacias lot while Lot B was behind the property of Sotero, father of
respondent Yolanda.
In Feburary 1982, Yolanda purchased Lot A from her uncle Antionio through
her Anastacia who was then acting as his administratrix. According to
Yolanda, when Anastacia offered her the property for sale she was hesitant to
buy as it had no access to a public road. But Anastacia prevailed upon her to
buy the lot with the assurance that she would give her a right of way on her
adjoining property for P200.00 per square meter.
Thereafter, Yolanda constructed a house on the lot she bought using as her
passageway to the public highway a portion of Anastacias property. But
when Yolanda finally offered to pay for the use of the pathway Anastacia
refused to accept the payment. In fact she was thereafter barred by Anastacia
from passing through her property.
In February 1986, Yolanda purchased the other lot located directly behind the
property of her parents who provided her a pathway. Although the pathway
leads to the municipal road it is not adequate for ingress and egress. The
municipal road cannot be reached with facility because the store itself
obstructs the path so that one has to pass through the back entrance and the
faade of the store to reach the road.
Yoland then filed an action praying for a right of way through Anastacias
property.
TC: dismissed complaint explaining that the right of way through her parents
property was a straight path and to allow a detour by cutting through
Anastacias property would no longer make the path straight. Hence, it was
more practical to extend the existing pathway to the public road by removing
that portion of the store blocking the path as that was the shortest route to the
public road and the leas prejudicial to the parties concerned than passing
through Anastacias property.
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CA: reversed; Yolanda was entitled to a right of way on Anastacias property
and that the way proposed by Yolanda would cause the least damage and
detriment to the servient estate.
ISSUE: Is the CA correct in its decision that Anastacia should provide for the
right of way?
HELD:
YES. Even before the purchase of the property, Yolanda was reluctant to
purchase the same for they are enclosed with permanent improvements but
becaue of the assurance of Anastacia that she will be provided one meter wide
and five meters long right of way in the sum of P200.00
As between Anastacia and Yolanda, the voluntary easement created by their
previous agreement, which Anastacia denies, has in fact become a legal
easement or an easement by necessity constituted by law.
Easement is a real right on anothers property, corporeal and immovable,
whereby the owner of the latter must refrain from doing or allow somebody
else to do or something to be done on his property, for the benefit of another
person or tenement. It is jus in re aliena, inseparable, indivisible and
perpetual, unless extinguished by causes provided by law.
A right of way in particular is a privilege constituted by covenant or granted
by law to a person or class of persons to pass over anothers property when
his tenement is surrounded by realties belonging to others without an
adequate outlet to the public highway. The owner of the dominant estate can
demand a right of way through the servient estate provided he indemnifies
the owner thereof for the beneficial use of his property.
Conditions for a valid grant of an easement of right of way are:
1. The dominant estate is surrounded by other immovables without an
adequate outlet to a public highway;
2. The dominant estate is willing to pay the proper indemnity;
3. The isolation was not due to the acts of the dominant estate; and
4. The right of way being claimed is at a point least prejudicial to the servient
estate.
Article 650 of CC explicitly states that the easement of right of way shall be
established at the point least prejudicial to the servient estate and, insofar as
consistent with the rule, where the distance from the dominant estate to a
public highway may be the shortest. The criterion of least prejudice to the
servient estate must prevail over the criterion of shortest distance although
this is a matter of judicial appreciation. While shortest distance may
ordinarily imply least prejudice, it is not always so as when there are
permanent structures obstructing the shortest distance; while on the other
hand, the longest distance may be free of obstructions and the easiest or most
convenient to pass through. In other words, where the easement may be
established on any of several tenements surrounding the dominant estate, the
one where the way is shortest and will cause the least damage should be
chosen. However, as elsewhere stated, if these two (2) circumstances do not
concur in a single tenement, the way which will cause the least damage
should be used, even if it will not be the shortest. This is the test.
In applying Art. 650 of CC, CA declared that the proposed right of way of
Yoland, which is one (1) meter wide and five (5) meters long at the extreme
right of Anastacias property, will cause the least prejudice and/or damage as
compared to the suggested passage through the property of Yolandas father
which would mean destroying the sari sari store made of strong materials.
As between a right of way that would demolish a store of strong materials to
provide egress to a public highway, and another right of way which although
longer will only require an avocado tree to be cut down, the second
alternative should be preferred.
La Vista v. CA
FACTS:
Mangyan Road is a 15-meter wide thoroughfare in QC abutting Katipunan
Avenue on the west, traversing the edges of La Vista Subdivision on the north
and of ADMU and Maryknoll on the south. Mangyan Road serves as the
boundary between LA VISTA on one side and ATENEO and Maryknoll on
the other. It bends towards the east and ends at the gate of Loyola Grand
Villas Subdivision.
This case involves the use of Mangyan Road to again access to Loyola Grand
Villas. Solid Homes (developer of Loyola Grand Villas) instituted this case
and prayed that La Vista be enjoined from preventing and obstructing the use
and passage of Loyola residents through the said road.
Short backgound: The Tuasons owned a vast tract of land in QC and Marikina
and some of the parcels of land were sold to Ateneo. Ateneo then sold a
portion of its land to Solid Homes (La Vista was one of the bidders but lost)
and part of the deed of sale states that Solid Homes is free to make use of the
Mangyan Road access.
RTC: affirmed and recognized the easement of right of way along Mangyan
Road in favor of Solid Homes.
ISSUE: WON Solid Homes, Inc. is entitled to a legal or compulsory easement of
a right of way
HELD: YES.
A legal or compulsory easement is that which is constituted by law for public
use or for private interest. By express provisions of Articles 649 and 650 of
CC, the owner of an estate may claim a legal or compulsory right of way only
after he has established the existence of 4 requisites:
5. The dominant estate is surrounded by other immovables without an
adequate outlet to a public highway;
218

6. The dominant estate is willing to pay the proper indemnity;
7. The isolation was not due to the acts of the dominant estate; and
8. The right of way being claimed is at a point least prejudicial to the servient
estate.
A voluntary easement on the other hand is constituted simply by will or
agreement of the parties.
From the facts of the instant case it is very apparent that the parties and their
respective predecessors-in-interest intended to establish an easement of rightof-way over Mangyan Road for their mutual benefit, both as dominant and
servient estates. This is quite evident when:
(a)
the Tuasons and the Philippine Building Corporation in 1949
stipulated in par. 3 of their Deed of Sale with Mortgage that the boundary
line between the property herein sold and the adjoining property of the
VENDORS shall be a road fifteen (15) meters wide, one-half of which shall
be taken from the property herein sold to the VENDEE and the other half
from the portion adjoining belonging to the vendors;
(b) the Tuasons in 1951 expressly agreed and consented to the assignment of
the land to, and the assumption of all the rights and obligations by
ATENEO, including the obligation to contribute seven and one-half
meters of the property sold to form part of the 15-meter wide roadway;
(c) the Tuasons in 1958 filed a complaint against MARYKNOLL and
ATENEO for breach of contract and the enforcement of the reciprocal
easement on Mangyan Road, and demanded that MARYKNOLL set back
its wall to restore Mangyan Road to its original width of 15 meters, after
MARYKNOLL constructed a wall in the middle of the 15-meter wide
roadway;
(d) LA VISTA President Manuel J. Gonzales admitted and clarified in 1976,
in a letter to ATENEO President Fr. Jose A. Cruz, S.J., that Mangyan Road
is a road fifteen meters wide, one-half of which is taken from your property and
the other half from the La Vista Subdivision. So that the easement of a right-ofway on your 7 1/2 m. portion was created in our favor and likewise an easement
of right-of-way was created on our 7 1/2 m. portion of the road in your favor;
(e) LA VISTA, in its offer to buy the hillside portion of the ATENEO
property in 1976, acknowledged the existence of the contractual right-ofway as it manifested that the mutual right-of-way between the Ateneo de
Manila University and La Vista Homeowners Association would be
extinguished if it bought the adjacent ATENEO property and would
thus become the owner of both the dominant and servient estates; and,
(f) LA VISTA President Luis G. Quimson, in a letter addressed to the Chief
Justice, received by this Court on 26 March 1997, acknowledged that
one-half of the whole length of (Mangyan Road) belongs to La Vista Assn., Inc.
The other half is owned by Miriam (Maryknoll) and the Ateneo in equal
portions;
The above facts prove that the parties concerned had indeed constituted a
voluntary easement of right-of-way over Mangyan Road and, like any other
contract, the same could be extinguished only by mutual agreement or by
renunciation of the owner of the dominant estate. The free ingress and egress
along Mangyan Road created by the voluntary agreement between Ateneo
and Solid Homes, Inc. is thus legally demandable with the corresponding
duty on the servient estate not to obstruct the same.
When the court says that an easement exists, it is not creating one. For, even
an injunction cannot be used to create one as there is no such thing as a
judicial easement. As in the instant case, the court merely declares the
existence of an easement created by the parties.
An opening of an adequate outlet to a highway can extinguish only legal or
compulsory easements, not voluntary easements.
Villanueva v. Velasco; Sebastian and Lorilla
FACTS:
Pacific Banking Corp acquired a lot from the Gabriel spouses via a public
auction. This lot was then sold to petitioner Villanueva who is now the
registered owner. When Villanueva bought the lot, there was a small house
which occupied 1 meter of the 2 meter wide easement of right of way that the
Gabriel spouses granted to Espinolas, the predecessors in interest of
respondents Sebastian and Lorilla. Via a Contract of Easement of Right of
way, the Gabriel spouses granted respondents Sebastian and Lorilla a right of
way which provided that the agreement shall be binding between the parties
and upon their heirs, successors, assigns etc.
Unknown to Villanueva, even before he bought the lot, the Gabriel spouses
had already constructed the small house that encroached the easement. Also,
Villanueva was unaware that respondent Sebastian and Lorilla had filed a
case for easement against the Gabriels as the Sebastian and Lorilla wanted to
enforce the easement. The enforcement of the easement was granted and
became final and executory.
Judge Velasco issued a Writ of Demolition to demolish the small house and
due to this, Villanueva filed a third party claim and motion to quash the writ
of demolition on the basis that the writ of demolition could not be properly
executed as he, the owner of the lot, was not a party to the case. This motion
was denied.
Villanueva then filed a case asserting the existence of the easement of right of
way was not annotated in his title and that he was not made a party to the
case of the enforcement of the easement thus, the contract of easement
executed by the Gabriels cannot be enforced against him.
Court notes that: The easement in the case is both a voluntary easement or an
easement by grant and a legal easement or an easement by necessity. As a
compulsory easement, it is required that: (1) The dominant estate is
219

surrounded by other immovables and has no adequate outlet to a public
highway; (2) Proper indemnity has been paid; (3) The isolation was not due to
acts of the proprietor of the dominant estate; (4) The right of way claimed is
at a point least prejudicial to the servient estate; and (5) to the extent
consistent with the foregoing rule, where the distance from the dominant
estate to a public highway may be the shortest.
ISSUE: WON the enforcement of the easement is binding on Villanueva
HELD: Yes, the enforcement of the easement is binding on Villanueva. The
small house occupying 1 meter out of the 2 m easement is insufficient for the
needs of the respondents; The needs of the of the dominant estate determine the
width of the easement.
Even if the easement is not annotated on his Torrens title, such easement is
deemed included in the title and is not required to be included in the Torrens
title.
Villanueva is bound to the easement agreement not only because of the
agreement but because the easement is a legal easement. The servient estate
(in this case, Villanuevas) is legally bound to provide the dominant estate
(Sebastian and Lorilla) ingress from and egress to the public highway.
The contention that because Villanueva was not included in the proceedings
regarding the enforcement of the easement, thus, not binding on him is
incorrect. A decision in a case is conclusive and binding upon the parties to
the case and to those who are their successors in interest by title after said
case has been commenced or filed in court.
PART V
A. Modes of Acquiring Ownership
ARTICLE 712.
Ownership is acquired by occupation and by intellectual
creation.
Ownership and other real rights over property are acquired and transmitted
by law, by donation, by testate and intestate succession, and in consequence
of certain contracts, by tradition.
They may also be acquired by means of prescription. (609a)
Q: What are the examples for the modes of acquiring ownership?
OLD TIPS
Occupation*
Law
Donation
Tradition
Intellectual creation*
Prescription*
Succession
*original mode
1.
Mode v. Title
Q: What is mode?
Mode is the cause for the transfer of ownership; that which is sufficient in itself
to transfer ownership; or the process of acquiring or transferring ownership.
Q: What is title?
Title is that which is not ordinarily sufficient to convey ownership, but which
gives a juridical justification for a mode; that is, it provides the cause for the
acquisition of ownership. It does not transfer ownership per se but is only the
means for the acquisition of ownership. Where there is title, there must be
mode, so that ownership is transferred.
If there is title without mode (e.g. no delivery), then you have no ownership,
one only has personal right against the other person to compel delivery.
Where there is sale of personal property (mode), title is acquired by delivery.
Q: Is donation a title or a mode? MODE.
Q: Distinguish mode from title.
MODE :
1. proximate cause
2. the true cause or process
3. directly produces a real right
TITLE:
1. remote cause
2. the justification for the process
3. serves merely to give an opportunity for the existence of a real right; in
the meantime, only a personal right exists
Q: What is a real right?
A real right is the power of a person to obtain certain financial or economic
advantages over a specific thing, a power enforceable against the whole world
W/N he is in possession of the thing.
Q: What is a personal right?
A personal right is the power belonging to a person to demand from another the
fulfillment of a prestation to give, to do or not to do.
220

2.
Original/Derivative Modes
2.
Q: What is an original mode?

An original mode is one where the right of the present owner is not dependent
on the right of the former owner. The acquisition of the ownership by this mode
does not imply that there was no previous owner. However, any encumbrance
on the property or defect of title of the previous owner does not affect the title of
the new owner.
Q: What are the original modes of acquiring ownership?
1. Occupation (property is res nullius)
2. Acquisitive Prescription (debatable) right is not derived from
previous owner; in fact, right is adverse to that of previous owner
3. Intellectual Creation
Q: What is meant by derivative mode?
A derivative mode implies that the right of the present owner is dependent on
the right of the previous owner. Thus, any defect in the title of the previous
owner is carried over to the present owners title.
Q: What are the derivative modes of acquiring ownership?
1. succession mortis causa
2. tradition as a result of certain contracts like:
a. sale
b. barter
c. donation of personal property less than 500
d. assignment
e. mutuum (loan or consumption)
3. donation
4. prescription
5. law
TRADITION
Tradition is always a derivative mode.
A deed of sale is only a title. However, the deed of sale can be the basis of
acquisitive prescription.
Tradition must be coupled with title. Tradition will not itself transfer
ownership. Thus, even if delivered, such will not transfer title.
Q: What are the types of delivery?
1. ACTUAL/PHYSICAL (transfer of possession of title)
CONSTRUCTIVE
a. Longa manu (by pointing)
b. Brevi manu (possessor becomes owner, i.e. from tenant to
owner)
c. Constituum possessorium (the owner of a thing alienates it
but continues in possession under a different title)
d. Symbolic delivery (delivery of certain symbols or things
representing the things delivered, i.e. delivery of keys of a
condo unit)
Only the execution of a PUBLIC instrument is tradition. Execution of a

PRIVATE instrument is not tradition unless coupled with actual delivery.
3.
DELIVERY BY OPERATION OF LAW

covers all other cases not already enumerated, and in which
the delivery is effected solely by virtue of an express
provision of law
B.
Occupation
ARTICLE 713.
Things appropriable by nature which are without an owner,
such as animals that are the object of hunting and fishing, hidden treasure
and abandoned movables, are acquired by occupation. (610)
Q: What is occupation?
It is the acquisition of ownership by seizing corporeal things that have no
owner, made with the intention of acquiring them, and accomplished according
to legal rules.
Q: What are the requisites for occupation?
1. seizure or apprehension
2. property seized must be corporeal personal property
Note: An immovable cannot be res nullius. If the land is registered, it will always
have an owner. If it is unregistered and has been abandoned by the owner, the
Regalian doctrine will be applied, so the land belongs to the State.
For intangible property, the mode of acquiring ownership is through intellectual
creation.
This refers to animals wild/domesticated/domestic
WILD ANIMALS are appropriated through seizure. A DOMESTICATED
ANIMAL is one that starts off as wild, then becomes tame and develops the
221

habit of returning home. A DOMESTIC ANIMAL is one that is born and reared
in the household.
3.
4.
5.
intent to appropriate
property seized must be susceptible of appropriation (i.e. no owner)
compliance with some other special requirements
Q: What are some kinds of property which can be acquired by occupation?

1. those without an owner, provided that they are seized in the open, not
closed, season, and not through illegal means
2. hidden treasure
3. abandoned movables
Q: When is a thing considered abandoned?
When the expectation to recover is gone and the intention to return or have it
returned has been given up by the owner.
ARTICLE 714.
occupation. (n)
The ownership of a piece of land cannot be acquired by
Q: Why cant land ownership be acquired by occupation?

When the land is without an owner, then it is owned by the State.
Q: What is the difference between occupation and prescription?
OCCUPATION original mode (no owner); requires shorter period of
possession
PRESCRIPTION derivative mode (someone else was owner); requires a longer
period of possession
ARTICLE 715.
(611)
The right to hunt and to fish is regulated by special laws.
ARTICLE 716.
The owner of a swarm of bees shall have a right to pursue
them to another's land, indemnifying the possessor of the latter for the
damage. If the owner has not pursued the swarm, or ceases to do so within
two consecutive days, the possessor of the land may occupy or retain the
same. The owner of domesticated animals may also claim them within twenty
days to be counted from their occupation by another person. This period
having expired, they shall pertain to him who has caught and kept them.
(612a)
Q: What are the kinds of animals?
1. wild (born and reared in the wilderness; never had an owner)
2. domesticated or tamed (once upon a time they were wild)
3.
domestic or tame (reared under mans control)
Q: How do you acquire domesticated and domestic animals?

1. DOMESTICATED by occupation for 20 days unless a claim has been
made for them
2. DOMESTIC cannot be acquired by occupation unless there is
abandonment
ARTICLE 717.
Pigeons and fish which from their respective breeding
places pass to another pertaining to a different owner shall belong to the
latter, provided they have not been enticed by some article or fraud. (613a)
ARTICLE 718.
He who by chance discovers hidden treasure in another's
property shall have the right granted him in article 438 of this Code. (614)
ARTICLE 719.
Whoever finds a movable, which is not treasure, must return
it to its previous possessor. If the latter is unknown, the finder shall
immediately deposit it with the mayor of the city or municipality where the
finding has taken place.
The finding shall be publicly announced by the mayor for two consecutive
weeks in the way he deems best.
If the movable cannot be kept without deterioration, or without expenses
which considerably diminish its value, it shall be sold at public auction eight
days after the publication.
Six months from the publication having elapsed without the owner having
appeared, the thing found, or its value, shall be awarded to the finder. The
finder and the owner shall be obliged, as the case may be, to reimburse the
expenses. (615a)
ARTICLE 720.
If the owner should appear in time, he shall be obliged to
pay, as a reward to the finder, one-tenth of the sum or of the price of the thing
found. (616a)
C.
Intellectual Creation
ARTICLE 721.
By intellectual creation, the following persons acquire
ownership:
(1)
The author with regard to his literary, dramatic, historical, legal,
philosophical, scientific or other work;
(2)
The composer, as to his musical composition;
(3)
The painter, sculptor, or other artist, with respect to the product of
his art;
(4)
The scientist or technologist or any other person with regard to his
discovery or invention. (n)
222

ARTICLE 722.
The author and the composer, mentioned in Nos. 1 and 2 of
the preceding article, shall have the ownership of their creations even before
the publication of the same. Once their works are published, their rights are
governed by the Copyright laws.
The painter, sculptor or other artist shall have dominion over the product of
his art even before it is copyrighted.
The scientist or technologist has the ownership of his discovery or invention
even before it is patented. (n)
ARTICLE 723.
Letters and other private communications in writing are
owned by the person to whom they are addressed and delivered, but they
cannot be published or disseminated without the consent of the writer or his
heirs. However, the court may authorize their publication or dissemination if
the public good or the interest of justice so requires. (n)
ARTICLE 724.
Special laws govern copyright and patent. (429a)
D. Donation
1. Essential Elements
ARTICLE 725.
Donation is an act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another, who accepts it. (618a)
*Donation is both an act and a contract.
Q: What are the essential characteristics of true donations?
1. consent, subject matter and cause
2. necessary form (including delivery in some cases)
3. consent or acceptance by donee during the donors lifetime
4. irrevocability (except for legal causes)
5. intent to benefit donee liberality is emphasized more than
gratuitousness
6. resultant decrease in donors assets or patrimony and the increase of
the donees patrimony
Q: Why is the donees acceptance required for validity?
Because no one can be compelled to accept the generosity of another.
2.
Kinds
ARTICLE 726.
When a person gives to another a thing or right on account
of the latter's merits or of the services rendered by him to the donor, provided
they do not constitute a demandable debt, or when the gift imposes upon the
donee a burden which is less than the value of the thing given, there is also a
donation. (619)
Q: How are donations classified?
I.
According to motive or cause
A. SIMPLE DONATION
i. cause is pure liberality (no strings attached)
ii. form is that of donations
B. REMUNERATORY (OF THE 1ST KIND)
i. purpose is to reward past services with no strings
attached
ii. the services do not constitute a demandable debt
iii. form is that of donations regardless of the value of
the past service compared to the value of donation
C. REMUNERATORY
(OF
THE
2ND
KIND)
OR
CONDITIONAL/MODAL DONATION
i. purpose is to
1. reward future services OR
2. because of future charges or burdens to be
imposed on the donee
ii. the value of the future services, charges or burdens is
LESS than the value of the donation
iii. form:
1. insofar as it is onerous, follow the form on
contracts
2. insofar as it is simple, follow the form on
donations
D. ONEROUS DONATION
i. Consideration paid in exchange of donation
ii. Burdens, charges, or services are EQUAL in value to
that of the donation
iii. Not really a donation
iv. Form is that of contracts
II.
According to time of taking effect

A. INTER VIVOS
i. Takes effect while the donor is still alive
ii. Form is that of donations
B. IN PRAESENTI TO BE DELIVERED IN FUTURO
i. Also considered as inter vivos
ii. Example: I hereby donate to you now my land. But
while I am alive, I will remain in possession. The
223

C.
property will be delivered to you only upon my

death.
MORTIS CAUSA
i. Takes effect upon the donors death and must be
governed by the rules on testamentary succession
Note: Test is the intent of the donor.

Q: Spouses Manalo donated to their niece a parcel of land with a condition that
the funeral expenses of the donors would be shouldered by the donee. Such a
donation was written in a private document. Is the donation valid although it
was not in a public instrument (which is required if it is a donation)?
YES. There is an onerous donation (funeral expenses) which shall be governed
by the law on contracts and therefore a private instrument is sufficient. (Manalo
vs. De Mesa, 20 Phil 496)
Note: This is onerous but only to the extent of the burden, the funeral expenses.
It is believed that insofar as the value of the land exceeds the value of the
funeral expenses, such excess must be considered as a simple donation
requiring a public instrument.
Q: I hereby donate to A mortis causa a parcel of land on the condition that this
donation shall be deemed revoked if he fails to build a house on the land worth
at least P50,000 within 2 years from the date hereof. Classify this donation.
CONDITIONAL DONATION INTER VIVOS. It is clear that the donor in the
instant case has imposed upon the donee a burden or charge whose value is less
than the value of the thing given. The donor designating such a donation mortis
causa is not controlling. It merely indicates when the delivery to the donee shall
be effected.
Q: In consideration of the services rendered to me for which he refused to
accept my remuneration, I hereby donate to A the following parcel of land
Classify the donation.
REMUNERATORY DONATION OF THE 1ST KIND. It is given by a person to
another on account of the services rendered by the latter to the former which do
not constitute demandable debts.
Republic v. Guzman
FACTS:
David Rey Guzman, a natural-born American citizen, is the son of the Sps.
Simeon Guzman, a naturalized American citizen, and Helen Meyers Guzman,
an American citizen. In 1968, Simeon died leaving to his sole heirs Helen and
David an estate consisting of several parcels of land located in Bulacan.
Helen and David executed a Deed of Extrajudicial Settlement of Estate of
Simeon Guzman dividing and adjudicating to themselves all the property
belonging to the estate of Simeon. Thereafter, Helen executed a Quitclaim
Deed assigning, transferring and conveying to her son David her undivided
interest on all the parcels of land subject matter of the extrajudicial
settlement. Since the document appeared not to have been registered, a Deed
of Quitclaim confirming the earlier deed of quitclaim as well as modifying the
document to encompass all her other properties in the Philippines.
David executed a Special Power of Attorney where he acknowledged that he
became the owner of the parcels of land subject of the Deed of Quitclaim
executed and empowering his attorney to sell or dispose of the lots.
Atty. Mario A. Batongbacal wrote the Office of the Sol.Gen and furnished it
with documents showing that Davids ownership of the of the estate of
Simeon Guzman was defective. Hence, the Government filed before the RTC
a petition for escheat praying that of Davids interest shall be forfeited in its
favor.
TC: dismissed petition on the ground that the 2 deeds of quitclaim had no
legal force and effect so that the ownership of the property subject thereof
remained with her.
ISSUES:
1. WON the essential elements of a donation were complied with
2. Whether there was valid repudiation of inheritance by Helen in favor of
David
HELD:
1. NO. There are three (3) essential elements of a donation:
(a) the reduction of the patrimony of the donor;
(b) the increase in the patrimony of the donee; and,
(c) the intent to do an act of liberality or animus donandi.
When applied to a donation of an immovable property, the law further requires
that the donation be made in a public document and that there should be an
acceptance thereof made in the same deed of donation or in a separate public
document In cases where the acceptance is made in a separate instrument, it is
mandated that the donor should be notified thereof in an authentic form, to be
noted in both instruments.
224

Not all the elements of a donation of an immovable property are present in
the instant case. The transfer of the property by virtue of the Deed of
Quitclaim executed by Helen resulted in the reduction of her patrimony as
donor and the consequent increase in the patrimony of David as donee.
However, Helens intention to perform an act of liberality in favor of David
was not sufficiently established. A perusal of the two (2) deeds of quitclaim
reveals that Helen intended to convey to her son David certain parcels of land
located in the Philippines, and to re-affirm the quitclaim she executed in 1981
which likewise declared a waiver and renunciation of her rights over the
parcels of land. The language of the deed of quitclaim is clear that Helen
merely contemplated a waiver of her rights, title and interest over the lands in
favor of David, and not a donation. That a donation was far from Helen's
mind is further supported by her deposition which indicated that she was
aware that a donation of the parcels of land was not possible since Philippine
law does not allow such an arrangement.
Likewise, the 2 deeds of quitclaim executed by Helen may have been in the
nature of a public document but they lack the essential element of acceptance
in the proper form required by law to make the donation valid. The Special
Power of Attorney merely acknowledges that David owns the property
referred to and that he authorizes Atty. Abela to sell the same in his name.
There is no intimation, expressly or impliedly, that Davids acquisition of the
parcels of land is by virtue of Helens possible donation to him.
When the deed of donation is recorded in the registry of property the

document that evidences the acceptance - if this has not been made in the
deed of gift - should also be recorded. And in one or both documents, as the
case may be, the notification of the acceptance as formally made to the donor
or donors should be duly set forth. Where the deed of donation fails to show
the acceptance, or where the formal notice of the acceptance made in a
separate instrument is either not given to the donor or else noted in the deed
of donation, and in the separate acceptance, the donation is null and void.
2. NO. There is no valid repudiation of inheritance as Helen had already
accepted her share of the inheritance when she, together with David, executed a
Deed of Extrajudicial Settlemetn of the Estate of Simeon Guzman. Because the
repudiation being of no effect whatsoever the parcels of land should revert to
their owner, Helen.
3.
a.
Conditional Donations
Effect of Impossible/Illegal Conditions
ARTICLE 727.
Illegal or impossible conditions in simple and remuneratory
donations shall be considered as not imposed. (n)
Q: What is the rule embodied in this article?

Only the illegal or impossible condition is void or disregarded. The donation
remains valid.
Q: Distinguish this rule from that of contracts.
In contracts, the presence of impossible or illegal conditions render the entire
obligation void (Article 1183, NCC).
Q: What rule governs onerous donations?
Law on contracts (Article 1183, NCC) and not by Article 727.
Roman Catholic Archbishop of Manila v. CA
FACTS:
In 1930, Sps. De Castro executed a deed of donation in favor of Roman
Catholic Archbishop of Manila covering a parcel of land at Kawit, Cavite.
The deed of donation allegedly provides that the donee shall not dispose or
sell the property within a period of 100 years from the execution of he deed of
donation, otherwise a violation of such condition would render ipso facto null
and void the deed of donation and the property would revert to the estate of
the donors.
After almost 50 years, donee executed a deed of absolute sale of the property
donated in favor of Sps. Ignao. Thereafter, respondents filed a complaint for
nullification of the deed of donation, recission of contract and reconveyance
of real property against Sps. Ignao.
ISSUE: WON the stipulation in the deed of donation is valid.
HELD:
No. Donation, as a mode of acquiring ownership, results in an effective
transfer of title over the property from the donor to the donee. Once a
donation is accepted, the donee becomes the absolute owner of the property
donated. Although the donor may impose certain conditions in the deed of
donation, the same must not be contrary to law, morals, good customs, public
order and public policy. The condition imposed in the deed of donation in
this case constitutes a patently unreasonable and undue restriction on the
right of the donee to dispose of the property donated, which right is an
indispensable attribute of ownership. Such a prohibition against alienation,
in order to be valid, must not be perpetual or for an unreasonable period of
time.
In the case at bar, the Court held that the prohibition in the deed of donation
against the alienation of the property for an entire century, being
unreasonable emasculation and denial of an integral attribute of ownership,
should be declared as an illegal or impossible condition within the
contemplation of Article 727 of the CC. The net result is that, absent said
proscription, the deed of sale supposedly constitutive of the cause of action
225

for the nullification of the deed of donation is not in truth violative of the
latter hence, for lack of cause of action, the case for respondents must fail.
4.
Inter Vivos/Mortis Causa Donations
ARTICLE 728.
Donations which are to take effect upon the death of the
donor partake of the nature of testamentary provisions, and shall be governed
by the rules established in the Title on Succession. (620)
Q: What does this article refer to?
This refers to donations mortis causa which should be governed by the rules on
succession.
ARTICLE 729.
When the donor intends that the donation shall take effect
during the lifetime of the donor, though the property shall not be delivered
till after the donor's death, this shall be a donation inter vivos. The fruits of
the property from the time of the acceptance of the donation, shall pertain to
the donee, unless the donor provides otherwise. (n)
Q: Distinguish donations inter vivos from donations mortis causa.
The most important distinction between the 2 types of donations is the time
when the ownership over the donated property is transferred.
INTER VIVOS: if the ownership was transferred during the donors lifetime,
even if the donor retains possession or usufruct over the property; once the
donation is perfected, and there is intention to transfer ownership during the
donors lifetime, it is a perfected donation inter vivos, and delivery is not a
requirement.
MORTIS CAUSA: if only a right of ownership is transferred (e.g. usufruct), and
not ownership itself
Note: in case of doubt, interpreted as DONATION INTER VIVOS.
FORMALITIES
EFFECTIVITY
REVOCABILITY
DONATION
INTER
VIVOS
law on donations
From the moment the
donor knows of the
donees acceptance
Essentially irrevocable,
except for the limited
grounds provided for
DONATION
MORTIS
CAUSA
Law on succession
From
the
death
of
testator/donor, even if
donee is unaware of it
Revocable at any time and
for any cause during the
donors lifetime
PROPERTIES
INVOLVED
ACCEPTANCE
CAPACITY OF
DONOR
by the law
Only present property
Must be made during
the lifetime of both
donor and donee
Determined as of the
time the donation is
perfected
(donors
knowledge
and
acceptance)
May
involve
future
property
May only be validly made
after
the
death
of
donor/testator
Determined as of the time
of actual making or signing
of donation/will
Q: What do the words take effect mean?

They refer to the time when the ownership is transferred from the donor to the
donee.
Q: Give examples of inter vivos donations.
1. donation where the causes of revocation have been specified
2. donation where the donor received for himself a lifetime usufruct of
the property, for if he were still the owner then there would be no need
of said reservation (Balaqui vs. Dongso, 53 Phil 653)
3. donation where the donor warrants the title to the thing which he is
donating, for there would be no need of warranty were he not already
transferring the title
4. where the donor stated that while he is alive he would not dispose of
the property or take away the land because I am reserving it to the
donee upon my death this is inter vivos because the owner had
already renounced the right to dispose of his property
Q: Gives examples of donations mortis causa.
1. where the donor has reserved (expressly or impliedly) the option to
revoke the donation at any time before death, even without the consent
of the donee (Bautista vs. Sabiniano, 92 Phil 244) this shows that the
donor does not intend to give the property until after his death
2. if title will pass only upon donors death
3. of the donor retains full or naked ownership and control over the
property while he is still alive and what was merely transferred to the
donee was the administration of the property
4. where the donation will be void if transferee dies ahead of transferor
Q: X donated to her adopted children certain properties but reserved to herself
the complete usufruct over the same. Moreover, she prohibited them from
226

alienating or encumbering said properties without her consent. Classify this
donation.
terminate and the same would revert back to Mike. This is a donation inter
vivos.
DONATION MORTIS CAUSA. Under the terms, the donees would merely be
paper owners of the properties. The donor still retains the right of disposal
because it was stipulated that the donees would not be able to dispose of the
same without the donors consent (David vs. Sison, 76 Phil 418).
ARTICLE 732.
Donations which are to take effect inter vivos shall be
governed by the general provisions on contracts and obligations in all that is
not determined in this Title. (621)
Q: Bonsato donated to his brother and nephew certain parcels of land. Some of
the stipulations of the donation were as follows: (1) that the donation shall be
irrevocable; (2) that the donor reserves the rights to the fruits and the produce;
(3) that after the death of the donor, the donation shall become effective.
Classify this donation.
DONATION INTER VIVOS, because the donation is irrevocable and that the
reservation to the fruits and produce would not have been necessary had the
donor continued to be the owner. The provision of effectivity after the death
simply means that the absolute ownership (including the usufruct) would
pertain to donee after the donors death (Bonsato vs. CA, 95 Phil 481).
Note: In case of doubt, a donation is deemed to be a donation inter vivos rather
than mortis causa.
ARTICLE 730.
The fixing of an event or the imposition of a suspensive
condition, which may take place beyond the natural expectation of life of the
donor, does not destroy the nature of the act as a donation inter vivos, unless
a contrary intention appears. (n)
Q: What is the rationale behind this article?
The donation subject to a suspensive condition has retroactive effect which will
date back to the constitution of the donation.
ARTICLE 731.
When a person donates something, subject to the resolutory
condition of the donor's survival, there is a donation inter vivos. (n)
Q: What is the rationale behind the article?
The donation is already effective but is only subject to extinguishment upon the
occurrence of the resolutory condition.
Q: Give an example of this article.
Mike Mate is about to undergo a vasectomy after fathering 69 children with 48
different women (and men). He donates a parcel of land to Jang subject to the
condition that if he survives the operation, Jangs ownership of the land would
Q: What provisions of the Civil Code would apply in ordinary donations inter
vivos?
The provisions on ordinary donations shall apply. The law on obligations and
contracts shall have suppletory effect to the provisions on ordinary donations.
ARTICLE 733.
Donations with an onerous cause shall be governed by the
rules on contracts and remuneratory donations by the provisions of the
present Title as regards that portion which exceeds the value of the burden
imposed. (622)
Q: What provisions would apply in onerous donations?
Onerous donations shall be governed by the rules on contracts.
Q: What about remuneratory donations of the second kind (modal/conditional
donations)?
Insofar as the donation is onerous, the rules on contracts will apply but with
regard to the portion which exceeds the value of the burden, the provisions on
ordinary donations shall apply.
ARTICLE 734.
The donation is perfected from the moment the donor
knows of the acceptance by the donee. (623)
Q: When is the donation perfected?
The donation is perfected from the time the donor knows that the donee has
accepted. Such knowledge may be actual or constructive.
Prior to the time the donor knows of the acceptance, there is no donation yet
and the donor may dispose of the property to somebody else.
N.B. In the case of donations inter vivos, knowledge of acceptance must occur
during the lifetime of both the donor and the donee, otherwise the donation is
void.
Also, the donees acceptance should be made during the lifetime of the donor.
(Art. 746)
227

If the donation and the acceptance are in the same instrument, containing the
signatures of both donor and donee, it is understood that there is already
knowledge of the acceptance. Hence, the donation is already perfected. (Laureta
v Mata, 44 Phil 668)
Sicad v. CA
FACTS:
A deed of donation inter vivos was executed by Montinola naming her
grandchildren as donees. The deed also contained the signatures of the
donees in acknowledgement of their acceptance of the donation. The said
deed was recorded in the proper Register of Deeds and the donors title was
cancelled for the issuance of the new titles in the name of the donees.
Montinola, however, retained the owners duplicate copy of the new title as
well as the property itself, until she transferred the same in 1990 (10 years
later) to Spouses Sicad.
In 1987, Montinola drew up a deed of revocation of the donation and caused
it to be annotated as an adverse claim on the title. She then filed a petition
with the RTC for the cancellation of the TCTs under the donees name and to
reinstate the same in her name. Her petition was founded on the theory that
the donation to her grandchildren was one mortis causa which thus had to
comply with the formalities of a will; and sinceit had not, the donation was
void and could not effectively serve as basis for the cancellation of the old
TCT.
Montinolas grandchildren opposed the petition.
ISSUE: Whether the donation is mortis causa or inter vivos
HELD: Donation mortis causa.
A donation which purports to be one inter vivos but holds from the donee the
right to dispose of the donated property during the donors lifetimes in truth
one mortis causa. In a donation mortis causa, the right of disposition is not
transferred to the donee while the donor is still alive.
In the instant case, nothing of any consequence was transferred by the deed of
donation in question to Montinolas grandchildren, the ostensible donees.
They did not get possession of the property donated. They did not acquire
the right to the fruits thereof, or any other right of dominion over the
property. More importantly, they did not acquire the right to dispose of the
property this would accrue to them only after ten (10) years from
Montinolas death. Indeed, they never even laid hands on the certificate of
title to the same. They were therefore simply paper owners of the donated
property. All these circumstances, including, to repeat, the explicit provisions
of the deed of donation reserving the exercise of rights of ownership to the
donee and prohibiting the sale or encumbrance of the property until ten (10)
years after her death ineluctably lead to the conclusion that the donation in
question was a donation mortis causa, contemplating a transfer of ownership

to the donees only after the donors demise.
It is also error to suppose that the donation under review should be deemed
one inter vivos simply because founded on considerations of love and
affection. In Alejandro v. Geraldez, this Court also observed that the fact
that the donation is given in consideration of love and affection ** is not a
characteristic of donation inter vivos (solely) because transfers mortis causa
may also be made for the same reason.
Heirs of Velasquez v. CA
FACTS:
Sps. Aquino died intestate and were childless. Leoncia de Guzman was
survivied by her sisters Anatalia de Guzman (mother of the plaintiffs) and
Tranquilina de Guzman (grandmother of defendants). During the existence
of their marriage, Sps. Aquino were able to acquire 6 properties.
x
In 1989, the heirs of Anatalia represented by Santiago, Andres, Felicidad
and Apolonio (all surnamed Meneses) filed a complaint for annulment,
partition and damages against the heirs of Cesario Velasquezz (son of
Tranquilina) for the refusal of the latter to partition the properties of Sps.
Aquino.
x
The complaint alleged that Leoncia de Guzman, before her death, had a talk
with Anatalia de Guzman, with Santiago and Tranquilina and his son
Cesario; in that conference Leonica told Anatalia, Tranquilina and Cesario
that the documents of donation and partition which she and her husband
earlier executed were not signed by them as it was not their intention to
give away all the properties to Cesario Velasquez because Anatalia who is
one of her sisters had several children to support. Plaintiffs further claim
that after the death of Leonica, defendants forcibly took possession of all
the properties and despite plaintiffs repeated demands for partition
defendants refused.
x
Defendants filed their Answer with counterclaim alleging among others
that during the lifetime of Sps. Aquino, they already disposed of their
properties in favor of petitioners predecessors-in-interest, Cesario
Velasquez, and petitioners Anastacia. They also denied that a conference
took place between Leonicia and Santiago Meneses and his mother Anatalia
with Tranquilina.
ISSUE: WON the disputed properties have been donated by Sps. Aquino during
their lifetime
HELD:
YES. donation as a mode of acquiring ownership results in an effective
transfer of title over the property from the donor to the donee and the
donation is perfected from the moment the donor knows of the acceptance by
228

the donee. And once a donation is accepted, the donee becomes the absolute
owner of the property donated.
The donation of the first parcel made by the Aquino spouses to petitioners
Jose and Anastacia Velasquez who were then nineteen (19) and ten (10) years
old respectively was accepted through their father Cesario Velasquez, and the
acceptance was incorporated in the body of the same deed of donation and
made part of it, and was signed by the donor and the acceptor. Legally
speaking there was delivery and acceptance of the deed, and the donation
existed perfectly and irrevocably. The donation inter vivos may be revoked
only for the reasons provided in Articles 760, 764 and 765 of the Civil Code.
The donation propter nuptias in favor of Cesario Velasquez and Camila de
Guzman over the third and sixth parcels including a portion of the second
parcel became the properties of the spouses Velasquez since 1919. The deed of
donation propter nuptias can be revoked by the non-performance of the
marriage and the other causes mentioned in article 86 of the Family Code. The
alleged reason for the repudiation of the deed, i.e, that the Aquino spouses
did not intend to give away all their properties since Anatalia (Leoncias
sister) had several children to support is not one of the grounds for revocation
of donation either inter vivos or propter nuptias, although the donation might
be inofficious.
The Escritura compraventa over another portion of the second parcel and the
Deed of conveyance dated July 14, 1939 in favor of Cesario and Camila
Velasquez over the remaining portion of the second parcel is also valid. In fact
in the deed of sale dated July 14, 1939, the Aquino spouses ratified and
confirmed the rights and interests of Cesario Velasquez and Camila de
Guzman including the previous deeds of conveyance executed by the Aquino
spouses over the second parcel in the complaint and such deed of sale became
the basis for the issuance of TCT No. 15129 in the names of Cesario Velasquez
and Camila de Guzman on July 25, 1939. The best proof of the ownership of
the land is the certificate of title and it requires more than a bare allegation to
defeat the face value of TCT No. 15129 which enjoys a legal presumption of
regularity of issuance. Notably, during the lifetime of Cesario Velasquez, he
entered into contracts of mortgage and lease over the property as annotated at
the back of the certificate of title which clearly established that he exercised
full ownership and control over the property. It is quite surprising that it was
only after more than fifty years that private respondents asserted coownership claim over the subject property.
The Aquino spouses had disposed the four parcels of land during their
lifetime and the documents were duly notarized so that these documents
enjoy the presumption of validity. Such presumption has not been overcome
by private respondent Santiago Meneses with clear and convincing evidence.
In civil cases, the party having the burden of proof must establish his case by
a preponderance of evidence. Petitioners were able to establish that these four
parcels of land were validly conveyed to them by the Aquino spouses hence
they no longer formed part of the conjugal properties of the spouses at the
time of their deaths. As regards the fourth and fifth parcels, petitioners
alleged that these were also conveyed to third persons and they do not claim
any right thereto.
In view of the foregoing, the action of partition cannot be maintained. The
properties sought to be partitioned by private respondents have already been
delivered to petitioners and therefore no longer part of the hereditary estate
which could be partitioned.
5.
Form
ARTICLE 749.
In order that the donation of an immovable may be valid, it
must be made in a public document, specifying therein the property donated
and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate
public document, but it shall not take effect unless it is done during the
lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified
thereof in an authentic form, and this step shall be noted in both instruments.
(633)
ARTICLE 748.
The donation of a movable may be made orally or in
writing.
An oral donation requires the simultaneous delivery of the thing or of the
document representing the right donated.
If the value of the personal property donated exceeds five thousand pesos, the
donation and the acceptance shall be made in writing. Otherwise, the
donation shall be void. (632a)
N.B. This Article ONLY applies to donations inter vivos
Q: What are the rules in this article?
1. If the value of the donated movable is more than P5k:
a. The donation must be in writing
b. The acceptance must be in writing
c. Otherwise, the donation is VOID
2. If the value of the donated movable is P5k or less:
a. The donation must be made orally. There must be
simultaneous delivery of the thing, OR there must be
simultaneous delivery of the document representing the right
donated. Acceptance may be made orally or in writing
229

b.
The donation may be made in writing. Acceptance may be

made orally or in writing.
Q: Paul Imperial finally decided to confess to JC De Veyra that he had a crush

on him. So, Paul gave JC a ring worth P70,000 which JC accepted. JC was so
happy to find out that his thing for Paul was mutual. Two weeks later and after
a series of movie dates, things didnt work out for them and Paul wanted the
ring back. May JC legally refuse to return the ring?
2.
3.
the acceptance by Florentino in behalf of his brother is not valid

because he has no authority to do so. There should have been a proper
power if attorney set forth in a public instrument.
the donation by intention was indivisible or joint. Hence, one cannot
accept independently of his co-donee for there is no accretion between
donees unless expressly so provided or unless they be husband and
wife (Art. 753) (Genato v Genato, 23 SCRA 618)
N.B. Art. 748 also limited to donations inter vivos

If Paul gave the ring in writing and JC accepted the ring also in writing then the
donation is perfectly valid. Therefore, JC can validly refuse to return the ring.
However, if the donation and/ or acceptance was not in writing then the
donation is void. Therefore, JC must return the ring to Paul. What applies is the
last paragraph of Art. 748 where the value of the donated movable is more than
P5000.
Q: Enzo, who resides in Manila, wrote to his friend Toti in Pampanga stating
that he is donating to Toti one new banca worth P50,000. Upon receipt of the
letter, Toti called Enzo by long distance telephone telling Enzo that he is
accepting the donation. Immediately after mailing the letter, Toti died of heart
failure. Who is entitled to the banca, Enzo or the heirs of Totu.
Enzo is entitled to the banca. The donation in this case had no effect whatsoever.
According to Art. 748, if the value of the donated movable exceeds P5k, the
donation and the acceptance must be in writing. The acceptance made by Toti
was actually written and mailed but after such, he died. Art. 1323 of the NCC
provides that an offer becomes ineffective upon the death of either party before
acceptance is conveyed. Analyzing this provision, it is clear that the offer of
Enzo has become ineffective and that the contract of donation, as a consequence,
has never been perfected.
Q: The late Simona Genato gave certificates of stock to Florentino Genato with
instructions to transfer the same to himself and to his brother, who was absent
and who did not authorize Florentino to accept in behalf of both. The donation
was oral. Is the donation valid?
No. the donation is VOID for the ff. reasons:
1. the donation being oral, there should have been simultaneous delivery
of the stock certificates an impossibility in view of the absence of the
brother.
Q: What is meant by a public document

A public document is one which has been notarized by a notary public.
Q: What does the law mean when it says in an authentic form?
It means that the notification of the donor must be made in a written formal
manner.
Q: What does it mean when I personally saw Paul Imperial holding hands with
Micoy de la fuente and sharing a mango shake with 2 straws?
Res Ipsa Loquitor
Q: What are the formalities for donations of real property?
1. the donation must be in a public instrument
2. the document must specify the property donated and the value of the
charges which the donees must satisfy, if any.
3. the deed of donation and the acceptance may be in the same public
instrument OR the acceptance can be in a separate public instrument.
4. if the acceptance is in a separate public instrument, the donor shall be
notified in authentic form of that fact.
5.
the fact of notification must be noted in both instruments.
N.B. (a) if the donation and acceptance are in the same public document, the
requirement that the donor be notified in authentic form of the acceptance is
NOT necessary. This rule applies regardless of the place where and the date
when the acceptance was made. Thus, the donors knowledge may be actual
knowledge and not from any authentic writing.
(b) the public instrument transfers not only ownership but also possession,
because the execution thereof is one form of delivery, unless a contrary
intention can be inferred from the deed of donation.
Q: Can the donor waive the necessity of a formal notice? Yes.
230

Q: What is meant by charges which the donee must satisfy?
1. the conditions and burdens imposed by the donee
2. encumbrances on the property such as lease, usufruct or mortgage.

Q: What are the effects if the donation is made only in a private instrument?
1. the donation is null and void EXCEPT if it is a donation propter nuptias
2. the donation cannot be ratified. But if a new donation is made ratifying
the previous one and is in a public document then this is all right but
this is because of a new donation.
3. neither party may compel the other to execute a public document
under Art. 1357 of the CC because Art. 1357 applies only when the
contract or donation is already valid and enforceable.
BUT: the void donation can be a just title which will be the basis of acquisitive
prescription if the donee enters into the possession of the property.
Q: In a deed of donation, Martin donated a parcel of land to Peaches. The
acceptance was made in a separate public instrument. Martin was notified by
Peaches of her acceptance, however, this fact (notification of acceptance) was
not noted in both instruments. During the trial, Martin confirmed that he had
been notified of the acceptance. Is the donation valid?
YES, because the notation aims to establish that the donor had been notified of
the acceptance. If he admits that the acceptance of the donation was made
known to him, then there is no reason why the donation should not be
considered validly perfected.
Q: Aldaba and his daughter rendered medical services to a relative for more
than 10 years without expecting and receiving compensation. As a token of
gratitude, the relative orally gave them the real property where they were
residing. A written note to them said, Huwag kayong umalis diyan. Talagan
iyan ay para sa inyo. Was there a donation.
No, because the donation was void for it had been made orally. The written note
by itself did not indicate a donation but an intent to donate. The mere
expression of an intention is not a promise, because a promise is an undertaking
to carry the intention into effect. (Aldaba v CA L-21676, Feb. 28, 1969)
Q: Donor donated land in a private instrument. After his death, his heirs
executed a public document where the former donation was ratified. Is this
allowed?
Yes, since it is as if a new donation was made. However, the ratification cannot
have any retroactive effect and the creditors of the donor cannot be prejudiced.
The heirs who made the ratification cannot now assert any right to the
properties donated. The ratification serves as a quit claim to their rights to
said property. (Abragan vs Centenera, 46 Phil. 213)
a.
Onerous Donations
Danguilan v. IAC and Apolonia Melad

FACTS:
Domingo Melad was the owner of 2 lots. Felix Danguilan (petitioner) and
Apolonia Melad (respondent) were both claiming that they are the owners of
the land.
Apolonia Melad filed a complaint for recovery of the 2 lots which she claimed
she purchased from Domingo and now being unlawfully withheld by
Danguilan. She further claimed that she was the illegitimate daughter of
Domingo Melad. That she was living in the said lot but moved out only when
Felix Danguilan offered to cultivate her land with the condition that he will
deliver part of the harvest to Apolonia.
Danguilan on the other hand contends that he was the husband of Domingos
niece; that he was living with Domingo on the same lots as the latters wards
since Domingo has no children; that 2 private contracts were executed
conveying the lots to Danguilan with the understanding that the donee shall
undertake the burial of the grantor.
The trial court ruled in favor of Danguilan due to plaintiffs unpersuasive and
unconvincing evidence. The decision concluded that where there is doubt as
to the ownership, the presumption was in favor of the one actually occupying
it, which in this case in Danguilan.
CA reversed and reasoned out that the conveyance of the property is by
virtue of a donation of real property and therefore must be in a public
instrument.
ISSUE: Are the instruments executed required to be in a public instrument?
HELD: No.
Art 749 provides: In order that the donation of an immovable may be valid, it
must be made in a public document, specifying therein the property donated
and the value of the charges which the donee must satisfy. The acceptance
may be made in the same deed of donation or in a separate public document,
but it shall not take effect unless it is done during the lifetime of the donor. If
the acceptance is made in a separate instrument, the donor shall be notified
thereof in an authentic form, and this step shall be noted in both instruments.
However, article 749 does not apply in case the donation made is onerous.
In this case, the donation was coupled with the obligation on the part of the
donee to take care of the grantor for the rest of his life and to make the
necessary arrangements for his burial.
231

The contract of sale argument of Apolonia was not given weight by the SC
because there is no showing that the properties were in fact delivered to her,
thus the sale was not consummated.
Claims and evidence of both parties were weak. In this case, the presumption
is in favor of the one who is in possession of the property. Danguilan
therefore won the case.
N.B. Arts. 748 and 749 are very important because the formalities regarding
donations of immovable and movable properties are essential to the donations
validity. This is one of those rare occasions where a transactions validity is
dependent on compliance with formal requisites.
6.
a.
Capacity
Of Donor
ARTICLE 735.
All persons who may contract and dispose of their property
may make a donation. (624)
Q: What are the requisites for a person to have the capacity to make donations?
3 requisites must concur:
1. the capacity to enter into contracts
2. capacity to dispose of his property
3. not otherwise prohibited or disqualified by law from making the
donation.
Q: When may spouses donate?
Articles 98/ 125 of the Family Code: Neither spouse may donate any conjugal
property without the consent of the other. However, either spouse may, without
the other, make moderate donations from the conjugal property for charity or
on occasion of family rejoicing or family distress. Each spouse may donate
without the consent of the other spouse his/her respective individual property.
No. The rule under Art. 736 applies to simple, or true, donations. Onerous
donations, or donations where the ward or cestui que trust stands to benefit are
allowed, provided the guardian or trustee obtains court approval.
Q: The donation was made by the guardian in the name of the ward, and with
the wards consent. Is this donation valid?
If the donation is made in the name and with the consent of the ward, it would
be valid provided that judicial permission was obtained.
ARTICLE 737.
The donor's capacity shall be determined as of the time of
the making of the donation. (n)
Q: What does time of the making mean?
1. For donations inter vivos, time of the making should be construed as
perfection, i.e, the donors capacity will be determined at the time he
knows of the donation.
For example: Jang offered to donate to Cliff his yellow used-brief with
built-in supporter on October 5. Cliff accepted on October 6. When the
acceptance reached Jang on October 7, he was already insane, having
spent the past 2 nights fending off Felixs sexual advances. Since Jang
was already insane when the donation was perfected, there is no
valid donation.
N.B. The donees capacity is also determined at the time the donation is
perfected. Generally, he must be living or conceived at the time the
donation was made.
2.
ARTICLE 736.
Guardians and trustees cannot donate the property
entrusted to them. (n)
Q: What is the rationale behind the article?
The guardians and trustees cannot donate the property of their wards because
they do not own such property. Further, guardians and trustees can only
exercise acts of administration; they cannot exercise acts of ownership. Donation
being a disposition of property, it is considered as an act of ownership.
Q: Is the prohibition absolute?
For donations mortis causa, time of making should be considered as

the time the donation, in the form of a will, was executed. Remember,
these types of donations are governed by the laws on succession. As
we have learned under Atty. Sebastian, the capacity of the testator (or
donor) is determined at the time he made the will (or instrument of
donation)
N.B. The donee must be living or conceived at the time the donor dies.
b.
Of Donee
ARTICLE 738.
All those who are not specially disqualified by law therefor
may accept donations. (625)
Q: Who are the persons who have the capacity to accept donations?
In order that a person can accept a donation, two requisites are necessary:
232

(1) He must not be prohibited or disqualified by law from accepting the
donation, and
(2) He must be living or at least conceived at the time of the donation was
made.
Q: When is a person specially disqualified from accepting a donation?
Specially disqualified refers to those mentioned in Arts. 739, 740, & 743, as
well as the Family Code prohibitions between husbands and wives donating to
each other. It does not refer to those persons incapacitated to contract like
minors or those of unsound mind.
Q: May a juridical person be a donee?
Yes, because the law does not distinguish between natural or juridical persons.
Both natural and juridical persons may become donees.
ARTICLE 739.
The following donations shall be void:
(1)
Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2)
Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3)
Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be
brought by the spouse of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action. (n)
Q: Why does the law declare the nullity of these donations?
These donations are declared as such because they are contrary to public
morals.
Q: Must the adultery or concubinage be proven in a criminal action?
No. In the civil action for declaration of nullity, the guilt may be proven by mere
preponderance of evidence.
Q: Marvin and Marife are husband and wife, and so are Happy and Abby.
Happy has carnal knowledge with Marife in a seedy motel somewhere in Pasay.
Marvin accuses Happy and Marife adultery and they are subsequently
convicted. If Happy gave a gift to Marife during their adulterous relationship,
can Abby now bring an action to have such donation declared void?
Yes, because at the time of the donation, Happy and Marife were guilty of
adultery.
Q: Marvin and Marife are husband and wife. Marvin has a sweetheart, Rissa,
with whom he has never had sexual intercourse (how platonic). Is the donation
void?
No, because they are not guilty of adultery.
Q: Suppose Marvin donates to his querida for the purpose of ending the
relationship, is the donation valid?
Yes, the donation is valid because its purpose is not to continue an immoral
arrangement but precisely to put an end to it. The giving of the donation will
improve family relations. But if the donation was demanded by the querida
and such demand amounted to a threat, it should be considered as voidable for
the querida would be taking advantage of her influence over the man. (the
late Justice Paras)
Q: Is Victor Ramos hot?
It depends. If you consider being Mr. Law School 2005 hot; then yes, Vic is hot.
If you consider the fact na tumataba na si Vic at lumalaki tiyan niya; then it
would be safer to say that being hot is in the eyes of the beholder na.
Q: Is criminal conviction necessary in the second prohibition?
Yes, mere preponderance of evidence showing guilt will not be sufficient. But it
cannot be denied that even if the crime is not carried out, the contract would
still have an illegal cause and should therefore be considered void.
Q: If the donation took place after the commission of adultery or concubinage, is

the donation valid?
Yes, unless the consideration for the donation is the commission of the act of
adultery or concubinage.
N.B. It does not matter whether the donation was made before or after the
commission of the offense.
The Dean, however, cautions that it is often difficult to determine the exact time
the donation was made. The important thing is to prove that during the time the
donation was made, the donor and the donee were still adulterizing or
concubinizing.
ARTICLE 740.
Incapacity to succeed by will shall be applicable to
donations inter vivos. (n)
Q: What is the purpose of the third prohibition? To prevent bribery.
Q: Who are incapacitated to inherit?
233

(1) Absolute incapacity where in no case can there be a transmission of
the inheritance.
Example: an abortive infant
(2) Relative incapacity where under certain conditions a particular
person cannot inherit from a particular decedent Art. 1027 provides
that the following are incapable of succeeding or donating:
(a) The priest who heard the confession of the testator during his last illness, or
the minister of the gospel who extended spiritual aid to him during the same
period;
(b) The relatives of such priest or minister of the gospel within the fourth
degree, the church, order, chapter, community, organization, or institution to
which such priest or minister may belong;
(c) A guardian with respect to testamentary dispositions given by a ward in his
favor before the final accounts of the guardianship have been approved, even if
the testator should die after the approval thereof; nevertheless, any provision
made by the ward in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
(d) Any attesting witness to the execution of a will, the spouse, parents, or
children, or any one claiming under such witness, spouse, parents, or children;
(e) Any physician, surgeon, nurse, health officer or druggist who took care of
the testator during his last illness;
(f) Individuals, associations and corporations not permitted by law to inherit.
Art. 1032 provides that the following are incapable of succeeding by reason of
unworthiness:
(a) Parents who have abandoned their children or induced their daughters to
lead a corrupt or immoral life, or attempted against their virtue;
(b) Any person who has been convicted of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(c) Any person who has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been
found groundless;
(d) Any heir of full age who, having knowledge of the violent death of the
testator, should fail to report it to an officer of the law within a month, unless
the authorities have already taken action; this prohibition shall not apply to
cases wherein, according to law, there is no obligation to make an accusation;
(e) Any person convicted of adultery or concubinage with the spouse of the
testator;
(f) Any person who by fraud, violence, intimidation, or undue influence
should cause the testator to make a will or to change one already made;
(g) Any person who by the same means prevents another from making a will,
or from revoking one already made, or who supplants, conceals, or alters the
latter's will;
(h) Any person who falsifies or forges a supposed will of the decedent.
Q: If the donation to the priest was made long before the donors confession, is
the donation valid?
Yes, because the possibility of undue influence does not exist.
Q: 4C tried to kill Henry Villanueva because his school, UST won the 2006
UAAP basketball championship. Later Henry forgave 4C and also gave 4C a
donation. Can 4C receive donation?
Yes, because there has been a condonation of the offense.
Q: Armel tried to kill Gilbert but Gilbert did not know who the assailant was.
Later Gilbert gave Armel a donation. Can Armel receive the donation?
No, because under the law on succession. Armel would be considered as
unworthy to inherit and so he is also incapacitated as a donee.
ARTICLE 741.
Minors and others who cannot enter into a contract may
become donees but acceptance shall be done through their parents or legal
representatives. (626a)
Q: A 12-year old child was given a donation. Is the donation valid?
Yes, by express provision of law but acceptance must be done through his
parents or legal representatives. (need not have court approval)
Minor as donors act through their guardians but with court approval
(otherwise, donation is unenforceable entered into without or in excess of the
authority of the guardian)
Q: May minors accept by themselves?
(a) if the donation is simple Yes
Exception: a written acceptance of the donation is required. In such a
case, the parents or legal representatives must intervene.
Example: Tess gives her ballpen to Aleli, a minor. Aleli need not accept
the ballpen through her parents or legal representatives.
234

(b) If the donation is onerous or conditional No, because some burden is
imposed on the child. The parents or legal representatives must
intervene. But if the minor accepts by himself, the contract is
considered as voidable.
ARTICLE 742.
Donations made to conceived and unborn children may be
accepted by those persons who would legally represent them if they were
already born. (627)
Q: When is a child considered born under this article?
1. If it had a normal intra-uterine life and is born alive.
2. If it had an intra-uterine life of less than 7 months, the child should be
born alive and live for at least 24 hours.
ARTICLE 743.
Donations made to incapacitated persons shall be void,
though simulated under the guise of another contract or through a person
who is interposed. (628)
Q: What is the meaning of incapacitated persons under this article?
The term refers to those enumerated under Article 739: adultery and
concubinage, convicted of same criminal offense and donation was the
consideration, public officer.
ARTICLE 744.
Donations of the same thing to two or more different
donees shall be governed by the provisions concerning the sale of the same
thing to two or more different persons. (n)
Q: What are the rules if the same object is donated to two or more different
donees? (Note: cross-reference with Art. 1544 on double sale)
Q: Does this article have retroactive effect? No.

Note: this article cannot apply to instances where there is a donation and a sale.
Q: Annedithe donated a parcel of land to her son, Fonz, on November 3, 1915.
Fonz, however, did not take possession of the land. Then Annedithe donated
the same land to her daughter, Me-an, who took possession immediately not
knowing that it had previously been given to Fonz. On June 10, 1919, with full
knowledge of the donation to Me-an, Fonz registered his title (by donation) to
the land. Who between the two donees is entitled to the land?
Me-an, because Fonz registration was made in bad faith. Since Me-an is in
actual possession (and in good faith) she must be considered the owner even if
the donation was first made in favor of Fonz (Cagaoan vs Cagaoan, 43 Phils 554)
N.B. If Me-an had been in bad faith when she took actual possession of the land
because she knew of the prior donation to Fonz then the answer would have
been different and title would go to Fonz, who was the first donee.
ARTICLE 745.
The donee must accept the donation personally, or through
an authorized person with a special power for the purpose, or with a general
and sufficient power; otherwise, the donation shall be void. (630)
Q: How must acceptance be made by the donee?
1. A donee may accept personally OR
2. Acceptance may be made through authorized persons:
a. One with a special power
b.
One with a general and sufficient power
(1) Movable property

Ownership shall be transferred to the first donee who takes
possession thereof in good faith.
N.B. The authorization must be in a public instrument. Art. 1878 No. 13

provides that a special power of attorney is needed when an inheritance is to be
accepted.
(2) Immovable property

Ownership shall belong to the donee who acquired it in good
faith and first recorded it in the Registry of Property
Should there be no inscription, ownership shall pertain to the
donee who in good faith was first in possession.
In the absence of possession, the donee who presents the
oldest title provided there is good faith.
Q: What if someone else aside form the above accepts the donation? The
donation shall be void.
Q: Why is authority to accept required?
An ordinary agent or administrator without authority from the principal cannot
accept simple or onerous donations because the principal may not want to
accept the donors generosity or he may not want to be bound to the donor.
235

ARTICLE 746.
Acceptance must be made during the lifetime of the donor
and of the donee. (n)
Q: What kind of donations do this article apply?
This article applies to donations inter vivos, obviously and also onerous
donations.
Q: Gerry donated to Ric his condo. Ric accepted. But before Gerry knew of Rics
acceptance, he died. Is the donation valid?
No, because although acceptance was made during the lifetime of both, the
donation was never perfected for the knowledge of the acceptance never
reached the donor, Gerry.
Q: If the donation is mortis causa and the donation was accepted by the donee
during the lifetime of the donor, can the donor subsequently change his mind
and revoke the donation?
Yes, because donations mortis causa may be accepted only after the donors
death. Any acceptance made by the donee during the lifetime of the donor has
no effect. Furthermore, donations mortis causa are essentially revocable even
without justifiable cause.
N.B.
(1) Art. 1049 of the Civil Code provides:
Acceptance may be express or tacit.
An express acceptance must be made in a public or private document.
A tacit acceptance is one resulting from acts by which the intention to accept is
necessarily implied, or which one would have no right to do except in the
capacity of an heir.
Acts of mere preservation or provisional administration do not imply an
acceptance of the inheritance if, through such acts, the title or capacity of an heir
has not been assumed.
(2) Art. 1057 provides that:
Within thirty days after the court has issued an order for the distribution of the
estate in accordance with the Rules of Court, the heirs, devisees and legatees
shall signify to the court having jurisdiction whether they accept or repudiate
the inheritance.
If they do not do so within that time, they are deemed to have accepted the
inheritance.
ARTICLE 747.
Persons who accept donations in representation of others
who may not do so by themselves, shall be obliged to make the notification
and notation of which article 749 speaks. (631)
Q: What is the additional duty of those duly authorized to do the acceptance?
Notification and notation are necessary for the perfection of donations.
7. Revocation
Q: What are the different special modes by which donations inter vivos may be
revoked?
There are four special modes. They are:
1. Supervening birth, survival or adoption of a child (Art. 760)
2. Nonfulfillment of the condition or charge imposed (Art. 764)
3. Acts of Ingratitude if the donee (Art. 765)
4. Inofficious donation (Art. 771)
Q: What are the different special modes by which donations inter vivos may be
reduced?
There are 3 special modes. They are:
1. That the donor did not reserve sufficient means for his support as well
as for the support of all relatives who, at the time of the donation, are
by law entitled to be supported by such donor (Art. 750)
2. Supervening birth, survival or adoption of a child (Art. 760)
3.
Inofficious donations (Art. 771)
a.
Birth, Survival or Adoption
ARTICLE 760.
Every donation inter vivos, made by a person having no
children or descendants, legitimate or legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced as provided in the next article, by the
happening of any of these events: cd i
(1)
If the donor, after the donation, should have legitimate or
legitimated or illegitimate children, even though they be posthumous;
(2)
If the child of the donor, whom the latter believed to be dead when
he made the donation, should turn out to be living;
(3)
If the donor subsequently adopt a minor child. (644a)
Q: What are inofficious donations?
Those that impair or prejudice the legitime or successional rights of compulsory
heirs.
Q: What are the 2 kinds of inofficious donations?
1. Those referred to in Arts. 760-761 (where the donor at the time of
donation either had no children or thought he had no more)
236

- the value of the estate of the donor to be considered is its value at
the time of B-A-R (birth, adoption, reappearance)
2. Those referred to in Arts. 771 and 752 (where the donor had at least
one child already at the time he made the donation)
- the value of the estate is that at the time of the death of the donor.
Q: Why is reduction or revocation allowed?
The law presumes that had the donor known he would have a child or that the
child or that the child he thought was dead was really alive, he would not have
made the donation (or at least he would have made a smaller one) because then
his own child would have been the object of his affection and generosity.
Q: Rommel had no children. Frustrated, he decided to give a P10,000 donation
to Krish. At the time, he had P100,000 left. Later, he adopted Joan. He had only
P5,000 left. Should the donation be reduced?
Since he had only P5,000 left at the time of the adoption, his total estate at that
time was P15,000 (after collating the donation). Since the legitime of the adopted
child is P7,500 (1/2 of the estate), the free portion would only be P7,500.
Therefore, the donation must be reduced by P2,500.
Q: At the time of the donation, the donors child was already conceived but not
yet born. Should Art. 760 or 771 apply?
IT DEPENDS
1. If the donor did not know of such conception, Art. 760 applies (it is as
if he had no child). While it is true that a conceived child is already
considered born for all purposes favorable to it, still in this case to
consider it as already born would be unfavorable to it since a donation
in favor of another is being made.
2. If the donor knew of such conception, then Art. 771 applies because in
such a case, he fully knows he is about to have a child and still he
deliberately made a donation.
Q: Enzo has a child, Joan, who in turn has a child, Carmela. Joan disappeared.
Enzo did not know that Joan had the child. Enzo made a donation in favor of a
bum named Reggie. Later it turned out that although Joan was already dead,
Carmela was still alive. If Enzo receives info of the present existence of Carmela,
may the donation be revoked or reduced?
Art. 760 (2) does not apply for here the law says child and not descendants
or grandchild. But Art. 771 may apply if the donation will really impair
Carmelas legitime and this time, it should be the value of Enzos estate at the
time of Enzos death that should be computed in determining whether or not

the donation is inofficious.
Q: At the time of the donation, the donor already had a child. What if he has a
second child? Can further reduction be asked?
No. The birth of the 2nd child is immaterial.
Q: What about the birth of an illegitimate child?
Revocation or reduction can be asked. It does not matter whether the child is
legitimate or not.
Q: Would the donation be placed at the mercy of the donor because he can
always adopt a child and later ask for a reduction?
The law provides limitations in such instances:
1. The adoption must have judicial approval
2. The adopted child must be a minor
ARTICLE 761.
In the cases referred to in the preceding article, the donation
shall be revoked or reduced insofar as it exceeds the portion that may be
freely disposed of by will, taking into account the whole estate of the donor at
the time of the birth, appearance or adoption of a child. (n)
Q: What should be the value of the hereditary estate?
Its value at the birth, appearance or adoption plus the value of the donation (at
the time donation was made)
Q: Is it possible to revoke the totality of the donation?
It depends on how much it has to be reduced.
Q: Peaches makes a donation of P100,000 to Martin. She was childress at that
time. At the time of the donation, only P50,000 was left in Peaches bank
account. Later on, a child was born to Peaches. How much should the reduction
be?
The donation must be reduced by P25,000.
P100,000 donation
50,000 assets left
------------P150,000
P150,000/ 2 = P75,000 free disposal
237

P100,000 P75,000 = P25,000 reduction
Q: What is presumptive legitime?
This is the computed legitime of the child at the time of the B-A-R
Q: Francis makes a donation of P50,000 to the Students of Manila, Inc. He was
left with assets worth P100,000. Afterwards, a child was born to him and his
wife. Would there be a reduction?
No. The donation is less than what the donor may dispose by his free will. There
are enough assets left.
P100,000 assets
50,000 donation
-----------P150,000 / 2 = P75,000 free disposal (Q: What about the share of the wife?)
P75,000 > P50,000 (donation)
ARTICLE 762.
Upon the revocation or reduction of the donation by the
birth, appearance or adoption of a child, the property affected shall be
returned or its value if the donee has sold the same.
If the property is mortgaged, the donor may redeem the mortgage, by paying
the amount guaranteed, with a right to recover the same from the donee.
When the property cannot be returned, it shall be estimated at what it was
worth at the time of the donation. (645a)
Q: What must the donee do if the donation is reduced?
1. If the property is still with him, return the property
2. If the property has been sold, give the value to the donor (usually the
price of the sale)
3. If the property has been mortgaged, the donor may pay off the debt
but he can seek reimbursement from the donee.
4. If the property cannot be returned (as when it has been lost or totally
destroyed), return its value (value not at the time of the loss but at the
perfection of donation).
ARTICLE 763.
The action for revocation or reduction on the grounds set
forth in article 760 shall prescribe after four years from the birth of the first
child, or from his legitimation, recognition or adoption, or from the judicial
declaration of filiation, or from the time information was received regarding
the existence of the child believed dead.
This action cannot be renounced, and is transmitted, upon the death of the
donor, to his legitimate and illegitimate children and descendants. (646a)
Q: What happens to the donation if the legitimate child dies before the action to
reduce is judicially commenced? The donation is valid
Q: Can the action be renounced?
The action cannot be renounced. It is transmitted (if donor dies within 4 years)
on his death to his legitimate and illegitimate children and descendants (not
ascendants or surviving spouse).
Example A
Example B
[---------------------------][---------------------------------]
Birth of Child
I
4th year
I
I
I
Donor dies, child
Donor dies, child can no
can bring action
longer bring actionprescribed
through a legal rep
b.
Non-fulfillment of Condition
ARTICLE 764.
The donation shall be revoked at the instance of the donor,
when the donee fails to comply with any of the conditions which the former
imposed upon the latter.
In this case, the property donated shall be returned to the donor, the
alienations made by the donee and the mortgages imposed thereon by him
being void, with the limitations established, with regard to third persons, by
the Mortgage Law and the Land Registration laws.
This action shall prescribe after four years from the noncompliance with the
condition, may be transmitted to the heirs of the donor, and may be exercised
against the donee's heirs. (647a)
Q: In case of non-fulfillment of the condition or charge imposed by the donor
upon the donee, what is the period of prescription?
Four (4) years from the non-compliance with the condition or the charge. It may
be transmitted to the heirs of the donor and may be exercised against the
donees heirs.
Q: What does condition include?
It must be understood to mean charges or burdens imposed. It can also refer to
resolutory conditions but not suspensive conditions because if the condition is
not fulfilled, the donation never becomes effective. Therefore, there will be
nothing to revoke.
238

N.B. Tolentino and Caguioa are of the opinion that donations can never be
subject to resolutory conditions.
Q: Can the donation be revoked by the donor at his own unilateral act?
No. Court action is essential.
Q: Within what period must the conditions be performed?
1. If there is a period given, said period shall be controlling unless the
period is extended by the donor
2.
If there is no period, the court must fix a reasonable period.
Q: Are the heirs expressly granted the right to revoke?

Compulsory and voluntary heirs are expressly granted the right to revoke. IF
THE DONOR IS ALREADY DEAD, provided that the prescriptive period has
not yet lapsed.
Q: On April 9, 1971, L donated a piece of land to F, subject to several conditions.
The deed of donation provided for the automatic reversion to the donor of the
property in case of violation of or non-compliance with the conditions set forth
therein. It also provided that the donee must comply with the terms and
conditions of the donation within 5 years from its execution. On Sept. 23, 1980,
the heirs of L filed an action for the cancellation of the donation on the ground
that the donees failed to comply with the terms and conditions of the donation.
Has the action to annul prescribed?
NO. Art. 764 of the Civil Code which provides that the actions for the revocation
of the donation must be brought within 4 years from the non-compliance of the
conditions of the donation does not apply to onerous donations. Onerous
donations are governed by the rules on contracts. The general rules on
prescription therefore applies to prescription of actions for the revocation of
onerous donations. Thus the complaint filed on Sept. 23, 1980 was well within
the 10-year prescriptive period to enforce a written contract (Art. 1144 of the
Civil Code), counted from April 9, 1976, the expiration of the period within
which the condition must be fulfilled. (De Luna v Abrigo, 181 SCRA 150)
Q: Barretto offered to donate his land to the City of Manila on the condition that
no structures shall be built upon the land and that it will not be devoted to any
purpose other than beautifying the vicinity and for this purpose the city should
acquire such of the adjoining land as may necessary to form with his land a
public square with gardens and walks. The city entered into possession of the
land and used it as part of the public street without complying with the third
condition. May Barretto recover the possession of the land?
NO. The contract did not fix the period within which the conditions should be
fulfilled. The court, therefore, has the duty to fix a suitable time for its
fulfillment and in the meantime, it cannot be deemed that the city has not
complied with such condition. (Barretto v City of Manila, 7 Phil 416)
c.
Ingratitude
ARTICLE 765.
The donation may also be revoked at the instance of the
donor, by reason of ingratitude in the following cases:
(1)
If the donee should commit some offense against the person, the
honor or the property of the donor, or of his wife or children under his
parental authority;
(2)
If the donee imputes to the donor any criminal offense, or any act
involving moral turpitude, even though he should prove it, unless the crime
or the act has been committed against the donee himself, his wife or children
under his authority;
(3)
If he unduly refuses him support when the donee is legally or
morally bound to give support to the donor. (648a)
Q: What is the reason for the law making acts of ingratitude a ground for
revocation? The donee should be thankful for the donation.
Q: What must be remembered about the grounds mentioned in this article?
They are:
1. Purely personal must be committed by the donee and not by his wife
or relatives
2. Exclusive those not enumerated are deemed excluded.
Q: Is there automatic revocation in this case?
No. This has to be made through judicial action.
Q: What does offense under #1 include?
This includes both criminal and non-crimes. No criminal conviction is required.
In a suit for revocation, mere preponderance of evidence would be sufficient as
proof of the offense.
Q: What does imputation mean? To bear witness against the donor.
Q: Give an example of the exception to #2
If in the above example, D is the minor child of Portia. The revocation will not
prosper because the crime was committed against a child under Portias
authority.
Q: What does morally and legally bound to give support mean?
239

That the donee has the capacity and assets to support the donor.
Q: Would it amount to ingratitude if the donee refuses to support the donor and
the latter still has relatives who can adequately support him?
Yes, it would still be an act of ingratitude because the intent of this article is that
once the donor calls upon the donee for support, the donee must give the
support he is able to.
Q: What is the prescriptive period for acts of ingratitude?
One (1) year from the time the offense is committed AND it is possible for the
donor to bring the action.
Q: Is the right to file the action transmissible to the donors heirs?
Generally NO, because it is purely personal and is committed against the donor
himself. But in cases where the donee killed the donor, action is transmissible.
Q: What if the donor dies without filing an action?
The heirs can no longer file an action since there seems to be no intention of
filing one.
ARTICLE 766.
Although the donation is revoked on account of ingratitude,
nevertheless, the alienations and mortgages effected before the notation of
the complaint for revocation in the Registry of Property shall subsist.
Later ones shall be void. (649)
Q: Chelo donated a parcel of land to Rissa on Sept. 8, 1993. On Dec. 27, 1993,
Rissa sold the land to Pitsy. On Jan. 2, 1994, Rissa tried to kill Chelo but failed.
On Jan. 18, 1993, Chelo sued for revocation of the donation. The suit was
recorded in the TCT of the parcel of land. Will the action prosper? Can Chelo
still recover the parcel of land?
Yes, the suit will still prosper because this is a case of ingratitude.
No, Chelo can no longer recover the parcel of land. Since the sale was made
long before the annotation of the complaint for revocation in the Registry of
Property, the sale in favor of Pitsy is valid. Therefore, all that Chelo can recover
from
Rissa would be the value of property (computed as of the date the donation was
made)
Q: If the sale is made before the annotation of the complaint for revocation; but
the buyer knew of the pending action is the sale still valid?
No. If nothwithstanding its non-annotation, the buyer knew (through other

means) of the existence of the pending action, he should be considered a
purchaser in bad faith. Therefore, the sale should not be considered as valid.
Remember the old adage, actual knowledge is equivalent to registration.
ARTICLE 767.
In the case referred to in the first paragraph of the preceding
article, the donor shall have a right to demand from the donee the value of
property alienated which he cannot recover from third persons, or the sum for
which the same has been mortgaged.
The value of said property shall be fixed as of the time of the donation. (650)
The donee should respond with damages, because as owner, he is supposed to
bear the loss or deterioration (res perit domino)
ARTICLE 768.
When the donation is revoked for any of the causes stated in
article 760, or by reason of ingratitude, or when it is reduced because it is
inofficious, the donee shall not return the fruits except from the filing of the
complaint.
If the revocation is based upon noncompliance with any of the conditions
imposed in the donation, the donee shall return not only the property but also
the fruits thereof which he may have received after having failed to fulfill the
condition. (651)
Q: What are the rules regarding fruits when a donation is revoked or reduced?
1. The fruits from the time the action was filed must be returned if:
a. Basis is Art. 760 (B-A-R)
b. Inofficiousness because of impairment of legitime (Art. 771)
c. Donee commits act of ingratitude (Art. 765)
2.
The fruits received by the donee after he has failed to fulfill the
conditions or charges imposed by the donor must be returned if the
basis is Art. 764.
N.B. If money was donated, the fruits thereof refer to the legal rate of interest,
unless otherwise agreed upon.
ARTICLE 769.
The action granted to the donor by reason of ingratitude
cannot be renounced in advance. This action prescribes within one year, to be
counted from the time the donor had knowledge of the fact and it was
possible for him to bring the action. (652)
Q: What is the required form of renunciation of the donees ingratitude?
240

Renunciation may be done expressly or impliedly since the law requires no
formality under this article. However, when express renunciation is made, it is
believed that this must comply with formalities of donations. Hence, if the
property donated was land, the renunciation of past ingratitude should be in a
public instrument.
BUT: one who renounces must:
1. be aware of the act causing the ingratitude;
2.
have capacity to dispose of his property at the time the waiver is made.
Q: What is the prescriptive period for the action to revoke due to the donees
ingratitude?
One (1) year. The period must be counted from the time the donor knew of the
fact or cause of the ingratitude. Provided, that it was possible for him to bring
the action.
ARTICLE 770.
This action shall not be transmitted to the heirs of the
donor, if the latter did not institute the same, although he could have done so,
and even if he should die before the expiration of one year.
Neither can this action be brought against the heir of the donee, unless upon
the latter's death the complaint has been filed. (653)
Q: Is the action to revoke on the ground of the donees ingratitude
transmissible?
The general rule is that there is NO transmissibility of the right to revoke if the
basis is the donees ingratitude. Neither can the action be brought against the
donees heirs, unless at the time the donee died, the action had been filed.
Exceptions:
1. If the donor has already instituted the action but died before it was
terminated
2. If the donor was killed by the donee
3. If the donor died without having known of the act of ingratitude
d.
Innoficiousness
ARTICLE 771.
Donations which in accordance with the provisions of
article 752, are inofficious, bearing in mind the estimated net value of the
donor's property at the time of his death, shall be reduced with regard to the
excess; but this reduction shall not prevent the donations from taking effect
during the life of the donor, nor shall it bar the donee from appropriating the
fruits.
For the reduction of donations the provisions of this Chapter and of articles
911 and 912 of this Code shall govern. (654)
Q: What are the rules on inofficious donations?
1. The value of the estate is computed as of the time of the donors death
(property left minus debts and charges plus the value of the donation
equals net hereditary estate).
2. Inofficious donations may not only be reduced, they may be
completely canceled. (e.g. when donor had no free portion left because
of the presence of certain compulsory heirs)
Example: If the compulsory heirs are the surviving spouse (1/4 share), one
legitimate child (1/2 share) and one illegitimate child (1/4 share), it is evident
that everything constitutes the legitime leaving nothing for free disposal. All
donations inter vivos should be totally reduced, unless the compulsory heirs
concerned refuse to institute the action.
N.B. Since the inofficious of the donation cannot be determined until after the
donors death, in the meantime, the donation is valid and ownership is
transmitted to the donee during the donors lifetime.
Q: What are the implications of the transfer of ownership to the donee?
1. The donee gets the fruits while the donor is still alive (principle of
accretion discreta)
2. The donee can take advantage of the natural or artificial incorporations
or attachments (principle of accretion continua)
3. The donee bears the loss in case of destruction or deterioration
N.B. Donations inter vivos are preferred over dispositions mortis causa (Art.
911)
If what was donated was real property and it would be inconvenient to divide it
in case of reduction:
1. the property will go to the donee if the reduction is less than or equal
to 50%
2. the property will go to the heirs if the reduction is more than 50%
BUT: in either case, there will be reimbursement in case for what belongs to the
respective parties. (Art. 912)
Q: Gilbert died in 1984 heavily indebted to Punzi. After the settlement of his
estate in 1986, there was still an aggregate balance of P400k in favor of Punzi.
241

Consequently, Gilberts widow, Chelo, and his 2 legitimate children, Richard
and Raissa, did not inherit anything from him. The records show that in 1960,
Gilbert had donated P800k worth of property to a macho dancer named Enzo,
who in 1986 was already well-off and driving his own Lexus. Would it still be
possible for Gilberts heirs or Punzi, the creditor, to proceed against Enzo for the
reduction of the donation?
Yes, on the grounds that it is an inofficious donation in accordance with Art.
771. The defense of prescription will not lie because the period of prescription
shall be counted from the time of the donors death.
ARTICLE 772.
Only those who at the time of the donor's death have a right
to the legitime and their heirs and successors-in-interest may ask for the
reduction or inofficious donations.
Those referred to in the preceding paragraph cannot renounce their right
during the lifetime of the donor, either by express declaration, or by
consenting to the donation.
The donees, devisees and legatees, who are not entitled to the legitime and
the creditors of the deceased can neither ask for the reduction nor avail
themselves thereof. (655a)
Q: Who are the parties who can ask for the reduction of inofficious donations?
1. Compulsory heirs of the donor children, descendants, ascendants
and surviving spouse.
2. The heirs and successors-in-interest of the above-mentioned
compulsory heirs.
Q: Who cannot ask for the reduction?
1. the donor himself (kailangan mamatay muna siya)
2. the voluntary heirs of the donor friends, brothers, etc
3. devisees recipients of gifts of real property in a will
4. legatees recipients of gifts of personal property in a will
5. creditors of the deceased
Q: What is the prescriptive period for bringing this action?
Within five (5) years from the time of the donors death.
Q: If the adoption of a person over 18 years old a ground for the reduction of the
donation?
It is not a ground under Art. 760, but it may be a ground under Art. 771 and 772
where the donation may impair his legitime.
ARTICLE 773.
If, there being two or more donations, the disposable
portion is not sufficient to cover all of them, those of the more recent date
shall be suppressed or reduced with regard to the excess. (656)
Q: What is the rule stated in this article?
Preference is given to earlier donations. If it is essential to reduce, the
subsequent ones must be first reduced.
Q: What if the donations were perfected at the same time?
General Rule: The reduction must be proportionate.
Exception: When preference is expressly stated in the deed of donation itself.
REVOCATION
1. Total, in that it affects the entire
donation
2. Takes place regardless of whether
the legitime of compulsory heirs has
been impaired
3. As a rule, is for the benefit of the

donor
REDUCTION
1. Generally, partial
2. Applies only when the legitime of
compulsory
heirs
has
been
impaired, i.e. the total number of
collationable donations exceeds the
free disposal
3. As a rule, for the benefit of the
donors compulsory heirs.
Properties Covered
ARTICLE 750.
The donation may comprehend all the present property of
the donor, or part thereof, provided he reserves, in full ownership or in
usufruct, sufficient means for the support of himself, and of all relatives who,
at the time of the acceptance of the donation, are by law entitled to be
supported by the donor. Without such reservation, the donation shall be
reduced in petition of any person affected. (634a)
Q: What is the reason for this article?
The claims of the donors own family should not be disregarded. The father of a
family must reserve an amount sufficient for those he may be called upon to
support. The sufficiency can be determined by the court in accordance with
prudence and the exercise of reasonable discretion.
Q: What donations are not included in this article?
1. Onerous donations
2. Donations mortis causa
242

3.
Donations propter nuptias (for these donations are never reducible; they
are only revocable on the grounds expressly provided by law)
Q: Is an excessive donation under this article void?

No, but the donation may be reduced to the extent necessary to support of the
relatives whose rights are impaired.
By future property is understood anything which the donor cannot dispose of

at the time of the donation. (635)
Q: Who are the relatives referred to in this article?

These are the relatives at the time of the knowledge of the acceptance, for
before such knowledge, there has been no perfection of the donation.
Q: What is the status of a donation of a future property? It is null and void

Q: What is the reason for the prohibition?
One cannot give away that which he does not have. Furthermore, this would
militate against the irrevocability of donations inter vivos
Q: Does this prohibition apply to donations with suspensive conditions?
No, because when the suspensive condition is fulfilled, the effects retroact to the
date of the constitution of the obligation
Q: Aside from support, does the donor still have to reserve some of his
property?
Yes, the donor must reserve enough of his property to pay off his debts
contracted before the donation, otherwise, there is a presumption that the
donation was made to defraud creditors.
Q: What is the exception to the rule?

The Civil Code allows the donation of future property in contractual
succession. This occurs in a marriage settlement where the would-be spouses
are allowed to donate mortis causa to each other future property to the extent
permitted under the rules on testamentary succession.
Q: L and his wife D, donated (in a public instrument) 2 lots to their son, A, in
consideration of As marriage to B. The marriage was later celebrated and the
newlyweds took possession of the properties. L and D brought an action for the
annulment of the donation, in so far as portion thereof was concerned, on the
ground that at the time of the donation they neglected to leave everything for
their support and that the donation also prejudiced the legitime of G, a forced
heir. Is reduction applicable to donations propter nuptias?
Q: Gilbert and Marife are husband and wife. They have neither ascendants nor
descendants. Gilbert died. While the conjugal partnership was under
liquidation, Marife donated all her share in Giblerts estate to Armel. Marife
died while the settlement of the conjugal partnership was still pending. The
collateral heirs of Marife bought an action against Armel to set aside the
donation of future property. Decide.
Yes, donations propter nuptias are without onerous consideration, the marriage
being merely the occasion or motive for the donation and not its cause. Being
liberalities, they remain subject to reduction for inofficiousness upon the
donors death if they should infringe the legitime of a forced heir. (Mateo v
Lagua, 29 Phil 864)
The donation of Marife to Armel is not one of future property. According to the
Civil Code, future property is understood to be anything which the donor
cannot dispose or at the time of the donation. In the present case, Marifes
successional rights were transmitted at the very moment of Gilberts death. It is
evident that Marife had the perfect right to donate her share in Gilberts estate
to Armel.
Q: What if the donor, at the time of the donation, reserved a building (which
earned him rentals) for his support, but later on, he lost it because of a fire, may
he ask for the reduction of the donation?
ARTICLE 752.
The provisions of article 750 notwithstanding, no person
may give or receive, by way of donation, more than he may give or receive by
will.
No, the law only requires him to make the reservation for his own and his
compulsory heirs support at the time of the donation. If he has done so, the
donation may no longer be reduced. After all, a donation inter vivos is
IRREVOCABLE.
The donation shall be inofficious in all that it may exceed this limitation.
(636)
ARTICLE 751.
Donations cannot comprehend future property.
Q: What is the purpose of this article?

This article aims to protect the donors compulsory heirs as the donation may
exceed the free portion that the donor may dispose of thereby encroaching into
the heirs legitime.
243

2.
Q: Who are the compulsory heirs referred to in this article?
1. the donors surviving spouse
2. the donors children, legitimate or illegitimate
3. in certain instances, the donors ascendants
Q: At what point is the inofficiousness of the donation determined?
The inofficiousness of the donation may only be determined after the donors
death.
Q: What is the rule if there are several donations? How will the inofficious
amount be recovered?
The rule is priority in time is priority in right. Thus, the earlier ones must be
respected. The later ones are to be reduced first. If the donations were made on
the same date, the inofficious amount will be deducted from all of them pro
rata.
Q: What is the prescriptive period for reducing or revoking an inofficious
donation?
The action must be brought by the donors compulsory heirs within 5 years after
the donors death.
ARTICLE 753.
When a donation is made to several persons jointly, it is
understood to be in equal shares, and there shall be no right of accretion
among them, unless the donor has otherwise provided.
The preceding paragraph shall not be applicable to donations made to the
husband and wife jointly, between whom there shall be a right of accretion, if
the contrary has not been provided by the donor. (637)
Q: Give an example of the first paragraph
Happy donates to Portia and Abby. If Portia refuses to accept the donation,
Abby cannot get Portias share unless Happy has provided otherwise.
Q: Give an example of the second paragraph
Happy donates to David and Lucille, who are husband and wife. If David
refuses to accept the donation, Lucille will get Davids share unless Happy has
provided otherwise.
Q: In what other instances is accretion proper?
In cases of donations mortis causa, accretion takes place in the following cases:
1. In case of predecease where the donee dies ahead of the donor before
perfection.
3.
In case of incapacity Atty. Hofilena believes that the donee here is

disqualified to accept
In case of refusal or repudiation by the donee
ARTICLE 754.
The donee is subrogated to all the rights and actions which
in case of eviction would pertain to the donor. The latter, on the other hand, is
not obliged to warrant the things donated, save when the donation is onerous,
in which case the donor shall be liable for eviction to the concurrence of the
burden.
The donor shall also be liable for eviction or hidden defects in case of bad
faith on his part. (638a)
Q: Give an example of the first sentence
Toti bought a car from Alan, and then donated the same car to Blanche. If the
car has a hidden defect, the right of Toti to sue Alan for breach of warranty
would pertain not to Toti but to Blanche. In other words, Blanche would step
into the shoes of Toti.
Q: Jamea donated a piece of land to Jayson which she thought belonged to her.
If the real owner, Reggie, should oust or evict Jayson, will Jamea be responsible
to Jayson?
No, because the donation was made in good faith, Jamea thinking that he
owned the land.
Q: Same problem, but Jamea knew she did not own the land.
Jamea would be liable because of bad faith on her part.
Q: Mickey donated a piece of land worth P10k to Mon with the condition that
Mon would pay him only P2k. The land really belongs to Portia but Mickey
thought he was the owner. If Mon is evicted from the land, would Mickey be
responsible?
Yes, even though he was in good faith, but only up to P2k, which was the
amount of the burden, the donation being in part onerous.
Q: What are the instances when the warranty exists?
The warranty exists in the following cases:
1. When the donor is in bad faith
2. When the donation is onerous
3. When the warranty is expressly made
ARTICLE 755.
The right to dispose of some of the things donated, or of
some amount which shall be a charge thereon, may be reserved by the donor;
244

but if he should die without having made use of this right, the property or
amount reserved shall belong to the donee. (639)
Q: Pitsy donated to Bogs 3 automobiles with the reservation that Pitsy could sell
the 3rd automobile, but if he dies without having sold it, the automobile would
belong to Bogs. If Pitsy dies intestate, will the 3rd car belong automatically to
Bogs?
IT DEPENDS. The first 2 cars are donations inter vivos, the third car is a
donation mortis causa, because the ownership is transferred only after the
death. Thus, if the donation of the third car complied with the formalities of a
will, it is valid, otherwise, it is void.
ARTICLE 756.
The ownership of property may also be donated to one
person and the usufruct to another or others, provided all the donees are
living at the time of the donation. (640a)
N.B. The usufruct of real property, being real property itself, should be donated
in the form prescribed for real properties (and naturally, also the naked
ownership). The naked ownership and usufruct of personal properties are
personal properties themselves, so only the formalities for the donation of
personal property would be required.
ARTICLE 757.
Reversion may be validly established in favor of only the
donor for any case and circumstances, but not in favor of other persons unless
they are all living at the time of the donation.
Any reversion stipulated by the donor in favor of a third person in violation
of what is provided in the preceding paragraph shall be void, but shall not
nullify the donation. (641a)
Q: What does this article refer to ?
This refers to CONVENTIONAL REVERSION of donations. Reversion means a
going back to the donor or a going to a third person.
Q: Give an example of the 2nd paragraph.
Wito donated to Jae a piece of land with the stipulation that after 3 years, the
land would go to Pitsy Jr., an unborn and still unconceived child of Pitsy. The
reversion in favor of Pitsy Jr. is VOID but the donation to Jae remains valid. In
other words, only the provision regarding reversion would be disregarded
while the donation is still valid.
ARTICLE 758.
When the donation imposes upon the donee the obligation
to pay the debts of the donor, if the clause does not contain any declaration to
the contrary, the former is understood to be liable to pay only the debts which
appear to have been previously contracted. In no case shall the donee be
responsible for the debts exceeding the value of the property donated, unless
a contrary intention clearly appears. (642a)
This article deals with a donation where it is expressly stipulated that the donee
should pay the donors debts. Art 759, on the other hand, deals with a donation
where there is no such stipulation.
Q: What rules shall apply if there is a stipulation to pay the donors debts?
1. The donee is liable only for the donors prior debts debts which were
contracted before the donation had been made.
Exception: There is a stipulation that the donee shall also be liable to pay for
donors debts contracted after the donation.
2. Pay only for debts up to the value of the property donated
Exception: The contrary is stipulated or intended.
Q: Monica owes Loy P1k. Later, Monica donated her land to Glenda in a simple
donation inter vivos. The value of the land is P600. There was a stipulation in
the deed of donation that Glenda should pay Monicas debts. After the
perfection of the donation, Monica borrowed P400 from Martin. How much all
in all must Glenda pay?
Glenda must pay only P600. In the first place, she is not liable for the new debt
of P400. In the second place, while she is responsible for prior debts, her liability
is still limited to the value of the property donated which is P600 only.
ARTICLE 759.
There being no stipulation regarding the payment of debts,
the donee shall be responsible therefor only when the donation has been
made in fraud of creditors.
The donation is always presumed to be in fraud of creditors, when at the time
thereof the donor did not reserve sufficient property to pay his debts prior to
the donation. (643)
This article applies when there is no stipulation that the donee would pay the
donors debts.
Q: What are the rules provided for in this article?
General rule Donee is not required to pay for the donors prior debts.
245

Exception When the donation is made in fraud of creditors (those creditors at
the time the donation was made, not subsequent creditors).
Q: What presumption does the law establish in this article?
The law establishes a presumption that when the donor fails to reserve
sufficient property to pay previous debts, the donation was made in fraud of
creditors. But this presumption is rebuttable. There is still a chance that the
donation is really not fraudulent.
Q: What is the remedy of the creditors?
Donations made in fraud of creditors may be rescinded by said defrauded
creditors up to the extent of their credits.
FINAL NOTE:
To determine whether a donation inter vivos is valid or void, follow this
checklist:
1. Check the formalities: does the donation comply with Arts. 748 or 749,
as the case may be?
2. If it passes (1), check the capacity of both the donor and the donee: are
they capacitated to donate, AND can the donor donate to the donee
(check the disqualifications)?
3. Finally, check the acceptance: was the donation perfected in
accordance with the law?
VOID, INEFFECTIVE OR UNPERFECTED DONATIONS
1. Those not perfected in accordance with the forms and solemnities of
law. (particularly when there is no proper acceptance). (Arts. 748 and
749)
Example: donations of land if not made in a public instrument
2. Those made with property outside the commerce of man.
3. Those made with future property (Art. 751) except those provided for
in marriage settlements (Art. 130)
4. Those made to persons specially disqualified.
a. By reason of public policy (Art. 739)
b. By reason of unworthiness (Art. 1032)
c. By reason of possible undue influence (Art. 1027)
d. Those between husband and wife.
e. Those between common-law spouses.
- END - Happy Sembreak! -
246

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CIVIL LAW POST MIDTERMS REVIEWER

Civil Law Review class under Dean Del Castillo

CIVIL LAW REVIEW 4C and 4D 2006-2007

Property Relations of Union without Marriage

When both capacitated to marry and living together exclusively

man and woman with no legal impediment to marry live exclusively

Q: What does the above second scenario contemplate?

Q: When does Art. 147 of the Family Code apply?

CIVIL LAW REVIEW 4C and 4D 2006-2007

Either not capacitated to marry or not living together exclusively

Q: When does Art. 148 Apply?

CIVIL LAW REVIEW 4C and 4D 2006-2007

them in common in proportion to their respective contributions. It must be

CIVIL LAW REVIEW 4C and 4D 2006-2007

CIVIL LAW REVIEW 4C and 4D 2006-2007

CIVIL LAW REVIEW 4C and 4D 2006-2007

7. proof of actual contributions is not

7. if no such proof, no co-ownership

Cario v. Cario 02/02/01

CIVIL LAW REVIEW 4C and 4D 2006-2007

CIVIL LAW REVIEW 4C and 4D 2006-2007

Guerrero filed an aacccc!oonn ppuubbll!cc!aannaa against private respondent. Respondent

CIVIL LAW REVIEW 4C and 4D 2006-2007

Follow the tax definition an unmarried person who has

CIVIL LAW REVIEW 4C and 4D 2006-2007

But, the constitution of the FH is not valid. A FH cannot be constituted on land

In January 29, 1988, a judgment was rendered by the CA concerning a case

CIVIL LAW REVIEW 4C and 4D 2006-2007

Taneo v. CA, 03/09/99

FFAAMMIILLYY CCOODDEE ((AARRTT.. 115533))

Applies only from August 3, 1988

CIVIL LAW REVIEW 4C and 4D 2006-2007

Q. May a FH be constituted over a condom, este a condo, unit?

CIVIL LAW REVIEW 4C and 4D 2006-2007

Exemption from execution

Q. What are included, by implication, in the exemptions from art. 155?

CIVIL LAW REVIEW 4C and 4D 2006-2007

CIVIL LAW REVIEW 4C and 4D 2006-2007

CIVIL LAW REVIEW 4C and 4D 2006-2007

CIVIL LAW REVIEW 4C and 4D 2006-2007

declaration of nullity of the first marriage

Q: Why do we use 300 days as a yardstick?

Q: When do we apply Article 168?

Q: Does the phrase in the absence of proof to the contrary creates a

CIVIL LAW REVIEW 4C and 4D 2006-2007

DEAN: I have to venture that this is a presumption of legitimacy because

CIVIL LAW REVIEW 4C and 4D 2006-2007

Q: Who are legitimated children?

Actions regarding filiation

CIVIL LAW REVIEW 4C and 4D 2006-2007

CIVIL LAW REVIEW 4C and 4D 2006-2007

a final judgment declaring the status of the child

admission of legitimate filiation which must be either in:

Q: What does open possession mean?

CIVIL LAW REVIEW 4C and 4D 2006-2007

the action of the parents should not be intermittent (not pabugso-busgo);

family tradition and reputation

common reputation (based on public perception)

Q: What does the second paragraph of Article 172 include?

CIVIL LAW REVIEW 4C and 4D 2006-2007

CIVIL LAW REVIEW 4C and 4D 2006-2007

Admissibility of Scientific Testing

Q. What is the importance of blood tests?