PROPERTY Review| 1st Semester S.Y.

2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

June 18, 2018 can be brought under human control, then

they may be regarded as property.
BOOK II. - PROPERTY, OWNERSHIP, AND ITS
MODIFICATION • “PROPERTIES OUTSIDE THE COMMERCE OF
MAN”
“PROPERTY” – this word is derived from the word “proprius”, ▪ GENERAL RULE: They cannot be
meaning belonging to one or one’s own. (Rabuya, 2017) appropriated because they cannot be the
subject of contracts.
In the Civil Code, “property”is used synonymously with the ▪ EXCEPTION: But that doesn’t mean that
term “thing”.Sometimes, the provision uses the word property of public dominion, which is
“property”, sometimes “thing”is the word used. But outside the commerce of man, cannot be
technically, the term “thing”is broader than the term considered as property. Because, even
“property”. though they cannot be the subject of a
contract, they are considered as property
CLASSIFICATION OF THINGS under the Civil Code.
1. RES NULLIUS– belonging to no one. Perhaps:
• It is impossible to own (Ex. Sun, one cannot 3. INDIVIDUALITY OR SUBSTANTIVITY.
own it); or • For something to be considered property, it
• It has not yet been appropriated (Ex. A wild must have its own identity. It must not rely on
animal); or something to exist like the hair on one’s head. It
• It had been abandoned, therefore, there’s no is part of the human being. If it is severed, then
owner. it will acquire its own identity. Therefore, it can
be appropriated; it can be sold, donated,
2. RES COMMUNES – belonging to everyone. disposed of since it acquires individuality or
• Everyone can actually enjoy. While in substantivity.
particular no one owns the common property,
its use and enjoyment are given to all
mankind.
• Ex. Air, wind, sunlight, starlight, moonlight. TITLE I. - CLASSIFICATION OF PROPERTY

3. RES ALICUUS – belonging to someone. Art. 414.

• These are objects tangible or intangible which All things which are or may be the object of appropriation
are owned privately either in the collective or are considered either:
individual capacity. (1) Immovable or real property; or
• Since they can be owned, they are considered (2) Movable or personal property. (333)
property.
It is important to classify property with respect to movability
The traditional notion is that “properties” are those, which or immovability because of the different effects or the legal
are already possessed and found in the possession of man. consequences that arise or flow therefrom.
However, under our Civil Code, the concept of property is not
confined to “things” which are already appropriated or EXAMPLES OF LEGAL CONSEQUENCES:
possessed but also extends to those that are susceptible of i. As to acquisitive prescription
appropriation. • Movables: 4 years with good faith; 8
years if bad faith.
Thus, properties are not only those that are possessed, but • Immovables: 10 years with good faith;
also those that may be possessed. For the sun or the moon, it 30 years if bad faith.
is really impossible to possess such and therefore, it cannot ii. From the point of view of mortgage
be considered as property. • Immovables: Real estate mortgage.
• Movables: Chattel mortgage.
CHARACTERISTICS OF PROPERTY iii. Formalities of the donation
1. UTILITY FOR THE SATISFACTION OF MORAL OR • Movables can be donated orally;
ECONOMIC WANTS. • Immovables must be in writing and in a
• It is impossible to find something that is possessed public instrument.
by a man that satisfies any kind of want. It could iv. Legal redemption period
be to satisfy one’s hunger, eyesight, sense of • If the property sold in execution is
hearing, anything. As long as it satisfies a want or personal, there is no redemption period;
a need of a human being, then it has this • If it is real property, there is.
characteristic of “utility”. v. Venue
• The term “utility” here is not limited to something • If it involves immovable, the venue is
that can be used. Here, “utility” is broader. It may where the real property is situated;
be something that can be appreciated, anything. • Movable: None, it is a personal action.

2. SUSCEPTIBILITY OF APPROPRIATION.
• Things, which cannot be subjected to human
control by reason of sheer physical impossibility, CHAPTER 1. - IMMOVABLE PROPERTY
are not considered property. Why?
▪ May be because of their distance (Ex. sun, CLASSIFICATIONS OF IMMOVABLE PROPERTY
moon, stars). 1. IMMOVABLE BY NATURE – Those that cannot be
▪ May be because they are forces of nature moved from place to place because of their nature.
(Ex. lightning, rain). But if forces of nature

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

2. IMMOVABLE BY INCORPORATION – Those that are 
of an immovable; 


essentially movables but when attached to an xxx
immovable become an integral part of the same.
▪ TREES – if they are permanently attached or
3. IMMOVABLE BY DESTINATION OR PURPOSE – adhered to the soil, they are immovable.
Those that are essentially movables but for the ▪ PLANTS – also if permanently attached, even the
purpose for which they have been placed, they weeds, are considered immovable.
become immovable. ▪ GROWING FRUITS – Only while they are attached
to the trees that they can be considered as
4. IMMOVABLE BY ANALOGY OR LAW – The law will immovables. But, once the fruits are already
dictate that it is immovable (examples: right of harvested, and brought to the market, they will be
usufruct, contract for public works, easements or sold as personal properties and not as immovables.
servitudes). 1
Art. 415.
Article 415 does not define immovable property. It is an
The following are immovable property:
enumeration of what are considered immovables.
xxx
(3) Everything attached to an immovable in a fixed
This enumeration is EXCLUSIVE. Anything that does not fall
manner, in such a way that it cannot be
under this article is considered as movable or personal

separated therefrom without breaking the
property.
material or deterioration of the object;
xxx
Art. 415.
The following are immovable property:
Take note of the word “everything”. This is REAL PROPERTY
(1) Land, buildings, roads and constructions of all
BY INCORPORATION.
kinds adhered to the soil; 

xxx
“Everything” includes something, which is not really
immovable, but it is attached to an immovable.
▪ LAND – it is not the soil but the land that we step
on. Example: Fire Escape. A fire escape is technically a ladder and
it is most of the time made of steel. If it is one that is just
▪ ROADS – they are also part of the land even though placed there and easy to remove, then the fire escape will
cemented because the cement is adhered to the disappear. Those fire escapes that are imbedded into the
land. Therefore, they are always considered as building by cementing it so it won’t be easily stolen, they are
immovable properties. You do not physically move attached in a fixed manner, and cannot be separated
one road to another location. therefrom without breaking the material, are immovables.

▪ BUILDINGS – they are immovable when they are It is the fact of incorporation that determines the
permanently attached or adhered. There must be immovability of the property.
permanence. If it is merely placed on top of the
ground like a bahay kubo, then it is does not have What happens if a fire escape is already rusty and corroded?
the immovable character under par. 1. It has to be repaired, may be parts of it have to be replaced.
But before that can be done, it has to be detached from the
In many cases, the Supreme Court said that a house or a building. So, that would break portion of the building or may
building is classified as immovable by reason of its adherence be the ladder. Will it retain its immovable character?
to the soil on which it is built. Thus, a building, which is merely NO. Once it is detached, because it is immovable by
superimposed on the soil, is not considered real or immovable incorporation, if it is not incorporated with that immovable, it
property. loses its immovable character, and it becomes movable or
personal property.
It does not matter if the building is constructed on a land of
the owner of the building or on land of another or on rented But once it is fixed, and it is reattached to the building, then it
land. The character of a building is always immovable if it is will again acquire immovability.
permanently adhered or attached to the land.
Art. 415.
It does not matter how small the building is so long as it is
The following are immovable property:
permanently attached.
xxx
(4) Statues, reliefs, paintings or other objects for
▪ CONSTRUCTIONS OF ALL KINDS ADHERED TO THE
use or ornamentation, placed in buildings or on
SOIL – Ex. railroad tracks. They are permanently
lands by the owner of the immovable in such a
attached to the ground.
manner that it reveals the intention to attach

them permanently to the tenements;
Scaffoldings used by construction sites that are just imbedded
xxx
a little bit to the ground but can be removed easily are not
immovables.
REAL PROPERTY BY DESTINATION OR BY PURPOSE. No. 4 is
more specific. Not everything unlike in No. 3.
Art. 415.
The following are immovable property:
The speakers here in the classroom, do they fall under
xxx
“everything”? Of course.
(2) Trees, plants, and growing fruits, while they are
attached to the land or form an integral part

1 Cutie Notes, 2014

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Are they attached to the building? Yes they are. placed inside their brewery;
• Canning equipment or machinery for Mega sardines.
Are they attached to the building in such a way that if you
remove them, something will be broken? No, it is easy to What about computers? Cash registers?
detach, just unscrew it. These speakers are essentially Definitely, for a brewery, the computers are not such kind of
movables. Is it immovable under No. 3? No, because you can machines that acquire immovability. Only those that directly
remove them easily. meet the needs of the industry or work.

If you look at No. 4, the property is: GENERAL RULE: Machineries attached to the buildings or
▪ “Object for use”. lands are immovable if all the requisites are present.
− It is for use definitely so you can hear the
voice of the one speaking to the EXCEPTION: If these machines are not placed by the owner of
microphone. the land but by a mere tenant, they do not become
▪ “Placed in buildings by the owner of the immovable.
immovable.”
− Who placed these speakers? AdDU or its EXCEPTION TO THE EXCEPTION: If there is a provision to the
representatives. contract of lease between the lessor and the lessee, and it was
▪ “In such a manner that it reveals the intention to the lessee who placed the machines there but the lessee
attach 
them permanently to the tenements.” promised to leave the machines after the expiration of the
− Is there any plan to remove those contract, then the machines can be considered immovable.
speakers? No, unless they are destroyed.
DAVAO SAWMILL vs. CASTILLO (1935)
This is real property by destination. If it is imbedded into the We have a sawmill here that was put up by Davao Sawmill and
wall, then it can also be considered as immovable under par. it was constructed on land owned by somebody else.
3, an immovable by incorporation. We can have a Definitely, the machinery are not considered real or
combination of both if all the requisites are present. But in immovable property and therefore could be the subject of
this case of the speakers here, it is only an immovable by replevin or seizure.
destination or purpose.
Davao Sawmill Co., operated a sawmill. The land upon which
PAR. 3 PAR. 4 the business was conducted was leased from another person.
There’s no need for it to be It must be the owner or his On the land, Davao Sawmill erected a building, which housed
placed by the owner of the agent express or implied. the machinery it used. Some of the machines were mounted
immovable. and placed on foundations of cement. In the contract of lease,
Cannot be separated May be separated without Davao Sawmill agreed to turn over free of charge all
without breaking. breaking. improvements and buildings erected by it on the premises
Must be incorporated. May or may not be with the exception of machineries, which shall remain with
incorporated. Important the Davao Sawmill. In an action brought by the Davao Light
thing is the purpose or and Power Co., judgment was rendered against Davao
destination. Sawmill. A writ of execution was issued and the machineries
placed on the sawmill were levied upon as personality by the
sheriff. Davao Light and Power Co., proceeded to purchase
Art. 415.
the machinery and other properties auctioned by the sheriff.
The following are immovable property:
xxx
Are the machineries real property, which cannot be levied?
(5) Machinery, receptacles, instruments or
implements intended by the owner of the
HELD: NO.GENERAL RULE: The machinery only becomes
tenement 
for an industry or works which may
immobilized if placed in a plant by the owner of the property
be carried on in a building or on a piece of land,
or plant. As a rule, therefore, the machinery should be
and 
which tend directly to meet the needs of considered as Personal Property, since the owner of the said
the said industry or works; 
 land did not place it on the land.
xxx
Will it fall under the exception to the exception?No.
REQUISITES FOR A MACHINERY TO BE IMMOVABLE EXCEPTION TO THE EXCEPTION: The tenant, usufructuary, or
1. The machinery must be placed by the owner of the temporary possessor acted as agent of the owner of the
immovable; premises; or he intended to permanently give away the
− Refers not to the owner of the property in favor of the owner.
machinery, but the owner of the land or
building. It could have fallen under the exception to exception if not
2. The machinery is placed for an industry or work, because of the last sentence of the lease contract between
which is carried on in the building or the land. the owner of the land and Davao Sawmill that:
3. The machinery must tend to directly meet the needs
of the industry or work; “That on the expiration of the period agreed upon, all the
4. They must be essential and principal elements of the improvements and buildings introduced and erected by the
industry and not merely incidental. party of the second part (Davao Sawmill) shall pass to the
exclusive ownership of the party of the first part (Owner of the
EXAMPLES OF IMMOVABLE MACHINERY: Land) without any obligation on its part to pay any amount for
• Sawmill – used to cut the wood owned by the sawmill said improvements and buildings; also, in the event the party
business; of the second part should leave or abandon the land leased
• Chocolate-making machines placed in the building before the time herein stipulated, the improvements and
owned by the chocolate making company; buildings shall likewise pass to the ownership of the party of
• Beer bottling machine owned by San Miguel Beer the first part as though the time agreed upon had expired:
Provided, however, That the machineries and accessories are

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

not included in the improvements which will pass to the because they are essential and principal elements in the
party of the first part on the expiration or abandonment of industry.”
the land leased.”
However, contracting parties may validly stipulate that a real
Art. 415. property be considered as personal. After agreeing to such
The following are immovable property: stipulation, they are consequently estopped from claiming
xxx otherwise. Under the principle of estoppel, a party to a
(6) Animal houses, pigeon-houses, beehives, fish contract is ordinarily precluded from denying the truth of any
ponds or breeding places of similar nature, in material fact found therein.

case their owner has placed them or
preserves them with the intention to have them NAVARRO VS. PINEDA (1963)
permanently attached to the land, and forming WON a residential house may be a valid subject of a chattel
a permanent part of it; the animals in these mortgage.
places are included;
HELD: YES. The trial court did not predicate its decision
(7) Fertilizer actually used on a piece of land; declaring the deed of chattel mortgage valid solely on the
ground that the house mortgaged was erected on the land
(8) Mines, quarries, and slag dumps, while the which belonged to a third person, but also and principally on
matter thereof forms part of the bed, and the doctrine of estoppel, in that "the parties have so
waters 
either running or stagnant; 
 expressly agreed" in the mortgage to consider the house as a
chattel "for its smallness and mixed materials of sawali and
(9) Docks and structures which, though floating, wood". In construing Arts. 334 and 335 of the Spanish Civil
are intended by their nature and object to Code (corresponding to Arts. 415 and 416, N.C.C.), for
remain at a fixed place on a river, lake, or coast; purposes of the application of the Chattel Mortgage Law, it
was held that under certain conditions, "a property may have
(10) Contracts for public works, and servitudes and a character different from that imputed to it in said articles. It
other real rights over immovable property. is undeniable that the parties to a contract may by agreement,
(334a) treat as personal property that which by nature would be real
property". The matter depends on the circumstances and the
The rest are not important in the sense that they are not really intention of the parties.
asked in the bar but only 1-5. But just take note of No. 10.
The view that parties to a deed of chattel mortgage may
When it comes to real property, it has to be in a real estate agree to consider a house as personal property for the
mortgage. But what if the parties in the contract treated purposes of said contract, "is good only insofar as the
immovables as chattels? contracting parties are concerned. It has been a constant
criterion nevertheless that, with respect to third persons,
SERG’S PRODUCTS vs. PCI LEASING (2000) who are not parties to the contract, and specially in
Serg, a chocolate-making company, bought chocolate making execution proceedings, the house is considered as an
machines from abroad. Serg entered into a lease agreement immovable property.
with PCI. PCI was the one who paid the purchase price of the
machines and Serg just leased the machines from PCI. In the case at bar, the house in question was treated as
personal or movable property, by the parties to the contract
In the lease contract, Section 12.1 of the Agreement between themselves. In the deed of chattel mortgage, Rufino G. Pineda
the parties provides: “The PROPERTY is, and shall at all times conveyed by way of "Chattel Mortgage" "my personal
be and remain, personal property notwithstanding that the properties", a residential house and a truck. The mortgagor
PROPERTY or any part thereof may now be, or hereafter himself grouped the house with the truck, which is, inherently
become, in any manner affixed or attached to or embedded in, a movable property. The house which was not even declared
or permanently resting upon, real property or any building for taxation purposes was small and made of light
thereon, or attached in any manner to what is permanent.” construction materials: G.I. sheets roofing, sawali and
wooden walls and wooden posts; built on land
Serg brought the machines to its factory, placed the belonging to another.
machines, and used them to make chocolate. Definitely, they
are immovables under Art. 415 (5). Because of Serg’s failure LEUNG YEE vs. STRONG MANCHINERY
to pay the rentals, PCI filed an action for replevin, which is Same situation here, real property was treated as personal
recovery of personal property. Serg said that the action for and made the subject of the chattel mortgage. But here, the
replevin would not prosper because the machines are entity that questioned it was a third person, and therefore the
immovables. Court applied Art. 415.

Is Serg correct? Remember, if the doctrine of estoppel applies, it does not

convert or transform real properties into movables. They are
HELD: NO. As a party to the contract of lease, wherein the still considered as immovables just treated as personal in so
parties treated the machines as personal properties, Serg is far as the lease contract is concerned.
estopped from denying of the characterization of the
machines as personal. Therefore, they are proper subjects of The “Compania Agricola Filipina” purchased from “Strong
writ of seizure and an action for replevin. Machinery Co.” rice-cleaning machines, which the former
installed in one of its buildings. As security for the purchase
From the FT: The Chocolate Making Machines are immovable price, the buyer executed a CHATTEL MORTGAGE on the
property under Article 415 (5). They were essential and machines and the building on which they had been installed.
principal elements of their chocolate-making industry. Hence, Upon buyer’s failure to pay, the registered mortgage was
although each of them was movable or personal property on foreclosed, and the seller, the “Strong Machinery Co”,
its own, all of them have become “immobilized by destination purchased the building. This sale was annotated in the Chattel
Mortgage Registry. Later, the “Agricola” also sold to “Strong

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Machinery” the lot on which the building had been presented before him. He should therefore accept the legal
constructed. This sale was not registered in the Registry of fees being tendered, and place the document on record.
Property BUT the Machinery Co. took possession of the
building and the lot. Previously however, the same building However, this registration produces no effect. In many cases,
had been purchased at a sheriff’s sale by Leung Yee, a creditor the SC said that it is a useless effort; the chattel mortgage is
of “Agricola,” although Leung Yee knew all the time of the void if somebody else will question it. If only the parties are
prior sale in favor of “Strong Machinery.” This sale in favor of involved, then go! Go with the chattel mortgage. But not when
Leung Yee was recorded in the Registry. Leung Yee now sues a third person questions it.
to recover the property from “Strong Machinery.”
REAL PROPERTY vis-à-vis REALTY TAX
HELD: The building is real property, therefore, its sale as BOARD OF ASSESSMENT APPEALS vs. MERALCO
annotated in the Chattel Mortgage Registry cannot be given Those steel towers or electric poles of MERALCO are not
the legal effect of registration in the Registry of Real Property. subject to realty tax. They are personal (not real) properties.
The mere fact that the parties decided to deal with the Be it noted that:
building as personal property does not change its character as a. They do not come under Par. 1 of Art. 415 because
real property. Thus, neither the original registry in the chattel they are neither buildings or constructions adhered
mortgage registry, nor the annotation in said registry of the to the soil;
sale of the mortgaged property had any effect on the building. b. They do not come under Par. 3 because they are
However, since the land and the building had first been not attached to an immovable in a fixed manner,
purchased by “Strong Machinery” (ahead of Leung Yee), and that is, they can be separated without breaking the
this fact was known to Leung Yee, it follows that Leung Yee material or causing deterioration of the object to
was not a purchaser in good faith, and should therefore not which they are attached;
be entitled to the property. “Strong Machinery” thus has a c. They do not come under Par. 5 because they are
better right to the property. not machineries, receptacles, or instruments, but
even if they are, they are not intended for an
What if the real property subject of the chattel mortgage industry to be carried on in the premises.
was foreclosed and sold on execution?
In that case, the SC said to apply Art. 415 because an They are merely placed on the ground connected by bolts and
execution sale involves third persons. can actually be moved from place to place. They are not
immovables under Art. 415. Thus, they are not subject to
Why is that an issue? realty taxes.
Because for example a house and lot subject of a chattel
mortgage, if it is sold on execution, there is no redemption CALTEX vs. CBAA (1982)
period kung personal ang treatment sa kanya. But according CALTEX installed machinery and equipment in its gas station
to the SC, NO! That is only in so far as the parties are located on leased land. The Machines and equipment consists
concerned, when it comes to execution sale, there are already of underground tanks, elevated tank, water tanks, gasoline
third persons involved, therefore, its character as immovable pumps, etc. The said machines and equipment are loaned by
will have to be imposed in so far as the execution sale is Caltex to GAS STATION OPERATORS under a lease agreement
concerned. where it is stipulated that the operators upon demand, shall
return to Caltex the machines and equipment xxx. Hence, the
STANDARD OIL vs. JARANILLO LESSOR of the land where the gas station is located does not
What if the chattel mortgage with a real property as subject become the owner of the machines and equipment installed
thereof is registered with the registry of property? for ownership retained by Caltex.

De la Rosa, who was renting a parcel of land in Manila, Can these underground tanks be considered as immovables
constructed a building of strong materials thereon, which she under Art. 415?
conveyed to plaintiff by way of chattel mortgage. When the
mortgagee was presenting the deed to the Register of Deeds HELD (1): NO. They are not constructions adhered to the soil
of Manila for registration in the Chattel Mortgage Registry, because they are actually removable. When one puts up a gas
the Registrar refused to allow the registration on the ground station, the company does not buy the land, it will lease the
that the building was a real property, not personal property, land from the landowner, and then it puts in there its
and therefore could not be the subject of a valid chattel equipment.
mortgage.
When the lease contract expires, it removes its equipment
May the deed be registered in the chattel mortgage registry? easily without any damage. Thus, they cannot be considered
immovables under Par. 1 nor under Par. 3.
HELD: YES. The Registrar’s duty is MINISTERIAL in character.
When parties present to the registrar of property a document What about under Par. 4? Of course not!
of chattel mortgage, the registrar must record it as such even 1st, who placed the equipment there? CALTEX the oil company
if in his opinion, the object of the contract is real property. which is not the owner of the land. Under Par. 4, the one who
This is because his duties in respect to the registration of places the object must be the landowner
chattel mortgages are of a purely ministerial character, as
long as the proper fee has been paid. Thus in one case, the 2nd, there is no permanence. Once the lease contract expires,
tenant executed a deed of chattel mortgage on the building if it is not renewed, then they will be removed.
she had built on the land she was renting. The court held that
the registrar has the ministerial duty to record the chattel What about under Par. 5?
mortgage since he is not empowered to determine the nature Again, NO! Because again, they were not placed by the
of any document of which registration is sought as a chattel landowner.
mortgage.
WON the gas station equipment and machinery in this case
There is no legal provision conferring upon him any judicial or should be subject to realty tax.
quasi-judicial power to determine the nature of the document

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

HELD (2): YES. Those underground tanks, elevated tanks, air CAPITOL WIRELESS vs. PROVINCIAL TREASURER (2016)
compressors, gasoline pumps, etc. cannot fall under any Capitol Wireless Inc. (Capwire) is a Philippine corporation in
provision of Art. 415, but the SC said that they are the business of providing international telecommunications
IMPROVEMENTS subject to realty tax. The SC ruled that they services. We are talking about submarine cable systems,
are taxable merely as improvements. Further, improvements those tubes that are under water sitting on the seabed where
on land are commonly taxed as realty even though for some the cables actually pass through. The Provincial Assessor had
purposes they might be considered as personalty. It is a determined that the submarine cable systems are taxable real
familiar phenomenon to see things classed as real property property. Capwire argues that they are not real property as
for purposes of taxation, which on general principle might be they are just water cables.
considered personal property.
Are they real property under Art. 415?
The SC said in this case that even though they are not realties
under Art. 415, they are considered as improvements and HELD: They are not realties under Art. 415 (?) But, the SC said
therefore subject to realty taxes. that even objects in or on a body of water may be classified as
such, as "waters" is classified as an immovable under Article
BENGUET CORP. vs. CBAA (1993) 415 (8) of the Code. Also under Par. 9, a classic example is a
The tailings dam is a real property under: boathouse, which, by its nature, is a vessel and, therefore, a
▪ Par. 1 – because it is a construction adhered to the personal property, but if it is tied to the shore and used as a
soil. residence, and since it floats on waters, which is immovable,
▪ Par. 3 – it is a real property by incorporation is considered real property.
because if you remove the tailings dam, masisira
sya, and therefore subject to realty tax. Those vessels that are not moving are not considered real
properties but if they are fixed on one point and stayed there,
MERALCO vs. CITY ASSESSOR (2015) then they are considered real properties.
MERALCO is a private corporation organized and existing
under Philippine laws to operate as a public utility engaged in The funniest one of all is the case decided by Atty. Leonen
electric distribution. It owns among others transformer and which is:
electric post, transmission lines, insulators and electric
meters. The City Assessor imposed a real property tax on PROVINCIAL ASSESSOR vs. FILIPINAS PALM OIL (2016)
these properties. Filipinas Palm Oil Plantation Inc. is a private organization
engaged in palm oil plantation in Agusan del Sur. It has an
HELD: The Supreme Court reversed its ruling and said that equipment used in its business called mini haulers (trucks that
they are subject to realty tax because they are considered haul trailers and the like) and road equipment. Definitely, one
machinery. look at these things, they are movables because they move
around from place to place. Provincial Assessor ordered
The properties under Article 415, paragraph (5) of the Civil Filipinas to pay realty taxes for these things.
Code are immovables by destination, or "those which are
essentially movables, but by the purpose for which they have Are they subject to realty tax?
been placed in an immovable, partake of the nature of the
latter because of the added utility derived therefrom. "These HELD: YES. They are realties under Section 199 (o) of the Local
properties, including machinery, become immobilized if the Government Code which considers haulers and road
following requisites concur: equipment as machinery since they are physical facilities for
a. They are placed in the tenement by the owner of production that are mobile and are actually, directly, and
such tenement; exclusively used to meet the needs of Filipinas’ industry.
b. They are destined for use in the industry or work in
the tenement; and As between the Civil Code, a general law governing property
c. They tend to directly meet the needs of said and property relations, and the Local Government Code, a
industry or works. special law granting local government units the power to
impose real property tax, then the latter shall prevail.
The first two requisites are not found anywhere in the Local
Government Code. They traverse the lands of other people. Even though they are not be immovables under the Civil Code,
they are considered immovable under the Local Government
On the other hand, the Local Government Code defines Code and can be subjected to realty tax. The entities imposing
machinery as those, which may or may not be attached, realty taxes can look at other provisions of law other than the
permanently or temporarily, to the real property. It includes Civil Code.
the physical facilities for production, the installations and
appurtenant service facilities, those which are mobile, self- Art. 415.
powered or self-propelled, and those not permanently (10) Contracts for public works, and servitudes and other
attached to the real property which are actually, directly, and real rights over immovable property. (334a)
exclusively used to meet the needs of the particular industry,
business or activity and which by their very nature and “CONTRACTS FOR PUBLIC WORKS” – The piece of paper
purpose are designed for, or necessary to its manufacturing, where the contract is written is movable or personal property.
mining, logging, commercial, industrial or agricultural But the contract itself, the right given by the contract is
purposes. immovable under Par. 10.

As between the Civil Code, a general law governing property “SERVITUDES” – Easements. If you are entitled to a legal
and property relations, and the Local Government Code, a easement of right of way, that right is immovable under Par.
special law granting local government units the power to 10.
impose real property tax, then the latter shall prevail. Thus,
while they may not be immovables under the Civil Code, they
are considered immovable under the Local Government Code.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

“AND OTHER REAL RIGHTS OVER IMMOVABLE PROPERTY” – Laurel was one of the accused charged with theft for
If you have the right to file, for example, action publiciana conducting International Simple Resale (ISR) operations by
(recovery of possession of real property), that right to file said illegally connecting various equipment or apparatus to PLDT's
action is considered immovable. telephone system, through which Laurel was able to resell or
re-route international long distance calls using PLDT's
Rights referred to under Par. 10 is considered REAL PROPERTY facilities. Therefore, stealing this business from PLDT.
BY ANALOGY because although they are not material, they
partake of the essential characteristics of immovable Laurel claims that a telephone call is not synonymous to
property. electric current or impulses. Hence, it may not be considered
as personal property susceptible of appropriation. He also
Under the Constitution, foreign corporations cannot buy insists that the "right to carry on a business" and not
lands in the Philippines. In this case, the foreign corporation "business" is a personal property.
was able to acquire leasehold rights over real property in the
Philippines. The foreign corporation won a bidding for that. WON international long distance calls and business of
The Filipino corporation that lost the bidding objected to the providing telecommunications or telephone services are
award given to the foreign corporation and said that that is personal properties.
not allowed because that is tantamount to a foreign entity
owning real property in the Philippine since leasehold rights HELD: YES.
over the land are considered real property by analogy under 1. In making international phone calls, the human
Par. 10 which the Constitution prohibits. voice is converted into electrical impulses or
electric current, which are transmitted to the party
Is that correct? called. Intangible property such as electrical energy
is capable of appropriation because it may be taken
HELD: NO. The constitutional provision only applies to lands and carried away. A telephone call, therefore, is
and not to other properties like that speaker, which is electrical energy. Electricity is personal property
considered immovable under Par 4. Can a foreigner own that under Article 416(3) of the Civil Code, which
speaker? Of course! Kahit builing nga e, condominium pwede enumerates "forces of nature which are brought
ma-own ng foreigner, 40% foreign ownership. under control by science.
2. Although business or interest of business was not
specifically enumerated as personal property in the
CC, it is still considered to be personal property
CHAPTER 2. - MOVABLE PROPERTY since it is capable of appropriation and not included
in the enumeration of real properties. (Art. 416,
Art. 416. par. 1)
The following things are deemed to be personal property:
(1) Those movables susceptible of appropriation LAUD vs. PEOPLE (2014)
which are not included in the preceding article; This is a Davao case. The Lauds are from Maa, the former Brgy.
(2) Real property which by any special provision of Captain of Maa, June Laud. The person involved here was then
law is considered as personalty; Bienvenido Laud who was an SPO4.
(3) Forces of nature which are brought under
control by science; and In 2009, a search warrant was issued by RTC of Manila to
(4) In general, all things which can be transported search three (3) caves located inside the Laud Compound in
from place to place without impairment of the Purok 3, Barangay Ma-a, Davao City, where the alleged
real property to which they are fixed. (335a) remains of the six (6) alleged victims that were summarily
executed by the so-called “Davao Death Squad” may be found
Art. 416 gives us the enumeration of what are deemed to be or buried within the Laud compound. The search yielded
personal or movable properties. positive results for the presence of human remains. Those
human remains were seized. Retired SPO4 Laud raised that
TESTS TO DETERMINE WHETHER PROPERTY IS MOVABLE OR human remains cannot be seized in a search warrant because
IMMOVABLE they are not personal properties.
1. TEST BY EXCLUSION (par. 1);
Is he correct?
− Par. 1 tells us that the enumeration in
Art. 415 is exclusive. If it is not there, it is
HELD: NO. Section 3, Rule 126 of the Rules of Court states:
movable.
“Personal property to be seized. – A search warrant may be
2. TEST BY DESCRIPTION (par. 4).
issued for the search and seizure of personal property:
a. Subject of the offense;
Art. 416. b. Stolen or embezzled and other proceeds, or fruits
The following things are deemed to be personal property: of the offense; or
xxx c. Used or intended to be used as the means of
(3) Forces of nature which are brought under committing an offense.”
control by science; and
xxx "Personal property" in the foregoing context actually refers
to the thing’s mobility, and not to its capacity to be owned or
These are electricity, gas, light brought under control by alienated by a particular person. According to Laud, human
humans, they become property and they can be sold or remains cannot be appropriated and therefore cannot be
stolen. considered property. But, that is not tenable.

LAUREL vs. JUDGE ABROGAR (2009) Article 416 of the Civil Code states that in general, all things
(Atty. Suarez just mentioned this case but did not discuss it which can be transported from place to place are deemed to
because the facts are complicated. She told the class to read be personal property. Considering that human remains can
it. Digest below is from AMPP notes) generally be transported from place to place, and considering

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

further that they qualify under the phrase "subject of the lot in Ayala Alabang, then that is immovable. But the shares
offense" given that they prove the crime’s corpus delicti, it of stock in Ayala Land are always movable.
follows that they may be valid subjects of a search warrant.
Art. 418. Movable property is either consumable or
Art. 416. nonconsumable. To the first class belong those movables
The following things are deemed to be personal property: which cannot be used in a manner appropriate to their nature
xxx without their being consumed; to the second class belong all
(2) Real property which by any special provision of the others. (337)
law is considered as personalty;
xxx (Not discussed by Atty. Suarez. Notes below were taken from
Cutie Notes and AMPP Notes)
We have the Civil Code, which is the general law. If there is a
special law, which says that this real property under the Civil As to Nature, movable property is either:
Code is personal property, then that is personal property. The 1. Consumable – those that cannot be used in a
special law prevails. Classic example is the case of: manner appropriate to their nature without their
being consumed. Example: Eraser, ink of the
SIBAL vs. VALDEZ (1927) ballpen (not the ballpen because it cannot be
Sibal filed an action for sum of money against Valdez. Valdez consumed), shampoo.
won. The procedure for execution is first, there is immediate 2. Non-consumable – all those that do not fall under
payment on demand. The sheriff went to Sibal, and he was the first category. Example: Ballpen.
not able to pay. The next step is levy. The sheriff levied on the
sugarcane growing on the land of Sibal. Nandun pa rin sa land As to fungibility (based on intention), movable property is
ni Sibal yung sugarcane but it was technically levied. either:
1. Fungible; or
During the one-year redemption period, the sugarcane was 2. Non-fungible.
still there on the land of Sibal, Sibal wanted to redeem. Valdez
refused contending that the sugarcane is personal property It can be consumable but non-fungible. It is the intention or
and cannot be the subject of legal redemption. Sibal said that the agreement of the parties, which determines whether it is
it is real property under Art. 415 (2). fungible, or not.

Who is correct?

HELD: VALDEZ. The sugar cane, although considered as CHAPTER 3. - PROPERTY IN RELATION TO THE PERSON TO
“growing fruits” and therefore ordinarily real property under WHOM IT BELONGS
Par. 2 of Art. 415 of the Civil Code, must be regarded as
PERSONAL PROPERTY for purposes of the Chattel Mortgage Art. 419.
Law, and also for purposes of attachment, because theright Property is either of public dominion or of private
to the growing crops mobilizes the crops by ANTICIPATION. ownership. (338)
More specifically, it said that the existence of a right on the
growing crop is a mobilization by anticipation, a gathering as
it were, in advance, rendering the crop movable. Art. 420.
The following things are property ofpublic dominion:
Definitely, the sugarcane will be harvested. They are not going (1) Those intended for public use, such as roads,
to stay there forever. They are MOBILIZED BY ANTICIPATION. canals, rivers, torrents, ports and bridges
Even though they are still part of the land, and not yet constructed by the State, banks, shores,
detached, they can now be considered personal properties for roadsteads, and others of similar character;
purposes of the Chattel Mortgage Law and therefore, cannot (2) Those which belong to the State, without being
be redeemed. for public use, and are intended for some public
service or for the development of the national
wealth. (339a)
Art. 417.
The following are also considered as personal property:
(1) Obligations and actions which have for their “Property of Public Dominion” – this is owned by the State.
object movables or demandable sums; and
(2) Shares of stock of agricultural, commercial and KINDS OF PROPERTY OF PUBLIC DOMINION
industrial entities, although they may have real 1. Those intended for public use;
estate. (336a) 2. Those, which belong to the State without being for
public use, are intended for public service;
Art. 417 (1) 3. Those, which belong to the State without being for
Just take note that if the subject of the right is immovable, public use, are intended for the development of
then the right is immovable. Example: The right to file an national wealth.
action publiciana (recovery of possession of real property).
PROPERTY FOR PUBLIC USE
But if the subject of the right is movable, like an action for sum Art. 420.
of money, then the right is also movable or personal property. The following things are property of public dominion:
(1) Those intended for public use, such as roads,
Art. 417 (2) canals, rivers, torrents, ports and bridges
The shares of stock of any corporation are personal constructed by the State, banks, shores,
properties. It does not matter what kind of corporation. roadsteads, and others of similar character;
xxx
Illustration: Even though Mr. X owns shares of stock in Ayala
Land, his shares of stock are movable. If he owns a house and The last part says, “Constructed by the State”.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

If you remove “rivers” and “torrents” from the enumeration, ▪ BRIDGES

you have: ROADS, CANALS, PORTS AND BRIDGES It is the same here that when a private person builds within
CONSTRUCTED BY THE STATE. his own property a bridge over a creek for example, he owns
the bridge. Again, it has to be constructed by the State to be
▪ ROAD property of public dominion.
A road constructed by the Local Government is a property of
public dominion owned by the LGU. ▪ RIVERS – rivers, navigable or non-navigable, are
property of public dominion.
When you talk about roads owned by the State, these are our What if the river dries up?
national roads. The dried-up riverbed is still property of public dominion.

Roads inside a private subdivision – they are not properties Man-made river inside his property is not included.
of public dominion because it has to be a road constructed by
the State. Thus, privately constructed roads in private gated The next enumeration is: BANKS, SHORES, ROADSTEADS,
communities are not included in this enumeration, unless AND OTHERS OF SIMILAR CHARACTER.
they have been donated which are normally to the local
government. ▪ BANKS
Riverbanks. You know the principle of accession. Everything
▪ CANAL is connected thereto or incorporated therewith belongs to
It is usually an artificial waterway drainage irrigation or the owner of the principal. Accretion in the riverbanks is not
navigation. included in this enumeration unless the accretion was not
caused entirely by the current of the river but by human
Canals constructed by the State and devoted to use are of participation, then this time that would be considered as
public ownership. Conversely, canals constructed by private property of public dominion.
persons within private lands and devoted exclusively for
private use must be of private ownership. Again, a canal has ▪ SHORES – that space which is ultimately covered
to be constructed by the State to be considered property of and uncovered by water with the movement of the
public dominion. tide.
Shores are properties of public dominion. Where the sea
MERCADO vs. MUNICIPAL PRESIDENT OF MACABEBE advances, and the private properties are permanently
Mercado owned a hacienda. Inside the hacienda, there invaded by the waves, the properties invaded become part of
flowed a river and a creek near each other. Mercado the shore.
constructed a canal connecting the two bodies of water; he
made an excavation to connect the two, the river and the
creek. So, nagkaroon ng canal across. Many people in the
nearby barrios used the canal as a means of communication
in attending to their needs. One day, 22 years later, Mercado
closed the two openings of the canals, converted same into a
fish pond, and prevented the people from using the erstwhile
(former) canal.

The government now wants the canal opened so that same

may be used by the general public. A objects. If is adjacent to the sea, it is called “foreshore” and that is
always a property of public dominion even though there is
To whom does the canal belong? accretion. Foreshore lands are part of the public dominion
and outside the commerce of man.
HELD: Since the people around the barrio were allowed to use
it for a certain period of time, even though Mercado, a private FORESHORE LAND is that part of the land which is between
individual, constructed the canal, the ownership thereof can high and low water and left dry by the flux and reflux of the
be acquired by prescription. tides. It is a strip of land that lies between the high and low
water marks and is alternatively wet and dry according to the
The canal should be opened. While the use and enjoyment of flow of the tide. (Republic v. Imperial, Jr. 303 SCRA 127; 1999)
the waters could have been acquired by prescription, still
when he allowed others to use the canal, he lost the exclusive This enumeration is not exclusive because it says, “Others of
right to use the same. Moreover, although the hacienda is similar character”.
registered under his name under the Torrens System, this
does not confer upon him any right to the river or creek since CHARACTERISTICS OF PROPERTY OF PUBLIC DOMINION
these are properties of public dominion, and cannot be 1. Outside the commerce of man – Cannot be the
registered. subject of contract, sale, donation or disposition.
2. Cannot be acquired by prescription – no matter how
▪ PORTS long one occupies or possesses the property of public
Included in this term are airports. dominion, the ownership thereof cannot be acquired
by prescription.
This was a big issue during the time of Mayor Joey Marquez 3. Cannot be registered under the land registration law;
of Paranaque. The NAIA is actually sitting on two cities, Pasay 4. Cannot be attached or levied upon by execution;
and Paranaque. The LGUs of the two cities imposed realty 5. Cannot be burdened by voluntary easements.
taxes on NAIA. Both LGUs wanted to sell the airport buildings,
runway, equipment, in public auction for failure to pay realty
taxes. But the Supreme Court said that the term port includes Art. 420.
airports and they are properties of public dominion for public The following things are property of public dominion:
use. Therefore, they cannot be subject to taxation.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

xxx some public service or for the development of

(2) Those which belong to the State, without being the national wealth. (339a)
for public use, and are intended for some public
service or for the development of the national Article 421.
wealth. (339a) All other property of the State, which is not of the
character stated in the preceding article, is patrimonial
PROPERTY FOR PUBLIC SERVICE – They are those that are property. (340a)
actually used by the State or by the Local Government Units.
− Examples: Hall of Justice and police cars. KINDS OF property of public dominion
1. Property of public dominion for public use
PROPERTY FOR DEVELOPMENT OF NATIONAL WEALTH 2. Public Service, and
▪ Examples: Timberland, mineral land. 3. For the development of national wealth
Under 421 –
Under the Regalian Doctrine, all lands, not otherwise 4. Property belonging to the state is Patrimonial
appeared to be clearly within private ownership, are
Property
presumed to belong to the State.

HEIRS OF MALABANAN vs. REPUBLIC (2007) Article 422.

Classification of lands according to ownership Property of public dominion, when no longer intended for
▪ Land, which is an immovable property, may be public use or for public service, shall form part of the
classified as either of public dominion or of private patrimonial property of the State. (341a)
ownership.
This provision is not automatic since there is a provision to
Classifications of public lands according to alienability – be followed.
whether it is alienable or disposable.
▪ Property of public dominion – it is NOT alienable CEBU OXYGEN VS BERCILLES, 66 SCRA 481
or disposable because it is outside of the commerce There was an abandoned road in Cebu City. Since it was no
of man. longer used, the city council of Cebu declared the road as
▪ Patrimonial property of the State abandoned and no longer for public use. In another
Art. 421. “All other property of the State, resolution, the city council gave the Mayor of Cebu the
which is not of the character stated in the authority to sell such property. So the property was sold to
preceding article (Art. 420), is patrimonial Cebu Oxygen. When the latter sought to register the sale in
property.” its name so it could get a title to such parcel of land, it was
opposed by the Prosecutor on the ground that what was
Art. 422 “Property of public dominion, when sought to be registered is a property of public dominion. You
no longer intended for public use or for public already know that property of public dominion cannot be
service, shall form part of the patrimonial registered a Torrens Title.
property of the State.”
ISSUE: Can Cebu Oxygen have such property registered?
Under Art. 422, it is not automatically converted to
patrimonial property. There is a process. (To be discussed HELD: The SC said yes. Because the act of the city council in
next meeting) issuing a resolution withdrawing that portion of the road for
public use and another resolution authorizing the mayor to
CHARACTERISTICS OF PATRIMONIAL PROPERTY OF THE sell it effectively converted the property from public dominion
STATE to that of patrimonial property of the State, hence open to
1. It may be acquired by the State pursuant to its disposition and alienation.
proprietary function;
2. It may be acquired by private individuals through INTERNATIONAL HARDWOOD VS UP
prescription; It was a law RA 3990 which granted to UP full and entire
3. It may be withdrawn from public use if no longer ownership over a portion of government land subject to a
intended for public use. timber license issued to International Hardwood. So when UP
tried to collect fees from International Hardwood, the latter
said that what UP is doing is not allowed because property of
July 12, 2018 public dominion is beyond the commerce of man.

CHAPTER 3. - PROPERTY IN RELATION TO THE PERSON TO HELD: SC said that this was already effectively converted to
WHOM IT BELONGS patrimonial property of the State when Congress enacted a
law ceding that property, giving transfer of absolute, full and
Article 419. entire ownership to UP.
Property is either of public dominion or of private
ownership. (338) LAUREL VS GARCIA
This refers to the Roponggi Property in Japan which was
acquired from the Japanese government by the Philippine
Article 420. government as reparations for the war damage caused by
The following things are property of public dominion: Japan here in the Philippines. So this property was initially
(1) Those intended for public use, such as roads, used as the Philippine Embassy, but because it was situated in
canals, rivers, torrents, ports and bridges an exclusive and expensive area in Japan, it was very difficult
constructed by the State, banks, shores, to maintain. Therefore, the embassy was transferred to
roadsteads, and others of similar character; another area and somehow it was abandoned. So during the
(2) Those which belong to the State, without time of Pres. Cory Aquino, her cabinet members proposed the
being for public use, and are intended for sale of the property to raise funds. This was opposed by

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

former VP Laurel claiming that such property is a property of which can be converted into patrimonial, but the reclaimed
public dominion and therefore, beyond the commerce of man areas. Unlike foreshore, na pwede, kahit hindi ma-reclaim.
and the executive cannot by its own arbitrary and unilateral
act sell property of public dominion. The procedures are not uniform if you read the cases. But
what you must take note of is that there is no automatic
HELD: SC agreed with Laurel and insisted there must be a conversion just because a property is no longer intended for
legislative and executive concurrence in the issue of public use. There must be a declaration.
converting property of public dominion to patrimonial
property. This property is classified as property of public Article 423.
dominion as it is for public service. so, a certain procedure The property of provinces, cities, and municipalities is divided
must be followed. In this case, it was only the executive. into property for public use and patrimonial property. (343)

The later cases on conversion, the SC became more specific

PROPERTY OF LGUS IS DIVIDED INTO PROPERTY FOR
on how to convert property of public dominion to patrimonial
property. The case that should be read is the long case of 1. Public Use
2. Patrimonial Property
CHAVEZ VS PEA (2002) 3. Public Service
This is penned by J. Carpio. Pres. Marcos during his time,  There are other laws which say that
created Phil. Estates Authority (PEA), a government property of the LGUs also include
corporation tasked to reclaim foreshore and submerged property for public service like the
areas. The foreshore is property of public dominion. Later, schools, halls of justice, sanggunian
Pres. Aquino issued a special patent granting and transferring building.
to the PEA the reclaimed parcels of land. So TCTs were issued
in the name of PEA covering 3 islands reclaimed known as the PROVINCE OF ZAMBOANGA DEL NORTE VS CITY OF
freedom Islands. The reclamation process was not yet ZAMBOANGA
finished, so the PEA entered into a JVA with a private SC: Property for public service is also of property of public
corporation named as Amari Corp. In this JVA, Amari was dominion when it comes to LGUs.
tasked to continue the reclamation process and whatever
Amari could reclaim, the JVA said that the titles would be in SP of Bataan vs Garcia – read on your own
the name of Amari.
Article 424.
ISSUE: Can Amari as a private corporation be issued titles to Property for public use, in the provinces, cities, and
the areas it reclaimed? municipalities, consist of the provincial roads, city streets,
municipal streets, the squares, fountains, public waters,
HELD: No. First of all, when it comes to reclamation of promenades, and public works for public service paid for by
foreshore and submerged areas, the SC made it very clear that said provinces, cities, or municipalities.
it doesn’t matter who reclaims whether government or a
private corporation, the reclaimed area is automatically a All other property possessed by any of them is patrimonial
property of public dominion. and shall be governed by this Code, without prejudice to the
provisions of special laws. (344a)
Second, we have the reclaimed area, it’s property of public
dominion, definitely, it is beyond the commerce of man. Article 425.
There must be a conversion process. In this case, there was an Property of private ownership, besides the patrimonial
implied conversion to patrimonial property when titles were property of the State, provinces, cities, and municipalities,
issued to the name of PEA of the already reclaimed areas (PD consists of all property belonging to private persons, either
1084 in rel. SP 3517-Marcos and Aquino had legislative individually or collectively. (345a)
powers). After the conversion process, there is still this
procedure that has to be undertaken wherein there must be
a declaration by the Bureau of Lands that the property is no Provisions Common to the Three Preceding Chapters
longer needed for public use and for public service and there
must be a classification that these are now alienable and Article 426.
disposable lands open to disposition. Again, there is this Whenever by provision of the law, or an individual
executive participation, the declaration that it is no longer declaration, the expression "immovable things or property,"
required for public service (Art. 422). Once there is a or "movable things or property," is used, it shall be deemed
declaration that it is alienable and disposable, that is the only to include, respectively, the things enumerated in Chapter 1
time that it can be sold. and Chapter 2.

Amari cannot register the land in its name because Amari is a Whenever the word "muebles," or "furniture," is used alone,
corporation. Under the Constitution, there is a prohibition. it shall not be deemed to include money, credits, commercial
Private corporations cannot buy alienable and disposable securities, stocks and bonds, jewelry, scientific or artistic
lands of the State, only natural persons. However, private collections, books, medals, arms, clothing, horses or carriages
corporations can lease. and their accessories, grains, liquids and merchandise, or
other things which do not have as their principal object the
Can a foreshore land be converted to A & D? furnishing or ornamenting of a building, except where from
Yes, because even though it is sometimes covered by water, the context of the law, or the individual declaration, the
there are times that it is not covered by water, so there is land. contrary clearly appears. (346a)
So you can actually measure the boundary of the
foreshoreland. If it is foreshore, it can be converted following
the procedures and then later it can be alienated.

But, with respect to the submerged areas, cannot be

converted unless reclaimed. So it is not the submerged area

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

TITLE II. - OWNERSHIP Article 429.

CHAPTER 1. - Ownership in General The owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal thereof.
Article 427. For this purpose, he may use such force as may be reasonably
Ownership may be exercised over things or rights. (n) necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property. (n)
Article 428.
The owner has the right to enjoy and dispose of a thing, DOCTRINE OF SELF-HELP
without other limitations than those established by law. This is a remedy available to an owner in relation to his right
to enjoy and the right to dispose to the exclusion of others. So
The owner has also a right of action against the holder and if it’s a parcel of land, he can prevent others from entering his
possessor of the thing in order to recover it. (348a) property. He can sell it or donate it, the right to dispose. But,
if there is unlawful physical invasion or usurpation of his
RIGHTS OF AN OWNER property, which may be actual or threatened, he may use
reasonable force to prevent or repel it. So this may be
1. Right to Enjoy
exercised by the (1) owner; or (2) lawful possessor.
a. Right to Use
b. Right to Possess
Example: X borrowed a car belonging to Y and parked it. From
c. Right to the Fruits
afar, X sees Y is about to steal the car. X can use force to
2. Right to Dispose, and
prevent Y from stealing the car provided that the means
3. Right to Recover
resorted by X are seasonable. X may even chase Y to recover
the car by force. But if he’s not able to do it right there and
GENERAL RULE: The right to enjoy and the right to dispose are
then, and he loses the car, but he locates it 3 days later and
almost absolute in a sense that the owner has full rights of
sees Y driving it, he can no longer use reasonable force under
enjoyment and disposal
429. It is only applicable when the unlawful physical invasion
is actual or threatened, not when it is already consummated.
EXCEPTION: Fundamental limitations such as those imposed
There must now be a proper action filed in court.
by:
1. Law
PEOPLE VS POLINAR
 (Ex. Easement of right of way)
SC: For a person who owns property to be able to use 429,
2. State
there must be an attack vs his person coupled by an attack to
 (Ex: Taxation, Eminent Doman, Police
his property. That’s the only time you can use reasonable
Power)
force. But in
3. Owner
 (Ex: Contract of Lease depriving himself PEOPLE VS NARVAEZ
of the use of the leased premises) SC: The court removed that requirement because 429 is
4. Grantor under the Civil Code, this is the defense of property. It should
 (Ex: Donor reserves for him the be separated from the Revised Penal Code’s self-defense. As
Usufruct, so the right to enjoy is not long as the force used is reasonably necessary, there is no
given to the donee, only the right to need for an attack on one’s person so that he can defend his
dispose) property.
Right to Recover CAMARINES NORTE VS QUEZON (OCT. 11, 2001)
1. Replevin for Recovery of possession of personal There is a decision which resolved the boundary dispute
Personal property between Camarines Norte and Quezon Province. The decision
Property declared that a certain area of 8762 hectares belong to
2. Forcible Entry an action to recover possession Camarines Norte. So the DENR went to the disputed area and
founded upon illegal possession installed monuments along the boundary line. But, 6 months
from the beginning when one is later, the Quezon Gov and Mayor of Calauag, a town by the
deprived of physical possession of border, bulldozed the boundary markers. respondents
real property by means of force, Governor Rodriguez and Mayor Lim asserted that their action
intimidation, threat, strategy, or was a reasonable use of force justified under Article 429 of
stealth. It is commenced by a the Civil Code to protect the territorial integrity of Quezon
verified complaint from a threatened physical invasion.
3. Unlawful one illegally withholds possession
Detainer after the expiration or termination ISSUE: was the invocation correct?
of his right to hold possession under
any contract, express or implied HELD: NO. TheCourt takes this occasion to stress that the
4. Accion Summary action for recovery of Province of Quezon and Governor Eduardo Rodriguez are
Interdictal physical possession where the bound by the said final decision (declaring Camarines Norte
dispossession has not lasted for as owner of the disputed areas) of this Court and that the
more than 1 year boundary dispute there resolved is no longer a dispute and
5. Accion A plenary action for the recovery of that all the attendant legal issues have been resolved with
Publiciana the real right of possession when finality. That decision of this Court constitutes res adjudicata
the dispossession has lasted for in respect of all offices and agencies of the Executive
more than 1 year Department. Accordingly, the province of Camarines Norte is
6. Accion An action for recovery of ownership entitled, not to a status quo prior to the controversy, but
Reinvedicatoria which necessarily includes the rather to the prompt enforcement of the decision of this
recovery of possession Court.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

MWSS VS ACT THEATER (2004) that these lots were sold as mere ordinary lots. Therefore, the
Employees of act theater were caught and apprehended for general rule here applies.
tampering with the water meter of MWSS. Therefore, MWSS
cut off the water supply of Act Theater. The petitioner insists Article 431.
that in cutting off the respondents water service connection, The owner of a thing cannot make use thereof in such
the petitioner merely exercised its proprietary right under manner as to injure the rights of a third person. (n)
Article 429 of the Civil Code.

HELD: Art. 429 was not correctly invoked. In this case, there Article 432.
was no actual or threatened unlawful physical invasion or The owner of a thing has no right to prohibit the interference
usurpation of his property. The water allegedly stolen by the of another with the same, if the interference is necessary to
employees of Act Theater happened already. So, MWSS can avert an imminent danger and the threatened damage,
actually run after these people and charge them with Theft, compared to the damage arising to the owner from the
but not invoke Art. 429 to cut the water supply. interference, is much greater. The owner may demand from
the person benefited indemnity for the damage to him. (n)
VILLAFUERTE VS CA (2005)
A Gasoline Station built on a lot owned by de Mesa. The STATE OF NECESSITY
operator was Villafuerte. When the lease of Petrophil The right here belongs to the person who wants to interfere
Corporation expired on December 31, 1988, the Villafuertes with the property of another. It gives the owner of the
obtained a new lease on Lot No. 2948-A from appellant property destroyed however, the right to be indemnified.
Edilberto de Mesa for a period expiring on December 31,
1989. When it expired, they refused to vacate the premises. REQUISITES OF STATE OF NECESSITY
the spouses continued to operate their gasoline station and 1. Interference is necessary to avert an imminent
other businesses on the lot of de Mesa despite the latter’s danger
demand to vacate. It appears that in the early morning of 2. Threatened damage, compared to the damage
February 1, 1990, appellants Edilberto de Mesa and Gonzalo arising to the owner from the interference, is much
Daleon, with the aid of several persons and without the greater
knowledge of the Villafuertes, caused the closure of the
latters gasoline station by constructing fences around it. Art. Example: Fire on row of shanties. One of the houses may be
430 says Every owner may enclose or fence his land or destroyed to prevent the house from burning or stop the
tenements by means of walls, ditches, live or dead hedges, or spreading of the fire. The owner of the shanties cannot
by any other means without detriment to servitudes interfere from the acts of the firemen if the latter deem it
constituted thereon. However, what was invoked by necessary to destroy the house/s. The persons benefited
Villafuerte was Art. 429, to prevent unlawful physical must compensate those who suffered the loss. The owners of
usurpation and invasion, he fenced his property. the shanties can neither invoke Art. 429 that there is unlawful
physical invasion or usurpation of their property because 432
HELD: Art. 429 cannot be invoked. In this case, Villafuerte is is superior to 429.
already in possession of the property as the operator of the
gas station, although his possession was unlawful. Therefore, State of Necessity is superior to one’s own property rights.
429 is not the proper remedy, but to file an action for unlawful
detainer. Doctrine of Self- State of Necessity
Help Art. 432
Article 430. Art. 429
Every owner may enclose or fence his land or tenements by Who has The owner or lawful The person who is in
means of walls, ditches, live or dead hedges, or by any other the right possessor of the imminent danger
means without detriment to servitudes constituted thereon. thing
(388) What is To use reasonable To interfere with
the right force something belonging
This is relation to the right to enjoy. However, there is a to another
limitation when the land is burdened by easements or WON No as long as the Yes. The owner may
servitudes. The right to enjoy is limited. liability person uses demand from the
exists reasonable force person benefited
ANECO VS LANDEX(2008) indemnity for the
Fernandez Hermanos Development, Inc. (FHDI) is the original damage caused to
owner of a tract of land. It made a subdivision plan over the him
property intending to develop a subdivision, but later, FHDI
later decided not to develop the subdivision. Instead, it sold Article 433.
the property to two entities: (1) ANECO; and (2) Landex. In the Actual possession under claim of ownership raises disputable
Deeds of Sale, it was stated that these lots are sold as ordinary presumption of ownership. The true owner must resort to
lots and no longer as subdivision lots. So both entities are now judicial process for the recovery of the property. (n)
neighbors. Landex started to build a fence around its property
and closing it. According to ANECO, LANDEX cannot do so as
DISPUTABLE PRESUMPTION OF OWNERSHIP
there are existing roadlots in the property. Therefore, 430
applies. This is the presumption that is automatic if there is actual
possession in the claim of ownership. So the real owner
ISSUE: Is ANECO correct? cannot just take back his property that he owns if it is in the
possession of another that claims ownership. He has to go to
HELD: NO. as there were no constituted servitudes on the court in order to recover his property. This is in relation to the
land. The alleged roadlots were only roadlots on paper, the right to recover.
subdivision plan. They were not real roadlots that were
constituted and it was very clear in the sale of the property

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Article 434.
In an action to recover, the property must be identified, and LIMITATIONS
the plaintiff must rely on the strength of his title and not on 1. servitudes and
the weakness of the defendant's claim. (n) 2. special laws and ordinances.
3. reasonable requirements of aerial navigation.
This is a continuation. The real owner in order to recover his 4. Regalian Doctrine
property in possession of another having a disputable
presumption of ownership NPC VS IBRAHIM (2007)
Ibrahim is an owner of a parcel of land. In 1992, he wanted to
REQUISITES apply for a deep-well. He went to the water district to get a
permit. His request was denied because there was a tunnel
1. Property must be identified
under his property constructed by NAPOCOR in 1978, 14 years
2. Plaintiff must rely on the strength of his own title
ago. Ibrahim complained why there was a tunnel in his
and the weakness of the defendant’s title
property. According to NAPOCOR, he no longer owns that
area under his property 150 meters from the surface.
VSD REALTY VS UNIWIDE (2012)
There was a contract of lease entered into between Uniwide
ISSUE: Who owns the sub terrain area where the tunnels of
(lessee) and Baello (lessor). This property was in the name of
NPC was constructed?
Baello. She leased it to Uniwide which constructed a building
worth 200 million on the property. Baello was a non-resident.
HELD: Ibrahim owns the sub-terrain area because of 437.
She lives in the US and would just visit, collect rents, then go
Presumably, the landowners right extends to such height or
back. One day, while Baello was out of the country, VSD Realty
depth where it is possible for them to obtain some benefit or
claimed ownership over the lot where Uniwide constructed its
enjoyment, and it is extinguished beyond such limit as there
200m building and that lot is covered by TCT No. T-285312.
would be no more interest protected by law.
According to Uniwide, this lot is covered by (TCT) No. (35788)
12754 in the name of Dolores Baello. So, who is in possession?
It was Uniwide. Therefore, VSD cannot just physically remove Article 439.
Uniwide in the property and destroy the building. It had to file By treasure is understood, for legal purposes, any hidden and
an action to recover its property. In the action, it specifically unknown deposit of money, jewelry, or other precious
described the parcel of land that is technically described in objects, the lawful ownership of which does not appear. (352)
their TCT in the name of VSD. When evidence was presented
in court, they were able to show that indeed, that particular Article 438.
lot where the building of Uniwide was built on the lot Hidden treasure belongs to the owner of the land, building, or
described in their title. So, maybe Baello was the neighbor and other property on which it is found.
she did not specify or did not know.
Nevertheless, when the discovery is made on the property of
HELD: The court noted that this is the proper way of another, or of the State or any of its subdivisions, and by
recovering property. First, describe it specifically and give chance, one-half thereof shall be allowed to the finder. If the
your proof or evidence. finder is a trespasser, he shall not be entitled to any share of
the treasure.
Article 435.
No person shall be deprived of his property except by If the things found be of interest to science or the arts, the
competent authority and for public use and always upon State may acquire them at their just price, which shall be
payment of just compensation. divided in conformity with the rule stated. (351a)

Should this requirement be not first complied with, the courts HIDDEN TREASURES
shall protect and, in a proper case, restore the owner in his Hidden Treasures only refer to tangible personal property. It
possession. (349a)
should consist of money, jewelry, and other precious objects

Article 436. GENERAL RULE: Hidden treasure belongs to the owner of the
When any property is condemned or seized by competent land, building, or other property on which it is found.
authority in the interest of health, safety or security, the
owner thereof shall not be entitled to compensation, unless EXCEPTIONS
he can show that such condemnation or seizure is unjustified. 1. when the discovery is made on the property of
(n) another, or of the State or any of its subdivisions,
and by chance, one-half thereof shall be allowed to
the finder.
ARTICLE 437.
2. If the finder is a trespasser, he shall not be entitled
The owner of a parcel of land is the owner of its surface and
to any share of the treasure.
of everything under it, and he can construct thereon any
3. If the things found be of interest to science or the
works or make any plantations and excavations which he may
arts, the State may acquire them at their just price,
deem proper, without detriment to servitudes and subject to
which shall be divided in conformity with the rule
special laws and ordinances. He cannot complain of the
stated.
reasonable requirements of aerial navigation. (350a)

THE RIGHTS OF AN OWNER OF A PARCEL OF LAND

1. Owner of its surface and of everything under it,
and
2. He can construct thereon any works or
3. Make any plantations and excavations which he
may deem proper,

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

CHAPTER 2. - RIGHT OF ACCESSION SECTION 2. - RIGHT OF ACCESSION WITH RESPECT TO

GENERAL PROVISIONS IMMOVABLE PROPERTY

Article 440. ACCESSION CONTINUA OR INDUSTRIAL ACCESSION

The ownership of property gives the right by accession to Article 445.
everything which is produced thereby, or which is Whatever is built, planted or sown on the land of another and
incorporated or attached thereto, either naturally or the improvements or repairs made thereon, belong to the
artificially. (353) owner of the land, subject to the provisions of the following
articles. (358)
This is NOT a mode of acquiring ownership. Accession
presupposes a previous and existing ownership over the Article 446.
principal. It is automatic as there is no prior act is required of All works, sowing, and planting are presumed made by the
the principal is needed to be considered the owner of the owner and at his expense, unless the contrary is proved. (359)
accessory.
TWO DISPUTABLE PRESUMPTIONS
1. All works, sowing, and planting are presumed
made by the owner and
SECTION 1. - RIGHT OF ACCESSION WITH RESPECT TO WHAT
2. At his expense
IS PRODUCED BY PROPERTY

ACCESSION DISCRETA Article 447.

The owner of the land who makes thereon, personally or
The right of accession to what is produced by one’s property.
through another, plantings, constructions or works with the
materials of another, shall pay their value; and, if he acted in
Article 441.
bad faith, he shall also be obliged to the reparation of
To the owner belongs: damages. The owner of the materials shall have the right to
(1) The natural fruits; remove them only in case he can do so without injury to the
(2) The industrial fruits; work constructed, or without the plantings, constructions or
(3) The civil fruits. (354) works being destroyed. However, if the landowner acted in
bad faith, the owner of the materials may remove them in any
Article 442. event, with a right to be indemnified for damages. (360a)
(1) Natural fruits are the spontaneous products of
the soil, and the young and other products of CHARACTERS AND SITUATION:
animals. 1. Land Owner (LO) - uses the material of another to
(2) Industrial fruits are those produced by lands of plant or construct in his land
any kind through cultivation or labor. a. Shall pay their value
(3) Civil fruits are the rents of buildings, the price of b. Plus damages if in Bad Faith
leases of lands and other property and the
amount of perpetual or life annuities or other 2. Material Owner (MO) – owner of the materials
similar income. (355a) used by LO
a. Right to remove the materials without
Article 443. injury or destruction
He who receives the fruits has the obligation to pay the b. If LO is in BF, to remove it in any event
expenses made by a third person in their production, with a right to receive damages
gathering, and preservation. (356) c. Right of Retention if LO is in BF

The 3rd person referred to here is the person who possesses Article 448.
the land of the Land Owner (LO) in Bad Faith (BF) and makes The owner of the land on which anything has been built, sown
planting thereon. or planted in good faith, shall have the right to appropriate as
his own the works, sowing or planting, after payment of the
The “He” is the LO who receives the fruits because of the indemnity provided for in articles 546 and 548, or to oblige
principle of accession. However, it is his duty to reimburse the the one who built or planted to pay the price of the land, and
expenses of the PBF in production, gathering, and the one who sowed, the proper rent. However, the builder or
preservation (PGP). planter cannot be obliged to buy the land if its value is
considerably more than that of the building or trees. In such
Article 444. case, he shall pay reasonable rent, if the owner of the land
Only such as are manifest or born are considered as does not choose to appropriate the building or trees after
natural or industrial fruits. 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) VIP
With respect to animals, it is sufficient that they are in the
womb of the mother, although unborn. (357)
SITUATION: BOTH IN GOOD FAITH
1. LO – Good Faith
a. right to appropriate as his own the
works, sowing or planting, after
payment of the indemnity provided for
in articles 546 and 548, or
b. to oblige the one who built or planted to
pay the price of the land, and the one
who sowed, the proper rent. EXCEPT if
the land’s value is considerably more

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

than that of the building or trees. In such MRS: The more practical thing is just to sell that portion of the
case, he shall pay reasonable rent land which was encroached upon by another.
c. Limited right of removal

2. BPS - builds, plants, sows on the land of another PECSON VS CA (1995)

in GF Pecson is the owner of a parcel of land with an apartment
building. he built the apartment building but did not declare
PLEASANTVILLE DEV’T VS CA (1996) it for tax purposes. He did not pay the RPT for the land. So,
J bought a lot in a subdivision (lot 9), K also bought in the same the city treasurer sold the land at public auction. City
subdivision lot 8. K constructed a house on his lot. When the Treasurer did not know that there was a building there. So the
house was almost finished, J his neighbor who bought lot 9 land was purchased by Mamerto and later by Nuguid. While
visited the subdivision and saw that K instead of constructing the land was already under the name of Nuguid as buyer,
on his own lot 8, he constructed on J’s lot 9. This is a situation Pecson, the original owner, still possessed the land. He had his
wherein the builder K is in GF. He did not know that he was apartment building there and continued to collect rentals
building on a lot of another. from his tenants. Few years later, Nuguid wants to take
possession of the land that he bought and that’s when he
HELD: Good faith consists in the belief of the builder that the found out that there was an apartment building there. He
land he is building on is his and his ignorance of any defect or wanted to appropriate the building and he cited Art. 448,
flaw in his title. And as good faith is presumed, petitioner has option 1. He offered to pay the construction costs which was
the burden of proving bad faith on the part of Kee. At the time 53, 000. But he said, since Pecson continued to occupy the
he built improvements on Lot 8, Kee believed that said lot was land even though Nuguid was already the owner, and he
what he bought from petitioner. He was not aware that the collected rent from the building, which by principle of
lot delivered to him was not Lot 8. Thus, Kee is in good faith. accession, the property of Nuguid (LO), then he can set off the
Petitioner failed to prove otherwise. value of the construction to the amount of rents already
collected.
IGNACIO VS HILARIO
Limited right of removal - This is given to the LO if he chooses HELD: 448 does not apply. 448 applies when the Builder builds
the 2nd option which is to oblige the BPS to pay the price of on a land belonging to another in good faith, thinking that he’s
the land. In this case, the LO exercised the 2nd option and the constructing something on his own land. In this case, the
value of the land is NOT considerably more than the value of builder was the LO, he was still the owner of the land when
what was BPS. He communicated the option to the builder he constructed the building. Article 448 does not apply to a
and to the court. However, the builder was not able to pay the case where the owner of the land is the builder, sower, or
price of the land. planter who then later loses ownership of the land by sale or
donation.
HELD: If the builder cannot pay the price of the land, then the
LO has this limited right of removal. Upon choosing option 2, But then, the SC said that it can be applied by analogy. Thus
and the builder cannot pay, then the LO can remove the in strict point of law, Article 448 is not apposite to the case at
improvements/buildings constructed by the builder. bar. Nevertheless, we believe that the provision therein on
indemnity may be applied by analogy considering that the
Note: primary intent of Article 448 is to avoid a state of forced co-
▪ Sower is given a different treatment because ownership and that the parties, including the two courts
accession only applies if what is BPS is permanent. below, in the main agree that Articles 448 and 546 2of the Civil
In sowings (palay, corn, sugarcanes) which should Code are applicable and indemnity for the improvements may
be harvested after the planting season, after that, be paid although they differ as to the basis of the indemnity.
it’s gone, it would be too much to compel the sower
to pay the value of the land. So the remedy is to So, this offer of Nuguid to set-off is not possible because if he
collect rentals from the sower if the LO want to wants to exercise the first option, he must pay the Fair Market
appropriate what was sown. Value, and not the construction cost. Moreover, if he wants
▪ Choice always belongs to the LO because he is the to off-set the rentals that was collected by Pecson, he cannot
owner, and by principle of accession, he is given the do so because if he wants to apply 448 in relation 546, if the
options to appropriate or not. LO chooses to appropriate, he must indemnify the builder. If
▪ Court cannot impose on the LO an option. he does not, then the builder has the right of retention. Since
▪ However, once the choice has been made and it he has not yet paid Pecson a single centavo, the Pecson has
was communicated to the Court and the BPS, the the right of retention of the building. Therefore, the rentals
LO can no longer change his mind. collected belong to Pecson.

IGNAO VS IGNAO (1991) PARRILLA VS PILAR (2006)

This provision applies to a former co-ownership that has This is similar to the Villafuerte case. In the old days,
already been partitioned. In this case, A & B are co-owners. A whenever there’s a gasoline station on a parcel of land, there
has a house on the property. When they subdivided the are 3 parties: (1) LO; (2) Oil Company; and (3) Operator of the
property, it turned out that his house exceeded the portion Gas station. In this case –
allocated to him. Part of his house was on the lot of B. 1. Parrilla is the Operator
2. Pilar is the LO
So what are the choices of B?
The lease contract is between the oil company and the LO.
SC: He has those options under Art. 448. When the lease contract expired, the parties did not renew.
So Shell vacated and left behind the Operator Parrilla who did

2
Art. 546. Necessary expenses shall be refunded to every possessor; but only the Useful expenses shall be refunded only to the possessor in good faith with the same
possessor in good faith may retain the thing until he has been reimbursed therefor. right of retention, the person who has defeated him in the 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.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

not want to vacate. In fact, he even constructed a billiard hall, However, in your CivPro, there must be a special writ of
a restaurant, and a sari-sari store on the land previously demolition.
occupied by the gasoline station. So Pilar (LO) filed an
ejectment case vs Parrilla which was decided in its favor. MTC What if the LO is the State?
ordered Parrilla to vacate. Parrilla is willing to vacate provided
that the improvements made be paid invoking art. 448. REPUBLIC VS JUDGE BALLOCANAG (2008)
Petitioners thus conclude that being builders in good faith, Sometime in 1970, Reyes bought the subject 182,941-square-
until they are reimbursed of the Two Million Peso-value of the meter land in Oriental Mindoro from Castillo in whose name
improvements they had introduced on the property, they it was titled under Original Transfer Certificate of Title No. P-
have the right of retention or occupancy thereof pursuant to 2388 issued pursuant to Free Patent No. V-79606. Right after
Article 448, in relation to Article 546, of the New Civil Code, his purchase, Reyes introduced improvements and planted
otherwise, respondent would be unjustly enriched at their the land with fruit trees. He also had the title transferred in
expense. his name and was issued TCT No. 45232. Reyes so prized this
land which he bought in good faith. Unfortunately, it turned
HELD: Art. 448 does not apply to lease contracts. Parrilla out that about 162,500 square meters of this land is part of
new for a fact that the owner is Pilar. As the law on lease the timberland of Oriental Mindoro and, therefore, cannot be
under the New Civil Code has specific rules concerning useful subject to any disposition or acquisition under any existing
improvements introduced by a lessee on the property leased, law, and is not registrable. Hence, OSG filed for the
it is erroneous on the part of petitioners to urge this Court to cancellation of Reyes’ title.
apply Article 448, in relation to Article 546, regarding their
claim for reimbursement and to invoke the right of retention HELD: obviously, 2nd option is not available to the State since
before reimbursement is made. Jurisprudence is replete with what is involved is a timberland. Hence, there is no choice but
cases[ which categorically declare that Article 448 covers only to appropriate the improvements made by Reyes. The
cases in which the builders, sowers or planters believe decision reads
themselves to be owners of the land or, at least, have a claim
of title thereto, but not when the interest is merely that of a Republic, through the Bureau of Forest Development of the
holder, such as a mere tenant, agent or usufructuary. A tenant Department of Environment and Natural Resources, is
cannot be said to be a builder in good faith as he has no DIRECTED to pay private respondent Danilo Reyes the value
pretension to be owner. Clearly, it is Article 1678 of the New of such actual improvements he introduced on the subject
Civil Code which applies to the present case. land as determined by the Regional Trial Court, with the right
of subrogation against Atty. Augusto D. Marte, the lessee in
Law on Lease still does not apply. At all events, under Article Agro-Forestry Farm Lease Agreement No. 175.
1678, it is the lessor who is given the option, upon termination
of the lease contract, either to appropriate the useful NARVAEZ VS ALCISO (2009)
improvements by paying one-half of their value at that time, We have here a parcel of land oringally owned by Alciso. He
or to allow the lessee to remove the improvements. This sold the land to Bate and the latter in turn sold the land to
option solely belongs to the lessor as the law is explicit that Narvaez. The document had a right to repurchase clause. So if
[s]hould the lessor refuse to reimburse said amount, the you’re a buyer of a property with a right of repurchase, what
lessee may remove the improvements, even though the would you do? Of course, Narvaez, constructed a house on
principal thing may suffer damage thereby. It appears that the the land amounting to 300k. later, when the house was
lessor has opted not to reimburse. In this case however, already finished, here comes the original owner Alciso
Parrilla here is not the lessee, it was Shell. So it is not entitled exercising his right to repurchase. Because it is a right,
to reimbursement. Furthermore, the improvements made are Narvaez had no choice, but to resell the property to him.
not deemed suitable for the purpose of the lease contract
which is to operate a gas station, the improvements being HELD: Art. 448 is not applicable in a Sale with Right to
sari-sari store, billiard hall, etc. Repurchase where the buyer becomes the absolute owner of
the land. It is not a land that “he thinks belongs to him”, it is a
ALVIOLA VS CA (1998) land that belongs to him. If it is repurchase, then there is
Here, Tinagan by mere tolerance allowed Alviola to live in transfer of ownership back to the repurchaser.
their property. The latter constructed a copra dryer, knowing
that the land belonged to Tinagan. Tinagan also knew that What applies?
Alviola made constructions on her property. When is the LO Art. 1606 in relation to 1616. If Alciso wants to exercise the
considered to be in BF? When the act is considered to be with right of redemption, he must pay Narvaez the price of the
his knowledge but without opposition on his part. Since sale, the expenses of the contract, the legitimate payments
Tinagan knew that the copra dryer was constructed on his made by reason of the sale, and necessary and useful
land, then he is considered in bad faith. So, 448 applies, since expenses of the thing sold.
they are both in bad faith.
What if the sale is void ab initio?
Can Alviola demand for reimbursement?
FUENTES VS ROCA (2010)
HELD: NO. As the noted civil law authority, Senator Arturo here we have Tarciano who sold a parcel of land to Fuentes.
Tolentino, aptly explains: To fall within the provision of this Now Tarciano is married, therefore he had an SPA from his
Article, the construction must be of permanent character, wife to sell the property. Later, the buyer Fuentes constructed
attached to the soil with an idea of perpetuity; but if it is of a a house on the land. Here comes the wife of the seller claiming
transitory character or is transferable, there is no accession, that the SPA was forged and she did not authorize to sell the
and the builder must remove the construction. The proper land. you know very well that when it comes to spouses, they
remedy of the landowner is an action to eject the builder from should both sign the Deed of Sale.
the land. The copra dryer is not a permanent construction.
Hence, there can be no accession. Consequently, LO can do So, is 448 applicable?
whatever he wants like remove/eject the builder and have the
construction or building demolished. HELD: YES. even if the sale was void ab initio, the buyer did
not really become the owner of the land, so the buyer merely

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

thought that he was the owner and he built in good faith his The choice belongs to the landowner. The court cannot
house. Therefore, if the sale is nullified and the LO wants to dictate upon the landowner on what to do, what choice to
have his land back, then he must exercise those rights under make. (Ignao v. IAC)
448.
Jurisprudence also tells us that once the landowner exercises
BRIONES VS MACABAGDAL (2010) his option and communicates it to the court and the other
The SC here laid down the procedure. The builder in good party, he can no longer change it.
faith can compel the landowner to make a choice between
appropriating the building by paying the proper indemnity or The landowner has a limited right of removal (Ignacio v.
obliging the builder to pay the price of the land. The choice Hilario)
belongs to the owner of the land, a rule that accords with the
principle of accession, i.e., that the accessory follows the PROCEDURE:
principal and not the other way around. However, even as If there’s an ejectment case filed against the Builder, Planter,
the option lies with the landowner, the grant to him, Sower (BPS) and the landowner is the one who files, while the
nevertheless, is preclusive. He must choose one. [16] He case is going on, before the decision is rendered, the trial
cannot, for instance, compel the owner of the building to court must determine certain things:
remove the building from the land without first exercising
either option. It is only if the owner chooses to sell his land, BRIONES vs. MACABAGDAL (2010)
and the builder or planter fails to purchase it where its value 1. The trial court shall determine:
is not more than the value of the improvements, that the a. The present fair price of the respondent-
owner may remove the improvements from the land. The spouses (landowner) lot;
owner is entitled to such remotion only when, after having • The indemnity to be paid if the
chosen to sell his land, the other party fails to pay for the landowner chooses the second option
same.[17] which is to sell the land or to compel
the BPS to buy the land, it is the fair
Moreover, petitioners have the right to be indemnified for the market value of the lot right now,
necessary and useful expenses they may have made on the when the landowner chooses the
subject property.Consequently, the respondent-spouses have option. It is not the value of the lot
the option to appropriate the house on the subject land after when it was entered into.
payment to petitioners of the appropriate indemnity or to
oblige petitioners to pay the price of the land, unless its value b. The amount of the expenses spent by
is considerably more than the value of the structures, in which petitioners (builder) for the building of their
case petitioners shall pay reasonable rent. house;

In accordance with Depra v. Dumlao,[18] this case must be c. The increase in value (plus value) which the said
remanded to the RTC which shall conduct the appropriate lot may have acquired by reason thereof; and
proceedings to assess the respective values of the • Construction cost plus the increase in
improvement and of the land, as well as the amounts of value or, as stated in Tuatis v. Escol,
reasonable rentals and indemnity, fix the terms of the lease if the fair market or current market
the parties so agree, and to determine other matters value of the building.
necessary for the proper application of Article 448, in relation
to Articles 546 and 548, of the Civil Code. d. Whether the value of said land is considerably
more than that of the house built thereon.
VSD REALTY VS UNIWIDE • It is because if it is so, the builder or
This is where Uniwide constructed a building on a lot that planter can reject if the landowner
belonged to VSD. chooses option 2.

Is 448 applicable? 2. After said amounts shall have been determined by

competent evidence, the Regional Trial Court shall
SC: NO. because the one who constructed the building did render judgment, as follows:
not think that it owned the land. it was a lessee.
a. The trial court shall grant the respondent-spouses
(landowner) a period of fifteen (15) days within
July, 9, 2018 which to exercise their option under Article 448 of
the Civil Code, whether to appropriate the house as
Art. 448. their own by paying to petitioners (builder) either
The owner of the land on which anything has been built, the amount of the expenses spent by builder for the
sown or planted in good faith, shall have the right to building of the house, or the increase in value (plus
appropriate as his own the works, sowing or planting, value) which the said lot may have acquired by
after payment of the indemnity provided for in Articles reason thereof, or to oblige builder to pay the price
546 and 548, or to oblige the one who built or planted to of said land.
pay the price of the land, and the one who sowed, the
proper rent. However, the builder or planter cannot be The amounts to be respectively paid by the
obliged to buy the land if its value is considerably more landowner and builder, in accordance with the
than that of the building or trees. In such case, he shall pay option thus exercised by written notice of the other
reasonable rent, if the owner of the land does not choose party and to the Court, shall be paid by the obligor
to appropriate the building or trees after proper within fifteen (15) days from such notice of the
indemnity. The parties shall agree upon the terms of the option by tendering the amount to the Court in
lease and in case of disagreement, the court shall fix the favor of the party entitled to receive it;
terms thereof. (361a)

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

b. The trial court shall further order that if the This is the bad faith provision; 448 is the good faith provision.
landowner exercises the option to oblige builder to Under 449, the BPS is not entitled to indemnity.
pay the price of the land but the latter rejects such
purchase because, as found by the trial court, the ART. 443 ART. 449
value of the land is considerably more than that of Refers to a planter, sower Refers to crops not yet
the house, builder shall give written notice of such who planted or sown in bad harvest
rejection to the landowner and to the Court within faith and was already able to
fifteen (15) days from notice of the landowner harvest whatever he planted
option to sell the land. In that event, the parties on the land of another
shall be given a period of fifteen (15) days from Because of the principle of Because of the
such notice of rejection within which to agree upon accession, the landowner principle of accession,
the terms of the lease, and give the Court formal owns the fruits and therefore, the landowner owns
written notice of such agreement and its provisos. the PS in bad faith, if he is the fruits
already sued by the
If no agreement is reached by the parties, the trial landowner for ejectment and
court, within fifteen (15) days from and after the the court ruled in favor of the
termination of the said period fixed for negotiation, landowner, he has to return
shall then fix the terms of the lease, payable within the value of the gathered
the first five (5) days of each calendar month. The crops
period for the forced lease shall not be more than PS can deduct the expenses The PS completely
two (2) years, counted from the finality of the for production, gathering and forfeits them in favor to
judgment, considering the long period of time since preservation (PGP) the landowner and he
builder have occupied the subject area. The rental has no right to
thus fixed shall be increased by ten percent (10%) indemnity except for
for the second year of the forced lease. necessary expenses
for the preservation of
Builder shall not make any further constructions or the land under 452
improvements on the house. Upon expiration of (usually, realty taxes or
the two (2)-year period, or upon default by builder mejoras).
in the payment of rentals for two (2) consecutive
months, the landowner shall be entitled to RIGHTS OF THE LANDOWNER AGAINST A BPS IN BAD FAITH
terminate the forced lease, to recover their land, 1. Under 499, the landowner can appropriate and he
and to have the house removed by builder or at the does not have to indemnify. He is entitled to
latters expense. The rentals herein provided shall damages because bad faith = damages.
be tendered by builder to the Court for payment to 2. Under 450, the landowner can demand the BPS to
the landowner, and such tender shall constitute remove what he had built, planted or sown with
evidence of whether or not compliance was made damages.
within the period fixed by the Court.
The right of removal of the landowner is no longer limited; it
Ignacio v. Hilario: If the landowner chooses the second option is absolute if the BPS is in bad faith.
and the price of the land is not considerable more than the
price of the building, the builder cannot reject that. The 3. To compel the BP to pay the price of the land
builder has to pay the price within 15 days. This is also whether or not the value of the land is considerable
applicable even if the value of the land is much more than the more than the value of the works plus damages, and
value of the building. It’s just that merong parang konting the S to pay proper rent plus damages.
delay of 2 years but the limited right of removal can still be
exercised by the landowner.
The sower is treated differently because what were planted
was annual crops. There is no permanence. Once the harvest
c. In any event, builder shall pay the landowner season is over, the annual crops are good as gone. Only rental
reasonable compensation for the occupancy of the is required of the sower plus damages.
landowner land for the period counted from the
year builder occupied the subject area, up to the 449 presumes that the landowner is in good faith. Meaning,
commencement date of the forced lease referred the landowner did not know that something is built, planted
to in the preceding paragraph;
or sown in his land because if the landowner is in bad faith
then 453 applies. Article 448 will apply.
d. The periods to be fixed by the trial court in its
Decision shall be inextendible, and upon failure of
Art. 453.
the party obliged to tender to the trial court the
If there was bad faith, not only on the part of the person
amount due to the obligee, the party entitled to
who built, planted or sowed on the land of another, but
such payment shall be entitled to an order of
also on the part of the owner of such land, the rights of
execution for the enforcement of payment of the
one and the other shall be the same as though both had
amount due and for compliance with such other
acted in good faith.
acts as may be required by the prestation due the
obligee.
It is understood that there is bad faith on the part of the
landowner whenever the act was done with his
Art. 449. knowledge and without opposition on his part. (354a)
He who builds, plants or sows in bad faith on the land of
another, loses what is built, planted or sown without
INSTANCES WHERE ARTICLE 448 WAS APPLIED EVEN
right to indemnity. (362)
THOUGH NOT APPLICABLE
1. Del Campo v. Abesia (G.R. No. L-49219, April 15, 1988,
not in the caselist): this is a situation where there are

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

co-owners and one co-owner built on the land and NATURAL ACCESSION
after partition there was an encroachment (same with Art. 457.
Ignao v. CA, Ignao), 448 was made to apply. To the owners of lands adjoining the banks of rivers belong
the accretion which they gradually receive from the
2. Sarmiento v. Agana (G.R. No. L-57288, April 30, 1984, effects of the current of the waters. (336)
not in the caselist): Parents allowed their child with her
spouse to build a house in their land. Later it was
FORMS OF NATURAL ACCESSION
discovered that the land belonged to somebody else.
The builders were considered in good faith because 1. Alluvium (Art. 457);
when they build the house, the parents who were 2. Avulsion (Art. 459);
presumed to own the land knew about it. The builders 3. Change of course of rivers (Arts. 461-462);
were considered in good faith despite their reliance on 4. Formation of Islands (Arts. 464-465).
the consent of another whom they had mistakenly
believed to be the owner of the land. Alluvium is the gradual deposit of sediment by the by the
natural action of a current of fresh water including, aside from
3. Communities v. Nanol: Even though 448 is not rivers, creeks, streams and lakes, and the original identity of
applicable because the builders knew that they were the deposit be lost.
not owners of the land but if there was consent on the
part of the landowner then the builders can be ESSENTIAL REQUISITES
considered in good faith. That is tantamount to the 1. The deposit should be gradual, natural and
landowner being in bad faith so 453 will apply. imperceptible (as a process);
2. Cause is the current of the rivers, creeks, streams and
Art. 455. lakes (and not due to works expressly designed for the
If the materials, plants or seeds belong to a third person purpose);
who has not acted in bad faith, the owner of the land shall 3. Current must be that of a river;
answer subsidiarily for their value and only in the event 4. The river, creek, stream or lake must continue to exist
that the one who made use of them has no property with (otherwise, if it dries up, the dried river bed is property
which to pay. of public dominion); and
5. The increase must be comparatively little.
This provision shall not apply if the owner makes use of
the right granted by article 450. If the owner of the ZAPATA V. DIR. OF LANDS (1962)
materials, plants or seeds has been paid by the builder, Zapata owns a parcel of land adjoining a creek. Zapata is a
planter or sower, the latter may demand from the registered owner of the land. A few years later, upon survey,
landowner the value of the materials and labor. (365a) it was discovered that the land of Zapata increased and so he
sought to register the alluvial deposit. Was there accretion? Is
she entitled to the increase?
Situation: The BPS who uses the materials of another to build
plant or sow on the land of the land owner. The active party HELD: YES. The Dir. of Lands opposed saying that the deposit
here is the BPS. was introduced on account of the erection of fish traps, that
there is some kind of human participation here. But the SC
The right of the landowner vis-a-vis the BPS; apply 448 up said that the accretion had been formed gradually due to the
to 451. It depends on the good faith or bad faith of the effect of the water current of creek. The fish traps might have
parties. If both acted in bad faith, both shall be considered in brought about the accretion but there is no evidence to show
good faith. that the fish traps were erected for the purpose of trapping
the soil and the main cause of the accretion was the current
RIGHTS OF THE MATERIAL OWNER of the creek.
1. If in bad faith, he looses his rights to be indemnified
and he can be liable for consequential damages There is no evidence to show that the setting up or erection
because of his bad faith. of the fish trap was expressly intended or designed to cause
2. If in good faith, he has the right to be indemnified for or bring about the accretion, the appellee may still invoke the
the materials used by the BPS who used the benefit of the provisions of Article 457 of the Civil Code to
materials. The landowner can be subsidiarily liable if supper her claim of title thereto. Moreover, the fishermen
the following requisites are present: who since 1894 used to set up fish traps in the creek later on
a. The material owner was in good faith; secured permit from the Government that auctioned off the
b. The BPS is insolvent; right or license to set up fish traps in the creek and the setting
c. Accession happens, meaning the landowner up of such fish traps stopped or was discontinued even before
opt to appropriate what was built, planted or 1926 all go to show that the alluvial accretion was no entirely
sown. If he chooses the other option (to due to the setting up of such fish traps.
compel the BP to buy the land, there is no
accession) he will not be obligated to pay for This case doesn't seem to influence the later decisions, like
the materials. the case of –

If the material owner had been paid by the BPS, the BPS may VDA. DE NAZARENO V. CA (1996)
demand from the landowner the value of the materials and Boulders, saw dust and even basura were thrown to the river
labor if the 3 are present. (I think what Atty meant is that “if and eventually through time alluvial deposits were formed
the 3rd requisite is present.” how could the BPS pay for the and so the riparian owner wanted to register.
materials if he is insolvent?)
The subject of this controversy is a parcel of land in Cagayan
PARAS: It should be understood however that this de Oro City. Said land was formed as a result of sawdust
reimbursement may be had only if the landowner profits by dumped into the dried up Balacanas Creek and along the
the accession, and not when he does not choose to banks of Cagayan river. Salasalan and Rabaya leased a lot on
appropriate the construction or planting for himself. which their houses stood from one Antonio Nazareno. The

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

said lot is adjacent to the Cagayan river where the sawdusts palapat and bakawan trees on the northern boundary of his
are being dumped. Later on they have stopped paying rentals property and years later, the land begun to rise.
thus a case for ejectment was filed against them and they
were ultimately ejected therefrom. Pascual filed an application to register and confirm his title to
the accretion which formed at the northern portion of his
Nazareno caused the approval of the survey plan with a view property. Pascual contends that the accretion was formed by
to perfecting his title over the accretion area being claimed by the actions of the Bulacan and Talisay River and as the riparian
him. However, Salasalan and Rabaya protested said plan owner, he clams ownership thereof.
claiming that they should be the ones to whom the accretion
should be awarded. Navarro opposed Pascual’s application contending that the
land sought to be registered is part of the public domain, it
WON the accretion which was formed by sawdust being being part of Manila Bay.
dumped can be claimed by the riparian owner pursuant to Art
457 of the Civil Code Whether or not Pascual can acquire the subject land by
Accretion under Art. 457?
HELD: NO. Where the land was not formed solely by the
natural effect of the water current of the river bordering said HELD: NO because the deposits were caused not by the current
land but is also the consequence of the direct and deliberate of the river but by the current of the sea. Under 420, when it
intervention of man, it was deemed a man-made accretion comes to the sea, the littoral owner does not own whatever it
and, as such, part of the public domain. is that is pushed by the current of the sea. This is property of
public dominion. If the deposits happened on the sides, that
Court held that accretion, as a mode of acquiring property will be attributed to the current of the river. In this case,
under Art. 457 of the Civil Code, requires the concurrence of Navarro is a riparian owner at the same time a littoral owner.
these requisites: Littoral owner is an owner of a land bordering the shore of the
1. That the deposition of soil or sediment be gradual and sea. If the accretion were to be attributed to the action of
imperceptible; either or both of the Talisay and Bulacan Rivers, the alluvium
2. That it be the result of the action of the waters of the should have been deposited on either or both of the eastern
river (or sea); and and western boundaries of private respondents' own tract of
3. That the land where accretion takes place is adjacent land, not on the northern portion thereof which is adjacent to
to the banks or rivers (or the sea coast). the Manila Bay.

These are called the rules on alluvion which if present in a The disputed property was brought forth by both the
case, give to the owners of lands adjoining the banks of rivers withdrawal of the waters of Manila Bay and the accretion
or streams any accretion gradually received from the effects formed on the exposed foreshore land by the action of the sea
of the current of waters. which brought soil and sand sediments in turn trapped by the
palapat and bakawan trees planted thereon by Pascual in
For Nazareno and even Salasalas and Rabaya to insist on the 1948.
application of these rules on alluvion to their case, the above-
mentioned requisites must be present. However, they admit Here, Pascual anchored his claim of ownership on Article 457
that the accretion was formed by the dumping of boulders, of the Civil Code. He argued that the disputed land is an
soil and other filling materials on portions of the Balacanas accretion caused by the joint action of the Talisay and Bulacan
Creek and the Cagayan River bounding their land. It cannot be River which run their course on the eastern and western
claimed, therefore, that the accumulation of such boulders, boundaries respectively of Pascual’s own tract of land.
soil and other filling materials was gradual and imperceptible,
resulting from the action of the waters or the current of the In this case, the 3rd requisite is lacking, which is, that the
Balacanas Creek and the Cagayan River. Both parties’ alluvium is deposited on the portion of claimant’s land which
submission not having met the first and second requirements is adjacent to the river bank. Here, the disputed land, is an
of the rules on alluvion, they cannot claim the rights of a accretion not on a river bank but by a sea bank, or on what
riparian owner. used to be the foreshore of Manila Bay which adjoined
Pascual’s own tract on the northern side. As such, the
Therefore, the accretion was man -made or artificial. In applicable law is not Art. 457 of the NCC but Art. 4 of the
Republic v. CA, it was ruled that the requirement that the Spanish Law of Waters of 1866.
deposit should be due to the effect of the current of the river Therefore, Pascual cannot acquire and register the subject
is indispensable. This excludes from Art. 457 of the Civil Code property in his namebecause the increased land adjoining to
all deposits caused by human intervention. Putting it his registered land was adjoined and formed by the action of
differently, alluvion must be the exclusive work of nature. the Manila Bay (Sea) and not by the 2 rivers in this case, thus,
Thus, in Tiongco v. Director of Lands, et al., where the land Art. 457 not applicable.
was not formed solely by the natural effect of the water
current of the river bordering said land but is also the I hope you remember the difference between Manila Bay and
consequence of the direct and deliberate intervention of man, Laguna de Bay. Manila Bay is a sea, Laguna de Bay is a lake.
it was deemed a man-made accretion and, as such, part of the Lakes fall under 457.
public domain.
Definitely, a littoral owner does not acquire ownership of the
HEIRS OF NAVARRO V. IAC alluvial deposits that are caused by the current of the sea.
Here we have a river on two sides of the land (left and right)
and on top is the sea. Apparently, deposits started to form on SIAIN ENTERPRISES VS. FF CRUZ (2006)
the top of the land so he wanted to register it. Was he allowed WESVICO filed a foreshore lease application. Because littoral
to do so? owners cannot own foreshore (which is a property of public
dominion), they can apply for a lease. WESVICO applied for
Pascual was an owner of a tract of land. This land is bounded foreshore lease for the shore adjoining his lot and the
on the North by the Manila Bay, on the East by the Talisay neighboring lot of FF Cruz. FF Cruz applied for foreshore lease
river and on the West by the Bulacan river. Pascual planted for the area adjoining his lot only in front of its property.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

WESVICO applied for foreshore lease for the entire area. under his name, the ownership of the unregistered land can
According to WESVICO, we were the ones who applied first; be acquired by prescription.
First Come, First Serve. And since both of us are not entitled to
own this, because this is a property of public dominion, and we So, what happened to X was extinctive prescription. He lost
applied first, we should get the foreshore lease. (Confusing ownership of his land through prescription. The alluvial
daw ang characters sabi ni Ma’am) deposits should be registered for the owner not to lose
ownership thereof.
Siain bought a land (lot 3309) from DBP. On the said land,
there is a foreshore area. Before Siain Ent owned the land, its There can be no dispute that both under Article 457 of the
previous owner, WESVICO, sought for the registration of the New Civil Code and Article 366 of the old, petitioners are the
said foreshore area but it was not pursued because the point lawful owners of said alluvial property, as they are the
person of the transaction cannot be contacted. registered owners of the land which it adjoins. The question
is whether the accretion becomes automatically registered
Cruz had a property adjacent to Lot 3309. It made land just because the lot which receives it is covered by a
constructions thereon for the Iloilo City Port. Later, Cruz Torrens title thereby making the alluvial property
applied for a foreshore lease on the said foreshore area. imprescriptible. We agree with the Court of Appeals that it
does not, just as an unregistered land purchased by the
Siain also applied for a foreshore lease on the foreshore area, registered owner of the adjoining land does not, by extension,
which resulted into an overlap of their (Siain and Cruz) become ipso facto registered land. Ownership of a piece of
respective leases by 130 linear meters. Siain alleged that it land is one thing, and registration under the Torrens system
should be given preference of the said land as the riparian of that ownership is quite another.
owner and such preference was provided by law.
Ownership over the accretion received by the land adjoining
WON WESVICO is entitled to the entire 130 linear meters that a river is governed by the Civil Code. Imprescriptibility of
it applied for. registered land is provided in the registration law.
Registration under the Land Registration and Cadastral Acts
HELD: NO. Littoral owners have priority to lease the portion does not vest or give title to the land, but merely confirms and
of the foreshore adjacent to their property. The justification thereafter protects the title already possessed by the owner,
for giving to the owner the preferential right is the Spanish making it imprescriptible by occupation of third parties. But
Law on Waters while lands added to the shores by accretions to obtain this protection, the land must be placed under the
and alluvial deposits caused by the action of the sea form part operation of the registration laws wherein certain judicial
of the public domain, such lands, when they are no longer procedures have been provided.
washed by the waters of the sea are not necessary for
purposes of public utility, or for the establishment of special The fact remains, however, that petitioners never sought
industries, or for the coast guard service," shall be declared by registration of said alluvial property (which was formed
the Government "to be the property of the owners of the sometime after petitioners' property covered by Original
estates adjacent thereto and as increment thereof." Certificate of Title No. 2982 was registered on June 9, 1934)
up to the time they instituted the present action in the Court
Article 4 recognizes the preferential right of the littoral of First Instance of Isabela in 1958. The increment, therefore,
(riparian according to paragraph 32) to the foreshore land never became registered property, and hence is not entitled
formed by accretions or alluvial deposits due to the action of or subject to the protection of imprescriptibility enjoyed by
the sea. The reason for the preferential right is the same as registered property under the Torrens system. Consequently,
the justification for giving accretions to the riparian owner for it was subject to acquisition through prescription by third
the diminutions which his land suffers by reason of the persons.
destructive force of the waters. So, in the case of littoral lands,
he who loses by the encroachments of the sea should gain The next issue is, did respondents acquire said alluvial
by its recession. property through acquisitive prescription? This is a question
which requires determination of facts: physical possession
So if the sea ate up the land, who will lose? It’s the owner. So and dates or duration of such possession. Respondents-
if the sea will give land, then who should gain? That particular appellees were in possession of the alluvial lot since 1933 or
owner as well. 1934, openly, continuously and adversely, under a claim of
ownership up to the filing of the action in 1958. The law on
GRANDE VS. CA (1962) prescription applicable to the case is that provided in Act 190
This case establishes the principle that ownership is one and not the provisions of the Civil Code, since the possession
thing, and registration is another. started in 1933 or 1934 when the pertinent articles of the old
Civil Code were not in force and before the effectivity of the
Grande owned a parcel of land. In the early 1930s, a gradual new Civil Code in 1950. Hence, the conclusion of the Court of
accretion took place and in in 1958 the alluvial deposits had Appeals that the respondents acquired alluvial lot in question
formed over 19,000 square meters. Grande then discovered by acquisitive prescription is in accordance with law.
that Bernardo Calulung has been occupying the alluvial
deposits since 1934. Bernardo now claims that he has HEIRS OF NARVASA VS. IMBORNAL (2014); J. PERLAS-
acquired the alluvial property through prescription. However, BERNABE
Grande contends that he is the rightful owner of the property X is the riparian owner. Alluvial deposits were formed. Y
as he is the registered owner of the land to which it adjoins. occupied the alluvial deposits, and then later he registered
the property. And then alluvial deposits were formed here,
WON accretion may be subject to prescription. and then Z occupied the property.

HELD: YES. Even though one is the owner of the alluvial Who is the riparian owner for before Z? Who has the right to
deposits by principle of accession, ownership is one thing and the second accretion? Is it X the original?
registration is another. if as an owner, he didn’t do anything
to protect the ownership as when he don’t register the land HELD: NO. It is Y because he is now the riparian owner. So, the
ownership changes. If somebody else acquires ownership

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4-Manresa | Ateneo de Davao University College of Law

over the alluvial deposits, then he will be considered the In this case, Francisco, et al. and, now, their heirs, i.e., herein
riparian owner, if there are additional deposits, then he is the petitioners,. are not the riparian owners of the Motherland to
riparian owner. which the First Accretion had .attached, hence, they cannot
assert ownership over the First Accretion. Consequently, as
Article 457 of the Civil Code states the rule on accretion as the Second Accretion had merely attached to the First
follows: "[t]o the owners of lands adjoining the banks of rivers Accretion, they also have no right over the Second Accretion.
belong the accretion which they gradually receive from the Neither were they able to show that they acquired these
effects of the current of the waters." Relative thereto, in properties through prescription as it was ·not established that
Cantoja v. Lim, the Court, citing paragraph 32 of the Lands they were in possession of any of them. Therefore, whether
Administrative Order No. 7-1 dated April 30, 1936, in relation through accretion or, independently, through prescription,
to Article 4 of the Spanish Law of Waters of 1866, as well as the discernible conclusion is that Francisco et al. and/or
related jurisprudence on the matter, elucidated on the petitioners' claim of title over the First and Second Accretions
preferential right of the riparian owner over the land formed had not been substantiated, and, as a result, said properties
by accretions, viz.: cannot be reconveyed in their favor. This is especially so since
on the other end of the fray lie respondents armed with a
Being the owner of the land adjoining the foreshore area, certificate of title in their names covering the First and Second
respondent is the riparian or littoral owner who has Accretions coupled with their possession thereof, both of
preferential right to lease the foreshore area as provided which give rise to the superior credibility of their own claim.
under paragraph 32 of the Lands Administrative Order No. 7- Hence, petitioners' action for reconveyance with respect to
1, dated 30 April 1936, which reads: both accretions must altogether fail.

32. Preference of Riparian Owner. – The owner of the property Article 458.
adjoining foreshore lands, marshylands or lands covered with The owners of estates adjoining ponds or lagoons do not
water bordering upon shores or banks of navigable lakes or acquire the land left dry by the natural decrease of the
rivers, shall be given preference to apply for such lands waters, or lose that inundated by them in extraordinary
adjoining his property as may not be needed for the public floods. (367)
service, subject to the laws and regulations governing lands of
this nature, provided that he applies therefor within sixty (60) This is the opposite of Art. 457. If you encounter a question,
days from the date he receives a communication from the and it involves a pond or a lagoon, then there is no accretion.
Director of Lands advising him of his preferential right.
What is the difference between a lagoon and a lake? Only God
The Court explained in Santulan v. The Executive Secretary knows.
[170 Phil. 567; 80 SCRA 548 (1977)] the reason for such grant
of preferential right to the riparian or littoral owner, thus: ▪ POND – small lake.
▪ LAGOON – open sea.
Now, then, is there any justification for giving to the littoral
owner the preferential right to lease the foreshore land
Article 459.
abutting on his land?
Whenever the current of a river, creek or torrent segregates
from an estate on its bank a known portion of land and
That rule in paragraph 32 is in consonance with Article 4 of
transfers it to another estate, the owner of the land to which
the Spanish Law of Waters of 1866 which provides that, while
the segregated portion belonged retains the ownership of it,
lands added to the shore by accretions and alluvial deposits
provided that he removes the same within two years. (368a)
caused by the action of the sea form part of the public
domain, such lands, "when they are no longer washed by the
waters of the sea and are not necessary for purposes of public Article 460.
utility, or for the established [sic] of special industries, or for Trees uprooted and carried away by the current of the waters
the coast guard service, "shall be declared by the Government belong to the owner of the land upon which they may be cast,
"to be the property of the owners of the estates adjacent if the owners do not claim them within six months. If such
thereto and as increment thereof." owners claim them, they shall pay the expenses incurred in
gathering them or putting them in a safe place. (369a)
In other words, article 4 recognizes the preferential right of
the littoral owner (riparian according to paragraph 32) to the
Article 461.
foreshore land formed by accretions or alluvial deposits due
River beds which are abandoned through the natural change
to the action of the sea.
in the course of the waters ipso facto belong to the owners
whose lands are occupied by the new course in proportion to
The reason for that preferential right is the same as the
the area lost. However, the owners of the lands adjoining the
justification for giving accretions to the riparian owner, which
old bed shall have the right to acquire the same by paying the
is that accretion compensates the riparian owner for the
value thereof, which value shall not exceed the value of the
diminutions which his land suffers by reason of the
area occupied by the new bed. (370a)
destructive force of the waters. So, in the case of littoral lands,
he who loses by the encroachments of the sea should gain by
its recession.52 CHANGE IN THE COURSE OF RIVERS
GENERAL RULE: River beds which are abandoned through the
Accordingly, therefore, alluvial deposits along the banks of a natural change in the course of the waters ipso facto belong
creek or a river do not form part of the public domain as the to the owners whose lands are occupied by the new course in
alluvial property automatically belongs to the owner of the proportion to the area lost.
estate to which it may have been added. The only restriction
provided for by law is that the owner of the adjoining property EXCEPTION: The owners of the lands adjoining the old bed
must register the same under the Torrens system; otherwise, shall have the right to acquire the old bed by paying the value
the alluvial property may be subject to acquisition through thereof, which value shall not exceed the value of the area
prescription by third persons. occupied by the new bed.

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4-Manresa | Ateneo de Davao University College of Law

REQUISITES FOR ART. 461 TO APPLY: In 1968, there was a great flood, the river was back into its
1. The change must be sudden not gradual in order that position before.
the riverbed may be identified;
2. The changing of the course must be more or less
permanent, and not temporary over flooding of
another’s land;
3. The change of the river bed must be a natural one;
4. There must be a definite abandonment by the
government;
Under 461, who owns the dried-up riverbed?
5. The river must continue to exist, that is, it must not
completely dry up or disappear. There must be a river;
HELD: It is A. because the river is now on his land. But look at
it just so happens that it is in another location.
the 2nd part of 461: The owner of the lands adjoining the old
There is a case that applied 461 and 457 which is the case of: bed (B) shall have the right to acquire the old bed by paying
the value thereof, which value shall not exceed the value of
AGUSTIN vs. IAC (1990) the area occupied by the new bed. He does not have to if he
The Cagayan River separates the towns of Solana on the west does not want to.
and Tuguegarao on the east in the province of Cagayan. In
In this case, both provisions were applicable.
1919 the Tuguegarao Cadastre covered the lands east of the
river. Thus, Agustin was issued OCT on his occupied lots.In
1950, all lands west of the river were included in the Solana From FT: Accretion benefits a riparian owner when the
Cadastre. Melad, Binayug and Ubina was issued OCT on their following requisites are present: (1) That the deposit be
respective lots. gradual and imperceptible; (2) that it resulted from the effects
of the current of the water; and (3) that the land where
As the years went by, the Cagayan River moved gradually accretion takes place is adjacent to the bank of a river. The
eastward, depositing silt on the western bank. The shifting of Court ruled that all the requisites of accretion are present.
the river and the siltation continued until 1968. However, in
Cagayan River did move year by year from 1919 to 1968 or for
1968, after a big flood, the Cagayan River changed its course,
returned to its 1919 bed, and, in the process, cut across the a period of 49 years. The alluvium deposited in every year is
lands of Melad, Binayug and Ubina whose lands were imperceptible in nature, one could not discern it but can be
transferred on the eastern, or Tuguegarao, side of the river. measured after the lapse of a certain time.
To cultivate those lots they had to cross the river.
Moreover, Melad, Binayug and Ubina’sownership of the
In April, 1969, while Melad, Binayug and Ubinawere planting accretion to their lands was not lost upon the sudden and
abrupt change of the course of the Cagayan River when it
corn on their lots located on the eastern side of the Cagayan
reverted to its old 1919 bed, and separated or transferred said
River, Agustin accompanied by the mayor and some
accretions to the other side (or eastern bank) of the river. The
policemen of Tuguegarao, claimed the same lands as their
own and drove away the private respondents (Melad, Binayug Court applied Art.459 and Art.463.
and Ubina) from the premises.
Art. 459. Whenever the current of a river, creek or torrent
Melad, Binayug and Ubina filed a case to recover their lots and segregates from an estate on its bank a known portion of land
accretions. 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.
(Nag drawing si Atty. Suarez, illustrations below kay according
lang sa akong madungog guys and ma remember)
Art. 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.
(Emphasis supplied).

In the case at bar, the sudden change of course of the Cagayan

River as a result of a strong typhoon in 1968 caused a portion
To simplify, A owns a land, he plants palay. He kept on of the lands of the private respondents to be "separated from
planting. The river is here, the Cagayan river. A’s story started the estate by the current."
in 1919. A still kept on planting, the river was already here
pala, in 1968. After 49 years, parang lumaki na yung land ni A, What is also related to Art. 461 is –
he didn’t notice. He just kept on planting up to the end of the
river. Ito si B, also kept on planting pero parang lumiliit man PD 1067, Article 58. When a river or stream suddenly changes
because the river kept on moving eastward. its course to traverse private lands, the owners of the affected
lands may not compel the government to restore the river to
its former bed; nor can they restrain the government from
taking steps to revert the river or stream to its former course.
The owners of the land thus affected are not entitled to
compensation for any damage sustained thereby. However,
the former owners of the new bed shall be the owners of the
abandoned bed in proportion to the area lost by each.
So in 1968, the river before was no longer a river but already
the land of A. by principle of accession, A under 457 is already
the owner of the alluvial deposit caused by the natural current When a river or stream suddenly changes its course to
of the river. traverse private lands, the owners of the affected lands..
• Who are we talking about here? It is A, his land was
affected because the river went back.

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4-Manresa | Ateneo de Davao University College of Law

• Can A compel the government to restore the river to its distant from one margin than from the other, the owner of
former bed? NO. the nearer margin shall be the sole owner thereof. (373a)
• What if the Government wants to return the river? A
cannot restrain the government.

The owners of the land thus affected are not entitled to SECTION 3. — RIGHT OF ACCESSION WITH RESPECT TO
compensation for any damage sustained thereby… MOVABLE PROPERTY

The former owners of the new bed shall be the owners of the ACCESSION WITH RESPECT TO MOVABLE PROPERTY
abandoned bed in proportion to the area lost by each. 1. Adjunction;
• This is the kind of ownership that does not require any 2. Mixture (commixtion or confusion);
transfer document. This is automatic. It is by virtue of 3. Specification.
the law: Art. 461 and PD 1067.
Article 466.
PD 1067: The owners of the affected may undertake to return
Whenever two movable things belonging to different owners
the river or stream to its old bed at their own expense. But in
are, without bad faith, united in such a way that they form a
order to do that:
single object, the owner of the principal thing acquires the
1. He must get a permit from the DPWH and the DOTC;
accessory, indemnifying the former owner thereof for its
and
value. (375)
2. Work pertaining therefor must commence the work
within 2 years.
ADJUNCTION
Article 462. ▪ It is the process by virtue of which two movable
Whenever a river, changing its course by natural causes, things belonging to different owners are united in
opens a new bed through a private estate, this bed shall such a way that they form a single object.
become of public dominion. (372a)
Accession is not an issue if there is only one owner. Here, 2
different owners own the two movables and they are united
This is a private property. If a river changes its course and
in such a way that they form a single object.
opens a new bed, what happens to this area? This becomes
property of public dominion. He cannot say that that is his
Example: Chair that has no paint belonging to A; the paint
river although the river is on his land.
belonging to B. when the paint is painted on the chair, they
are united. You cannot separate the paint from the chair.
Article 463.
Whenever the current of a river divides itself into branches, SPECIAL KINDS OF ADJUCTION
leaving a piece of land or part thereof isolated, the owner of a. Inclusion (example: sapphire set on a ring);
the land retains his ownership. He also retains it if a portion b. Soldering;
of land is separated from the estate by the current. (374)  This is when you prepare aluminum tank,
put a solder, or heat, so the solder becomes
(Atty. S draws on the board*) part of the tank
c. Escritura (or writing);
Article 464. d. Pintura (or painting);
Islands which may be formed on the seas within the e. Weaving.
jurisdiction of the Philippines, on lakes, and on navigable or
floatable rivers belong to the State. (371a) EFFECT OF ADJUNTION
Because this is part of accession, the owner of the principal
RULES ON ISLANDS: (All belong to the State) becomes the owner of the accessory. The owner of the
• Islands formed on the sea; principal will own the entire united object.
• Islands formed on lakes;
CONDITIONS FOR THIS TO HAPPEN
• Islands formed on navigable or floatable rivers.
1. Both parties must be in good faith;
2. The owner of the principal must indemnify the owner
What is “navigable” or “floatable”?
of the accessory.
Article 175 of the Law of Waters: It is the government that
shall declare what rivers are navigable or floatable.
Article 467.
It is not indicated in the map of the Philippines if it is floatable The principal thing, as between two things incorporated, is
or a navigable river. So how can we know? deemed to be that to which the other has been united as an
ornament, or for its use or perfection. (376)
US VS. OREGON
Rivers are navigable in law if navigable in fact for some The difficult part is determining which one is the principal to
purpose beneficial to trade and commerce. determine who would be the owner.

If it navigable in fact, then it is navigable. WHAT IS THE PRINCIPAL?

Article 465. GENERAL RULE: TEST OF INTENTION – that to which the other
Islands which through successive accumulation of alluvial has been united as an ornament, or for its use, or perfection
deposits are formed in non-navigable and non-floatable
rivers, belong to the owners of the margins or banks nearest Example: A chair and a can of paint. If the intention is to paint
to each of them, or to the owners of both margins if the island the chair, then the principal is obviously the chair and the paint
is in the middle of the river, in which case it shall be divided is only used to perfect it.
longitudinally in halves. If a single island thus formed be more

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Article 468. in both cases, furthermore, there shall be indemnity for

If it cannot be determined by the rule given in the preceding damages.
article which of the two things incorporated is the principal
one, the thing of the greater value shall be so considered, and If either one of the owners has made the incorporation with
as between two things of equal value, that of the greater the knowledge and without the objection of the other, their
volume. respective rights shall be determined as though both acted in
good faith. (379a)
Example: What if the paint, which belongs to B, was not
intended to paint the chair but to paint a canvass? So, there is A. IF THE ACCESSORY OWNER IS IN BAD FAITH
no intention to perfect the chair. So what is the principal? The
chair or the paint? The 2 objects are already united. It cannot GENERAL RULE IN ADJUNCTION: The owner of the principal
be determined. Use the: will own the entire thing, and indemnify the owner of the
accessory. This is if made in good faith.
TEST OF GREATER
a. Greater value test EXCEPTION: if the owner of the accessory caused the
 if the intention cannot be determined; OR adjunction in bad faith, he shall lose the thing incorporated,
b. Greater volume test and shall indemnify the principal for damages.
 as between two things of equal value; OR
c. Greater merits test B. IF THE OWNER OF THE PRINCIPAL IS IN BAD FAITH
 which ones is more important. The owner of the accessory shall have a right to choose
between –
SPECIAL RULES; CONSIDERED ACCESSORY a. Indemnity for the value of the accessory +
▪ Painting damages; OR
 The canvass is the accessory; the principal b. Separation of the accessory from the principal +
damages.
is the paint;
▪ Sculpture and engraving
C. IF BOTH OWNERS ARE IN BAD FAITH
 the stone is the accessory;
They are considered in good faith.
▪ Writing
 the paper is the accessory; the principal is
the ink; Article 471.
▪ Lithograph Whenever the owner of the material employed without his
▪ The parchment is the accessory; what is consent has a right to an indemnity, he may demand that this
used there is the principal. 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)
Article 469.
Whenever the things united can be separated without injury,
their respective owners may demand their separation. Article 472.
If by the will of their owners two things of the same or
Nevertheless, in case the thing united for the use, different kinds are mixed, or if the mixture occurs by chance,
embellishment or perfection of the other, is much more and in the latter case the things are not separable without
precious than the principal thing, the owner of the former injury, each owner shall acquire a right proportional to the
may demand its separation, even though the thing to which it part belonging to him, bearing in mind the value of the things
has been incorporated may suffer some injury. (378) mixed or confused. (381)

GENERAL RULE: If the adjunction is made in good faith, two MIXTURE

movables united can be separated only if it is done without The combination or union of materials where the respective
injury. identities of the component elements are lost.

When the diamond is separated from the ring, very simple. TWO KINDS OF MIXTURE:
a. COMMIXTION (if solids are mixed) – Example: mix
EXCEPT: The owner of the accessory can demand separation coffee granules and sugar.
if the accessory is more precious than the principal even b. CONFUSION (if liquids are mixed) – Example: mix
though the principal thing may suffer some injury not Coke and Sprite.
destruction.
RULE WHEN THERE IS MIXTURE
If the paint is more valuable, painted on the chair, which is the Under 472, If the mixture is caused by one owner in good
principal, can it be separated? NO, absolutely not. The faith, or by the will of both owners, or by chance (accident),
principle of accession applies. or by a common agent, then CO-OWNERSHIP results, each
owner acquiring an interest or right proportional to the value
Article 470. of his material.
Whenever the owner of the accessory thing has made the
incorporation in bad faith, he shall lose the thing incorporated Why is mixture here? This is accession! If there is co-
and shall have the obligation to indemnify the owner of the ownership, is there accession? There’s none! Read 473.
principal thing for the damages he may have suffered.
Article 473.
If the one who has acted in bad faith is the owner of the If by the will of only one owner, but in good faith, two things
principal thing, the owner of the accessory thing shall have a of the same or different kinds are mixed or confused, the
right to choose between the former paying him its value or rights of the owners shall be determined by the provisions of
that the thing belonging to him be separated, even though for the preceding article.
this purpose it be necessary to destroy the principal thing; and

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4-Manresa | Ateneo de Davao University College of Law

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)

“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.”

Accession only arises when the mixture was caused by one of

the owners in bad faith.Then the one who was not in bad faith
would be the owner of the mixture and the other one who’s
in bad faith will lose his movable without the right to
indemnity.

That is why mixture is here. Only when there is bad faith does
accession arise. But if good faith, or chance, both of them
decided to mix, then there is co-ownership always.
Article 475.
Article 474. In the preceding articles, sentimental value shall be duly
One who in good faith employs the material of another in appreciated. (n)
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.
CHAPTER 3
If the material is more precious than the transformed thing or QUIETING OF TITLE (N)
is of more value, its owner may, at his option, appropriate the
new thing to himself, after first paying indemnity for the value Article 476.
of the work, or demand indemnity for the material. Whenever there is a cloud on title to real property or any
interest therein, by reason of any instrument, record, claim,
If in the making of the thing bad faith intervened, the owner encumbrance or proceeding which is apparently valid or
of the material shall have the right to appropriate the work to effective but is in truth and in fact invalid, ineffective,
himself without paying anything to the maker, or to demand voidable, or unenforceable, and may be prejudicial to said
of the latter that he indemnify him for the value of the title, an action may be brought to remove such cloud or to
material and the damages he may have suffered. However, quiet the title.
the owner of the material cannot appropriate the work in case
the value of the latter, for artistic or scientific reasons, is An action may also be brought to prevent a cloud from being
considerably more than that of the material. (383a) cast upon title to real property or any interest therein.

SPECIFICATION Be very familiar with 476. This should be read with 477.
It is the giving of a new form to another’s material thru the
application of labor. The material undergoes a transformation Article 477.
or change of identity. The plaintiff must have legal or equitable title to, or interest
in the real property which is the subject matter of the action.
Here, work or labor is involved. According to the provision, He need not be in possession of said property.
the worker or the transformer, and the material owner, or the
2 entities, it can only involve only one thing (?), one material
Art. 476 only applies to real property.
or more, the important thing is there is work done on the
movable.
ACTION TO QUIET TITLE IS EITHER –
a. Remedial action
The principal here is not the thing but the work done in order
 a remedy to remove a cloud covering over
to convert the thing into something else.
one’s title; OR
b. Preventive action
Classic example here is the ingredients, eggs, milk, flour, and
sugar belonging to A. Here comes B who baked the cake.  to prevent future cloud or doubt.

Rule on Specification: The owner of the principal, the laborer, REQUISITES FOR QUIETING OF TITLE
the worker becomes the owner of the transformed thing but 1. The plaintiff in an action to quiet title has legal or
he must pay indemnity to the owner of the materials. equitable title to, or interest in the real property,
which is the subject matter of the action. (Art. 477)
(From Cutie Notes, 2014)  LEGAL TITLE – TCT, OCT, CLOA, Free Patent,
may hawak2x na papeles;
 EQUITABLE TITLE – even though he is not
the registered owner.
2. There is a cloud or doubt on title or interest of the
real property by reason of PRICE (proceeding, record,
claim, instrument or encumbrance).
3. The PRICE is apparently valid on its face.

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4-Manresa | Ateneo de Davao University College of Law

4. The PRICE is invalid, ineffective, voidable, or

unenforceable; On February 24, 1967, the vendors Torres executed a Deed of
5. The PRICE may be prejudicial to said title. Absolute Sale in favor of spouses Zenaida and Justiniano
Fernandez only. When petitioners learned that the Absolute
Deed of Sale did not include their names as vendees they
MAMADSUAL VS. MOSON (1990) confronted Zenaida and Justiniano Fernandez. Thus, on April
▪ Legal title means registered ownership. 24, 1967, Zenaida and Justiniano Fernandez executed an
▪ Equitable titled means beneficial ownership. affidavit in which they acknowledged the sale to petitioners
Florentino and Vivencia Fernandez of a portion of the subject
In this case, we have a property, unregistered land, possessed parcel of land consisting of 110 square meters and the receipt
by Mr. X for the longest time. Somebody was able to register of the consideration therefor in the amount of P5,500.00.
the property under his name. He wanted X to vacate. Does X
have equitable title? On January 26, 1970, Zenaida and Justiniano caused the
issuance of a certificate of title (TCT No. 149347) only in their
HELD: YES. Actual, continuous, and adverse possession since names.
time immemorial in the concept of owner is enough to
establish equitable title on the part of the plaintiff. In a letter dated October 22, 1977, private respondent
demanded that petitioners vacate the premises of the lot
The action should prosper because all the requisites provided awarded to her.
for under Article 477 have been complied with.
On June 9, 1981, petitioners' spouses Florentino and Vivencia
As the to the first requisite that the plaintiff had a legal title filed an action to quiet title and damages against Zenaida
or equitable title or interest in the real property, here in the Fernandez only, who was then already estranged from her
case of Bar, spouses Mamadsuan here do not have a legal title husband Justiniano.
but it does not necessarily mean that spouses Mamadsual
here can no longer avail the remedy because in this case, the Does B, the plaintiff have title? None. She has no legal title
spouses Mamadsuan here claim to be in actual continuous over the lot because the TCT was issued in the name of A.
and adverse possession of the said property which in turn gets
them an equitable title over the property. Does she have equitable title? YES. She is the owner because
the lot was delivered to her. What transfers ownership is
Now, as to the second requisite as to the existence of the delivery. She has proof that she paid 50% and that she is a part
Cloud, in this case there’s a cloud by means of an instrument owner of the lot. The 1st requisite is satisfied.
and that is specifically the original certificate of title
evidencing the ownership of the land as registered under the 2nd requisite: There is a cloud or doubt on title of B or interest
name of spouses Macarapan. of the real property by reason of PRICE (proceeding, record,
claim, instrument or encumbrance). Memorize this.
As to the 3rd requisite, the original certificate of title being
registered by the Register of Deeds is apparently valid on its A cloud in the title exists by means of an instrument. The TCT
ways which may as the 5th requisite is maybe prejudicial to belonging to A.
the equitable title of Spouses Mamadsual,
As to the 4th requisite as to the determination of validity, Is it apparently valid on its face? YES. The certificate of title
affectivity, and enforceability of the cloud, the court here obtained by Zenaida appears to be valid. There is presumption
reminded the case back to the Sharia District Court for further of immutability in a torrens title.
proceedings.
In truth and in fact it is not valid. It is ineffective because it
When you file a complaint, you must show that you have legal only states the name of A. it supposed to have the name of A.
or equitable title.
However, the TCT is ineffective because the Spouses
Another example of equitable title: Florentino and Vivencia have equitable title over a portion of
the property. Zenaida does not own the entire property; and
FERNANDEZ VS. FERNANDEZ (1990)
We have here the Fernandez’s sisters in law. They married Last requisite: Such certificate of title is prejudicial to the
Fernandez’s brothers. A Fernandez and B Fernandez decided Spouses Florentino and Vivencia title (beneficial title) because
to buy a lot. The wives decided to buy a lot, and they decided it is enough for them to be ejected from the property.
to pay 50-50 and divide the lot into two. To make it easier to
transact, A Fernandez said na sya nalang ang bibili ng lot, you The action filed here is specific performance, A said na the
give me 50%. After that, I will execute the necessary document action has already prescribed. 10 years lang diba based on a
to transfer the lot to you. Later B found out na kay A lang naka written instrument. 18 years ago pa ito na issue sa kanya.
pangalan. Later, both A and B constructed houses on the lot.
Merong affidavit na inissue si A na she received 50% of the Whether or not their action to quiet title has prescribed. NO.
purchase price from B and that B is also the owner. Kunwari Prescription cannot be invoked in an action for reconveyance,
and TCT was issued on the name of A on 1967, after almost 20 which is, in effect an action to quiet title (because all of the
years, B filed an action for specific performance against A. requisites are present) against the plaintiff therein who is in
possession of the land in question. Since Spouses Florentino
On November 28, 1966, petitioners-spouses Florentino and and Vivencia are in possession of the property, their action to
Vivencia Fernandez and private respondent Zenaida Angeles- quiet title is imprescriptible.
Fernandez and the latter's husband Justiniano Fernandez
purchased in common a parcel of land with an area of 310 Why is it imprescriptible if he is in possession? As explained
square meters Identified as Lot 13, Block 19, Pagasa in Bucton v. Gabar, ... “that while the owner in fee continues
Subdivision, Quezon City. A Deed of Conditional Sale (Exhibit liable to an action, proceeding, or suit upon the adverse claim,
"B") was executed by the spouses de Torres in favor of the he has a continuing right to the aid of a court of equity to
two Fernandez couples. ascertain and determine the nature of such claim and its

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

effect on his title, or to assert any superior equity in his favor. the doctrine that a court has no power to do so, as that action
He may wait until his possession is disturbed or his title is may lead to confusion and seriously hinder the administration
attacked before taking steps to vindicate his right.” of justice.[17] Clearly, an action for quieting of title is not an
appropriate remedy in this case.
It does not matter what an action says. Look at the body,
which indicates that it is an action to quiet title. A judgment is not a cloud. The cloud must be valid on its face
but in fact it is invalid. Are you saying that the judgment is
METROBANK VS. ALEJO (2001) ineffective, etc? Hindi kasama ang judgment dito sa cloud.
On November 21, 1995 and January 30, 1996, Spouses Raul
and Cristina Acampado obtained loans from petitioner in the PORTIC VS. CRISTOBAL (2005)
amounts of P5,000,000 and P2,000,000, respectively. As Generally, the registered owner of a property is the proper
security for the payment of these credit accommodations, the party to bring an action to quiet title. However, it has been
Acampados executed in favor of petitioner a Real Estate held that this remedy may also be availed of by a person other
Mortgage and an Amendment of Real Estate Mortgage over a than the registered owner because, in the Article reproduced
parcel of land registered in their names. The land was covered above, title does not necessarily refer to the original or
by TCT No. V-41319 in the Registry of Deeds of Valenzuela transfer certificate of title. Thus, lack of an actual certificate
City, where the contracts were also registered on November of title to a property does not necessarily bar an action to
20, 1995 and January 23, 1996, respectively. quiet title.

On June 3, 1996, a Complaint for Declaration of Nullity of TCT In truth and in fact, yung mga OCT and TCT are actually the
No. V-41319 was filed by Respondent Sy Tan Se against clouds in most of the cases.
Spouses Acampado.
What kind of proceeding is an action to quiet title?
Despite being the registered mortgagee of the real property
covered by the title sought to be annulled, petitioner was not PHIL-VILLE vs. BONIFACIO
made a party to Civil Case No. 4930-V-96, nor was she notified An action to quiet title is characterized as a proceeding QUASI
of its existence. Because the spouses defaulted in the IN REM.
payment of their loan, extrajudicial foreclosure proceedings
over the mortgaged property were initiated on April 19, 1997. Significantly, an action to quiet title is characterized as a
proceeding quasi in rem. In an action quasi in rem, an
On June 17, 1997, the sheriff of Valenzuela conducted an individual is named a defendant and the purpose of the
auction sale of the property, during which petitioner proceeding is to subject his interests to the obligation or loan
submitted the highest and winning bid. On July 15, 1997, a burdening the property. Actions quasi in rem deal with the
Certificate of Sale was issued in its favor. This sale was entered status, ownership or liability of a particular property but
in the Registry of Deeds of Valenzuela on July 28, 1997. which are intended to operate on these questions only as
between the particular parties to the proceedings and not to
When the redemption period lapsed exactly a year after, on ascertain or cut off the rights or interests of all possible
July 28, 1998, petitioner executed an Affidavit of claimants. The judgment therein is binding only upon the
Consolidation of Ownership to enable the Registry of Deeds parties who joined in the action.
of Valenzuela to issue a new TCT in its name.
Read the case of Green Acres vs. Cabral:
Sy Tan Se won the case, the title was declared null and void.
Metrobank filed a petition for annulment of this decision GREEN ACRES HOLDINGS, INC. VS. VICTORIA P. CABRAL
under Rule 47. (2013)
A cloud on title consists of
The CA said that what should have been filed was an action to 1. any instrument, record, claim, encumbrance or
quiet title. proceeding;
2. which is apparently valid or effective;
Is the CA correct? 3. but is in truth and in fact invalid, ineffective,
voidable, or unenforceable; and
SC: NO.The action for quieting of title is not applicable in the 4. may be prejudicial to the title sought to be quieted.
instant case because not all the requisites of Quieting of Title
are present. It can only be filed when there is a cloud. This Court holds that the DARAB decision in favor of Cabral
satisfies all four elements of a cloud on title.
Metrobank has title because it bought the property in an
auction. It has an equitable title by virtue of the real estate As Green Acres correctly points out, the DARAB decision, a
mortgage foreclosure. final one at that, is both an "instrument" and a "record."
Black’s Law Dictionary defines an instrument as a document
As defined, a cloud on title is a semblance of title which or writing which gives formal expression to a legal act or
appears in some legal form (PRICE) but which is in fact agreement, for the purpose of creating, securing, modifying
unfounded. or terminating a right. A record, on the other hand, is defined
as a written account of some act, court proceeding,
In this case, the subject “judgment” cannot be considered as transaction or instrument drawn up under authority of law,
a cloud on petitioners title or interest over the real property by a proper officer, and designed to remain as a memorial or
covered by TCT No. V-41319, which does not even have a permanent evidence of the matters to which it relates. It is
semblance of being a title. likewise a "claim" which is defined as a cause of action or a
demand for money or property55 since Cabral is asserting her
It would not be proper to consider the subject judgment as a right over the subject lots. More importantly, it is a
cloud that would warrant the filing of an action for quieting of "proceeding" which is defined as a regular and orderly
title, because to do so would require the court hearing the progress in form of law including all possible steps in an action
action to modify or interfere with the judgment or order of from its commencement to the execution of judgment and
another co-equal court. Well-entrenched in our jurisdiction is may refer not only to a complete remedy but also to a mere

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

procedural step that is part of a larger action or special July 16, 2018
proceeding.
TITLE III - CO-OWNERSHIP
Also, the DARAB decision is apparently valid and effective. It
is a final decision that has not been reversed, vacated or ARTICLE 484.
nullified. It is likewise apparently effective and may be There is co-ownership whenever the ownership of an
prejudicial to Green Acres’ titles since it orders the undivided thing or right belongs to different persons.
cancellation of the titles of the Spouses Moraga and Filcon all
from which Green Acres derived its titles. However, as In default of contracts, or of special provisions, co-
discussed above, it is ineffective and unenforceable against ownership shall be governed by the provisions of this title.
Green Acres because Green Acres was not properly
impleaded in the DARAB proceedings nor was there any CO-OWNERSHIP is that state when an undivided thing or right
notice of lis pendens annotated on the title of Filcon so as to belongs to two or more different persons.
serve notice to Green Acres that the subject properties were
under litigation. As such, Green Acres is an innocent WHAT GOVERNS CO-OWNERSHIP?
purchaser for value.
1. Agreement of the parties
2. Special legal provision (in the absence of an
Furthermore, in the case of Dare Adventure Farm Corporation
agreement)
v. Court of Appeals, this Court had the occasion to rule that
3. Provisions of the title on co-ownership (in the
one of the proper remedies of a person who was not
absence of item 1 and 2)
impleaded in the proceedings declaring null and void the title
from which his title to the property had been derived, is an
REQUISITES OF CO-OWNERSHIP
action for quieting title. In said case, Dare Adventure Farm
Corporation purchased property from the Goc-ongs. Dare 1. Plurality of subjects
later discovered that said property was previously mortgaged  more than one owner
by the Goc-ongs to the Ngs. When the Goc-ongs failed to pay 2. Singularity or unity of object
their obligation, the mortgage was foreclosed and the Ngs  there is only one thing owned
were declared owners of the property. Dare, who was not 3. Recognition of each co-owner of his ideal share
impleaded in the foreclosure case, filed a petition for  recognition that he is not the only owner
annulment of the judgment of the trial court with the of the thing owned
appellate court. The Court upheld the appellate court’s
dismissal of the petition since such remedy may be availed SPOUSES SY VS. CA
only when other remedies are wanting. We further ruled that There was a parcel of land owned by Sps. Armada. During the
Dare’s resort to annulment of judgment was unnecessary lifetime of the spouses, they transferred to their children,
since it cannot be prejudiced by the judgment as it was not Jose, Chrisostomo, and Severo, 113.3 meters each of that
impleaded. Two remedies were suggested to Dare as proper parcel of land. Later, the title was cancelled and a new title
recourse, one of which is an action for quieting of title: was issued in the names of the three sons. So there were
three names in one title. Chrisostomo sold his 1/3 portion to
We agree with the CA's suggestion that the petitioner's Anita Sy. So, the siblings of Chrisostomo wanted to exercise
proper recourse was either an action for quieting of title or an their rights of legal redemption. (Remember that the right of
action for reconveyance of the property. It is timely for the legal redemption is a right of a co-owner to redeem a property
Court to remind that the petitioner will be better off if it sold to a third person) But Anita Sy did not agree alleging that
should go to the courts to obtain relief through the proper Jose did not have such right. Who is correct?
recourse; otherwise, it would waste its own time and effort,
aside from thereby unduly burdening the dockets of the SC: Anita is correct. There is no co-ownership. Therefore,
courts. there is no right legal redemption. Why? Every portion
conveyed and transferred to the three sons was definitely
The petitioner may vindicate its rights in the property through described and segregated and with the corresponding
an action for quieting of title, a common law remedy designed technical description. In a co-ownership, there is no definite
for the removal of any cloud upon, or doubt, or uncertainty share. They are not defined by metes and bounds, merely
affecting title to real property. The action for quieting of title ideal, like 1/3-1/3-1/3. In this case, there was already an
may be brought whenever there is a cloud on title to real individual technical description in every lot. It does not
property or any interest in real property by reason of any matter that there’s only one title. There is no co-ownership
instrument, record, claim, encumbrance, or proceeding that when the different portion owned by different people are
is apparently valid or effective, but is, in truth and in fact, already concretely determined and separately identifiable.
invalid, ineffective, voidable, or unenforceable, and may be
prejudicial to said title. In the action, the competent court is SOURCES OF CO-OWNERSHIP
tasked to determine the respective rights of the plaintiff and 1. Law
the other claimants, not only to put things in their proper  Family Code: When a marriage is void or
places, and make the claimant, who has no rights to the where a man and a woman lived
immovable, respect and not disturb the one so entitled, but together without the benefit of
also for the benefit of both, so that whoever has the right will marriage, when they are incapacitated
see every cloud of doubt over the property dissipated, and he to marry, the properties that they own
can thereafter fearlessly introduce any desired together are governed by the rules on co-
improvements, as well as use, and even abuse the property. owners. Even if they don’t agree, the law
makes them co-owners
In this case, it was a decision that was a cloud.Different from 2. Contracts
the Metrobank case. The decision was ineffective and  where two or more people agree to
unenforceable because in the decision, the defendant was not enter into co-ownership, and in the title
impleaded. or agreement constituting the co-
ownership, they specifiy their rights and
Maybe this will come out in your Bar. obligations

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

3. Chance the property during the redemption period. So the title of the
 Example: Comixture or confusion, property was still in the name of their father upon death and
hidden treasure the children were able to inherit. In this case, however, the
4. Occupation bank was able to consolidate the title of the property then
 Example: When a wild beast is caught by after that, Rufu (father) died. Rufu actually lost ownership of
several persons the land. There was nothing for the heirs to inherit.
PUNSALAN v. BOON LIAT (1923) Therefore, they did not become co-owners of the property as
Twenty-three persons caught a whale there was no succession – no source of co-ownership.
and the ambergris (found in the
abdomen of the whale) is automatically PASCUAL v. BALLESTEROS (2012)
co-owned by the persons through A parcel of land was owned by three people in different sizes
occupation – Margarita, Angela, and Lorenza. They are co-owners
5. Succession although the sizes of their lots are different. In August 11,
 Refers to intestate succession only, 2000, Margarita sold her share in the lot to Pascual. However,
because in testate succession, it is the Lorenza claimed that she did not receive any written notice of
testator who will decide. In intestate the sale in favor of Pascual. So, she filed with RTC a complaint
succession, the heirs become co-owners for legal redemption against Pascual claiming that she is
of the property before they partition the entitled to redeem the portion of the lot sold to Pascual being
property. co-owners of the same.

Co-ownership Ordinary Partnership Is she correct?

No legal personality With legal or juridical
personality SC: Yes. She is a co-owner. Under Article 1620 of the Civil
Created by contract or by Created only by contracts – Code, a co-owner has a right of legal redemption.
other things (check: one cannot accidently
sources of co-ownership make a partnership, there Another issue: According to the buyer, Ballesteros did not
like succession, etc.) is really an agreement to exercise her right of legal redemption within 30 days after
enter into a partnership actual knowledge of the sale. (Under Article 1623 of the Civil
Purpose can be anything or Purpose to earn profits Code, there is a 30-day period given to the co-owners to
no purpose at all redeem the property) 1

HERRERA VS. FANGONIL (2007) Is the buyer correct?

There was a parcel of land owned by the Sps. Fangonil. The
spouses had seven children. Fabian (father), with the consent SC: No. the 30-day period never started to run. According
of his wife, obtained a load and mortgaged the lot to the bank. tp 1623, it will only start to run from the notice in writing from
However, the spouses died. They were not able to pay the the prospective vendor which is the co-owner who will sell the
loan and the mortgagee foreclosed the mortgage. Later, one lot. She must inform her other co-owners in writing that she
of the children redeemed the lot from the mortgagee within is selling the lot to third person. And it is only then that the
the one year redemption period. Carmen (one of the 30-day period will start to run. In this case, Margarita never
children), claims to be the full owner of the redeemed lot. informed them in writing. So, it does not matter if Lorenza
According to her, the fact of paying for the redemption price knew of the sale or not – it is the notice in writing that cause
makes her the owner thereof. Is she correct?. the 30-day period to run.

SC: No. the redeemed lot is co-owned property which the Article 1623.
children inherited from their parents through intestate The right of legal pre-emption or redemption shall not be
succession. Carmen, who redeemed the property, does not exercised except within thirty days from the notice in
become the full owner thereof. She just becomes a creditor writing by the prospective vendor, or by the vendor, as the
of her siblings who are obliged to pay their respective case may be. The deed of sale shall not be recorded in the
proportionate shares of the redemption price. Registry of Property, unless accompanied by an affidavit
of the vendor that he has given written notice thereof to
Compare this case to: all possible redemptioners.

BALUS V. BALUS (2010) The right of redemption of co-owners excludes that of

Rufu Balus in 1979 mortgaged a parcel of land that he owned adjoining owners
as a security for a loan obtained from a bank. He failed to pay
for the loan, so the mortgage was foreclosed and the lot was UNDER ARTICLE 1623, THERE ARE TWO RIGHTS
sold in public auction, making the bank the sole bidder. The 1. Right of Pre-emption
redemption period past without Rufu redeeming the – to pre-empt an impending sale.
property. The title of the property was issued in the name of 2. Right of Redemption
the bank. Rufu died. He had two children, Celestino and – sale has already been made
Saturnino. Later, Saturnino purchased the lot from the bank
and the title was issued to him. It so happened that Celestino VICTORIA V. PIDLAOAN (2016)
(brother) was still in possession of the lot, he was still living Rosario Victoria and Rosario Pidlaoan are friends. They both
there. So, Saturnino filed an action for recovery of possession decided to buy a house. Rosario left for work as an OFW in
against Celestino claiming that he is now the full owner of the Saudi Arabia. She sent money to Elma. In 1984, Elma bought
lot. Celestino, however, believed that they are still co-owners a parcel of land registered in her name. Allegedly, Rosario
of the lot because they inherited it from their father. sends money to Elma. So, she claims that the house that was
constructed on the land was financed by her. Elma was living
Is Celestino correct? there. While Rosario was abroad (she came and went), Elma
ran out of money. So, she mortgaged the house and lot to
SC: No. In Herrera v. Fangonil where one co-owner redeemed Villanueva. Later, it ended up to Normita who bought the

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

house and agreed to pay the mortgage, and all those things.. alluvium of the property.
In other words, Elma lost ownership of the house. Normita
caused the cancellation of the title and transferred to her. THE USE BY A CO-OWNER
When Rosario came back, she found out that Elma was no Article 486.
longer in that house. So, Rosario and Elma together filed a Each co-owner may use the thing owned in common,
cancellation of the TCT in the name of Normita. According to provided he does so in accordance with the purpose for
them, Rosario was a co-owner because she was the one who which it is intended and in such a way as not to injure the
financed the construction of the house which has a higher interest of the co-ownership or prevent the other co-
market value than the lot. So, parang it was Elma who bought owners from using it according to their rights. The purpose
the lot and Rosario financed the house, so they were co- of the co-ownership may be changed by agreement,
owners of both house and lot. express or implied.

Are they correct? “Each co-owner may use the thing owned in common”
486 does not talk about proportionate share when it comes
SC: No. The fact that it was registered alone in the name of to use. It is significant only when it comes to expenses,
Elma makes her a full owner of the house. It is not co-owned charges, etc.. When it comes to use, there is no proportionate
by Rosario. share.

Was the fact that Rosario finances the construction of the If A, B, and C owns a car and A is 80% owner, does that mean
house make her a co-owner? that A can use 80% of the car? No! A can use the whole car,
so as B and C.
SC: No, mere construction of a house on another's land does
not create a co-ownership. Remember the sources of co- CONDITIONS
ownership? There is nothing there that says “building a house
▪ Use it in accordance with the purpose for which it
on the land of owner makes you a co-owner of that land.”
is intended.
There is co-ownership if you own one undivided thing. But a
▪ Use it in such a way as not to injure the interest of
house is separable from a lot. So, it is Rosario who owns the
the co-ownership or prevent the other co-owners
house and Elma owns the lot. There is no co-ownership.
from using it according to their rights.

Article 485. AGUILAR v. CA (1993)

The share of the co-owners, in the benefits as well as in The two brothers decided to buy a house so that their sick
the charges, shall be proportional to their respective father can live in that house – that was the purpose. When
interests. Any stipulation in a contract to the contrary shall the father died, brother A continued to live in the house.
be void. Brother B however wanted to partition the house. But A kept
on living in the house. So B said – “you have to pay rent
The portions belonging to the co-owners in the co- because you are living in the house.” B said that he can use
ownership shall be presumed equal, unless the contrary is the house because it is a co-owned house.
proved.
Whose correct?
“The share of the co-owners, in the benefits as well as in the
charges, shall be proportional to their respective interests. SC: A is correct. The purpose of the house was for the father
Any stipulation in a contract to the contrary shall be void.” to live in and not for them to live in. So, if one of them lives
It is easy if they have equal shares. They have the same shares there, he must pay rent.
with respect to the charges and benefits – they all contribute
equally. CRUZ v. CATAPANG
Leonor, Luz, and Norma are co-owners of a lot. They had a
What if they have different proportionate share? neighbor, Catapang, who is related to Norma. Catapang
constructed a house on her lot pero nag-encroach pala yung
Example: bahay niya doon sa co-owned property of the co-
A – 80% owners.When Leonor discovered the encroachment, she
B – 10% confronted Catapang. Catapang told Leonor that Norma, her
C – 10% balae, allowed her to construct a portion of the house on your
co-owned lot. Co-owner naman siya eh! Leonor filed a
Let’s say there is an agreement among the co-owners. A forcible entry case against Catapang. Catapang reasoned that
demands that this will be placed in the agreement: “A will get since there was consent of one of the co-owners, her entry
80% of the benefits but will only pay 10% of the expenses.” Is was not made with FISTS.
that a valid stipulation?
WON the knowledge or consent of the co-owner is a valid
No, it is void. Even if a co-ownership is covered by an license for a third person to erect a house on a co-owned lot.
agreement, we all know that the provision of the contract Or stated differently, whether one co-owner has the right to
must not be contrary to law. So, this kind of stipulation is allow another to use the co-owned property?
contrary to law. Thus, A, as an 80% owner, is entitled to 80%
of the profits but when it comes to expenses, A must also SC: No. A co-owner cannot devote common property to his
contribute 80%. or her exclusive use to the prejudice of the co-ownership.
That is condition (b). A co-owner can use the property but the
“The portions belonging to the co-owners in the co- interest of the co-ownership must not be injured or
ownership shall be presumed equal, unless the contrary is prejudiced. By allowing a third person to encroach upon the
proved.” co-owned lot, the interest of the co-ownership is prejudiced.
That is very easy.
The consent given by Norma in the absence of the consent of
Each co-owner shares proportionately in the accretion or Leonor and Luz did not vest upon respondent any right to

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

enter into the co-owned property. Her entry into the property REPAIRS FOR PRESERVATION
still falls under the classification through strategy or stealth. A co-owner has a right to demand from the other co-owners
a contribution for the repairs and preservation. But, does he
“The purpose of the co-ownership may be changed by have to wait for them to agree?
agreement, express or implied.”
Example: If a house was bought by the co-owners as 489 says no. Repairs for preservation may be made at the will
residence of the co-owners, then later they changed it. of one of the co-owners. Example: A co-owned house is
Maybe they wanted to turn it into a boutique hotel. They can already eaten by termites. Kailangan pa ba niyang hintayin
do that but there must be by agreement. ang ibang co-owners? What if nasa space station? Di na ma-
contact!
Article 487.
Any one of the co-owners may bring an action in So if practicable, notify the co-owners of the necessity of such
ejectment. repairs of preservation

Under 487, an action in ejectment, whatever it is, may be filed EXPENSES TO IMPROVE OR EMBELLISH THE THING
by one co-owner without the consent of the others or without This cannot be made unilaterally. This has to have financial
joining of the others. The other co-owners are not majority – 51% or more.
indispensable parties in an action filed by a co-owner in behalf
of others – if co-owner is a plaintiff. Examples: Swimming pool, leather seats in a co-owned
vehicle
But, if you want to eject the co-owners, implead all of them.
They are all indispensable parties. The third one is in 491.

RULE – Article 491.

▪ If action in ejectment is filed by the co-owner – None of the co-owners shall, without the consent of the
apply Article 487 of the Civil Code others, make alterations in the thing owned in common,
▪ If action in ejectment is filed by any person against even though benefits for all would result therefrom.
the co-owners - apply Rule 3, Section 7of the Rules However, if the withholding of the consent by one or more
of Court on Indispensable Parties. of the co-owners is clearly prejudicial to the common
interest, the courts may afford adequate relief.
No need of SPA to exercise right under 487
In many cases, the SC keeps on repeating that an SPA is a ALTERATIONS
superfluity in an action for ejectment. A co-owner does not
Alteration is an act of ownership.
need SPA from his other co-owners.
1. The change is more or less permanent
2. The change that changes the use of the thing
Article 488. owned in common
Each co-owner shall have a right to compel the other co- 3. A change that prejudices the condition of the co-
owners to contribute to the expenses of preservation of ownership or to its enjoyment by others
the thing or right owned in common and to the taxes. Any
one of the latter may exempt himself from this obligation Example: Sale, donation, and mortgage of the property
by renouncing so much of his undivided interest as may be owned in common; constituting a voluntary easement over
equivalent to his share of the expenses and taxes. No such the property; construction of a house; tearing down of a
waiver shall be made if it is prejudicial to the co- house; lease of the property which is more than one year, or
ownership. any other acts of strict dominion or ownership.

Definitely, if the co-owned property is a thing, it would need Consent requires is UNANIMOUS.
repairs and taxes would have to be paid (unlike that of a right).
Are all owners obliged to contribute?
Under 488, each co-owner shall have a right to compel the ▪ If a co-owner gives express consent, he can be
other co-owners to contribute to the expenses of made liable for the expenses
preservation of the thing or right owned in common and the ▪ If a co-owner gives implied consent (like when a co-
payment of taxes. owner did not object), he cannot be compelled to
contribute for the expenses. His consent will only
However, a co-owner may exempt himself from payment of be for the purpose of making the alteration legal.
expenses and taxes by abandoning one’s share, not the entire
share, but the corresponding value of the amount to be paid. SUMMARY:
▪ UNILATERAL (ONLY ONE CO-OWNER)
Example: The amount of taxes to be paid is P100,000. The  repairs for preservation, actions for
share of each co-owner is P1M each. So he can give up 10% ejectment, payment of taxes
of his co-owned share to compensate the other co-owners for ▪ UNANIMOUS
paying for the taxes.  Alterations
▪ FINANCIAL MAJORITY
BUT, abandonment or renouncing of shares is not allowed if  Useful improvements, embellishments,
it would be prejudicial to thing. administration and better enjoyment

Article 489. PERPENDICULAR OWNERSHIP –

Repairs for preservation may be made at the will of one of Art. 490.
the co-owners, but he must, if practicable, first notify his Whenever the different stories of a house belong to
co-owners of the necessity for such repairs. Expenses to different owners, if the titles of ownership do not specify
improve or embellish the thing shall be decided upon by a the terms under which they should contribute to the
majority as determined in article 492.

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4-Manresa | Ateneo de Davao University College of Law

necessary expenses and there exists no agreement on the SC: Sunset View is correct. Under Article 484 of the Civil
subject, the following rules shall be observed: Code, what governs co-ownership is the agreement between
1) The main and party walls, the roof and the the parties. Since, the buyer signs the agreement where he
other things used in common, shall be agrees that he will only become a shareholder of the
preserved at the expense of all the owners in condominium corporation after he pays the full purchase
proportion to the value of the story belonging price.
to each;
2) Each owner shall bear the cost of maintaining So, this law only comes in if there is no agreement. And under
the floor of his story; the floor of the entrance, the law on sales, the buyer becomes the owner because of the
front door, common yard and sanitary works delivery, ownership is different from being a member in the
common to all, shall be maintained at the condominium corporation.
expense of all the owners pro rata;
3) The stairs from the entrance to the first story “The owner of a project shall, prior to the conveyance of any
shall be maintained at the expense of all the condominium therein, register a declaration of restrictions
owners pro rata, with the exception of the relating to such project, which restrictions shall constitute a
owner of the ground floor; the stairs from the lien upon each condominium in the project, and shall insure
first to the second story shall be preserved at to and bind all condominium owners in the project. Such
the expense of all, except the owner of the liens, unless otherwise provided, may be enforced by any
ground floor and the owner of the first story; condominium owner in the project or by the management
and so on successively. (396) body of such project.” (Section 9, RA 4726
That is the pain of a condominium owner. If may tulo ang
There is already a law more specific than Article 490 on tangke, ipalinis ang mga bintana specially yung mga high-rise
Perpendicular Ownership – that is the Condominium Act (RA na ‘yan, kailangan mong mag-contribute. Once the
4726) condominium is transferred to the home owner’s association,
everything has to come from the pockets of the unit owners.
We will only take up the provisions under the Condominium And that can be enforced by the association.
Act which is related to perpendicular co-ownership.
What if the condominium corporation is dissolved? What
DEFINITION OF A CONDOMINIUM happens to the title of the common areas?
The common areas owned or held by the corporation shall, by
A condominium is an interest in real property consisting of
way of liquidation, be transferred pro-indiviso and in
separate interest in a unit of a building as a sole ownership
proportion to their interest in the corporation to the
and an undivided interest in the common areas, such as land,
members or stockholders thereof, subject to the superior
stairs, elevators, lobbies and all others. (Section 2, RA 4726)
rights of the corporation creditors. (Section 9, RA 4726)
So, if I am a condominium owner, I am a co-owner and a sole-
This time, the title will be transferred to the names of all the
owner at the same time.
unit owners.
▪ Sole owner of condominium unit
▪ Co-owner of all common areas
You also know very well that aliens can own 40% of a
condominium and an exception to the constitutional
TITLE OF PROPERTY
prohibition.
▪ The title of the unit will go in my name. It is called
a CCT (condominium certificate of title).
Article 491.
▪ The title of the common areas will be in the name
None of the co-owners shall, without the consent of the
of the corporation.
others, make alterations in the thing owned in common,
even though benefits for all would result therefrom.
“The holders of separate interest shall automatically be
However, if the withholding of the consent by one or more
members or shareholders, to the exclusion of others, in
of the co-owners is clearly prejudicial to the common
proportion to the appurtenant interest of their respective
interest, the courts may afford adequate relief. (397a)
units in the common areas.” (Section 2, RA 4726)

SUNSET VIEW V. CAMPOS Article 492.

When a person buys a condominium unit, most of the time, For the administration and better enjoyment of the thing
the purchase is made by installment and the property can be owned in common, the resolutions of the majority of the
delivered to the buyer. Pwede na niyang tirahan while he is co-owners shall be binding.
paying for the installment. Under the law on sales, does that
person become the owner of the property? No, because it is There shall be no majority unless the resolution is
a contract to sell where even though there is delivery, there approved by the co-owners who represent the controlling
will be no transfer of ownership. interest in the object of the co-ownership.

In this case, in every condominium purchase, there is always Should there be no majority, or should the resolution of
the articles of the condominium corporation plus the by-laws, the majority be seriously prejudicial to those interested in
then the deed of restrictions. These are always signed by the the property owned in common, the court, at the instance
buyer. In the by-laws and articles, it is said that the buyer of of an interested party, shall order such measures as it may
a unit will only become a shareholder of the condominium deem proper, including the appointment of an
corporation upon full payment of the purchase price. The administrato
buyer said – “No! According to RA 4726, holders of separate r.
interest shall automatically be members or shareholders of Whenever a part of the thing belongs exclusively to one of
the condominium corporation. So, automatic member ako!” the co-owners, and the remainder is owned in common,
the preceding provision shall apply only to the part owned
Who is correct? in common. (398)

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4-Manresa | Ateneo de Davao University College of Law

RIGHTS OF A CO-OWNER bulldozers, backhoes, etc. to ad demolished the portion of the

Article 493. house that exceeded 1/6.
Each co-owner shall have the full ownership of his part and
of the fruits and benefits pertaining thereto, and he may Is Teria correct? Was she justified in tearing the portion of the
therefore alienate, assign or mortgage it, and even house that exceeded 1/6?
substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the SC: No. Going back to Article 486, a co-owner has the right
alienation or the mortgage, with respect to the co-owners, to use the property co-owned. Therefore, even though Lilia
shall be limited to the portion which may be alloted to him owns 1/6 co-owner, she has the right to use the entire
in the division upon the termination of the co-ownership. property, and so does Teria. As long as there is no partition
(399) made between the co-owners, both co-owners can use the
entire property. artition needs to be effected to protect her
RIGHTS OF A CO-OWNER WITH RESPECT TO HIS IDEAL SHARE right to her definite share and determine the boundaries of
her property. Such partition must be done without prejudice
1. Each co-owner shall have full ownership of his part
to the rights of private respondent Virginia Teria as buyer of
and his share of the fruits and benefits
the 5/6 portion of the lot under dispute.
2. Each co-owner has the right to alienate, assign or
mortgage his ideal share
METROBANK v. PASCUAL
3. Each co-owner may substitute another person in its
When Nicholson and Florencia Pascual was married, they
enjoyment, except when personal rights are
bought a 3-door apartment in Makati where the title thereof
involved.
was issued in the name of the wife, married to Nicholson
 This is common in playing rights of a
Pascual. 10 years after, they had their marriage declared null
country club. A, B, and C are co-owners.
and void. In 1995, RTC ordered the dissolution and liquidation
C can assign his rights to D, giving the
of the conjugal property of gains. However, they did not go
latter the right to enjoy his right.
through that liquidation process and went their separate
4. Each co-owner may exempt himself the expenses
ways. Two years later, Florencia obtained a loan from
and taxes by renouncing part of his interest in the
Metrobank and used the 3-door apartment as a security.
co-ownership.
Unfortunately, she was not able to pay the installments. So,
Metrobank initiated the foreclosure proceedings. No, naka-
Can a co-owner sell the property held in common?
hearing itong si Nicholson. He filed before the RTC a
No, because that is an act of alteration which requires the
complaint to declare the nullity of the mortgage. According
consent of all the co-owners.
to him, the lot was still conjugal property because they did not
go through liquidation process and the mortgage was made
What is the status of the sale made by a co-owner? Is it void?
without his consent.
The SC has been consistent in saying no. A sale made by a co-
owner of the property owned in common is not void, but it is
Did Florencia had the right to mortgage the lot?
only valid with respect to his ideal share.
SC: No. Termination of conjugal property regime does not
What happens to his share if the co-owner shale the same to
ipso facto end the nature of conjugal ownership. They should
a stranger? What is the effect?
have done the liquidation and partition process to end the co-
The stranger will takes his place as co-owner in the co-owner.
ownership. Since the property is still conjugal, Florencia has
And the stranger will not acquire a definite portion of the
the right has the right to mortgage or even sell her one-half
property owned in common. He will remain to be a co-owner
(1/2) undivided interest in the disputed property. The rights
until there is partition
of Metrobank, as mortgagee, are limited only to the 1/2
undivided portion that Florencia owned. The mortgage is still
I will read to you what the SC always says:
valid but only as to ½ of the mortgaged property.
“The mere fact that the deed purports to transfer a
concrete portion, does not per se render the salve void.
PARTITION –
The sale is valid but only with respect to the aliquot share
of the selling co-owner. Also, the sale is subject to the Article 494.
results of the partition upon the termination of the co- No co-owner shall be obliged to remain in the co-
ownership. ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his
LILIA SANCHEZ v. CA share is concerned.
We have a small lot co-owned by siblings. One of the siblings
is the husband of Lilia Sanchez. The husband died. Lilia Nevertheless, an agreement to keep the thing undivided
remained in that lot where they have a house. One day, Lilia for a certain period of time, not exceeding ten years, shall
discovered that the five siblings of her husband sold the be valid. This term may be extended by a new agreement.
property to a certain Teria. Teria now claims that she is now
the owner of the entire property bi virtue of the sale. A donor or testator may prohibit partition for a period
which shall not exceed twenty years.
Is she correct?
Neither shall there be any partition when it is prohibited
SC: No. She is only co-owner of 5/6 of the property; 1/6 still by law.
owned by Lilia because she did not participate in the sale No prescription shall run in favor of a co-owner or co-heir
made by the other five co-owners. against his co-owners or co-heirs so long as he expressly
or impliedly recognizes the co-ownership. (400a)
Now, Teria had the property surveyed. After the survery, it
was discovered that the house of Lilia actually went beyond Article 495.
the 1/6 portion. Teria demanded that Lilia demolish the Notwithstanding the provisions of the preceding article,
portion of the house that exceeded 1/6 of the property. But the co-owners cannot demand a physical division of the
Lilia did not do so. What did Teria do? She hired some thing owned in common, when to do so would render it

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4-Manresa | Ateneo de Davao University College of Law

unserviceable for the use for which it is intended. But the 2. There must be clear and convincing evidence of
co-ownership may be terminated in accordance with such repudiating
Article 498. (401a) 3. There must be knowledge on the part of the other
co-owners.
“No co-owner shall be obliged to remain in the co- 4. There must be open, continuous, adverse
ownership. Each co-owner may demand at any time the possession
partition of the thing owned in common, insofar as his share 5. The required period of 10 years is present which is
is concerned. “ based on constructive trust.
Even though there are many sources of co-ownership, even  So, walang good faith or bad faith
one of them is the law, co-ownership is not encouraged. requirement dito. Actually, this in bad
Therefore, any co-owner can ask to get out of the co- faith when the co-owner repudiates. He
ownership. And this right to partition is imprescriptible does not need to wait 30 years, unlike in
because it says here “at any time.” It doesn’t matter if the co- acquisitive prescription in Article 540.
ownership lasted 500 years, a co-owner can always get out in  The prescriptive period will only start to
so far as his share is concerned. run from such repudiation and
knowledge by the other co-owners.
KINDS OF PARTITION
a. Full partition DE LIMA v. CA
Lino de Lima acquired lot 758. Then, he died in 1921,
 where the co-owners really partitioned
intestate, and left four heirs (Eulalio, Galileo, Vicente, and
the entire property; nothing is left to be
co-owned Juanita) who are his siblings. The siblings were now the co-
b. Partial partition owner of the property under intestate succession. After his
death, the TCT was transferred in the name of the legal heirs
 where only one co-owner opts to get out
in August 1953. It says here that the legal heirs were
of the co-ownership.
represented by Galileo de Lima. A month later, Galileo
executed an affidavit of extra-judicial declaration of heirship
WHEN CAN A CO-OWNER CANNOT SUCCESSFULLY DEMAND
saying that he was the only heir. So, the TCT in the name of
PARTITION?
the legal heirs of Lino was cancelled and in February 1954, a
a. When there is an agreement by a period not new TCT was issued under the name of Galileo alone to the
exceeding ten (10) years, partition is prohibited. exclusion of all other heirs. The other siblings here kasi are
This term may be extended by new agreement. not there. Ang iba nasa abroad. He declared the lot in his
 So, pwedeng forever yan if it is renewed. name for taxation purposes and paid the taxes thereon. He
b. When partition is prohibited by a donor or testator possessed that in the concept of owner. Fourteen (14) years
may prohibit partition for a period which shall not later or in 1968, the other siblings found out about it and filed
exceed twenty (20) years. with the RTC an action for reconveyance or partition against
 So the owner says,”O, mga anak, I will Galileo.
donate to you my one and only property
para pag namatay kami wala na ‘yong WON the action for partition has prescribed?
estate taxes. But you are not allowed to
partition the property.” What is the SC: Yes. When the property was registered in 1954 in his
maximum number of years? According name alone, that was already notice to the whole world.
to 494, it is 20 years. Therefore, the new title constituted an open and clear
c. When partition is prohibited by law. repudiation of the trust or co-ownership, and the lapse of ten
 Example: conjugal property (10) years of adverse possession by Galileo Delima from
d. When physical property would render the property February 4, 1954 was sufficient to vest title in him by
unserviceable. prescription. Hence, when the other heirs filed their action
 Example: car for reconveyance and/or to compel partition on February 29,
e. When the legal nature of the common property 1968, such action was already barred by prescription.
does not allow partition
 Example: party wall TRINIDAD v. CA
Patricio died in 1940 leaving four lots to his three children
Does the right to demand partition in favor of one co-owner (Inocentes, Lourdes, and Felix). In 1970, here comes Arturio
prescribe?No, provided the co-owner expressly or impliedly claiming that he was the son of one of the children of
recognizes the co-ownership. Inocentes. He demanded partition of the land into three
equal shares. When he appeared, he was allowed to stay in
What if a co-owner repudiates?This is the shortest portion of the property. Not only that, he was actually given a portion
494 but the source of most of the cases. It says “No of the produce of the land. So, parang tinanggap nila na he
prescription shall run in favor of a co-owner or co-heir against was the son of their brother. In 1978, Arturio filed an action
his co-owners or co-heirs so long as he expressly or impliedly for partition. Here comes Lourdes and Felix saying that they
recognizes the co-ownership.” are now the owners of the lot because they repudiated the
ownership of their brother, Inocentes.
GR: As a rule in prescription, a co-owner cannot acquire the
whole property against the co-owners as long as he expressly Did they acquire full ownership of the lot?
or impliedly recognizes the co-ownership.
SC: No. There was no clear repudiation on the part of Felix
EXC: A co-owner may become the exclusive owner of the co- and Lourdes. Not only that, they did not make it known to
owned property through prescription if the following Inosentes or his heirs that they were repudiating the co-
conditions are met: ownership. In fact, they even impliedly recognized the co-
1. He must make known to the other co-owners that ownership by allowing him to live in the land and by sharing
he is definitely repudiating the co-ownership and the produce of the land to him. Even though 30 years have
claiming complete ownership of the entire passed since the father died and Inocentes disappeared, they
property.

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cannot be considered full owners of the property. Ricardo, it must be clearly shown that he had repudiated the
claims of X, Y, and Z, and that they were apprised of his claim
AVILA v. BARABAT (2006) of adverse and exclusive ownership, before the prescriptive
There was a lot owned by Anuncacion Bahena. When she period begins to run. However, it only started to run in 1998,
died, ownership of the lot was transferred to her five children the date when X, Y, and Z received the notice of Ricardo’s
(Narcissa, Natividad, Francisca, Leon, and Jose). Her children repudiation. Since they filed an action in 2001, which is three
built their respective houses on the lot. In 1964, Narcissa (3) years only, it falls short of the ten (10) year prescriptive
leased a portion of her house to a third party, Barabat. In period.
1979 or 15 years later, Narcissa offered to sell her house and
share in the lot to her siblings but no one showed interest. So, Article 496.
she offered it to her lessee, Barabat. The latter bought her lot Partition may be made by agreement between the parties
and evidenced by a private document in 1979. In 1983, or by judicial proceedings. Partition shall be governed by
Barabat received a letter informing him that narcissi sold her the Rules of Court insofar as they are consistent with this
house and lot to the sister. Sabi ni Barabat, “Wait a minute! Code. (402)
You sold this to me already. Why are you selling this to your
sister?” According to the sister she has the right of legal WHERE CREDITORS ARE INVOLVED –
redemption as a co-owner.
Art. 497.
The creditors or assignees of the co-owners may take part
Is the sister correct?
in the division of the thing owned in common and object
to its being effected without their concurrence. But they
SC: No. When the property was sold to Barabat in 1979 (this
cannot impugn any partition already executed, unless
is kinda weird), the co-ownership had already been
there has been fraud, or in case it was made
extinguished by partition. It is stated here that, every act
notwithstanding a formal opposition presented to prevent
intended to put an end to indivision among co-heirs is
it, without prejudice to the right of the debtor or assignor
deemed to be a partition. So when Narcissa sold her share to
to maintain its validity. (403)
Barabat, it is as if she got out of the co-ownership and there
was a partition and sold her share to Barabat. So, there was
Creditors are always given priority in administration of a
already a partition. By her own admission, she sold a clear
and specific portion of the lot to Barabat. Therefore, the SC property.
said that since there is already a specific portion sold, there
RIGHTS OF THE CREDITORS
was already an implied partition. Here, the co-owners
decided and agreed among themselves to partition the 1. The right to take part in the division of the thing
property. owned in common
2. The right to object to the partition effected without
It doesn’t matter if they do it according to law or according to their concurrence
their proportionate shares and all of those things. Pwede
silang mag-usap pag extra-judicial. Kasi imposible’ng equal- But creditors cannot impugn any partition already executed,
equal talaga ‘yan speciallywhen it comes to property. Extra- unless there has been fraud or despite formal opposition
judicial partition is, of course, encouraged. But if the co- made by them, the partition was still made.
owners cannot agree among themselves, then they have to
resort to judicial partition. This is more expensive and not a Who are the creditors in contemplation of 497?Those who
win-win situation because the court will decide what portions became such during the existence of the co-ownership and
goes to whom. not before or after.

Remember the case of de Lima vs. CA? This case was decided Art. 498.
in 1991. There is a subsequent case decided in 2010. Whenever the thing is essentially indivisible and the co-
owners cannot agree that it be allotted to one of them
HEIRS OF PADILLA v. MAGDUA (2010) who shall indemnify the others, it shall be sold and its
Juanita owned a lot. She died and left legal heirs, Ricardo, X, proceeds distributed. (404)
Y and Z. After her death, X, Y and Z sought to have the lot
partitioned. So, they sent word to their eldest brother Ricardo Article 499.
to partition the land. In a letter dated June 5, 1998 written by The partition of a thing owned in common shall not
Ricardo, the heirs X, Y, and Z were surprised to find out that prejudice third persons, who shall retain the rights of
Ricardo declared the land for himself prejudicing their rights mortgage, servitude or any other real rights belonging to
as co-heirs. Then they discovered that the mother, Juanita, them before the division was made. Personal rights
executed a notarized affidavit of transfer of real property in pertaining to third persons against the co-ownership shall
favor of Ricardo on June 4, 1966 making him the sole owner also remain in force, notwithstanding the partition. (405)
of the land. The mother died in 1989. So, 23 years na pala
siyang sole owner of the land. In 2001, X, Y and Z filed and What happens after partition?
action for recovery of ownership, possession, partition, and
Article 500.
damages. X, Y and Z sought to declare the sale void (because
Upon partition, there shall be a mutual accounting for
Ricardo’s daughter sold the land to Dominador).
benefits received and reimbursements for expenses
made. Likewise, each co-owner shall pay for damages
WON the action for partition filed by X, Y and Z is barred by
caused by reason of his negligence or fraud. (n)
prescription.

SC: No. Ricardo, X, Y and Z are co-owners of the land. Article 501.
Ricardo, through a letter dated June 5, 1998, notified X, Y and Every co-owner shall, after partition, be liable for defects
Z as his co-heirs that he adjudicated the land solely for of title and quality of the portion assigned to each of the
himself. Accordingly, Ricardo’s interest in the land has now other co-owners. (n)
become adverse to the claim of his co-heirs after repudiating
their claim. In order that title may prescribe in favor of There shall be a mutual accounting for benefits received and

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4-Manresa | Ateneo de Davao University College of Law

reimbursements for expenses made. moment it exists certain consequences follow. Thus, making
it also a right.
Also, each co-owner shall be liable for defects of title and
quality. ELEMENTS OR REQUISITES OF POSSESSION
1. There must be holding or control.
EFFECTS OF PARTITION  Example: Occupancy, taking, or
▪ Mutual accounting apprehension
▪ Mutual reimbursement  It can be –
▪ Indemnity for damages a. Actual
▪ Reciprocal warranty in proportion to the shares b. Constructive – A possession in
where eviction and loss of quality the eyes of the law does not
 Let’s say we have a parcel of land where mean that a man has to have
in A, B, and C are co-owners. They his feet in every square meter
partitioned the land. After partition, of the ground before it can be
here comes X who files an action to said that he is in possession.
recover the portion that was allocated to
C, claiming that he was the owner of the 2. There must be a deliberate intention to possess
land. X wins. So nawala ‘yung portion ni (animus possedendi)
C. Can A and B say - “Pasensiya. Sorry ka  This is popular in buy-bust operation.
nalang!”? The defense usually that it is planted. So
if there is no intention, one cannot be
No. There is this reciprocal warranty. considered in possession thereof. The
They have to again partition so that C will lawyers defending the accused always
have his share. has to show the lack of animus
▪ Exclusive possession possedendi. The problem is, intent is a
▪ Exclusive title state of mind. How can it be proven? It
is quite difficult. So, lawyers just look at
RECIPROCAL WARRANTY the other areas like chain of custody, etc.
Let’s say we have a parcel of land where in A, B, and C are co-
owners. They partitioned the land. After partition, here 3. The possession must be by virtue of one’s own
comes X who files an action to recover the portion that was right.
allocated to C, claiming that he was the owner of the land. X  If you are the owner, you right is under
wins. So nawala ‘yung portion ni C. Can A and B say - the right to enjoy. You have the right to
“Pasensiya. Sorry ka nalang!”? possess. Or maybe you are given a right
to possess by another. Like if you are a
No. There is this reciprocal warranty. They have to again tenant, you possess property belonging
partition so that C will have his share. to another. That is not yours but you are
given the right to possess. Here, you are
HOW IS CO-OWNERSHIP EXTINGUISHED? still in possession by virtue by your own
▪ Partition, judicial or extrajudicial right.
▪ Prescription, either by co-owner or stranger
▪ Merger in one co-owner (when one co-owner sells Article 524.
his right to another co-owner) Possession may be exercised in one's own name or in that
▪ Loss or destruction of the thing owned in common of another. (413a)
▪ Expropriation
Example: If the land is being sold by A and he gives the agent
the right to possess the land, then the agent possesses the
land not in his own name but that of another.
TITLE V. - POSSESSION
CHAPTER 1 - POSSESSION AND THE KINDS THEREOF WAYS OF POSSESSING IN THE NAME OF ANOTHER
1. Voluntary
Article 523. 2. Necessary
Possession is the holding of a thing or the enjoyment of a  As when a guardian has possession of
right. (430a) the properties of an insane person or a
minor
What is possession? POSSESSION is the holding of a thing or 3. Unauthorized
the enjoyment of a right.  this is negotiorum gestio or
unauthorized management
Going back to our discussion on ownership, what can be
owned?Things and rights. Article 525.
The possession of things or rights may be had in one of
So, the same with possession. 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
KINDS OF POSESSION ownership pertaining to another person. (432)
a. Possession proper
 Holding or control of a thing CONCEPTS OF POSSESSION
b. Quasi-possession 1. One’s own name
 Exercise of a right 2. That of another

Is possession a fact or a right?It is a fact. But from the Possession “in the concept of an owner”

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You are not the owner. You just possess in the concept of that there exists in his title or mode of acquisition any flaw
owner. which invalidates it.

One who, in good faith or bad faith, claims to be and acts as if He is deemed a possessor in bad faith who possesses in
he is the owner, even if he is not. And he does not recognize any case contrary to the foregoing.
any title or ownership of another. He can be in good faith or
in bad faith. Mistake upon a doubtful or difficult question of law may
be the basis of good faith. (433a)
This is the kind of possession which would ripen into
ownership. This is also called “adverse possession.” POSSESSOR IN GOOD FAITH
A possessor who is not aware that there exists in his title or
What are the acts of a person that will show that he
mode of acquisition any flaw which invalidates it.
possesses in the concept of owner?
▪ Construction of permanent buildings
The provision does not say that he is the possessor in good
▪ Harvesting of crops
faith, but uses the term “deemed a possessor in good faith”,
▪ Religious payment of taxes
because one does not know the state of mind of a person. The
awareness of a person is only known to him. So, if he is not
POSSESSION “IN THE CONCEPT OF A HOLDER”
aware, he is deemed a possessor in good faith.
He recognizes another to be the owner. Example: tenants,
usufructuary, bailee in commodatum
A possessor in good faith is not the owner of the thing or right
but he acts as if he is the owner and if indeed it is true that he
This possession only involves the property concerned. We
is not aware and believes that he is the owner. We can look at
already talked about this earlier that the possession must be
this in the case of Pleasantville Development under Art. 448.
by virtue of one’s own right. Like the tenants,he possesses
the property in the concept of holder but his right to possess
J constructed a house on the land of K, his neighbor, thinking
is owned by him.
that it was the land that he bought. So he (J) was not the
owner of the land but he is a builder in good faith, a possessor
Distinction must be made between possession of the thing
in good faith.
and possession of the right to enjoy the thing or benefit from
it.
So, of course, the opposite of a possessor in good faith is
possessor in bad faith. He is deemed one if he possesses in
DEGREES OF POSSESSION
any case contrary to the foregoing. Meaning, he is aware. He
1. Mere holding is not the owner of the thing yet he acts as if he is the owner.
 Holding without any right whatsoever
such as possession of a thief. He has no And mistake upon a doubtful or difficult question of law may
right to the personal property that he is be the basis of good faith. So maybe if one does not
holding. understand a difficult question of law he can still be
2. Juridical possession considered in good faith. Not in bad faith, but jurisprudence
 Possession by juridical title but not that would tell us that this particular statement of Art. 526, the
of an owner. This is possession by a ignorance should not be gross and inexcusable. It may be
lessee, bailee, or pledgee simple ignorance but not gross because gross is already
 What is just title? tantamount to stupidity (aw).
Just title is when there is a mode of
acquiring ownership but the grantor is ARTICLE 527.
not the owner. Good faith is always presumed, and upon him who alleges
bad faith on the part of a possessor rests the burden of
If there is a mode of acquiring proof. (434)
ownership, the grantee becomes the
owner of the thing, if the grantor is the
who alleges bad faith should prove it and even if that person
owner. There is a transfer of ownership
or that possessor in truth and in fact in bad faith, the
like succession, donation, delivery. But if
presumption lies if there is no proof to the contrary.
the grantor is not the owner, the grantee
does not acquire ownership of the thing
that is transferred to him because the ARTICLE 528.
spring does not spring higher from the Possession acquired in good faith does not lose this
source. What does the grantee have? He character except in the case and from the moment facts
exist which show that the possessor is not unaware that
only has just title or a real possessory
he possesses the thing improperly or wrongfully. (435a)
right.
3. Real possessory right
 Possession with just title but not that of This is a continuation of good faith provisions.
an owner
4. Possession with title of dominion So, the keywords here is not the knowledgebut themoment
 Highest form of possession facts existbecause again, I will repeat we don't know what is
 The possessor is the owner of the thing inside the mind of a person. It is only from the moment facts
itself. exist which show that the possessor is not unaware.

TACAS V TUGON
July 23, 2018 X was in the possession of the land from 1912. He planted
crops harvested and sold the produce of the land. In 1916 Y
filed an action in court to recover the land from X. In this case,
ARTICLE 526.
the SC said, X was presumed to be a possessor in good faith.
He is deemed a possessor in good faith who is not aware

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4-Manresa | Ateneo de Davao University College of Law

When could he be deemed a possessor in bad faith? open, continuous, peaceful, adverse, uninterrupted
possession, etc. over the land for almost 50 years.
SC: Only in 1916, when Y actually filed an action against X for
the recovery of the land. Because that was the only time facts The issue here is who is in possession? Is it Jose (owner) or
existed which showed that X was not unaware. But before Manuel (actual possessor)?
that, without proof, there is that presumption that X was in
good faith. SC: The SC, it is Jose. He exercised the possession of the lot
thru Manuel. Under Art. 524 possession may be exercised in
BUKIDNON DOCTOR'S HOSPITAL v MBTC one's own name or in that of another.
BDH obtained a loan of P25M from Metrobank. This amount
is to be used for the construction of its hospital. BDH is an This is similar to the Bukidnon case but simpler.
organization of doctors who wanted to build this building. To
secure the loan, the petitioner mortgaged six parcels of lands. ALVIOLA v CA
BDH was not able to pay the loan so the mortgage was The Dinagans who are owners of the lot and by mere
extrajudicially foreclosed by Metrobank. The lots were sold in tolerance allowed Alviola to reside there and Alviola
a public auction and the Metrobank was the sole and highest constructed a copra dryer and a store. Alviola the possessor
bidder. During the redemption period, BDH did not redeem. was definitely a possessor in bad faith because he knew that
Hence, Metrobank consolidated its ownership over the the land did not belong to him.
properties and was issued TCT in its name.
ARTICLE 529.
What is the situation here? The money that was borrowed by It is presumed that possession continues to be enjoyed in
BDH was used to construct the hospital building, so the the same character in which it was acquired, until the
hospital building was already there but the BDH kept in contrary is proved. (436)
possessing the lot with the building. Since Metrobank was
already the owner of the lots and the building, they entered Again, we know that there is presumption of good faith so it
into an agreement whereby BDH would be lessees of the lots. will continue until the contrary is proved.
There was now a lessor-lessee relationship between
Metrobank and BDH. Now, later, BDH was not able to pay the So, what can be the object of possession?
rent and has violated some of the terms and conditions of the
lease contract. So Metrobank asked BDH to vacate.
ARTICLE 530.
Only things and rights which are susceptible of being
Who is in possession of the lot? Is it BDH, the actual possessor,
appropriated may be the object of possession. (437)
or is it Metrobank?

SC: We already know that under Art. 525 that possession of a

thing may be had in one of two concepts: in the concept of an
CHAPTER 2. - ACQUISITION OF POSSESSION
owner; and in the concept of a holder. Previously when the
lots were still mortgaged to Metrobank, the possession of BDH
was that of an owner but when they entered into a lease ARTICLE 531.
contract, the possession was transformed to that of a holder. Possession is acquired by the material occupation of a
And so, relating this to Art. 524 possession may be exercised thing or the exercise of a right, or by the fact that it is
in one's own name or in that of another. subject to the action of our will, or by the proper acts and
legal formalities established for acquiring such right.
In this case, Metrobank was already in possession of the (438a)
property. Therefore, Metrobank asked the court to issue a writ
of possession that's not really what happens diba when the WAYS OF ACQUIRING POSSESSION
mortgagee consolidates its title over the foreclosed property 1. Material occupation of a thing or the exercise of a
that was not redeemed has to ask for a writ of possession, but, right
according to the SC, Metrobank did not have to do so. Why? 2. Agreement
Because it was already in possession thru its lessee which is 3. Constructive possession of proper acts and legal
BDH. Therefore, what should be done here is to file an formalities
ejectment case.
Material occupation of a thing or the exercise of right: What
Writ of possession is a bit easy. It is ex parte, no more can be possessed? Things and right.
adversarial proceedings but because of the possession by the
BDH as lessee, it became more complicated for Metrobank to How to acquire possession over a thing? Material occupation.
recover possession of property which it already owns. It has
to file an ejectment case. How do you acquire possession over a right?Exercise it. If the
right is to play golf in Rancho Palos Verdes the by playing golf,
This is a new concept with respect to foreclosure of property one acquires possession of that right.
and the writ of possession and of whether it is required.
WAYS OR FORMS OF DELIVERY
EXTREMADURA V EXTREMADURA (2016) 1. Traditio brevi manu (constructive delivery)
Jose Extramadura owns a parcel of land. He has a brother
Manuel. Jose resided in Manila and he placed the lot in the When X possesses the land not as an owner (like a lessee) now
case of his brother Manuel in exchange for which his brother possess it as an owner. The lessee was previously a possessor
Manuel religiously delivered the produce of the land to Jose, as a holder and buys the land from the owner he becomes the
the owner, from 1984-1995. But starting 1995, Manuel owner. He acquires possession only of a different concept. He
refused to deliver the produce of the land or to vacate the is already in possession in one concept and he becomes the
same kasi ayaw na ni Jose na patirahin dun si Manuel kasi he owner thereof. That is one way.
stopped in delivering the produce. Despite repeated
demands, Manuel did not vacate. Manuel averred that he is in

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4-Manresa | Ateneo de Davao University College of Law

Lessee →Owner when one inherits, he already acquires

possession automatically upon the death
2. Constitutum possessorium of the decedent.

The other way around. The owner sells the land to the lessee. WONG v CARPIO
So the owner's possession changes of that from owner to a This is a Davao case.Here we have one Manuel Mercado, he
holder. It is a complicated way. bought parcels of land belonging to William Giger. During the
old days, Americans are allowed to own land here in the
Owner → Lessee Philippines. This was purchased in the 1970. This land was not
physically possessed by Mercado. He just entered into a deed
What is material occupation? It denotes holding, of sale. He ordered people to go there and harvest coconut
apprehension, arrest or occupancy of the thing. fruits. He would pay taxes and he would go there and take a
look for 2 minutes but never stayed there for a long time.
How is it done? Material occupation, meaning detention. You Maybe he goes there once in every six months.
physically occupy or you constructively occupy.
Did he acquire possession of the lot?
What is this concept of constructive possession?Possession in
the eyes of the law does not need that a man has to have his SC: The answer is YES. Even if he did not step in the land but
feet in every square meter of the ground before it can be said by entering into some kind of document. The deed of sale.
that he is in possession. According to Art. 531 possession is already acquired.

Even if you occupy only a certain area of a 10 hectares Let's compare this case to Equatorial Realty.
property, you only set foot on a 10 sqms, you are already in
possession of the entire 10 hectares under the doctrine of EQUATORIAL REALTY v MAYFAIR
constructive possession. Very important case for the third way of acquiring possession.

REQUISITES OF CONSTRICTIVE POSSESSION DOCTRINE There was this land owner, Carmello. He owned a parcel of
1. Must be alleged that the possessor must be in land with 2 buildings. He entered into a lease contract in 1967
actual possession of a portion or part of the with Mayfair for 20 years. Mayfair converted those buildings
property into theaters. One, is the Maxim theather, the other one is the
2. He is claiming ownership for the whole area; Miramar theater. The lease is 20 years. In that lease contract,
3. The remaining area must not be in adverse it has a provision which gives Mayfair a right of first refusal to
possession of another person; and purchase the subject properties. But Carmello never offered
4. The area claimed must be reasonable. the properties to Mayfair during the lease period. Mayfair was
surprised to find out that Carmello sold the properties to
Ifwhat is being claimed is a 10hectare property but was is Equatorial Realty. There was a deed of sale in favor of
possessed is only 1 sqm like tumayo lang siya doon, that Equatorial and it was done during the lease period.
doesn't mean he acquired possession.
So what happened to Mayfair? Mayfair was in physical
So that is material occupation of a thing. possession of the property. Equatorial, the buyer. Mayfair
instituted an action against Carmello and Equatorial to nullify
The second, the fact that it is subject to the action of our will. the sale on the ground that it has the right of first refusal.
Here there is no actual, physical, material possession but
possession is acquired by agreement of the parties involved. While the case is going on, Mayfair was in possession.
Equatorial could not enter possession. Eventually, the court
There are two forms (mam mentioned two forms but ruled in favor of Mayfair. Nullified the sale and ordered
enumerated three) of that: Carmello to sell the property to Mayfair.
1. Tradition symbolica (symbolic delivery)
 The delivery of symbols or objects that The issue in relation to our topic is this: According to
represent the thing to be delivered. Equatorial, it already acquired possession of the property by
 Eg. A will give to B the keys to a entering into the deed of sale with Carmello.
warehouse or the keys to a house. Even
though B has not yet set foot in the Is Equatorial correct?
warehouse, but since he has the keys, he
has already acquired possession thereof. SC: NO. It has been held that the execution of a contract of
sale as a form of constructive delivery is a legal fiction. It holds
2. Tradition longa manu true only when there is no impediment that may prevent the
 If you go abroad and you go to a car passing of properties from the hands of the vendor into those
rental place then you're given a key and of the vendee, when there is such impediment, the fiction
the car is pointed to you, that is your car. yields to reality, delivery has not been effected.
Upon pointing, there is already a transfer
of possession because of the agreement So, if I buy a parcel of land in Pakibato, where is so dangerous,
between the parties. but I entered into a deed of sale. I don't go there, I've never
seen it before but nobody complains. No one is there, nobody
3. Proper acts and formalities established for objects. Am I considered in possession?
acquiring such right
 Eg. Entering into contracts, executing YES under Art. 531 because there is no objections but in this
legal documents case, there was objection so the legal fiction under Art. 531
will yield to reality. What is the reality? Equatorial never
What are such documents? Deed of acquired possession.
donation, deed of sale even succession
Hence, Mayfair's opposition to the transfer of property by way

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4-Manresa | Ateneo de Davao University College of Law

of sale to Equatorial was a legally sufficient impediment that executed has ratified the same, without prejudice to the
evidently prevented the passing of the property into juridical consequences of negotiorum gestio in a proper
Equatorial's hands. case. (439a)

RP SSS V DAVID (2004) Article 531 talks about how possession is acquired. Art. 543
Jerry David is an employee of SSS. Pursuant to his employee talks about who can acquire possession.
housing loan program, SSS awarded David with a house and
lot located in Fairview, Quezon City. A deed of conditional sale There are three (3) ways:
over the subject lot was executed between the parties. What 1. By the same person who is to enjoy the property
is the condition in the deed of sale? That he will actually  This is personal acquisition.
occupy and possess the property at all times. The deed of 2. By an authorized person such as a legal
conditional sale required actual possession at all times. representative or agent
3. Unauthorized person
Precisely what is the purpose of this contract is that the SSS  This is related to negotiorum gestio.
employee will have his own house.
One case that is related to acquisition of possession is –
Now what did Jerry David do? He allowed somebody to live in
it. When SSS found out that there was another person who PAJUYO V CA AND GUEVARRA
was living in the house of David, SSS filed an action. (Mam did This is a case involving informal settlers. There was this
not mention what action it was.) agreement between Pajuyo and Perez. Perez was the original
occupant of a 250 sqms lot in Payatas which is a government
The issue in this case is WON David violated the terms of the land in Payatas, Quezon City. Pajuyo paid P400 to Perez to buy
conditional sale. the rights to stay there. So Pajuyo lived there on the lot from
1979-1985.
According to David, under the Civil Code, possession can be in
one's own name and that of another. So this person, who is In 1985, Pajuyo entered into an agreement with Guevarra, a
the house is possessing it for another person. “I am still in “Kasunduan” because Pajuyo is going somewhere maybe
possession of the house under the Civil Code”. found a job in another province so he agreed that Guevarra
would occupy the house for free and that Guevarra should
The SC, under this particular law, the SSS law, possession is maintain the cleanliness and orderliness and that Guevarra
different from occupancy, from actual occupancy. has promised to return the house, to voluntarily vacate it on
Pajuyo's return.
Actual occupancy connotes something real or actually existing
as opposed to something merely possible or something that is 9 years later, Pajuyo came back and wanted to regain the
a fiction of law. Unlike possession, occupancy can only be possession of the house but Guevarra refused. So, Pajuyo filed
actual or real and not constructive. an ejectment case.
Since David allowed another person to actually, physically
possessed the premises, he violated the terms and conditions What kind of ejectment case is this?
of the deed of conditional sale. HE DID NOT ACTUALLY
OCCUPY. He cannot use the provisions of the Civil Code to SC: According to the SC, this is an action for unlawful detainer.
circumvent the provisions of the conditional sale.
Even though none of them have the right to possess because
*Mam mentioned the case of Sumodio v CA but did not discuss they are informal settlers but because there is physical
it. The digest below is taken from AMPP: possession, possession is acquired by material occupation first
by Perez who transferred material occupation to Pajuyo and
SUMODIO V CA Pajuyo gave the right to Guevarra to physical possess and
Somodio paid ½ of the purchase price for a parcel of land. He material occupation. But this right was terminated upon the
started to construct a house but was left unfinished when he return of Pajuyo. After that, when Pajuyo came back, he
was employed in a faraway area. He allowed Ayco to occupy demanded the lot to be returned to him, Guevarra was
the land but when he tried to demand Ayco to vacate the already unlawfully detaining the lot.
premises, the latter refused to do so. Purisima also occupied
the land without consent from Somodio. According to Perez, the court should not interfere in the
agreement because they are all in pari delicto, all them have
WON Somodio had enjoyed priority over the possession of the no right to possess.
land?
Should the court just leave them as they are? (As the court
SC: YES. He was able to take possession by planting trees and normally does when the parties are in pari delicto.)
started construction of his house. Possession in the eyes of the
law doesn't mean that a man has to have his feet on every SC: The application of the principle of pari delicto in an
square meter of ground before it can be said he is in ejectment case between squatters is fraught with danger
possession. because all of them have no rights over the property. They just
acquire physical possession and petty warfare over a
Who can acquire possession? possession of property is precisely what ejectment cases seek
to prevent. Even the owner who has title to the disputed
ARTICLE 532. property cannot take the laws into his own hands to regain
Possession may be acquired by the same person who is to possession of his property. He must go to court.
enjoy it, by his legal representative, by his agent, or by any
person without any power whatever; but in the last case, To actually leave them as they are, would make squatters
the possession shall not be considered as acquired until (informal settlers should be the correct term according to
the person in whose name the act of possession was Mam), to do so would make them receive better treatment

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4-Manresa | Ateneo de Davao University College of Law

under the law than the actual owners of the property. faith shall not benefit him except from the date of death
of the decedent. (442)
To apply the principle of pari delicto would give them free rein
to dispossess fellow informal settlers or violently retake The keyword here is not his awareness but if it is not shown.
possession of the properties, usurped from them.
ILLUSTRATION
The court should not leave them with their own devices F possessed the land of X in bad faith for 3 years. Upon the
involving recovery of possession. death of F, possession was transmitted to S. S is presumed to
be in good faith under Art. 526.
ARTICLE 533.
The possession of hereditary property is deemed For how many more years from F's death should S possess
transmitted to the heir without interruption and from the the land to become its owner through acquisitive
moment of the death of the decedent, in case the prescription?9 years. Why? Because the 3 years possession in
inheritance is accepted. bad faith is equivalent to 1 year possession in good faith. May
pondo na siyang 1 year that he can tack with his possession.
One who validly renounces an inheritance is deemed Since F is presumed to be in bad faith, the effect of that would
never to have possessed the same. (440) only be enjoyed by S after the death of his father. He must
possess only for another 9 years.
Can a possessor actually transfer possession to his heirs even
though he is not the owner?Art. 533 says YES. Because the ARTICLE 535.
actual occupant or possessor acquired possession by material Minors and incapacitated persons may acquire the
occupation that possession that he acquired can be possession of things; but they need the assistance of their
transferred to his heirs. Transmitted without interruption from legal representatives in order to exercise the rights which
the moment of the death of the decedent, in case the from the possession arise in their favor. (443)
inheritance is accepted.
How can minors acquire possession? Can they acquire
One who validly renounces an inheritance is deemed to never possession of things? YES.
to have possessed the same.
Can a minor received a gift? Can a minor be considered in
Why this is very important?This is for purposes of acquisitive possession if s/he receives a gift?When it comes to things,
prescription. What is inherited here is not ownership but YES. But they need the assistance of their legal representatives
merely possession. in order for them to exercise the rights which from the
possession arise in their favor.
ILLUSTRATION
F in good faith possessed the land of X for 3 years before his We have to differentiate juridical capacity which a minor has
death. When F died, possession was transmitted to S, the son. and the capacity to act.
S believed in good faith that the father was the owner of the
land. 9 years after F dies, X the owner files an action to recover ARTICLE 37 – Juridical capacity which is the fitness to be
the land from S. the subject of legal relations is inherent in every natural
person and is lost only through death. Capacity to act,
(Let us presumed that the land is an unregistered land, there which is the power to do acts with legal effect, is
is no TCT, OCT or whatsoever. Merely an alienable and acquired and may be lost.
disposable land or maybe alluvial deposits.)

Will the action of X prosper?NO. The owner can no longer So if a minor receives a gift, eg. ipad, no problem. But what if
recover because S already acquired ownership of the land it is a parcel of land? It is required that there be legal
through acquisitive prescription. documents be signed.

JUST TITLE– There is a mode of acquiring ownership but the If there is a court action regarding the thing possessed, that is
grantor is not the owner. another thing, the minor needs to be represented by a
guardian or his parents.
What is the mode of acquiring ownership here? Succession.
But the father is not the owner. X has just title plus the good ARTICLE 536.
faith, that is presumed. That is enough for him to acquire In no case may possession be acquired through force or
ownership through prescription and NOT by succession. He intimidation as long as there is a possessor who objects
did not acquire ownership by succession. He only acquire just thereto. He who believes that he has an action or a right
title. to deprive another of the holding of a thing, must invoke
the aid of the competent court, if the holder should refuse
So what is the period required? 10 years. to deliver the thing. (441a)

Possession of his father can be tacked to his 9 years of his So we talked physical possession, under Art. 531, we can
possession. That is already a total of 12 years. actually acquire possession by material occupation. That is the
most common way of acquiring possession.
What if both of them are in bad faith? S can still acquire
ownership but it would take 30 years. No need for just title for However, Art. 536 says, “in no case may possession be
extraordinary acquisitive prescription. acquired through force or intimidation as long as there is a
possessor who objects thereto. He who believes that he has
ARTICLE 534. One who succeeds by hereditary title shall an action or a right to deprive another of the holding of a
not suffer the consequences of the wrongful possession of thing, must invoke the aid of a competent court, if the holder
the decedent, if it is not shown that he was aware of the should refuse to deliver the thing.”
flaws affecting it; but the effects of possession in good

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4-Manresa | Ateneo de Davao University College of Law

ILLUSTRATION the dates of the possession are the same, the one who
We have here X in possession of a parcel of land belonging to presents a title; and if all these conditions are equal, the
Y. Y, the owner, by means of force (use of an armed men) thing shall be placed in judicial deposit pending
actually disposseses X. By doing so, X is already outside of the determination of its possession or ownership through
land, Y inside the land. proper proceedings.

Did Y acquire possession of the land? Possession as a fact.

NO. Because he did not, X has the right to go to court. X can Who acquires possession? It is either X or Y. Cannot be both
file forcible entry because he is a prior possession. In forcible unless they are co-possessors.
entry it is not required that the possessor be the owner or the
lawful possessor. What is only required is prior possession. If What if there is a question regarding the fact of possession:
you're dispossesed by means of FISTS, you can recover 1. the present possessor shall be preferred
possession by filing the proper action. 2. if there are two, the one in longer (possession)
3. if the dates of the possession are the same, the one
Art. 536 talks about force or intimidation. Even if the one who who presents a title
exercises force or intimidation acquires possession under Art. 4. if all the conditions are equal, the thing shall be
536, he, by material occupation enters the property under Art. placed in a judicial deposit
536, he does not acquire possession.

In our illustration, Y did not acquire possession by forcibly WONG V CARPIO

removing X. It follows that if Y did not acquire possession, X Mercado bought the lot from Giger and he did not actually
did not lose possession. X is still considered a possessor. possess it in the sense that he did not put a payag-payag, did
not install people. He just came and went and harvested. Itong
Why is it important? For purposes of prescription. If indeed, si Giger siguro ang buyer ko walang pakialam, hardly there.
acquisitive prescription may happen. So he sold the lot again to a certain Wong. So what did Wong
do, he went to the property. He fenced it. He planted this and
ARTICLE 537. that. And he placed a caretaker.
Acts merely tolerated, and those executed clandestinely
and without the knowledge of the possessor of a thing, or So, when Mercado by his annual trip to his property
by violence, do not affect possession. (444) discovered that indeed there was already a structure and
presence made by Wong.
Art. 537 is a continuation.
Who between the two is the real possessor, possessor in the
Remember we have FISTS – force and intimidation under Art. eyes of the law?
536 and we have stealth, threats, and strategy under Art. 537
including mere toleration. Acts merely tolerated, and those SC: Who is the present possessor? It is hard (to determine)
executed clandestinely and without the knowledge of the because si Mercado was not really there. He acquired
possessor of a thing, or by violence, do not affect possession. possession but is he was present? It's hard. Let us put both of
them are present possessors, then who is longer in
What is the first situation? Acts merely tolerated. possession? The SC said it is definitely Mercado because he
acquired possession first. Maybe he did not go there or put his
If possessor X allows possessor Y to possess a small portion mark to the property but executed a document which at that
of property, will that affect the possession of X? NO. time there was no objection whatsoever. Therefore, by legal
fiction acquired possession of the land. So, he is the one
What are the important kinds of possession? (OCEAN) longer in possession by Art. 538. He is the possessor in the
▪ Open eyes of the law.
▪ Continuous
▪ Exclusive Compare this with Art. 1544 which talks about double sale.
▪ Adverse Ownership is different from possession. Possession is under
▪ Notorious Art. 538 while double possession is Art. 1544 – double sale.

Open and continuous do not affect his possession, do not tack ARTICLE 1544. If the same thing should have been sold to
his possession. different vendees, the ownership shall be transferred to
the person who may have first taken possession thereof in
Will his possession be no longer exclusive because by mere good faith, if it should be movable property.
tolerance he allows Y to possess? NO. It was still considered
exclusive. It was still adverse and notorious. Should it be immovable property, the ownership shall
belong to the person acquiring it who in good faith first
What about acts clandestinely? So what if X is a possessor, in recorded it in the Registry of Property.
the middle of the night Y (this is a 100 hectare-property), di
naman mapapansin ni X na adyan na pala si Y nagpayag- Should there be no inscription, the ownership shall pertain
payag na jan clandestinely. Did the acts of Y affect the
to the person who in good faith was first in the possession;
possession of X? NO under Art. 537. and, in the absence thereof, to the person who presents
the oldest title, provided there is good faith. (1473)
ARTICLE 538.
Possession as a fact cannot be recognized at the same time EFFECTS OF POSSESSION –
in two different personalities except in the cases of co- ARTICLE 539.
possession. Should a question arise regarding the fact of Every possessor has a right to be respected in his
possession, the present possessor shall be preferred; if possession; and should he be disturbed therein he shall be
there are two possessors, the one longer in possession; if protected in or restored to said possession by the means

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4-Manresa | Ateneo de Davao University College of Law

established by the laws and the Rules of Court. means. Just title is important in ordinary acquisitive
prescription. But the law is very kind to the possessor in the
A possessor deprived of his possession through forcible concept of an owner. He does not have to prove just title. No
entry may within ten days from the filing of the complaint need. It is enough that he shows or proves that his possession
present a motion to secure from the competent court, in is in the concept of an owner.
the action for forcible entry, a writ of preliminary
mandatory injunction to restore him in his possession. The There is already that presumption that he possesses it with
court shall decide the motion within thirty (30) days from just title.
the filing thereof. (446a)
So dili na kailangan mangita ug, are you an heir? Did you really
RIGHTS OF AN OWNER succeed this? Or did you really acquire this like donation or
sale? No need. There is no need to show those things.
1. Right to enjoy
2. Right to dispose
DIFFERENT KINDS OF TITLE FOR ACQUISITIVE PRESCRIPTION
3. Right to recover
a. True and valid title
 It is not the kind that the right to __
RIGHTS OF A POSSESSOR
ownership because it is the title which
1. Right to be respected in his possession
has ownership already
 He cannot just be dispossessed through
 It is sufficient to transfer ownership.
FISTS.
ILLUSTRATION
2. If his possession is disturbed (as when he is actually
If X is the owner of a car, he sells it to Y. The true and
an physically removed through FISTS), he has the
valid title of X is the owner is transferred to Y. We
right to be protected and to be restored to said
just need a mode of transfer, eg. delivery,
possession through legal means. possession, donation, etc.
Under Art. 539, the provisional remedies are available to a b. Colorable title
possessor if a forcible entry case is filed by him. If he was
 Colorable and just title are used
dispossessed, file a forcible entry case. He does not have to
interchangeably. This is a mode of
wait for the case to be terminated, for the case to be decided
transfer of ownership where there is
in his favor to actually recover possession because within 10
wrong in the ownership, ei., the grantor
days from the filing of the action for forcible entry he can file
is not the owner of the property.
a motion to secure a writ of preliminary mandatory injunction
to restore him in his possession. The court shall decide the
c. Putative title
motion within 30 days from the filing thereof.
 Although the person believes that he is
the owner, nonetheless, he is not
ARTICLE 540. because there is no mode of acquiring
Only the possession acquired and enjoyed in the concept ownership.
of owner can serve as a title for acquiring dominion. (447)
ILLUSTRATION
If you are a possessor, you have, aside from the rights available Mr. X who sold the property of his father, thinking
under Art. 539, there maybe beneficial effects. that his father is already dead, to Y. Ang father niya
OFW ,matagal na niyang hindi nakita 20 years na
One very beneficial effect of possession is acquisitive and is presumed dead.
prescription. But Art. 540 gives us the two (2) requisites for
acquisitive prescription. What kind of title did Y have if the father appears
and says that I am alive. Y only gets a putative title.
1. Possession must be actual and constructive; and
2. It must be in the concept of an owner. Sorry di pala binenta kay Y, si X lang no. He does not
have any kind of true and valid title nor colorable
We already discussed the possession in the concept of an but merely putative title. Because there was really
owner. What are the acts that a possessor makes in order to no mode of acquiring ownership.
make a possessor in the concept of an owner?
What are the periods required and the requisites?
ACTS OF DOMINION
a. religious payment of taxes ACQUISITIVE PRESCRIPTION
b. harvesting of the products ▪ MOVABLES
c. constructing buildings of strong materials  ORDINARY – four years
 EXTRAORDINARY – eight years
If you are in actual possession, constructive perhaps because ▪ IMMOVABLES
you are only possessing a portion. You are exercising acts of  ORDINARY – ten years
ownership over the entire property. That is enough to acquire  EXTRAORDINARY – thirty years
ownership through prescription, in very simple terms. But you
know very well it is not that simple. ORDINARY REQUIRESgood faith and just title.

ARTICLE 541. EXTRA-ORDINARY only requires 30 years. No need of good

A possessor in the concept of owner has in his favor the faith. Bad faith is automatic (kasi walang good faith).
legal presumption that he possesses with a just title and
he cannot be obliged to show or prove it. (448a) CEQUENA v BOLANTE
To simplify this case, we have here Honorata. Honorata was
Remember what is just title. Do not forget what just title the owner of the original occupant of an unregistered land.

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This is the kind of land that can be acquired through the owner by prescription. And if you want to register, you
prescription. So, the original occupant was Sinforoso. have to show this. If you are talking about alienable and
disposable land of the public domain.
In 1930, he died. He started occupying way back before 1930
and the daughter is Honorata Bolante. So from this alone, you What if you are talking about accretion? That is not alienable
will already know that as the heir she acquired the possession and disposal land of the public domain. That is private
of the property by hereditary title from her father. So she property owned by another. Kaso land hindi naregister. You
acquired possession, she can tack the possession of her father. don't have to prove that, the OCEAN possession.
So siya talaga yung nauna through her father.
Do you have to prove in a continuous?In the case of GRANDE
So when the father died, it came, the brother Margarito. He v CA, di man 30 years yun. Why did the Calalongs allowed
took possession of the land and allowed Honorata, the them to register? Because it is not under PD 1529.
daughter and her mother to live there. So they are actually
both in possession. PD 1529 only applies to alienable and disposable lands of the
public domain.
And then nagkaroon ng munting struggle between the two.
Honorata was ousted for a while and she came back. There If you encounter a question, first determine what is this land?
was a time that the brother Margarito was ousted for a while What are we talking about? What are we going to apply? Do
but came back. we apply the land registration laws or do we apply the Civil
Code provisions on acquisitive prescription, kasi wala namang
In 1985, she physically ousted Margarito and Miguel, her sinasabi dito na continuous, etc. wala. Ang nakalagay lang is
cousin, from the land. Remember Sinforoso died in 1930. So possession in the concept of an owner and 30 years. 30 years
in 1930 to 1985 or 55 years, that is already enough for – 10 years.
extraordinary or ordinary acquisitive prescription.
There is a presumption that the 30 years is continuous or that
Now the issue here is this: According to Honorata she already the 10 years is continuous.
acquired ownership of the land through prescription and she
is not required to prove it. She is not required to prove it citing ARTICLE 542.
Art. 541. The possession of real property presumes that of the
movables therein, so long as it is not shown or proved that
Is she correct? they should be excluded. (449)

The SC said NO. This is very easy. This is just a presumption. Just read that.

What are the requisites for the acquisitive prescription?

ARTICLE 543.
Possession in good faith for 10 years and just title. Dito wala
Each one of the participants of a thing possessed in
ng issue ng good faith or bad faith. So, does she have to prove
common shall be deemed to have exclusively possessed
just title? NO. There is no need but she cannot use Art. 541 to
the part which may be allotted to him upon the division
prove that she is already the owner. She has still to prove that
thereof, for the entire period during which the co-
she possessed it for the required no. of years. If it is bad faith,
possession lasted. Interruption in the possession of the
she has to prove OCEAN or possession in the concept of an
whole or a part of a thing possessed in common shall be
owner for 30 years.
to the prejudice of all the possessors. However, in case of
civil interruption, the Rules of Court shall apply. (450a)
Does the 30 years have to be continuous?

Well, OCEAN is under the “Land Registration Act” (PD 1529) This is a situation of co-possession. We took up co-ownership
before this. Now we're looking at co-possession.
but under the Civil Code, we only have possession in the
concept of an owner and the number of years. That is kinda
“Each one of the participants of a thing possessed in common
vague. The point here, is that the just title is not the one to be
shall be deemed to have exclusively possessed the part which
proven.
may be allotted to him upon the division thereof, for the
entire period during which the co-possession lasted.”So,
To acquire acquisitive possession, ownership by prescription
what is the situation under Art. 543? Co-possession exists and
have to prove the requisites which are in front of you. (I have
no copy) that is the rule.

ILLUSTRATION
You have to distinguish between acquisitive prescription
▪ A, B, and C have been co-possessors of a lot since
under the Civil Code from the Land Registration Act (of
1990. In the year 1997, there is partition.
alienable and disposable lands of the Philippines) or PD 1529.
From what date is A deemed to have possessed his
REQUIREMENTS FOR REGISTRATION:
exclusive portion, is it the date of partition (1997)?
1. Bona fide claim of ownership from 1945 or earlier;
2. Prove OCEAN possession; an
3. That the land (subject to application) is an alienable NO. Under Art. 543, he is deemed to have
possession of the portion exclusively given to him
and disposable land of the public domain.
since 1990. The entire period during which the co-
possession lasted.
So, if one acquires ownership through prescription
(unregistered land), that is a different story because this is
▪ In 1980, A, B, and C started to possess a lot in equal
under the Civil Code on acquisitive prescription.
shares. In 1990, they terminated the co-possession
and subdivided the lot into three (3) equal shares.
This is not required, you can acquire ownership without
registering. You acquire ownership by proving the requisites In 1999, X the real owner of the lot files an action
for ejectment only against A.
of acquisitive prescription even if you don't register you are

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faith and with just title for the time fixed by law.
From when can A demand exclusive possession of
his lot for purposes of acquisitive prescription? Article 1137. Ownership and other real rights over
immovables also prescribe through uninterrupted
Let us assume the lot is unregistered. Under Art. adverse possession thereof for thirty years, without
543, the answer is from 1980. 19 years na. need of title or of good faith.

▪ What if in 1999, B tried to eject A from his exclusive We have to relay our provisions here in acquisitive
portion. prescription to the provisions on prescription. It
says under Art. 1137 that the possession must be
When it comes to X, A is deemed to have exclusively uninterrupted so continuous and that is why
possessed his portion since 1980. But when it interruption of possession under Art. 543 is already
comes to B, B a co-possessor who tries to eject A an indication that the possession must be
from his exclusive portion. continuous or uninterrupted.

From when A can claim possession? So here, the interruption of X prejudiced the
possession of B and C as well.
Only 1990. If it is a co-possessor who wants to eject
a co-possessor, it is only from the date of partition. Therefore, since 4 years lang and it is a parcel of
land they could not have acquired ownership of the
So Art. 543 only applies if it is a third person who tries to eject land through prescription even although they have
a co-possessor. good faith and just title.

“Interruption in the possession of the whole or a part of a ▪ What if they have already terminated their co-
thing possessed in common shall be to the prejudice of all the possession?
possessors.”So, the possession is interrupted during the
period of possession, somebody claims ownership of the A, B, and C terminated their co-possession in 2000.
property. Co-possessed. An 2004, the possession of A was interrupted by X.

What do you call this? Civil Interruption. Will the interruption prejudiced B and C.

“In case of civil interruption, the Rules of Court shall apply.” NO. It will only prejudicethe co-possessors if they
are still co-possessors. But once co-possession is
So, let's go the situation the co-possession which is still terminated, there is no prejudice as to the others.
existing wala pang partition is interrupted. So that is the rule, They are no longer co-possessors. Only A's
that is what the provision says. possession was interrupted.

ILLUSTRATION – Take note that this is civil interruption, therefore, the Rules of
▪ Interruption in possession of the whole. Court apply. There must be judicial summons. Meaning, if you
want to interrupt the possession of another, do not interrupt
A, B, and C are co-possessors of a parcel of land it by sending armed men. Do not interrupt it by sending a
since 2000. In 2004, the possession of A, B, and C demand letter or a threat. You interrupt the possession by
over the entire lot was interrupted by X. filing the proper action in court. And it is the date of the
receipt of the judicial summons that will be the date of the
What is the conclusion? civil interruption.

A, B, and C shall be deemed to have possess the lot Civil interruption stops the running of the prescriptive period.
for only 4 years.
ARTICLE 544.
▪ Interruption of co-possessors in part. A possessor in good faith is entitled to the fruits received
before the possession is legally interrupted.
A, B, and C are co-possessors of a parcel of land
since 2000. In 2004, the possession of A was Natural and industrial fruits are considered received from
interrupted by X (si A lang ang ginulo ni X) although the time they are gathered or severed.
there is still co-possession.
Civil fruits are deemed to accrue daily and belong to the
According to the provision, the interruption possessor in good faith in that proportion. (451)
prejudiced B and C. It is the prejudice of B and C. All
of their possessions shall be deemed interrupted. What is this? Legal interruption.

By looking at this provision, Art. 543, this is a LEGAL INTERRUPTIONis the interruption that converts good
provision that tells us na possession must be faith into bad faith.
uninterrupted because of not our provisions here
but on prescriptions, Art. 1134. Legal interruption is not as strict as civil interruption.

Article 1134. Ownership and other real rights over What is required in legal interruption? Facts to exist which
immovable property are acquired by ordinary will show that the possessor is no longer unaware of the flaw
prescription through possession of ten years. in his title or mode of acquisition which invalidates it. So,
(1957a) anything will show. It does not have to be judicial summons to
turn good faith into bad faith. Any fact. It could be a piece of
Article 1117 (2nd par). Ordinary acquisitive paper, a picture, video, letter, whatever.
prescription requires possession of things in good

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4-Manresa | Ateneo de Davao University College of Law

nacollect na niya? His possession is legally interrupted on June

From this onward Art. 544, we have to relate this to our 30. Pwede niya bang sabihin na I already gathered the civil
discussion on accession Art. 448 because we are now looking fruits nung January palang so aking na yun. So pwede ba
at a possessor in good faith or possessor in bad faith, is he nyang sabihin yun?
entitled to the fruits. The planter, is he entitled to the building
that he constructed? Is he entitled to indemnity? So, these NO. We are talking of civil fruits, they accrue daily. So he is
are the provisions that are partnered with Art. 448. entitled only to 6 months rent. After that from July onwards,
he has to give the equivalent (half) of what he collected to the
“Natural and industrial fruits are considered received from owner.
the time they are gathered or severed”Received by the
possessor when they gather. Be very careful what kind of fruits you are looking at.

“Civil fruits are deemed to accrue daily and belong to the

possessor in good faith in that proportion.”If the possessor in July 30, 2018
good faith is able to harvest the fruits before legal
interruption. That is his. Article 545.
If at the time the good faith ceases, there should be any
The owner has no right to get the fruits or the value of the natural or industrial fruits, the possessor shall have a right to
fruits. a part of the expenses of cultivation, and to a part of the net
harvest, both in proportion to the time of the possession.
This is the provision that gives us the effect of possession in
good faith unlike bad faith, Art. 443 already talks about it early The charges shall be divided on the same basis by the two
on. When it comes to gathered fruits. If the possession is in possessors.
bad faith, the owner of the land is entitled to receive the
fruits. He is only obliged to pay the possessor in bad faith the The owner of the thing may, should he so desire, give the
BPS the expenses of PGP. Different from possessors in good possessor in good faith the right to finish the cultivation and
faith, kanya lahat yung na-gather before legal interruption. 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
TACAS v TUGON refuse to accept this concession, shall lose the right to be
In 1912, X planting, harvesting, etc. from the land. In 1916, indemnified in any other manner. (452a)
here comes Y files an action and for the recovery of the land
so in 1916 facts already exist, that is, X is no longer unaware
THERE IS LEGAL INTERRUPTION WHILE THERE ARE PENDING
of the flaw, etc. from 1916.
FRUITS
So let say, the court rendered a decision in 1930 awarding the
Situation under Art. 545: X possesses the land of P in good
land to Y. What happens to the fruits?
faith presumably, and it is legally interrupted and therefore
his possession in good faith ceases and there are pending
In 1930 hindi talaga naka-possess si Y, si X ang in possession
fruits or the fruits are still connected to the land.
from 1912 to 1930, so what about the fruits that X was able to
harvest?
A. RIGHTS OF POSSESSOR IN GOOD FAITH (PGF) AS TO
THE PENDING FRUITS
Is he supposed to return the value of the fruits to Y from 1912
to 1930?
He shall have the right in proportion to possession:
a. Reimbursement for expenses, etc; and
NO. Because his possession was only legally interrupted in
b. Share in the net harvest.
1916. So whatever he hasvested from 1912 to 1916 kanya yun
because of the presumption of good faith.
The owner has the right of choice. He can choose between:
1. Sharing pro-rata with the PGF for the expenses for
So, he was presumed to be in good faith for those 4 years but
cultivation and charges, and profits in the net
his good faith turned into bad faith in 1916 and he is only
harvest; 3or
required to return the value of the fruits from 1916 to 1930
2. Allowing the PGF to finish cultivating and
upon the decision of the court.That is for the natural and
gathering the growing fruits as an indemnity for
industrial fruits.
his part.
What about civil fruits?
Why is the owner given the option? What if lugi yung planter
pag harvest mas malaki yung expenses than the income? So if
They deemed to accrue daily and belong to the possessor in
the owner chooses No. 1, then he will have to share in the
good faith in that proportion.
expenses. Might as well choose option No. 2.
Okay sana kung ang renta xxx what if the interruption took
Remember, legal interruption converts the possessor into
place on June 30? So every 30th of the month, nakakakolekta
bad faith.
si possessor. So in June 30, nakakolekta siya in the morning
pagkahapon na-legally interrupt yung possession niya oh
Is the possessor in good faith whose possession was legally
kanya na yun yung nakolekta nya by June 30. So they accrue
interrupted entitled to the fruits that he has not yet
daily.
harvested?
• He is entitled pro-rata.
So what if X (possessor) yearly mangolekta ng renta? He
collected rent for the wholeyear in advance like in January

3 Cutie Notes, 2014

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Ex: When the owner chooses the 1st option. If the Example: The house is being eaten up by termites, if the
sugarcane season is from January to December, builder did not get an exterminator to kill the termites, then
and the interruption happened in June 30, and the the house will fall apart. So, without the exterminator, the
sugarcane is supposed to be harvested in house will physically deteriorate or be lost. And if you have
December, let us say, the income in December is termites exterminated, the value of the house will not
P120, 000, then obviously the possessor or the increase.
planter will get half of it or P60K, and the other
P60K to the owner. Again, whether or not the possessor is in good faith, he is
entitled to reimbursement for the necessary expenses.
What happens after legal interruption? He no longer has a
share. RIGHT OF RETENTION
However,Art. 546 says, if the possessor is in good faith (PGF),
B. RIGHTS OF POSSESSOR IN BAD FAITH he is entitled to RETENTION until he is reimbursed.
i. AS TO PENDING FRUITS
PECSON vs. COURT OF APPEALS
If the possession was in bad faith from the beginning like hindi Tecson was the builder of the apartment on his land, but the
pa naka harvest yung planter in bad faith, and his possession land was taken away by the Government because he couldn’t
is interrupted. When there is proof that he was in bad faith pay the taxes, but he retained ownership and control of the
from the beginning, we go back to Art. 449 when it comes to building. Eventually, the land became the property of Nuguid.
pending fruits. Nuguid wants to appropriate the building by paying for the
expenses, reimbursing Pecson.
Article 449. He who builds, plants or sows in bad faith on the
land of another, loses what is built, planted or sown without So, the right of retention belongs to a possessor in good faith.
right to indemnity. (362) If he is not yet paid for reimbursement, he can retain the
property. (Wala na gihuman ni Ma’am )
GENERAL RULE: He is not entitled to anything.
From FT: Art. 448 does not apply to a case where the owner
EXCEPT: He is entitled to be reimbursed for expenses incurred of the land is the builder, sower, or planter who then later
in the preservation of the land. Ex: taxes. loses ownership of the land by sale or donation. Where the
true owner himself is the builder of the works in his own land,
ii. AS TO GATHERED FRUITS the issue of GF or BF is entirely irrelevant.

If he was originally in bad faith, he is NOT entitled to gathered In the case at bar, Art.448 was not apposite but nevertheless
fruits. may be applied by analogy considering that the primary intent
of Art.448 is to avoid a state of forced co-ownership.
Under the principle of accession under Art. 443, the owner of
the land is the owner of the fruits. Therefore the owner of the The contention of Sps. Nuguid, that it should be the cost of
land is entitled to receive the fruits, but he has to reimburse the construction of the apartment building in 1965 and not
the planter for the expenses for production, gathering, and the current market value is sufficient reimbursement, is
preservation (PGP) under Art. 443. incorrect. According to the case of Sarmiento vs. Agana, the
landowner was ordered to reimburse the builder the amount
or value of the house at the time of the trial. It is therefore the
Article 443. He who receives the fruits has the obligation to
current market value of the improvements which should be
pay the expenses made by a third person in their production,
gathering, and preservation. (356) made as basis of reimbursement.

The contention of the Sps. Nuguid, that because Pecson is still

EXPENSES –
collecting the rent of the building whatever he collected
Article 546. should be offset with the cost of the construction. So the Sps.
Necessary expenses shall be refunded to every possessor; but Nuguid do not owe Pecson anymore, is incorrect.
only the possessor in good faith may retain the thing until he
has been reimbursed therefor. Sps. Nuguid is still obliged to pay the current value of the
building and not the value at the time it was built. Pecson still
Useful expenses shall be refunded only to the possessor in has the right to collect because of his right of retention.
good faith with the same right of retention, the person who
has defeated him in the possession having the option of USEFUL EXPENSES
refunding the amount of the expenses or of paying the This is really the partner provision of Art. 448.
increase in value which the thing may have acquired by reason
thereof. (453a) Useful expenses are what we saw as buildings, plantings, and
sowings. These are useful. They are not necessary because:
Necessary expenses shall be refunded to every possessor. ▪ They add value to the property;
This is whether he is in good faith or bad faith, if the expenses ▪ Increase the object’s productivity; or
are necessary; the possessor is entitled to reimbursement. ▪ Give rise to all kinds of fruits.

NECESSARY EXPENSES; ELEMENTS A. RIGHTS OF POSSESSOR IN GOOD FAITH (PGF) AS TO

a. Those without which, thing will physically USEFUL EXPENSES
deteriorate or be lost
b. They do not increase the value of the thing. Is the builder, planter, or sower, in good faith entitled to
reimbursement of the useful expenses?YESunder Art. 546.
Both must be present for the expenses to be considered
necessary. PGF’S RIGHTS AS TO USEFUL EXPENSES ARE:
a. Reimbursement

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

b. Right of retention until he is paid thereby, and that the lawful possessor does not prefer to
c. Right of removal retain them by paying the value they may have at the time he
 only if the owner does not appropriate enters into possession. (445a)
or reimburse.
RULES
Article 547. POSSESSOR IN GOOD FAITH
If the useful improvements can be removed without damage ▪ Right of removal provided no substantial injury is
to the principal thing, the possessor in good faith may remove caused.
them, unless the person who recovers the possession ▪ Right to reimbursementfor the amount spent if
exercises the option under paragraph 2 of the preceding the owner is interested to the thing.
article. (n)
POSSESSOR IN BAD FAITH
“…option under paragraph 2 of the preceding article.” ▪ Right to removal provided no substantial injury is
What is this option?The right to appropriate. caused.
▪ Right to reimbursement for the value of the
The right again is given to the owner. ornament at the time the owner enters into
possession, if the owner wants the thing.
B. RIGHTS OF POSSESSOR IN BAD FAITH (PBF) AS TO
USEFUL EXPENSES WITH RESPECT TO PBF ON GATHERED FRUITS
Article 549.
Article 546. xxxUseful expenses shall be refunded only The possessor in bad faith shall reimburse the fruits received
to the possessor in good faith with the same right of and those which the legitimate possessor could have
retention xxx received, and shall have a right only to the expenses
mentioned in paragraph 1 of article 546 and in article 443.
This is also in consonance with Art. 449.
From the time he became a PBF, it does not matter if it was
Article 449. He who builds, plants or sows in bad faith 10 years ago, he must reimburse the owner the value of the
on the land of another, loses what is built, planted or gathered fruits.
sown without right to indemnity. (362)
POSSESSOR IN BAD FAITH ONLY HAS THE RIGHT TO REFUND
The builder, planter, or sower in bad faith is NOT entitled to OF:
reimbursement 1. Necessary expenses; and
 EXCEPT necessary expenses for the preservation of 2. Expenses for production, gathering, and
the land. preservation (PGP).

The PBF is not entitled to anything regarding useful SUMMARY: (Cutie Notes, 2014)
expenses.

OPTIONS OF THE OWNER AS TO THE USEFUL EXPENSES:

a. Refund the amount of expenses; or
b. Pay the increase in the value, which the thing may
have acquired by reason thereof.

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)

EXPENSES FOR PURE LUXURY

▪ 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 anybody in general.

Example: Statue of the builder. Once the owner recovers his

property, he has really no use for that statue.

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

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4-Manresa | Ateneo de Davao University College of Law

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)

Liability for loss or deterioration of the thing possessed

▪ It is from the time of receipt of judicial summons,
when the possessor is sued.

Do not be confused with legal interruption, which refers to

when facts exist. But for liability for loss and deterioration, it
is upon receipt of the judicial summons.

POSSESSOR IN GOOD FAITH:

▪ BEFORE RECEIPT OF JUDICIAL SUMMONS
 he is not liable or loss of the thing
possessed.
The cases on this go back to the definition of a PGF or a PBF ▪ AFTER RECEIPT OF JUDICIAL SUMMONS:
because lessees are always involved in these provisions. They • If it is due to fortuitous event
want reimbursement under 448 in relation to 546. But the  He is not liable.
Supreme Court has been consistent in saying that when it • If it not due to fortuitous event but it is by
comes to lease contracts, the lessee cannot invoke Article 448 his fault or negligence
in relation to 546.  He will be liable.
But there is a provision on lease Article 1678. Example: It is a house that he built in good faith, before he
knew that the owner filed an action against him, he burned
Article 1678. If the lessee makes, in good faith, useful his house. That’s his e. Diba PGF is entitled to xxx, sa kanya
improvements which are suitable to the use for which the yan, not liable. But after judicial summons, sunugin nya yung
lease is intended, without altering the form or substance house, kahit na sabihin na because of negligence and not
of the property leased, the lessor upon the termination of dolo, he is still liable. Obviously, he destroyed the house so it
the lease shall pay the lessee one-half of the value of the will not go to the owner of the land.
improvements at that time. Should the lessor refuse to
reimburse said amount, the lessee may remove the POSSESSOR IN BAD FAITH
improvements, even though the principal thing may suffer ▪ he is liable in any place.
damage thereby. He shall not, however, cause any more
impairment upon the property leased than is necessary.
Article 553.
One who recovers possession shall not be obliged to pay
With regard to ornamental expenses, the lessee shall not
for improvements which have ceased to exist at the time
be entitled to any reimbursement, but he may remove the
he takes possession of the thing. (458)
ornamental objects, provided no damage is caused to the
principal thing, and the lessor does not choose to retain
them by paying their value at the time the lease is Di pwede sabihin ng possessor in good faith na “Ay alam mo
extinguished. (n) last year may bahay man dyan ba worth 2M, nasunog lang,
you have to pay for it because it was there”. NO, the owner is
If you scrutinize Article 1678, there are portions there that not liable.
discuss useful expenses and luxurious expenses. It is up to you
to review that. Article 554.
A present possessor who shows his possession at some
Definitely, when there is a case filed, it is normally ejectment. previous time, is presumed to have held possession also
The owner wants to eject the possessor whether he is in good during the intermediate period, in the absence of proof
faith or bad faith, Art. 550 says: to the contrary. (459)

Article 550. Article 555.

The costs of litigation over the property shall be borne by A possessor may lose his possession:
every possessor. (n) (1) By the abandonment of the thing;
(2) By an assignment made to another either by
This is so because the owner has to go to court because there onerous or gratuitous title;
is somebody possessing his property. (3) By the destruction or total loss of the thing, or
because it goes out of commerce;
Article 551. (4) By the possession of another, subject to the
Improvements caused by nature or time shall always provisions of article 537, if the new possession
inure to the benefit of the person who has succeeded in has lasted longer than one year. But the real
recovering possession. (456) right of possession is not lost till after the lapse
of ten years. (460a)

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4-Manresa | Ateneo de Davao University College of Law

HOW POSSESSION IS LOST 2. ASSIGNMENT – complete (not merely a limited)

1. ABANDONMENT – voluntary renunciation of the transmission of ownership rights to another
thing. person, onerously (as when a thing is sold and
 Must be total. delivered) or gratuitously (as in the case of a
 Only applies to personal properties. It donation).
does not apply to land much less to
registered lands. ASSIGNMENT ABANDONMENT
 When one renounces, or abandons the There’s of a change of When the thing is
thing possessed, he must know that he hands. Therefore, at no abandoned, there is no
abandoned it. time did a thing not have a possessor. If it is found by
possessor. another, then it will have a
U.S. VS. REY possessor.
A vessel Cantabria while on its way to Albay was shipwrecked, In some cases, assignment Always gratuitous because
resulting among other things in the loss of P25, 000; P15,000 may be by onerous title. there is no assignment,
of which were later salvaged by a group of men who there is no change of hands.
distributed the amount among themselves. The real owner,
however, had no knowledge of the loss till after six weeks, 3. LOSS OF THE THING – A thing is lost when it
shortly after which period, searchers were sent. perishes, or goes out of commerce, or disappears
in such a way that its existence is unknown, or it
This case must be more than 100 years ago when there were cannot be recovered. (Art. 1189)
no cellphones, viber, etc. This vessel was carrying gold bars • Refers to physical loss.
and cash belonging to a bank or corporation and the vessel
sank. Of course, nobody knew. The ones who knew about it 4. POSSESSION BY ANOTHER
were the salvagers and Rey is the salvager. He was able to
salvage the precious objects like the money and the gold bars. Let’s relate this to Art. 536 and 537.

Eventually, when the bank found out about the sinking of the Article 536. In no case may possession be acquired
vessel, the bank started to look for the precious objects. It through force or intimidation as long as there is a
found out that they were in the possession of Rey. Rey was possessor who objects thereto. He who believes that he
sued. Rey alleged that the bank already abandoned the has an action or a right to deprive another of the holding
precious objects. of a thing, must invoke the aid of the competent court, if
the holder should refuse to deliver the thing. (441a)
Was there abandonment?
When the entry is made by force or intimidation, the prior
HELD: NO. For the abandonment to be the cause loss of possessor does not lose possession.
possession, there must be no more spes recuperandi
(expectation to recover), and the animus revertendi (intent to Article 537. Acts merely tolerated, and those executed
return or getting back) since in this case, the bank went out clandestinely and without the knowledge of the possessor
its way to look for the lost cash and other precious gifts. This of a thing, or by violence, do not affect possession. (444)
is evident from the fact that a search party had looked for the
money. Hence, the owner can still recover, less the necessary Entry made through stealth, or clandestinely, or even if there
expenses for salvaging the same. is mere tolerance on the part of the possessor, it will not
affect his possession.
YU VS. DE LARA (1962)
There was this parcel of land that originally belonged to an Possession by another can only be a cause for loss of
entity. In 1916, Philippine Realty Corporation (PRC) acquired possession if the possession reaches one (1) year.
it. Between 1916 and 1956, this land was owned by PRC. PRC
did not really mind the land. People started to enter and built What if, in relation to Art. 536, X is the prior possessor, and
their houses thereon in 1945. In 1956, PRC sold the land to Yu. he was forcibly thrown out by Y from the property? Now, Y
Yu transferred the title to his name. He went there and found is in possession. So if Y is there for 1 year or more, and X does
out that there were already settlers. Yu advised the settlers to not do anything about it, then X will lose possession. This is
vacate his land; he sent a demand to vacate. Since they possession de facto.
refused, he filed an action for unlawful detainer. The settlers
alleged that the previous owner of the land or PRC already lost So, that is why forcible entry cases and unlawful detainer,
possession of the land by abandoning it. there is a 1-year prescriptive period. We already discussed
under Art. 539, when you file a forcible entry case, you’re the
WON the possession was lost by abandonment. prior possessor, you can recover possession right away asking
for a writ of preliminary injunction.
HELD: NO. The circumstances adverted to are insufficient to
constitute abandonment, which requires not only physical Article 539. Every possessor has a right to be respected in
relinquishment of the thing but also a clear intention not to his possession; and should he be disturbed therein he shall
reclaim or reassume ownership or enjoyment thereof. be protected in or restored to said possession by the
means established by the laws and the Rules of Court.
According to Manresa, abandonment converts the thing into
res nullius, ownership of which may be acquired by A possessor deprived of his possession through forcible
occupation. This cannot apply to land, as to which said mode entry may within ten days from the filing of the complaint
of acquisition is not available (Art. 714, Civil Code), much present a motion to secure from the competent court, in
more to registered land, to which "no title . . . in derogation the action for forcible entry, a writ of preliminary
to that of the registered owner shall be acquired by mandatory injunction to restore him in his possession. The
occupation or adverse possession." (Sec. 46, Act No. 496). court shall decide the motion within thirty (30) days from
the filing thereof. (446a)

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4-Manresa | Ateneo de Davao University College of Law

As long as there is this person who objects to the entry, to DOCTRINE OF IRREINVIDICABILITY
FISTS, his possession is NOT lost, and as long as he files the The possession of movable property acquired in good faith is
action within 1 year. equivalent to a title. What kind of title is this? JUST TITLE.
Nevertheless, one who has lost any movable or has been
If he doesn’t file within 1 year, then he loses physical unlawfully deprived thereof may recover it from the person in
possession. But the right of possession is not lost until 10 possession of the same.
years will elapse. Within the 10-year period, you can still file
accion publiciana. After 10 years, he will lose his possession The 1st part of Art. 559 talks about the possessor who has just
de jure. But if he is really the owner, he can still file accion title. The 2nd part talks about the owner. Remember the
reinvindicatoria unless prescription has set in. possessor is not the owner, he only has just title.

(From the book of Paras) An owner has the right to recover his property if he has lost
a. If a person is not in possession for more than one the movable, or he’s been unlawfully deprived of it. But if the
year (but less than 10 years), he loses possession possessor has acquired it in good faith at a public sale, the
de facto(possession as a fact). This means that he owner must reimburse the price paid therefor by the
can no longer bring an action of forcible entry or possessor, to recover it.
unlawful detainer, since the prescriptive period is
one year for such actions. (Bishop of Cebu v. General situation: X is in possession of the movable property,
Mangaron, 6 Phil. 286). Moreover, “constructive which he acquired in good faith. It means that he believes that
possession” is also lost. (See Leola v. Ibañez, 48 the person from whom he acquired the thing was the owner
O.G. 2811). and could transfer valid title thereto. But in truth and in fact,
he is not the owner, he only has just title.
But he may still institute an accion publiciana (for
the better right of possession) to recover RIGHTS OF THE REAL OWNER
possession de jure possession as a legal right, or ▪ GENERAL RULE: He can recover, but he must reimburse
the real right of possession. (See Rodriguez v. Taino, because the possessor has just title.
16 Phil. 301). ▪ EXCEPTION: When the owner lost the movable or was
unlawfully deprived of it, he can recover without
b. If a person loses possession for more than 10 years, reimbursing.
he loses possession de jure, or the real right of ▪ EXCEPTION TO THE EXCEPTION: If the possessor has
possession. (See Art. 555). An accion publiciana or acquired it in good faith at a public sale, the owner
reivindicatoria is still possible unless prescription, must reimburse the price paid therefor by the
either ordinary or extraordinary, has set in. (See possessor, to recover it.
Rodriguez v. Taino, supra).
Illustration of the General Rule:
So, relate this to 536, 537, and your forcible entry cases, 539. • A and Y are brothers. Z, their father, died in the year
2000. In a will dated 1995, Z left his car to his son X. X
Article 556. in 2000 found out that he inherited the car and he sold
The possession of movables is not deemed lost so long as the car to A in 2001. Who’s in possession of the car? A.
they remain under the control of the possessor, even However, in 2002, they found a new or a later will
though for the time being he may not know their executed by Z in 1999 (one year before he died.) You
whereabouts. (461) know under succession that the later will is the valid
will and it revokes the older will. It was discovered in
Article 557. his latest deed that the car was not left to X but to Y.
The possession of immovables and of real rights is not The real owner of the car is Y. A is now in possession of
deemed lost, or transferred for purposes of prescription the car having bought it from X who he thought was the
to the prejudice of third persons, except in accordance owner.
with the provisions of the Mortgage Law and the Land • Under Art. 559, A’s possession of the car is equivalent
Registration laws. (462a) to a title which can only be defeated by the real owner,
Y.
Article 558. • While A is not yet the absolute owner of the car,
Acts relating to possession, executed or agreed to by one because he has just title, his possession can ripen into
who possesses a thing belonging to another as a mere ownership through acquisitive prescription.
holder to enjoy or keep it, in any character, do not bind • Let’s say Y, the real owner, finds out that the car is in
or prejudice the owner, unless he gave said holder the possession of A. Can he recover the car in 2004?
express authority to do such acts, or ratifies them Yes, but he must reimburse under the general rule.
subsequently. (463) • What if Y only found out in 2007, he could no longer
recover in 2007 because A already acquired ownership
of the car through prescription of 4 years because of
Article 559.
the good faith and just title.
The possession of movable property acquired in good
faith is equivalent to a title. Nevertheless, one who has
Illustration of the Exception:
lost any movable or has been unlawfully deprived
▪ Y is the true owner of the car. X stole the car from Y. A
thereof, may recover it from the person in possession of
bought the car from X in good faith. Can Y recover the
the same.
car from A? YES because he is the owner, he has the
right to recover.
If the possessor of a movable lost or which the owner has
▪ Can Y refuse to reimburse A for the amount paid by A?
been unlawfully deprived, has acquired it in good faith at
YES. Y does not have to reimburse A because this is
a public sale, the owner cannot obtain its return without
under the exception.
reimbursing the price paid therefor. (464a)

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Illustration of the Exception to the Exception: If A bought the The case that really illustrates the exception is:
car from an auction sale. Can Y get the car from A? YES but Y
must reimburse A. DEL ROSARIO vs. LUCENA (1907)
Pia Del Rosario is a jeweler. She sells jewelry and she has
INSTANCES WHERE THE OWNER MAY RECOVER WITHOUT agents. One of the agents is Praxedes Flores. The agreement
REIMBURSEMENT between Pia and Praxedes is that Praxedes would try to sell
1. If the possessor is in bad faith; the jewelry, and when she manages to sell, she would deliver
2. From a possessor in good faith who acquired it the payment to Pia. If she would not sell, she would return the
from a private person if the owner had lost the jewelry to Pia. After some time, Pia was waiting, nothing, no
thing or been unlawfully deprived thereof. money, no jewelry from Praxedes. Pia found out later that the
instead of selling it, Praxedes Flores pledged the jewelry or
WHEN CAN THE OWNER RECOVER BUT MUST REIMBURSE pawned it in the pawnshop of Teresa Verches, without the
1. If the possessor acquired the thing in good faith; or knowledge and consent of Pia Del Rosario.
2. If the possessor acquired the thing at a public
auction. Pia filed a criminal case for estafa against Praxedes Flores and
the latter was convicted. What about the jewelry in the hands
INSTANCES WHERE THE RIGHT OF THE OWNER TO RECOVER of Teresa? According to Teresa, she is a possessor of the
IS NOT AVAILABLE TO HIM.Under: jewelry and she has just title because she acquired it in good
1. Art. 85 of the Code of Commerce. faith from Praxedes Flores who pawned the jewelry. And
 If the possessor acquired it in good faith therefore, Pia must reimburse her the price that she gave to
by purchase in a store or market. What if Praxedes Flores if she wants to recover.
binili yung car sa Toyota dealer? Can the
owner still recover? No. Is Pia obliged to reimburse Teresa in order to get the jewelry?
2. Principle of Estoppel;
3. Sec. 52, Negotiable Instruments Law; HELD: NO. Because Pia was unlawfully deprived. What is the
Sec. 52. What constitutes a holder in due course. indication that she was unlawfully deprived? The fact that
– A holder in due course is a holder who has taken Praxedes was convicted of estafa.
the instrument under the following conditions:
From FT: Pia can recover the jewelry without necessity of
(a) That it is complete and regular upon its face; reimbursing Teresa simply because this case falls under the
exception to the general rule under Article 559 of the Civil
(b) That he became the holder of it before it was Code. The exception provides that, "The real owner can
overdue, and without notice that it has been recover such movable from the possessor without
previously dishonored, if such was the fact; reimbursing him if the owner has either (1) lost the movable,
or (2) has been unlawfully deprived of the thing.
(c) That he took it in good faith and for value;
Here, Pia may not have lost the jewelry but she is considered
(d) That at the time it was negotiated to him, he to have been unlawfully or illegally deprived of the jewelry
had no notice of any infirmity in the instrument or which is evident by virtue of the conviction of Praxedes Flores
defect in the title of the person negotiating it. for the crime of Estafa, (which was derived from the fact that
4. When acquisitive prescription is set inunless the Praxedes Flores pledged the jewelry to Teresa Verches
possessor is the criminal; and without the knowledge and consent of Pia Del Rosario.)
5. Art. 719, NCC. Finder’s Keepers Rule.
 There’s a 6-month waiting period. Teresa Verches, cannot likewise claim for reimbursement
under the exception to the exception because it only applies
Article 719. Whoever finds a movable, if the possessor has acquired the movable at a public sale.
which is not treasure, must return it to its Here, there was clearly no public sale. Teresa acquired
previous possessor. If the latter is possession of the jewelry through a private transaction with
unknown, the finder shall immediately Praxedes Flores.
deposit it with the mayor of the city or
municipality where the finding has taken Therefore, Teresa is entitled to recover her jewelry without
place. necessity of reimbursing Teresa for the amount of the pledge
given to Praxedes Flores.
The finding shall be publicly announced
by the mayor for two consecutive weeks AZNAR vs. YAPDIANGCO (1965)
in the way he deems best. Teodoro Santos advertised the sale of his FORD FAIRLANE 500
in a newspaper. De Dios went to the house of Teodoro and
If the movable cannot be kept without talked to his son Ireneo Santos and said that his uncle Vicente
deterioration, or without expenses which Marella is interested in buying the said car.
considerably diminish its value, it shall be
sold at public auction eight days after the The next day, Ireneo went to the house of Marella and they
publication. agreed to the price of P14, 700 on the understanding that it
will be paid after the car has been registered in the latter’s
Six months from the publication having name. A deed of sale was executed and the registration was
elapsed without the owner having changed to the name of Marella. Ireneo went to Marella to
appeared, the thing found, or its value, get the payment and deliver the car who informed him that
shall be awarded to the finder. The finder he is P2,000 short of the money and that they need to go to
and the owner shall be obliged, as the his sister to get it. Ireneo, together with De Dios and an
case may be, to reimburse the expenses. unidentified man went to a house.
(615a)

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Once inside, De Dios asked Ireneo to wait in the sale. After parties are restored to their respective situations before
waiting in vain, he went down and discovered that the car was the contract and mutual restitution follows as a
gone. consequence (Article 1398, N.C.C.).

Marella was able to sell the car to plaintiff-appellant Jose However, as long as no action is taken by the party entitled,
Aznar and while attending to registration; Phil. Constabulary either that of annulment or of ratification, the contract of sale
seized the car due to the report of the incident. remains valid and binding. When plaintiff-appellant Trinidad
C. Tagatac delivered the car to Feist by virtue of said voidable
Santos wanted to recover the car, Aznar said that Santos has contract of sale, the title to the car passed to Feist. Of course,
to pay him the price he paid for the car. Aznar invoked Art. the title that Feist acquired was defective and voidable.
1506. Aznar said that he didn’t know about any defect of the Nevertheless, at the time he sold the car to Felix Sanchez, his
title of the seller. title thereto had not been avoided and he therefore conferred
a good title on the latter, provided he bought the car in good
Article 1506. Where the seller of goods has a voidable title faith, for value and without notice of the defect in Feist's title
thereto, but his title has not been avoided at the time of (Article 1506, N.C.C.). There being no proof on record that
the sale, the buyer acquires a good title to the goods, Felix Sanchez acted in bad faith, it is safe to assume that he
provided he buys them in good faith, for value, and acted in good faith.
without notice of the seller's defect of title. (n)
EDCA PUBLISHING vs. SANTOS (1990)
Is Art. 1506 applicable? EDCA Publishing sold 406 books to a certain Professor Jose
Cruz of La Salle who ordered these by telephone, which was
HELD: NO. What is applicable is Art. 559. Under the agreed to be payable on delivery. The books were
aforequoted provision, it is essential that the seller should subsequently delivered to him with the corresponding
have a voidable title at least. It is very clearly inapplicable invoice, and he paid with a personal check.
where, as in this case, the seller had no title at all. The title of
Aznar was void. The car was stolen. The original owner was Cruz then sold the 120 of the books to the bookstore of
unlawfully deprived of the car. Therefore, Santos can recover Leonor Santos who asked for verification, and was then
the car from Aznar without reimbursement. showed the invoice for the books. EDCA became suspicious
when Cruz ordered another set of books even before his
What is a “VOIDABLE TITLE”? check cleared. True enough, when the check was presented,
TAGATAC vs. JIMENEZ it bounced. Upon investigation, EDCA found that he wasn’t
(Note that Atty. Suarez calls her Tagactac not Tagatac. Also the person he claimed to be (Dean in DLSU). EDCA had the
Atty. Batacan during our property class 2 years ago also called police capture Cruz, as well as seize the books from Santos.
her Tagactac not Tagatac.) Santos demanded the return of the books.

Tagatac sold her car to Feist, who sold it to Sanchez, who sold Can EDCA get the books? NO. Because the books were already
it to Jimenez. When the payment check issued to Tagatac by owned by Santos be delivery from EDCA to Prof. Cruz and to
Feist was dishonored, the plaintiff sued to recover the vehicle Santos.
from Jimenez on the ground that she had been unlawfully
deprived of it by reason of Feist's deception. Whether or not the owner was unlawfully deprived of the
property?NO. EDCA voluntarily delivered the books to Cruz
Was Trinidad C. Tagatac has been unlawfully deprived of her and in exchanged for that, there were postdated checks. So,
car? Can she recover? there was delivery. Unlike the case of Aznar, there, it was
stolen, there was no delivery.
HELD: NO. Jimenez is the owner of the car. When Tagatac
delivered the car to Feist, Feist paid her with a check, there From FT: Actual delivery of the books having been made, Cruz
was already a transfer of ownership to Feist and so on and so acquired ownership over the books, which he could then
forth to Jimenez. Jimenez did not just get just title, he got title validly transfer to the private respondents. The fact that he
and dominion over the car. The Supreme Court said that if you had not yet paid for them to EDCA was a matter between him
do not want to call it title on dominion, at the most it is a and EDCA and did not impair the title acquired by the private
voidable title because of the fraud by Feist when he issued an respondents to the books.
unfunded check. It is valid until annulled. Since it was not yet
annulled, he is still the owner of the car. Thus, Tagatac would One may well imagine the adverse consequences if the phrase
not recover because she’s no longer the owner. "unlawfully deprived" were to be interpreted in the manner
suggested by the petitioner. A person relying on the seller's
From FT: At first blush, it would seem that she was unlawfully title who buys a movable property from him would have to
deprived thereof, considering that she was induced to part surrender it to another person claiming to be the original
with it by reason of the chicanery practiced on her by Warner owner who had not yet been paid the purchase price therefor.
L. Feist. Certainly, swindling, like robbery, is an illegal method The buyer in the second sale would be left holding the bag, so
of deprivation of property. In a manner of speaking, plaintiff- to speak, and would be compelled to return the thing bought
appellant was "illegally deprived" of her car, for the way by by him in good faith without even the right to reimbursement
which Warner L. Feist induced her to part with it is illegal and of the amount he had paid for it.
is punished by law. But does this "unlawful deprivation" come
within the scope of Article 559 of the New Civil Code? Leonor Santos took care to ascertain first that the books
belonged to Cruz before she agreed to purchase them. The
. . . The fraud and deceit practiced by Warner L. Feist EDCA invoice Cruz showed her assured her that the books had
earmarks this sale as a voidable contract (Article 1390 been paid for on delivery. By contrast, EDCA was less than
N.C.C.). Being a voidable contract, it is susceptible of cautious — in fact, too trusting in dealing with the impostor.
either ratification or annulment. If the contract is ratified, Although it had never transacted with him before, it readily
the action to annul it is extinguished (Article 1392, N.C.C.) delivered the books he had ordered (by telephone) and as
and the contract is cleansed from all its defects (Article readily accepted his personal check in payment. It did not
1396, N.C.C.); if the contract is annulled, the contracting verify his identity although it was easy enough to do this. It

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

did not wait to clear the check of this unknown drawer. the TV to Z. Tung si Z, kase sira man yung TV, went to X to
Worse, it indicated in the sales invoice issued to him, by the have it repaired. Sabi ni X, ito yung TV na ninakaw sa akin, so
printed terms thereon, that the books had been paid for on X did not return the TV to Z. So X, as the owner was unlawfully
delivery, thereby vesting ownership in the buyer. deprived of the TV. Sabi ng BPI, ganun din ang nangyari, we
were unlawfully deprived of our money, eh nagkataon
Surely, the private respondent did not have to go beyond that nalagay sa account ni Franco, so we will just recover it.
invoice to satisfy herself that the books being offered for sale
by Cruz belonged to him; yet she did. Although the title of Cruz Is BPI correct?
was presumed under Article 559 by his mere possession of the
books, these being movable property, Leonor Santos HELD: NO. To begin with, the movable property mentioned in
nevertheless demanded more proof before deciding to buy Article 559 of the Civil Code pertains to a specific or
them. determinate thing. A determinate or specific thing is one that
is individualized and can be identified or distinguished from
It would certainly be unfair now to make the private others of the same kind.
respondents bear the prejudice sustained by EDCA as a result
of its own negligence. We cannot see the justice in In this case, the deposit in Francos accounts consists of
transferring EDCA's loss to the Santoses who had acted in money, which, albeit characterized as a movable, is generic
good faith, and with proper care, when they bought the books and fungible. The quality of being fungible depends upon the
from Cruz. possibility of the property, because of its nature or the will of
the parties, being substituted by others of the same kind, not
BPI FAMILY BANK vs. FRANCO (2007) having a distinct individuality.
(Facts from AMPP Notes)
Tevesteco opened a savings and current account with BPI Significantly, while Article 559 permits an owner who has lost
Family Bank San Franciso del Monte branch. Ten days later, or has been unlawfully deprived of a movable to recover the
FMIC opened a time deposit account with a deposit of P100M exact same thing from the current possessor, BPI-FB simply
with the same branch. claims ownership of the equivalent amount of money, i.e., the
value thereof, which it had mistakenly debited from FMIC’s
It was Franco who introduced the president of Tevesteco to account and credited to Tevesteco’s, and subsequently traced
the branch manager of BPI Family Bank to facilitate to Franco’s account. It staked its claim on the money itself,
Tevesteco’s business transactions. As consideration, Franco which passed from one account to another, commencing with
received P2M from Tevestico, which amount he deposited in the forged Authority to Debit.
three accounts with the same branch.
It bears emphasizing that money bears no earmarks of
Pursuant to an Authority to Debit purportedly signed by peculiar ownership, and this characteristic is all the more
FMIC’s officers, P80M was debited by BPI Family Bank from manifest in the instant case which involves money in a
FMIC’s time deposit account and credited to Tevesteco’s banking transaction gone awry. Its primary function is to pass
current account. Franco’s P2M was part of the P80M. from hand to hand as a medium of exchange, without other
It appears, however, that the signatures of FMIC’s officers on evidence of its title. Money, which had passed through
the Authority to Debit were forged. Unfortunately, Tevesteco various transactions in the general course of banking
had already withdrawn more than P37M, including the P2M business, even if of traceable origin, is no exception.
paid to Franco.

In a separate case where FMIC filed a complaint against BPI The money that were in Franco’s account were not the exact
Family bank for the recovery of the P80M, the SC found BPI dollar or peso bills na nawala but just the equivalent in the
Family Bank liable to FMIC. In the meantime, BPI Family Bank anomalous transaction.
freezed Franco’s accounts and refused to release Franco’s
deposits therein despite his demands. As such, he filed a Thus, inasmuch as what is involved is not a specific or
complaint against BPI Family Bank. determinate personal property, BPI-FBs illustrative example,
ostensibly based on Article 559, is inapplicable to the instant
On the other hand, BPI Family bank insists that the legal case.
consequence of FMIC’s forgery claim is that the money
transferred by BPI Family Bank to Tevesteco is its own, and Tama daw yung example ni BPI, but it does not apply to
considering that it was able to recover possession of the same money.
when the money was redeposited by Franco, it had the right
to set up its ownership thereon and freeze Franco’s accounts. Article 560.
BPI Family bank cites Article 559 of the Civil Code. Wild animals are possessed only while they are under
one's control; domesticated or tamed animals are
(Atty. Suarez’s version kay complicated daw yung facts) considered domestic or tame if they retain the habit of
There was an account in BPI that was anomalous. It’s not our returning to the premises of the possessor. (465)
concern why it was anomalous. Part of that anomalous money
went to the account of Franco who had a checking account in
Article 561.
BPI. One day, tumalbog yung mga checks ni Franco. When he
One who recovers, according to law, possession unjustly
inquired with BPI, BPI said that it froze his account, kinuha nila
lost, shall be deemed for all purposes which may redound
yung money because the transaction was anomalous.
to his benefit, to have enjoyed it without interruption.
According to BPI, it is its money, nagkataon lang na andun sa
(466)
account of Franco. So BPI was just getting back its money
under Art. 559.
Registry of property, just read because it is not really
discussed under Civil Code but in other subjects.
BPI gave an analogy: X is a TV repairman, normally yung mga
TV nabulok, binibigay nalang sa kanya diba. So, marami
syang mga TV dyan na binibenta. Apparently, itong TV na ito,
ninakaw ni Y, his employee who stole the TV from X. Y sold

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

August 13, 2018

“unless the title constituting it or the law provides
Title VI. - USUFRUCT otherwise”
CHAPTER 1. - USUFRUCT IN GENERAL Usufruct is also a contract and sometimes when the usufruct
is voluntarily entered into between the owner and the
Art. 562. usufructuary, they have an agreement. What if the provisions
Usufruct gives a right to enjoy the property of another with of the agreement is so different from the Civil Code
the obligation of preserving its form and substance, unless the provisions on Usufruct? It doesn’t matter because between
title constituting it or the law otherwise provides. (467) the parties, between the parties, the governing law is the
contract or if there is a special law which provides otherwise.
RIGHTS OF AN OWNER: RED
1. Right to enjoy USUFRUCT LEASE
a. Right to Possess– jus possidendi As to covers use and fruits lease only covers only
b. Right to Use– jus utendi extent a particular or specific
c. Right to the Fruits– jus fruendi use
2. Right to dispose As to the Usufructuary has a A lease becomes a
3. Right to recover or vindicate Nature of real right over the real right only if it is
the Right property registered or more
So, Art. 562 provides that usufruct give the right to enjoy. So, than 1 year.
the owner, of the thing gives his right to enjoy the thing to
the usufructuary. So, the latter now has the right to enjoy the - You have to comply
thing. However, the provision says that he also has the with certain
obligation to preserve its form and substance (it’s like requirements before
borrowing, you have to return it one day in its form and lease is considered a
quality as when you borrowed it). real right.

OBJECTS OF USUFRUCT As to the Only the owner can Lessor need not be
Creator of create or give the owner of the
1. REAL OR PERSONAL
the Right usufruct. property.
Actually, our last topic is the Theory of
Reindivicability (Art. 559) and we discussed that - Usufruct can only - the usufructuary
case of – be constituted by can actually lease out
▪ BPI vs Franco where the SC said that the owner of the the property even if
Art. 559 does not apply to money, but property or his he is not the owner,
only to specific and determinate things. agent. subletting.
However, in the case of
As to By law, will of GR: Only by contract.
▪ Alunan vs Veloso, the SC said that there
Origin or private persons, An agreement
can be usufruct of a sum of money.
Creation prescription. between the parties.
When it comes to the object of usufruct,
it can be anything (real or personal
E: only one exception,
property)
the forced lease
2. STERILE OR PRODUCTIVE
under Art. 448 when
3. RIGHTS
it comes to the sower
The owner can actually give a piece of right to
and the landowner
another as long as it is not strictly personal or
chooses not to
intransmissible and it has an independent
appropriate
existence
As to the Usufructuary has Lessee has no such
repairs the duty to make duty; he can inform
USUFRUCT IS A COMBINATION OF:
ordinary repairs the lessor lang about
• Right to Use (Jus Utendi) and
the things needed to
• Right to the Fruits (Jus Fruendi).
be repaired
When you are given the rights to use, it also follows that you As to taxes Usufructuary pays Normally does not
are given the rights to possess. So what is left to the owner is for the annual pay except for VAT
the right to dispose. So that is the essence of Naked charges and taxes
Ownership which is left with the owner. on the fruits
As to other A usufructuary may The lessee cannot
FORMULA: things lease the property constitute a usufruct
1. Naked Ownership + Usufruct = Full Ownership itself to another. on the property
2. Full Ownership – Usufruct = Naked Ownership leased.
3. Full Ownership – Naked Ownership = Usufruct

PARTIES TO THE USUFRUCT Art. 563. Usufruct is constituted by law, by the will of
1. Owner of the Naked Title private persons expressed in acts inter vivos or in a last will
 one who gives the right to usufruct to and testament, and by prescription. (468)
another and only lef with the right to
dispose. 4 HOW IS USUFRUCT CONSTITUTED?
2. Usufructuary 1. By law

4Note: Do not use Naked Owner, it is not a legal term but only used for
brevity. The proper term would be Owner of the Naked Title.

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Example: Usufruct of parents over the property of Art. 565.

their unemancipated children, such as child The rights and obligations of the usufructuary shall be those
actors/singers. The parents are allowed to use the provided in the title constituting the usufruct; in default of
money earned and the fruits thereof. such title, or in case it is deficient, the provisions contained
in the two following Chapters shall be observed. (470)
2. Voluntary/Conventional
Will of Private Persons expressed in –
In case of conflict, it is the contract that will prevail, unless it
a. Acts Intervivos
is repugnant to the mandatory provisions of the Civil Code,
b. Last Will and Testament, or
the ones that are against public policy.
3. Prescription – it is not only ownership, but also
MORALIDAD V. PERNES (2006)
usufruct of a thing can be acquired by prescription.
Mercedes Moralidad bought a lot in Palm Village Bajada. Just
a lot, no house. This lady worked as a nurse in US and has
ELEIZEGUI VS MANILA LAWN TENNIS CLUB (1903)
relatives here in Davao. Her niece Arlene Pernes and the
Usufruct is a right of superior degree to that which arises
latter’s spouse were allowed to stay in her property. She
from a lease. Between a usufructuary and a lessee, the
executed a document
former has more rights. Usufruct is a real right and includes
jus fruendi and jus utendi. A lessee is only entitled to use.
I, MERCEDES VIÑA MORALIDAD, of legal age, single,
having been born on the 29th day of January, 1923,
Art. 564. now actually residing at 8021 Lindbergh Boulevard,
Usufruct may be constituted on the whole or a part of the Philadelphia, Pennsylvania, U.S.A., wishes to convey
fruits of the thing, in favor of one more persons, my honest intention regarding my properties
simultaneously or successively, and in every case from or to situated at Palm Village Subdivision, Bajada, Davao
a certain day, purely or conditionally. It may also be City, 9501, … and hereby declare:
constituted on a right, provided it is not strictly personal or
intransmissible. (469) That it is my desire that Mr. and Mrs. Diosdado M.
Pernes may build their house therein and stay as long
1. In Whole or In Part as they like;
Let’s say X gives to Y the Usufruct of his Durian 1. That anybody of my kins who wishes to
Plantation. If it is total then Y gets all the harvest, then if stay on the aforementioned real property
partial, only 50% depending on the agreement of the should maintain an atmosphere of
parties. cooperation, live in harmony and must
avoid bickering with one another;
2. In Favor of One or More Persons Simultaneously or 2. That anyone of my kins may enjoy the
Successively privilege to stay therein and may avail the
It could be natural or juridical persons. Can be for 5, 1, use thereof.Provided, however, that the
together or one at a time depending on the agreement. same is not inimical to the purpose
thereof;
3. For a Particular Period of Time, Purely or Conditionally 3. That anyone of my kins who cannot
Pure usufruct, without condition or term, And conform with the wishes of the
Conditional usufruct, you give a condition while undersigned may exercise the freedom to
somebody else is enjoying your property. look for his own;
4. That any proceeds or income derived from
CLASSIFICATIONS the aforementioned properties shall be
1. Universal allotted to my nearest kins who have less
 On the entire patrimony of the owner. in life in greater percentage and lesser
The owner gives everything he owns in percentage to those who are better of in
usufruct. standing.

The document was not captioned. So, the family actually

2. Single/Particular
moved and constructed a house on the lot and lived there. In
 only a portion of the patrimony of the
1993, Mercedes retired and came back to Davao and lived
owner is given in usufruct
with them in the house at Palm Village. In the course of time,
their relations turned sour because members of the Pernes
3. Normal/Regular (Art. 562)
family were impervious to her suggestions and attempts to
 refers to non-consumables because change certain practices concerning matters of health and
normally the usufructuary is supposed to sanitation within their compound. Eventually, petitioner
return the property itself. commenced an unlawful detainer suit against the respondent
spouses.
4. Abnormal/Irregular
 over consumable things, imperfect ISSUE: what agreement was constituted?
usufruct. Recall Alunan vs Veloso where it
was said that there can be usufruct of
HELD: Usufruct.What was constituted between the parties
money, because it is a fungible thing.
herein is one of usufruct over a piece of land, with the
petitioner being the owner of the property upon whom the
Sterile or Unproductive Animals – because when you talk
naked title thereto remained and the respondents being two
about usufruct use and fruits, so when you talk about sterile
(2) among other unnamed usufructuaries who were simply
animals, use lang yun, walang fruits. There can be a usufruct
referred to as petitioner’s kin. The Court, however, cannot go
over it but not normal or regular usufruct.
along with the CA’s holding that the action for unlawful
detainer must be dismissed on ground of prematurity.

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4-Manresa | Ateneo de Davao University College of Law

Usufruct is defined under Article 562 of the Civil Code (See Example: Durian Plantation na may pending fruits maharvest
Provision). in 3 months pero the usufruct is constituted today (Aug. 13),
so Sept. pa daw ma-harvest yung durian. Kanino yung fruits?
Usufruct, in essence, is nothing else but simply allowing one According to the provision, Natural or industrial fruits growing
to enjoy another’s property. It is also defined as the right to at the time the usufruct begins, belong to the usufructuary
enjoy the property of another temporarily, including both unless there is an agreement to the contrary.
the jus utendi and the jus fruendi, with the owner retaining
the jus disponendi or the power to alienate the same. It is Can the owner say na sya nagastos sa abono, etc? The
undisputed that petitioner, in a document dated July 21, provision says the usufructuary, at the beginning of the
1986, supra, made known her intention to give respondents usufruct, has no obligation to refund to the owner any
and her other kins the right to use and to enjoy the fruits of expenses incurred in the production of the fruits. But the
her property. rights of a 3rd person cannot be prejudiced. What if the there
is a PGF? The rule is there is a pro-rata sharing with the owner.
RIGHTS OF THE PARTIES TO THE USUFRUCT
1. NAKED OWNER What about if at the end of the usufruct, meron na naming
a. Right to Dispose durian? What if the end of the usufruct is now tapos merong
 Art. 581. The owner of fruits to be harvested, can the usufructuary say “akin yan, ako
property theusufruct of naggastos sa abono, etc”?NO. Those growing at the time the
which is held by another, may usufruct terminates, belong to the owner but the owner shall
alienate it, but he cannot be obliged to reimburse at the termination of the usufruct,
alter its form or substance, or from the proceeds of the growing fruits, the ordinary
do anything thereon which expenses of cultivation, for seed, and other similar expenses
may be prejudicial to the incurred by the usufructuary. Again, the rights of 3 rd persons
usufructuary. must not be prejudiced.
b. Right to Construct Works/Plantings
 Art. 595 He may construct BACHRACH V. SEIFERT (1950)
any works, make The properties involved here are shares of stock owned by E.
improvements, new plantings M. Bachrach, who left no forced heir except his widow Mary
but he must not cause a McDonald Bachrach. In his last will and testament, he made
decrease in the value of the various legacies in cash and willed the remainder of his estate
usufruct to prejudice the as follows:
right of the usufructuary. It is
the usufructuary who is being "Sixth: It is my will and do herewith bequeath and devise
considered here. to my beloved wife Mary McDonald Bachrach for life all
the fruits and usufruct of the remainder of all my estate
after payment of the legacies, bequests, and gifts
2. Usufructuary (Chapter 2)
provided for above; and she may enjoy said usufruct and
use or spend such fruits as she may in any manner wish."

The estate of Bachrach, as owner of 108,000 shares of stock

CHAPTER 2. - RIGHTS OF THE USUFRUCTUARY of the Atok-Big Wedge Mining [Atok], received from Atok
54,000 shares representing 50% stock dividend on the said
Art. 566. 108,000 shares.
The usufructuary shall be entitled to all the natural,
industrial and civil fruits of the property in usufruct. Mary, as usufructuary or life tenant of the estate, petitioned
the lower court to authorize the administrator of the estate
With respect to hidden treasure which may be found on of Bachrach, to transfer to her the said 54,000 shares of stock
the land or tenement, he shall be considered a stranger. dividend by indorsing and delivering to her the
(471) corresponding certificate of stock, claiming that said
dividend, although paid out in the form of stock, is fruit or
UNLESShe is the finder, 50%-50% with the land owner. income and therefore belonged to her as usufructuary or life
tenant.
Art. 567.
Natural or industrial fruits growing at the time the The legal heirs of the deceased, opposed said petition on the
usufruct begins, belong to the usufructuary. ground that the stock dividend in question was not income
but formed part of the capital and therefore belonged not to
Those growing at the time the usufruct terminates, belong the usufructuary but to the remainderman. While Sophie and
to the owner. Elisa admit that a cash dividend is an income, they contend
that a stock dividend is not, but merely represents an
In the preceding cases, the usufructuary, at the beginning addition to the invested capital.
of the usufruct, has no obligation to refund to the owner
any expenses incurred; but the owner shall be obliged to ISSUE: Is a stock dividend fruit or income, which belongs to
reimburse at the termination of the usufruct, from the the usufructuary, or is it capital or part of the corpus of the
proceeds of the growing fruits, the ordinary expenses of estate, which pertains to the remainderman?
cultivation, for seed, and other similar expenses incurred
by the usufructuary. HELD: Art. 566 of the Civil Code provides that the
usufructuary shall be entitled to receive all the natural,
The provisions of this article shall not prejudice the rights industrial, and civil fruits of the property in usufruct.
of third persons, acquired either at the beginning or at the
termination of the usufruct. THE 108,000 SHARES OF STOCK ARE PART OF THE PROPERTY
IN USUFRUCT. The 54,000 shares of stock dividend are civil

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4-Manresa | Ateneo de Davao University College of Law

fruits of the original investment. They represent profits, and

the delivery of the certificate of stock covering said dividend In either case they shall be distributed as civil fruits, and shall
is equivalent to the payment of said profits. Said shares may be applied in the manner prescribed in the preceding article.
be sold independently of the original shares. Mary is entitled
to the stock dividends. Situation –
 Usufruct constituted on the right to receive a rent
The property subject to the usufruct is the 108k shares of or periodical pension whether in money or in
stock in the mining company. Civil fruits are income derived fruits, or Interest on bonds or securities payable to
from property. bearer
 Consists in the enjoyment of benefits accruing
THERE ARE 2 KINDS OF DIVIDENDS PRODUCED BY SHARES from participation in any industrial or commercial
OF STOCK: enterprise
a) cash dividend, definitely they are civil fruits,
b) stock dividend, they are considered fruit. What is the Rule?
 each payment due shall be considered as the
There was an argument there that they form part of the proceeds or fruits of such right
capital of the original number of shares of stock. But the SC  shall be distributed as civil fruits, and shall be
said that there are 2 rules as to stock dividends: applied in the manner prescribed in the preceding
1. PENNSYLVANIA RULE article or Art. 569, they accrue daily.
 stock dividend is considered as fruits; this
is the prevailing rule in our jurisdiction.
Art. 571.
2. MASSACHUSETTS RULE
The usufructuary shall have the right to enjoy any
 stock dividend is not considered as fruits increase which the thing in usufruct may acquire through
accession, the servitudes established in its favor, and, in
Case is reiterated in the case of Orozco v. Araneta (Nov. 21, general, all the benefits inherent therein.
1951). They are considered civil fruits.
Example:If the 10 hectares nagging 15 hectares, the
Art. 568. additional 5 hectares is owned by the Naked Owner but the
If the usufructuary has leased the lands or tenements one given the right to enjoy it is the Usufructuary, including
given in usufruct, and the usufruct should expire before the servitudes, and benefits therein.
the termination of the lease, he or his heirs and
successors shall receive only the proportionate share of
Art. 572.
the rent that must be paid by the lessee.
The usufructuary may personally enjoy the thing in usufruct,
Right to Lease the property to Another – he can be the lease it to another, or alienate his right of usufruct, even by a
landlord. After the expiration of the usufruct may lease pa, gratuitous title; but all the contracts he may enter into as
the fruits now belong to the naked owner. such usufructuary shall terminate upon the expiration of the
usufruct, saving leases of rural lands, which shall be
GR: The lease executed by the usufructuary should terminate considered as subsisting during the agricultural year.
at the end of the usufruct or earlier.The usufructuary cannot
enter into a lease contract that is beyond the term of the
Aside from the right to lease the property itself, he can lease
usufruct itself.
the enjoyment of the fruits or he can alienate his right to
▪ If the lease expires before the usufruct, the one
usufruct even through a gratuitous title without need of the
entitled to the rental is the usufructuary (civil
consent of the naked owner. Provided that, the lease does
fruits).
not extend to the period of usufruct.
▪ If the usufruct expires before the termination of
the lease, then the usufructuary shall receive only
The usufruct does not have the right to sell the property, but
the proportionate share of the rent. The fruits now
he can sell his rights to usufruct. He can sell it, donate it
belong to the naked owner.
EXCEPT
EXN:
1. Parental usufruct
▪ Lease of Rural Lands – usufructuary is allowed to
2. Usufruct granted in consideration of his person
continue the lease until the end of the agricultural
3. Caucion juratoria - he can pledge or mortgage his
year
right

Art. 569.
Art. 573.
Civil fruits are deemed to accrue daily, and belong to the
Whenever the usufruct includes things which, without being
usufructuary in proportion to the time the usufruct may
consumed, gradually deteriorate through wear and tear, the
last.
usufructuary shall have the right to make use thereof in
accordance with the purpose for which they are intended,
Art. 570. and shall not be obliged to return them at the termination of
Whenever a usufruct is constituted on the right to receive a the usufruct except in their condition at that time; but he
rent or periodical pension, whether in money or in fruits, or shall be obliged to indemnify the owner for any deterioration
in the interest on bonds or securities payable to bearer, each they may have suffered by reason of his fraud or negligence.
payment due shall be considered as the proceeds or fruits of
such right. ABNORMAL OR IMPERFECT USUFRUCT OF NON-
CONSUMABLE THINGS THAT DETERIORATE
Whenever it consists in the enjoyment of benefits accruing Example: Airconditioner / Car. Let’s say the usufruct is for 15
from a participation in any industrial or commercial years and the subject was an airconditioner, you think after
enterprise, the date of the distribution of which is not fixed, that period, its condition is still the same?
such benefits shall have the same character.

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What are the rules?Whenever the usufruct includes things Art. 577.
which, without being consumed, gradually deteriorate The usufructuary of woodland may enjoy all the benefits
through wear and tear which it may produce according to its nature.
1. the usufructuary shall have the right to make use
thereof in accordance with the purpose for which If the woodland is a copse or consists of timber for building,
they are intended the usufructuary may do such ordinary cutting or felling as
2. and shall not be obliged to return them at the the owner was in the habit of doing, and in default of this, he
termination of the usufruct except in their may do so in accordance with the custom of the place, as to
condition at that time the manner, amount and season.
 but he shall be obliged to indemnify the
owner for any deterioration they may In any case the felling or cutting of trees shall be made in such
have suffered by reason of his fraud or manner as not to prejudice the preservation of the land.
negligence.
In nurseries, the usufructuary may make the necessary
Art. 574. thinnings in order that the remaining trees may properly
Whenever the usufruct includes things which cannot be used grow.
without being consumed, the usufructuary shall have the
right to make use of them under the obligation of paying their With the exception of the provisions of the preceding
appraised value at the termination of the usufruct, if they paragraphs, the usufructuary cannot cut down trees unless it
were appraised when delivered. In case they were not be to restore or improve some of the things in usufruct, and
appraised, he shall have the right to return at the same in such case shall first inform the owner of the necessity for
quantity and quality, or pay their current price at the time the the work.
usufruct ceases.
Not applicable; we have special laws, do not mind this
ABNORMAL USUFRUCT OF CONSUMABLE THINGS provision.
This is a quasi-usufruct. Of course, if a thing is consumable, he
has the right to consume it. If lechon, kainin, di lang pang- Art. 578.
display. So hindi yan libre, he has to return the value of the The usufructuary of an action to recover real property or a
thing. real right, or any movable property, has the right to bring the
action and to oblige the owner thereof to give him the
RULES – authority for this purpose and to furnish him whatever proof
Whenever the usufruct includes things which cannot be used he may have. If in consequence of the enforcement of the
without being consumed action he acquires the thing claimed, the usufruct shall be
1. the usufructuary shall have the right to make use of limited to the fruits, the dominion remaining with the owner.
them under the obligation of paying their
appraised value at the termination of the usufruct, The owner of a right to recover can actually give a right of
if they were appraised when delivered. usufruct, the right to file the action. This special usufruct
2. In case they were not appraised, he shall have the deals with the right to recover by court action.
right to return at the same quantity and quality, or
pay their current price at the time the usufruct WHAT ARE THE RIGHTS OF THE USUFRUCTUARY?
ceases. 1. to bring the action and
2. to oblige the owner thereof to give him the
Art. 575. authority for this purpose (SPA or Board
The usufructuary of fruit-bearing trees and shrubs may make Resolution, if corporation)
use of the dead trunks, and even of those cut off or uprooted 3. to furnish him whatever proof he may have.
by accident, under the obligation to replace them with new
plants. PROCEDURE
 The action will be instituted in the name of the
RULES – usufructuary.
When the usufruct is constituted on fruit-bearing trees and  The authority required is for the purpose of
shrubs recovery of a thing or right, authority of the naked
1. Usufructuary may make use of dead trunks, those owner is required
cut-off or uprooted by accident  If the action is to prevent disturbance of a
2. Under the obligation to replace them with new property, there is no need for a special authority
plants
If there is a judgment rendered awarding to the usufruct and
Art. 576. the property is recovered, the owner of the property is the
If in consequence of a calamity or extraordinary event, the naked owner but the usufruct has the right to the fruits. So
trees or shrubs shall have disappeared in such considerable from a usufruct over a right, the usufruct is transformed into
number that it would not be possible or it would be too the rights to the thing itself recovered.
burdensome to replace them, the usufructuary may leave the
dead, fallen or uprooted trunks at the disposal of the owner, Art. 579.
and demand that the latter remove them and clear the land. The usufructuary may make on the property held in
usufruct such useful improvements or expenses for mere
Situation: pleasure as he may deem proper, provided he does not
What if binaha 80% of the trees, nadestroy, what may he do? alter its form or substance; but he shall have no right to
1. Usufructuary may leave the dead, fallen or be indemnified therefor. He may, however, remove such
uprooted trunks at the disposal of the owner, and improvements, should it be possible to do so without
2. Demand that the latter remove them and clear the damage to the property.
land.

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4-Manresa | Ateneo de Davao University College of Law

others unless personal considerations are present. And the

Art. 580. usufructuary of the co-owned property will take the place of
The usufructuary may set off the improvements he may the co-owner as to the administration and the collection of
have made on the property against any damage to the the fruits or interests. But he has no right to alienate, dispose,
same. or create any real right over the property unless authorized by
the naked co-owner.
USEFUL AND LUXURIOUS IMPROVEMENTS
PARTITION
The usufructuary may make on the property held in usufruct
such useful improvements or expenses for mere pleasure as In case of partition, the usufruct of the part allotted to the co-
he may deem proper, provided he does not alter its form or owner shall belong to the usufructuary.
substance; but he shall have no right to be indemnified
therefor.

What can he do? CHAPTER 3. - OBLIGATIONS OF THE USUFRUCTUARY

1. He may, however, remove such improvements,
should it be possible to do so without damage to Art. 583.
the property or The usufructuary, before entering upon the enjoyment of
2. Under Art. 580, he may set off the improvements the property, is obliged:
he may have made on the property against any 1) To make, after notice to the owner or his
damage to the same legitimate representative, an inventory of all
the property, which shall contain an appraisal
Let’s go back to the case of - of the movables and a description of the
condition of the immovables;
MORALIDAD VS PERNES 2) To give security, binding himself to fulfill the
The court rendered judgmnet in favor of Moralidad and obligations imposed upon him in accordance
ordered the Pernes Family to vacate. The latter were asking with this Chapter.
for reimbursement for the value of the house that they
constructed on the property. According to them, the basis is General Obligations of the Usufructuary
Art. 448 saying that they are BGF since they constructed it Before 1. Make an inventory
with the permission of Moralidad, hence they are entitled to entering a. Appraisal of the
reimbursement. Moreover, under Art. 546, they have the property movables
right to retain the property until they are reimbursed by b. Description of its
Moralidad. condition
2. Give security
SC: No, they are not entitled to reimbursement because 448 During 3. take care of the property
does not apply. It only applies to a BGF – one who builds upon After 4. return the property
a property in the belief that he is the owner thereof and he 5. indemnify in proper cases
does not recognize the ownership by another. Here, the
Pernes Spouses knew for a fact that the property is owned by CONSTITUTION OF THE USUFRUCT VS ENTERING UPON THE
Moralidad and they recognize it. So, under 579, they have no ENJOYMENT
right to be indemnified therefor. You have to distinguish between constitution of the usufruct
and entering the property subject of usufruct.
Given the foregoing perspective, respondents will have to be
ordered to vacate the premises without any right of CONSTITUTION– means when the usufruct contract was
reimbursement. If the rule on reimbursement or indemnity entered into, supposed it was today, Aug. 3, 2018. Can the
were otherwise, then the usufructuary might, as an author usufruct start enjoying the property today? It depends, if he
pointed out, improve the owner out of his property. has complied with the requirements before entering, not the
usufruct, but the property subject of the usufruct.
This is also the ruling of the SC on lease contracts, because the
lessee might improve the landlord out of his property. GR: Inventory + Security before entering the Property

Art. 581. EXN: No inventory required in the following cases:

The owner of property the usufruct of which is held by 1. Waiver
another, may alienate it, but he cannot alter its form or 2. Stipulation in the will
substance, or do anything thereon which may be prejudicial 3. Article 585
to the usufructuary.  no one will be injured thereby (ex.
Barren land, no buildings or structure,
nothing to inventory)
Art. 582.
The usufructuary of a part of a thing held in common shall
EXN: No security required:
exercise all the rights pertaining to the owner thereof with
1. 584 – when the usufructuary is the donor of the
respect to the administration and the collection of fruits or
property who has reserved the usufruct to himself
interest. Should the co-ownership cease by reason of the
or to parents who are usufructuaries of their
division of the thing held in common, the usufruct of the part
children’s property
allotted to the co-owner shall belong to the usufructuary.
2. 585 – when no one will be injured thereby
3. 587 – when there is caucion juratoria
USUFRUCT CONSTITUTED ON A PART OF A COMMON
PROPERTY
Art. 584.
We already know under Art. 493 that a co-owner is the owner The provisions of No. 2 of the preceding article shall not
of his ideal share and he can alienate, dispose, and even give apply to the donor who has reserved the usufruct of the
in usufruct his ideal share even without the consent of the property donated, or to the parents who are

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4-Manresa | Ateneo de Davao University College of Law

usufructuaries of their children's property, except when belong to the usufructuary because the usufruct has already
the parents contract a second marriage. been constituted.

WHAT ARE THE OTHER OPTIONS OF THE NAKED OWNER?

Art. 585.
1. Retain in his possession the property in usufruct as
The usufructuary, whatever may be the title of the
administrator
usufruct, may be excused from the obligation of making
2. Subject to the obligation to deliver to the
an inventory or of giving security, when no one will be
usufructuary the net proceeds thereof, after
injured thereby.
deducting the sums which may be agreed upon or
judicially allowed him for such administration.
Article 586.
Should the usufructuary fail to give security in the cases in So, meron nang share ang usufructuary though he could not
which he is bound to give it, the owner may demand that enter the property.
the immovables be placed under administration, that the
movables be sold, that the public bonds, instruments of
Article 587.
credit payable to order or to bearer be converted into
If the usufructuary who has not given security claims, by
registered certificates or deposited in a bank or public
virtue of a promise under oath, the delivery of the furniture
institution, and that the capital or sums in cash and the
necessary for his use, and that he and his family be allowed
proceeds of the sale of the movable property be invested
to live in a house included in the usufruct, the court may grant
in safe securities.
this petition, after due consideration of the facts of the case.
The interest on the proceeds of the sale of the movables
The same rule shall be observed with respect to implements,
and that on public securities and bonds, and the proceeds
tools and other movable property necessary for an industry
of the property placed under administration, shall belong
or vocation in which he is engaged.
to the usufructuary.
If the owner does not wish that certain articles be sold
Furthermore, the owner may, if he so prefers, until the
because of their artistic worth or because they have a
usufructuary gives security or is excused from so doing,
sentimental value, he may demand their delivery to him upon
retain in his possession the property in usufruct as
his giving security for the payment of the legal interest on
administrator, subject to the obligation to deliver to the
their appraised value.
usufructuary the net proceeds thereof, after deducting
the sums which may be agreed upon or judicially allowed
CAUCION JURATORIA
him for such administration.
It is defined as a sworn duty to take good care of the property
and to return the same at the end of the usufruct. It takes
Art. 587.
the place of the bond or security and is based on necessity
If the usufructuary who has not given security claims, by
and humanity as when a poor family acquires by inheritance,
virtue of a promise under oath, the delivery of the
the usufruct of a badly needed home.
furniture necessary for his use, and that he and his family
be allowed to live in a house included in the usufruct, the
It does not apply to all kinds of properties under usufruct. It
court may grant this petition, after due consideration of
does not apply to a durian plantation because what the
the facts of the case.
family needs is a roof over their heads, a shelter, not a durian
plantation. It only applies when the subject under usufruct is
The same rule shall be observed with respect to
a simple furniture, house, tools, and implements that a
implements, tools and other movable property necessary
person use for occupation.
for an industry or vocation in which he is engaged.
This is not applicable to everyone. It only applies -
If the owner does not wish that certain articles be sold
1. To persons who are obliged to give security, but
because of their artistic worth or because they have a
2. Who cannot afford and is in dire need of the
sentimental value, he may demand their delivery to him
property
upon his giving security for the payment of the legal
interest on their appraised value.
PROCEDURE
▪ File a petition in court
CONSEQUENCES IF THE USUFRUCTUARY FAILS TO GIVE
▪ Make a promise under oath
SECURITY
1. immovables owner may demand for it to be “If the owner does not wish that certain articles be sold
placed under administration because of their artistic worth or because they have a
2. movables sold sentimental value, he may demand their delivery to him
3. public bonds, converted into registered upon his giving security for the payment of the legal interest
instruments of certificates or deposited in a on their appraised value”
credit payable to bank or public institution How is this related to Caucion Juratoria? This paragraph is
order or to bearer not related to Caucion Juratoria. This applies when there is no
4. capital or sums in invested in safe securities. security given yet by the usufructuary and the owner has the
cash and the option to sell his property. However, if the owner does not
proceeds of the want to sell certain articles because of their artistic worth or
sale of the sentimental value, he may demand its delivery to him only
movable property upon giving the security. So it is now the owner who will have
to give security. ☺ [reworded; ma’am said this should have
What is the share of the usufructuary? Is he entitled to the been connected to 586]
fruits?The interest on the proceeds of the sale of the
movables and that on public securities and bonds, and the Article 588.
proceeds of the property placed under administration, shall

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4-Manresa | Ateneo de Davao University College of Law

After the security has been given by the usufructuary, he shall By ordinary repairs are understood such as are required
have a right to all the proceeds and benefits from the day on by the wear and tear due to the natural use of the thing
which, in accordance with the title constituting the usufruct, and are indispensable for its preservation. Should the
he should have commenced to receive them. usufructuary fail to make them after demand by the
owner, the latter may make them at the expense of the
RETROACTIVE EFFECT usufructuary.
In other words, if after 10 years pa siya nagbigay ng security
and for that period si owner ang nag-administer and collected Ordinary Repairs Extra-ordinary Repairs
all the fruits and income, may utang sya ngayon kay Requisites 1. Those required 1. Those which is
usufructuary kasi nagbigay nang security. by the ordinary required by the
wear and tear wear and tear
Article 589. due to the but not
The usufructuary shall take care of the things given in natural use of indispensable for
usufruct as a good father of a family. the thing preservation.
2. Indispensable 2. Those not caused
Article 590. for the by the wear and
A usufructuary who alienates or leases his right of preservation of tear but
usufruct shall answer for any damage which the things in the thing. indispensable for
usufruct may suffer through the fault or negligence of the preservation.
person who substitutes him. 3. Those not caused
by the wear and
tear and not
Naked Owner can ran after the usufructuary even though the
indispensable for
damage was one by the assignee of the usufructuary as the
preservation.
naked owner has no privity of contract with the assignee, but
only with the usufructuary. To whom Usufructuary Naked Owner
the
Obligation
Art. 591.
Belongs
If the usufruct be constituted on a flock or herd of
livestock, the usufructuary shall be obliged to replace
ORDINARY REPAIRS
with the young thereof the animals that die each year
from natural causes, or are lost due to the rapacity of What if the naked owner notices that there is a need for
beasts of prey. ordinary repairs and already told the usufructuary but the
latter did not repair, the naked owner may make the ordinary
If the animals on which the usufruct is constituted should repair at the expense of the usufructuary.
all perish, without the fault of the usufructuary, on
account of some contagious disease or any other REQUISITES –
uncommon event, the usufructuary shall fulfill his 1. Those required by the ordinary wear and tear due
obligation by delivering to the owner the remains which to the natural use of the thing.
may have been saved from the misfortune. 2. Indispensable for the preservation of the thing.
 Both must occur during the usufruct
Should the herd or flock perish in part, also by accident
and without the fault of the usufructuary, the usufruct Article 593.
shall continue on the part saved. Extraordinary repairs shall be at the expense of the owner.
The usufructuary is obliged to notify the owner when the
Should the usufruct be on sterile animals, it shall be need for such repairs is urgent.
considered, with respect to its effects, as though
constituted on fungible things. KINDS OF EXTRAORDINARY REPAIRS
1. Those which is required by the normal or natural use, but
Usufruct is constituted on a flock or herd of livestock are not needed for preservation;
1. Natural causes The usufructuary is 2. Those which are needed by preservation, but are not
2. Lost due to the rapacity obliged to replace the required for the normal or natural use; and
of beasts of prey young thereof5 3. They are not required and not needed for preservation
3. All should perish The usufructuary shall there are only 3 kinds, when only one of the requisites are
without fault of fulfill his obligation by present and when both are not present.
usufructuary on delivering to the owner
account of a contagious the remains which may Article 594.
disease or uncommon have been saved from the If the owner should make the extraordinary repairs, he shall
event misfortune. have a right to demand of the usufructuary the legal interest
4. In part, also by accident The usufruct shall on the amount expended for the time that the usufruct lasts.
and without the fault of continue on the part
the usufructuary saved. Should he not make them when they are indispensable for
5. Sterile animals As though constituted on the preservation of the thing, the usufructuary may make
fungible things. 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.
Article 592.
The usufructuary is obliged to make the ordinary repairs
needed by the thing given in usufruct.

5MRS: Kasi if you really think about it, itong mga herd of animals, 100 cows and the usufruct constitutes belongs to the usufructuary. So yung mga namatay na aabot ng 100, can be replaced by the 50 that
of the cows themselves and the fruits of the cows. Kanino yung mga anak ng cow? Let’s say 50. That belongs to the usufructuary.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

If the owner should make the extraordinary repairs well then

he can ask for legal interest on the amount expended for the WON Bislig Bay is obliged to pay the realty taxes on the road
time that the usufruct lasts. constructed covering the concession area?

Situation – HELD: NO. The road that was constructed by appellee

There’s one kind of extraordinary repair that needs to be belongs to the government by right of accession not only
done, that which is indispensable for its preservation though because it is inherently incorporated or attached to the
not caused by its wear and tear, that’s extra-ordinary. Pero if timber land leased to appellee but also because upon the
you don’t make the repairs, mawawala yung thing. expiration of the concession, said road would ultimately pass
to the National government (Articles 440 and 445, new Civil
If the naked owner fails to make the Extra-ordinary Repairs – Code; Tabotabo vs. Molero, 22 Phil., 418).
1. Usufructuary has the right to make them
2. But shall have a right to demand of the owner, at In the second place, while the road was constructed by
the termination of the usufruct, the increase in appellee for, under the lease contract entered into by the
value which the immovable may have acquired by appellee and the government its use can also be availed of
reason of the repairs. by the employees of the government and by the public in
general. Since the road in question cannot be considered as
Article 596. an improvement which belongs to appellee, although in part
The payment of annual charges and taxes and of those it is for its benefit, it is clear that the same cannot be subject
considered as a lien on the fruits, shall be at the expense of of assessment within the meaning of section 2 of
the usufructuary for all the time that the usufruct lasts. Commonwealth Act No. 470. A real tax, being a burden
upon the capital, should be paid by the owner of the land
Article 597. and not by a usufructuary (Mercado vs. Rizal, 67 Phil., 608;
The taxes which, during the usufruct, may be imposed Article 597, new Civil Code). Appellee is but a partial
directly on the capital, shall be at the expense of the owner. usufructuary of the road in question.

If the latter has paid them, the usufructuary shall pay him the The owner of the land is Government. Therefore, Bislig Bay
proper interest on the sums which may have been paid in has no obligation to pay for the RPT thereon.
that character; and, if the said sums have been advanced by
the usufructuary, he shall recover the amount thereof at the MERCADO V. REAL (1939)
termination of the usufruct. There are situations where when we have a usufructuary who
does not enter the property, never seen the property, but
merely collects the fruits. This is what happened here.
Article 597 talks about the real property taxes or mejoras. The
▪ Josefa Mercado here is the usufructuary and
Naked Owner is responsible for its payment.
▪ Alfredo Real is the naked ownership
However, if the owner has paid them, the usufructuary –
In 1932, 33, and 34, RPT were paid by Alfredo to the
1. Shall pay him the proper interest on the sums
provincial government and this was deducted from the share
which may have been paid in that character; and,
of Josefa as usufructuary. Josefa complained contending that
2. If the said sums have been advanced by the
she is not obligated to pay the RPT. Alfredo invoked 597 and
usufructuary, he shall recover the amount thereof
said that the deductions will later be reimbursed upon
at the termination of the usufruct.
termination of the usufruct.
BISLIG BAY V. GOVERNMENT OF SURIGAO (1956)
Is he correct?
Bislig Bay Lumber Co., Inc. is a timber concessionaire of a
portion of public forest located in the provinces of Agusan HELD: NO. The second paragraph, 2nd part only applies if he
and Surigao. With a view to developing and exploiting its voluntarily paid for the taxes. That was not the case. The
concession, the company constructed at its expense a road
naked owner deducted, the usufructuary did not voluntarily
from the barrio Mangagoy into the area of the concession in
advance. And therefore, the first part is applicable. It is at the
Surigao, with a length of approximately 5.3 kilometers, a
expense of the owner. So the owner must reimburse her
portion of which, or about 580 linear meters, is on a private
right away and not wait until the termination of the usufruct.
property of the company. The expenses incurred by the
company in the construction of said road amounted to P1
13,370, upon which the provincial assessor of Surigao Art. 598.
assessed a tax in the amount of P669.33. 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
Of this amount, the sum of P595.92 corresponds to the road be applied, both with respect to the maintenance of the
constructed within the area of the concession. This was paid usufruct and to the obligation of the usufructuary to pay such
under protest. Later, the company filed an action for its debts.
refund in the Court of First Instance of Manila alleging that
the road is not subject to tax. Defendant filed a motion to The same rule shall be applied in case the owner is obliged,
dismiss on two grounds (1) that the venue is improperly laid, at the time the usufruct is constituted, to make periodical
and (2) that the complaint states no cause of action; but this payments, even if there should be no known capital. (506)
motion was denied. Thereafter, defendant filed its answer
invoking the same defenses it set up in its motions to dismiss.
UNIVERSAL USUFRUCT
In the meantime, Congress approved Republic Act No. 1125
creating the Court of Tax Appeals, whereupon plaintiff Constituted on the whole of a patrimony
moved that the case be forwarded to the latter court as
required by said Act. This motion however, was denied and,
after due trial, the court rendered decision ordering
defendant to refund to plaintiff the amount claimed in the SITUATION
complaint This is an appeal from said decision.

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1. Where the usufructuary gave his entire patrimony invest the said capital at interest upon agreement with the
to usufruct. Everything he owns he constituted. owner; in default of such agreement, with judicial
2. And at time of the constitution of the usufruct he authorization; and, in every case, with security sufficient
had debt to pay. to preserve the integrity of the capital in usufruct. (507)

RULE MRS: just read

He does not have the right to enjoy any of his property.
Art. 600.
He only has the right to dispose. He has no income, civil,
The usufructuary of a mortgaged immovable shall not be
industrial fruits, wala. But he has to give periodical payments
obliged to pay the debt for the security of which the
for his debts, and others like child support, country club
mortgage was constituted.
membership. How can the naked owner (NO) pay? Is the
usufructuary obliged to pay for his debts? The provision says
apply Art. 758. 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
Art. 758. When the donation imposes upon the donee the
thereof. (509)
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 What if the subject property under usufruct is subject to a
which appear to have been previously contracted. In no mortgage and there is still amortizations need to be paid. Is
case shall the donee be responsible for the debts the usufructuary obliged to pay for the amortization of the
exceeding the value of the property donated, unless a mortgaged property? NO.
contrary intention clearly appears. (642a)
If the property is later foreclosed, then the owner shall be
This provision particularly applies if a person donated liable for whatever the usufructuary may lose by reason
everything but reserved to himself the usufructuary thereof. thereof.

Naked Owner only has the title HEMEDES V. CA (1999)

The instant controversy involves a question of ownership
The payment of the debt entered into by the donor who is over an unregistered parcel of land, situated in Sala,
now the usufructuary, is to be shouldered by the latter Cabuyao, Laguna. It was originally owned by the late Jose
because he has the means. Hemedes, father of Maxima Hemedes and Enrique D.
Hemedes. Jose Hemedes executed a document entitled
Art. 759. There being no stipulation regarding the Donation Inter Vivos With Resolutory Condition whereby he
payment of debts, the donee shall be responsible therefor conveyed ownership over the subject land, together with all
only when the donation has been made in fraud of its improvements, in favor of his third wife, Justa Kauapin,
creditors. subject to the following resolutory conditions:
1. Upon the death or remarriage of the DONEE, the
The donation is always presumed to be in fraud of title to the property donated shall revert to any of
creditors, when at the time thereof the donor did not the children, or their heirs, of the DONOR
reserve sufficient property to pay his debts prior to the expressly designated by the DONEE in a public
donation. (643) document conveying the property to the latter; or
2. In absence of such an express designation made by
These are provisions on donation. the DONEE before her death or remarriage
contained in a public instrument as above
If there is a stipulation for payment by the usufructuary, the provided, the title to the property shall
latter is obliged only to pay for prior debts and not for debts automatically revert to the legal heirs of the
which existed after the constitution of the usufruct. DONOR in common.

What if there is no stipulation or agreement? Pursuant to the first condition abovementioned, Justa
Kausapin executed a Deed of Conveyance of Unregistered
GR:The usufructuary is not obliged to pay Real Property by Reversion conveying to Maxima Hemedes
the subject property except the possession and enjoyment
EXN:If the usufruct is constituted in fraud of creditors. of the said property which shall remain vested in Justa
Kausapin during her lifetime, or widowhood and which upon
her death or remarriage shall also automatically revert to,
It is presumed if at the time of the constitution of the
and be transferred to Maxima Hemedes.
usufruct, the naked owner did not reserve sufficient property
to pay for his debts. If it is made in fraud of creditors, the
Maxima Hemedes and her husband Raul Rodriguez
usufructuary has to pay.
constituted a real estate mortgage over the subject property
in its favor to serve as security for a loan which they obtained
Art. 599. in the amount of P6,000.00., they failed to pay and the bank
The usufructuary may claim any matured credits which extrajudicially foreclosed the mortgage. The land was sold at
form a part of the usufruct if he has given or gives the a public auction with the bank as the highest bidder and a
proper security. If he has been excused from giving certificate of sale was issued by the sheriff in its favor. Since
security or has been able to give it, or if that given is not
Maxima Hemedes failed to redeem the property within the
sufficient, he shall need the authorization of the owner, or
redemption period, the bank executed an Affidavit of
of the court in default thereof, to collect such credits. Consolidation. The annotation of usufruct in favor of Justa
Kausapin was maintained in the new title.
The usufructuary who has given security may use the
capital he has collected in any manner he may deem
Despite the earlier conveyance of the subject land in favor of
proper. The usufructuary who has not given security shall
Maxima Hemedes, Justa Kausapin executed whereby she

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4-Manresa | Ateneo de Davao University College of Law

transferred the same land to her stepson Enrique D. (6) By the termination of the right of the person
Hemedes, pursuant to the resolutory condition in the deed constituting the usufruct;
of donation executed in her favor by her late husband Jose (7) By prescription. (513a)
Hemedes. Enriques D. Hemedes sold the property to
Dominium Realty and Construction which the latter “(1) Death of the usufructuary”
thereafter leased to Asia Brewery. The death of the naked owner does not extinguish usufruct. If
the naked owner dies, then the usufruct continues. It will pass
WON the usufructuary rights of Justa impair the ownership on to his heirs and the heirs have to respect the usufruct.
rights of Maxima?
If a usufruct is created by the will of the parties and it is stated
HELD: NO. In the OCT obtained by Maxima, Justa’s there that the death of the naked owner will extinguish the
usufructuary was included. There is no way that it impaired usufruct, then there is nothing wrong with that. That is not
the validity of Maxima’s ownership. against public policy.

Applying Art. 581 and Art. 600, as the NO may valid alienate “(2) Expiration of the period for which it was constituted”
the property. Art. 600 allows the NO to mortgage the said So, whichever comes first, no? Death of the usufructuary or
property. But in this case, Maxima is liable for the loss of expiration of the period -- that will distinguish the usufruct.
Justa.
“(2) Fulfillment of any resolutory condition provided in the
It is clear under this provision, and because the right to title creating the usufruct or by the fulfillment of any
dispose is retained by the NO, included in the right to dispose resolutory condition provided in the title creating the
is the right to sell, mortgage, alienate, etc. here comes the usufruct”
owner, mortgaging it in good faith. Now, the owner is the
bank. MORALIDAD VS. PERNES
In the document that she executed, there was a paragraph
What is now the relationship between bank and Justa? The which says that “anyone of my kin who wishes to stay in the
bank is the NO and Justa is the usufructuary. Take note, property should maintain an atmosphere of cooperation, live
under Art. 600, if the property is lost because of such in harmony, and must avoid bickering with one another.” The
mortgage and foreclosure, then the original NO is liable to next paragraph says, “any one of my kin who cannot conform
the usufructuary. “That the latter, may by reason thereof”. the wishes of the undersigned may exercise the freedom to
look for his own.”You already know that such document was
The provision is not specific that there is a loss. There may be considered a usufruct.
instances where the usufructuary did not lose anything, as
what happened in this case. Because the usufruct was Was the usufruct extinguished?
annotated on the title of the property, it is carried on and on.
And all the successors-in-interest of the NO are bound by the SC: YES. It was extinguished by the fulfillment of any
usufruct. And if right now, the bank who is the owner, it is resolutory condition provided in the title creating the
merely an NO. The spring cannot rise higher than the source. usufruct. The SC said that the maintenance of the peaceful
If the one who mortgaged the property is a mere NO, then and harmonious relations among the kin constitutes an
the usufructuary rights are given to Justa. Every other indispensable condition for the continuance of the usufruct is
successor-in-interest of Maxima is an NO. The usufructuary clearly deduced from the provisions thereof. In fine, the
rights of Justa was retained until the present even though occurrence of any of the following: the loss of the atmosphere
how many owners have passed through that property. of cooperation, the bickering or the cessation of harmonious
relationship between/among kin constitutes a resolutory
In the event that the property is lost because of some other condition which, by express wish of Mercedes, extinguishes
law, then Art. 600 is very clear. The original NO is liable, the the usufruct. Thus, the Spouses Pernes could not get any
one who constituted the usufruct is liable for whatever the reimbursement for the expenses incurred in the construction
latter may lose by reason thereof. (From AMPP notes) of the house on the lot of Mercedes Moralidad.

Note: “(3) Merger of the usufruct and ownership in the same

• What if the usufruct is not annotated? The mortgagee person;”
is not bound to respect the usufruct. That’s very easy. One dies and the other becomes the full
owner and there is sharing of naked ownership and
usufructuary over one property.
August 27, 2018
“(4) Renunciation of the usufructuary;”
CHAPTER 4. - EXTINGUISHMENT OF USUFRUCT The usufructuary can renounce because this right belongs to
him. The naked owner cannot renounce because he was the
Article 603. one who gave the right. So, the one who owns the right
Usufruct is extinguished: (usufructuary) can renounce.
(1) By the death of the usufructuary, unless a
contrary intention clearly appears “(5) Total loss of the thing in usufruct”
(2) By the expiration of the period for which it was What if there is only partial loss? This is provided in Art. 604.
constituted, or by the fulfillment of any Article 604. If the thing given in usufruct should be lost
resolutory condition provided in the title only in part, the right shall continue on the remaining part.
creating the usufruct (514)
(3) By merger of the usufruct and ownership in the
same person “(6) Termination of the right of the person constituting the
(4) By renunciation of the usufructuary; usufruct”
(5) By the total loss of the thing in usufruct; What if the naked owner is merely a possessor in good faith?
He thought the land belonged to him and gave a usufruct to

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

another and later, here comes the real owner and files an Example: A has properties and businesses. His friend, B,
ejectment case and the possessor in good faith is ejected. So unfortunately, lost his wife, business, etc. and has a 15yo son
he does not have any right to constitute a usufruct anymore, whom B needs to support. Itong si A, naawa kay B and
no? It is only the owner of a thing who can constitute a constituted a usufruct over a small internet café in favor of B.
usufruct. Hence, the usufruct is extinguished. A says “you can have this until your son reaches 22yo
(graduating age).” So, 7 years yung usufruct. If the son died at
OTHER CAUSES OF EXTINGUISHMENT the age of 20yo, is the usufruct extinguished? GR: It is not
1. ANNULMENT extinguished under Art. 606. Pero kung nakalagay doon sa
 when there is vitiation of consent; usufruct “provided that your son is still alive”, then of course,
2. RESCISSION the usufruct is extinguished if the son dies. (EXC: unless such
 violation of the material provisions of usufruct has been expressly granted only in consideration of
the usufruct the existence of such person)
3. ANNULMENT
4. BY AGREEMENT Article 607.
 withdrawal is not prohibited If the usufruct is constituted on immovable property of
5. LEGAL PROCESSES ENDING USUFRUCT which a building forms part, and the latter should be
 Ex. Attainmentof the age of majority destroyed in any manner whatsoever, the usufructuary
extinguishes parental usufruct. shall have a right to make use of the land and the
materials.
Article 604. The same rule shall be applied if the usufruct is constituted
If the thing given in usufruct should be lost only in part, on a building only and the same should be destroyed. But
the right shall continue on the remaining part. (514) in such a case, if the owner should wish to construct
another building, he shall have a right to occupy the land
We talked about this earlier. Partial loss does not extinguish and to make use of the materials, being obliged to pay to
usufruct. the usufructuary, during the continuance of the usufruct,
the interest upon the sum equivalent to the value of the
What are the other instances where usufruct is not land and of the materials. (517)
extinguished?
Article 608.
a. Abuse or misuse of usufruct If the usufructuary shares with the owner the insurance of
the tenement given in usufruct, the former shall, in case
Article 610. A usufruct is not extinguished by of loss, continue in the enjoyment of the new building,
bad use of the thing in usufruct; but if the should one be constructed, or shall receive the interest on
abuse should cause considerable injury to the the insurance indemnity if the owner does not wish to
owner, the latter may demand that the thing rebuild.
be delivered to him, binding himself to pay
annually to the usufructuary the net proceeds Should the usufructuary have refused to contribute to the
of the same, after deducting the expenses and insurance, the owner insuring the tenement alone, the
the compensation which may be allowed him latter shall receive the full amount of the insurance
for its administration. (520) indemnity in case of loss, saving always the right granted
to the usufructuary in the preceding article. (518a)
A usufruct is not extinguished by bad use of the
thing, unless the thing is totally lost because of such Arts. 607 and 608 are situations where a usufruct is on a land
abuse or misuse. and building. What happened is the building is destroyed. So,
partial loss. Just read that and take note of the effects.
b. Non-fulfillment of suspensive condition does not
extinguish usufruct because that means the Article 609.
usufruct never came into existence. Should the thing in usufruct be expropriated for public
use, the owner shall be obliged either to replace it with
Article 605. another thing of the same value and of similar conditions,
Usufruct cannot be constituted in favor of a town, or to pay the usufructuary the legal interest on the
corporation, or association for more than fifty years. If it amount of the indemnity for the whole period of the
has been constituted, and before the expiration of such usufruct. If the owner chooses the latter alternative, he
period the town is abandoned, or the corporation or shall give security for the payment of the interest. (519)
association is dissolved, the usufruct shall be extinguished
by reason thereof. (515a) EXPROPRIATION OF PROPERTY IN USUFRUCT
The situation here is the property in usufruct is expropriated
Article 606. for public use.
A usufruct granted for the time that may elapse before a
third person attains a certain age, shall subsist for the Is the usufruct extinguished? No, the usufruct continues.
number of years specified, even if the third person should Expropriation is not one of the grounds for extinguishment of
die before the period expires, unless such usufruct has a usufruct. There is an obligation on the part of the naked
been expressly granted only in consideration of the owner to replace the property that was expropriated or just
existence of such person. (516) pay the legal interest of the just compensation paid to the
naked owner. If the owner chooses the latter alternative, the
In the book of Paras, this is considered an exception to the naked owner shall give security for the payment of the
first cause of extinguishment of usufruct i.e. death of the interest. So, this is one of the instances where the naked
usufructuary. But let us not consider this as an exception owner must give a security.
because here, it is a third person, and not the usufructuary,
who dies. LOCSIN VS. VALENZUELA

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4-Manresa | Ateneo de Davao University College of Law

Locsin is the landowner and respondent Helen Schon is the A usufruct is not extinguished by bad use of the thing in
usufructuary. The situation here is Helen Schon is merely usufruct; but if the abuse should cause considerable injury
collecting the fruits. But there is a third party here – the to the owner, the latter may demand that the thing be
tenants of the land. These tenants obliged to give the rentals delivered to him, binding himself to pay annually to the
to Helen Schon, the usufructuary. What is Helen Schon usufructuary the net proceeds of the same, after
enjoying here? The civil fruits. Now, on October 21, 1972, P.D. deducting the expenses and the compensation which may
27 (Law on Emancipation of Tenants) was promulgated. This be allowed him for its administration. (520)
law granted the land to tenants but these tenants have to
directly pay amortization (value of the land) to the
Article 611.
landowners.
A usufruct constituted in favor of several persons living at
the time of its constitution shall not be extinguished until
How is that different from expropriation? In expropriation, it
the death of the last survivor. (521)
is the State who expropriates and then pays the landowner
just compensation. But under P.D. 27, hindi kasama ang State.
Direct ang bayad ng tenants to the landowners. Bibilhin nila Article 612.
ang land from the landowner. Upon the termination of the usufruct, the thing in usufruct
shall be delivered to the owner, without prejudice to the
So, when P.D. 27 was promulgated, the tenants kept on right of retention pertaining to the usufructuary or his
paying Helen Schon. Yung kanyang civil fruits as rental. But heirs for taxes and extraordinary expenses which should
when it was promulgated, the status of the payment changed be reimbursed. After the delivery has been made, the
from payment of rentals to payment of amortization for the security or mortgage shall be cancelled. (522a)
land. Who is entitled to the payment? It is the landowners.
Nagka-overlap no? Kasi si Helen Schon ang binayaran. The SC RIGHTS AND OBLIGATIONS OF A USUFRUCTUARY AFTER
said that this is not in all force with Art. 609. Art. 609 TERMINATION OF THE USUFRUCT
contemplate a case of expropriation by the government. But After the extinguishment of the usufruct –
in this case, the second choice in Art. 609 i.e. to pay the ▪ the usufructuary has the obligation to return the
usufructuary the legal interest on the amount of the property to the owner.
indemnity for the whole period of the usufruct was applied by
analogy. Kasi Helen Schon had lifetime usufructuary. So, she If it is a normal usufruct –
is entitled to the legal interest of the amount that the tenants ▪ the usufructuary must return it in the same
were paying. Sila, magbayad na sa landowner but Helen condition.
Schon is entitled to a portion of such payment as legal interest ▪
applying Art. 609. But if it is consumable –
▪ the usufructuary just has to give back something of
There is this fairly new case on Extinguishment of Usufruct – the same kind or value.

RIVERA-CALINGASAN VS. RIVERA If the property deteriorates, then –

In this case, Spouses Rivera owned several parcels of land. The ▪ the usufructuary just has to return the deteriorated
wife died intestate, leaving Wilfredo, the husband, and their property.
2 daughters as heirs. Sabi ni Wilfredo “hindi na lang ako maki-
share kasi owner naman na ako ng conjugal lots. I will just Take note: “without prejudice to the right of retention
donate the naked ownership of the conjugal lots to my 2 pertaining to the usufructuary or his heirs for taxes and
daughters but I will reserve the usufruct over 2 lots for myself extraordinary expenses which should be reimbursed.”
in my entire lifetime.” So doon tumira si Wilfredo at may shop
siya doon, etc. The titles over the 2 lots were now in the name What about to remove improvements or setting-off? Going
of the 2 daughters na may mga asawa na din but the usufruct back to the case of –
in favor of their father, Wilfredo, was annotated in the titles.
Eventually, Wilfredo married again and had another 2 MORALIDAD VS. PERNES
children. For 10 years, he stayed in the property. Then, he got SpousesPernes constructed a house and they wanted to be
sick and was hospitalized. While he was in the hospital, his reimbursed. Hindi pwede because it is a usufruct.
children ejected him from the property. He then filed an
action for Forcible Entry against his daughter. While the case How about set-off?
was pending, Wilfredo died. Normally, there would be
substitution of parties applying Rule 3, Sec. 16. Normally, his SC: NO. Set-off is only allowed if there is damage caused. If
wife and children would substitute Wilfredo. Pag nanalo, sila Mercedes Moralidad caused damage on the property… but
yung papasok sa property. since she did not, then set-off is not possible.

SC: There will be no substitution of a party since the usufruct What about the naked owner?
annotated in the title of the property was extinguished upon ▪ He must cancel the security or mortgage. He must
the death of Wilfredo, the usufructuary. According to the SC, return the security, provided that the usufructuary
this deprives the heirs of Wilfredo to right to retain possession complied with his obligations.
over the property even if the judgment in the case directs its ▪ In rural leases, the naked owner must respect the
restitution. So, even if they win the case, the wife of Wilfredo lease until the end of the agricultural year.
cannot take possession over the disputed property because ▪ He must also make reimbursements to the
the usufruct was extinguished upon the death of Wilfredo. usufructuary, in proper cases.
Here, there is a conflict of a provision of law (Art. 603) and the
rules of procedure. What will prevail? Siyempre the
substantive law.
TITLE VIII. - NUISANCE
Article 610.

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4-Manresa | Ateneo de Davao University College of Law

Nuisance is also discussed in torts and damages. I don’t know at private parking lot. That is a nuisance. It obstructs the free
why Nuisance is discussed twice, but Lease is not. But you all passage of roads.
know that Lease is included in the bar.
5. Hinders or impairs the use of property
Article 694 defines a nuisance.
Example here is illegal constructions on another land, yung
Article 694. mga informal settlers. You cannot use your property
A nuisance is any act, omission, establishment, business, anymore. So those are the examples.
condition of property, or anything else which:
(1) Injures or endangers the health or safety of Article 695.
others; or Nuisance is either public or private. A public nuisance
(2) Annoys or offends the senses; or affects a community or neighborhood or any considerable
(3) Shocks, defies or disregards decency or number of persons, although the extent of the annoyance,
morality; or danger or damage upon individuals may be unequal. A
(4) Obstructs or interferes with the free passage of private nuisance is one that is not included in the
any public highway or street, or any body of foregoing definition.
water; or
(5) Hinders or impairs the use of property. So nuisance according to 695 is either –
1. Public
It can be anything under the sun which causes those things. 2. Private
Other examples given: a house in danger of falling, yung mga
construction along the road, possibility of debris falling onto PUBLIC NUISANCEaffects a community or neighborhood or
the street that endangers the safety of others. any considerable number of persons, although the extent of
the annoyance, danger or damage upon individuals may be
1. Injures or endangers the health or safety of others unequal.

In my office, there is a sign there that says, “Switch off Now an example of this is an abattoir, a slaughterhouse,
engine.” And then there were some students who went there there’s one near our subdivision. Those who live in the
for one reason and asked the guard “why?” While waiting for perimeter wall, they smell it every single day. They burn the
their other classmates to come down, they wanted to stay in sick animals, yung mga aso, pusa na may mga sakit, all those
the car and leave the aircon on. So, how do you think I would they collect from the street, the smell is horrible. So that is a
react to that? Kung kayo pupunta kayo sa office ko, public nuisance. It affects the entire neighborhood.
magtatanong pa kayo? Young people should be concerned
about the environment. If you leave your car engine on, the A PRIVATE NUISANCEis one that is not included in the
car emits obnoxious, noxious fumes, vapors that are foregoing definition.
detrimental to one’s health. So yan, nuisance yan. What is the
act here? The act of leaving your car engine on, especially Despite the Civil Code classification of nuisance, we have the
yung mga diesel na sasakyan. (chika about her asking her old classification:
students the reason behind the signage) So it is endangering ▪ NUISANCE PER SE
the health, it also annoys or offends the senses. Yung amoy.  one that is always a nuisance at all times
and in all circumstances;
2. Annoys or offends the senses ▪ NUISANCE PER ACCIDENS
 a nuisance only because of the location
What else annoys or offends the senses? Videoke! In the or attendance circumstances.
middle of the night! Yung mga subdivision na magkakalapit
ang bahay. Although a person has a right to enjoy one’s So, nuisance per se, let’s go back to the example I gave - the
property it should not be to the prejudice of others. abattoir. Is it a nuisance per se? Anywhere you put it, is it a
nuisance? No. If you put it in the middle of nowhere, it’s not.
3. Shocks, defies, disregards decency or morality It’s a legitimate business. It only became a nuisance because
it is beside a subdivision.
Well the standard of morality changes. Maybe what was
immoral 20 years ago may not be immoral today. So dati, ATTRACTIVE NUISANCE
women cannot expose their legs, cleavage. So this one is It is a dangerous instrumentality or appliance which is likely to
dependent on time, place, the moralities of countries and attract children at play.
people. Here in our country meron pa rin tayong high
standard of morality. Wala pa rin tayong nakikita na hubad ATTRACTIVE NUISANCE DOCTRINE - one who maintains on
talaga, meron siguro sexy pero hindi talaga yung hubad. We his estate or premises an attractive nuisance without
don’t sell in the bookstores those pornographic magazines. exercising due care to prevent children from playing
That is still taboo here. But in other countries, that can be therewith or resorting thereto, is liable to a child of tender
considered ordinary, like in Amsterdam. There are windows years who is injured thereby, even if the child is technically a
where naked women are posing for their services. So, this trespasser in the premises.
really depends on time, place, circumstances and standard of
morality. So, the case in which this was applied is –

4. Obstructs or interferes with the free passage of any public HIDALGO V BALANDAN.
highway or street, or any body of water Here, there was this ice plant where the ice plant maintained
two tanks full of water, big tanks. And the ice plant was in a
What’s the perfect example? Vivaldi. Alam mo I really want to compound, there was a fence. If you are a passerby, you can
bring a bulldozer there. You know that is a public road, did you see those tanks of water. Since it is very hot here in the
see any permit? Ginawa nilang tambakan ng mga buhangin Philippines, we had some kids who jumped over the bakod
and started swimming in the tank. One of them died. So, the

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

parents sued the ice plant for damages, for the death of their (3) Abatement, without judicial proceedings.
son, alleging that the tanks of water are considered an
attractive nuisance, even if the children were merely Now let’s go to the remedies.
trespassing because the ice plant did not exercise due care to
prevent the children from entering and climbing up the tanks. What if there is a public nuisance, what are the remedies?
1. CRIMINAL ACTION
So, what’s the basis of the liability in attractive nuisance? The  Find a law that is on all fours with the
attractiveness is an invitation to children. Safeguards to situation, whether it be a special law or
prevent danger must therefore be set up and the highest the RPC, or an ordinance like the no-
degree of diligence must be exercised. smoking ordinance. File a criminal case.

Are these water tanks considered an attractive nuisance? 2. CIVIL ACTION

What kind is normally filed? There are two kinds:
SC: NO. According to the SC water in any form is not an ▪ ABATEMENT OF NUISANCEpara
attractive nuisance. Nature in itself has created streams, lakes matanggal na siya; and
and pools which attract children. There is always the danger ▪ DAMAGES
of drowning. If you only have a mere imitation of the work of
nature, like a swimming pool, it’s the same thing as the river. Now, what if I don’t want to be bothered to file damages, or
Those kinds cannot be considered an attractive nuisance. if there is no damage like in the case of Vivaldi, (well of course
there is damage to me because I have to take the long way so
So what is an attractive nuisance? A gun. Let’s say the ice gastos sa gasolina but I cannot quantify that), abatement
plant has a security guard. Umihi, iniwan yung baril doon. nalang para matanggal those things that are blocking the
Nilaruan ng bata. So in that case, you have the guard liable, road. So,pwedeng abatement only, pwedeng damages only.
the ice plant owner, the agency pa under 2180. Like if the nuisance is no longer around but somebody
suffered injury. Or both, abatement and damages. It can also
Article 696. be preventive, like in the case of -
Every successive owner or possessor of property who fails
or refuses to abate a nuisance in that property started by CANLAS VS AQUINO
a former owner or possessor is liable therefor in the same There was this hospital that was already there. It was a family-
manner as the one who created it. run hospital and the hospital owners found out that right
across the street there was a planned rice mill. So obviously
So, if you are an owner, you better make sure that your ayaw nila kasi yung mag lipad lipad na mga ano from the rice
property is not a nuisance. Because if you create, participate, mill. It will definitely affect their hospital.
adopt, continue the existing nuisance, refuse to abate
nuisance, you can be held liable. SC: The Court actually agreed. You can actually file an action
to prevent a possible nuisance.Not really to abate an existing
Not only that, in Article 697 – one, but to prevent it from happening.

Article 697. But there’s another case, wherein we have here some
The abatement of a nuisance does not preclude the right residents of a certain place, and they were opposing the
of any person injured to recover damages for its past construction of a garbage incinerator doon sa kanilang area.
existence. The Supreme Court said that the action was premature.
Sabinang Supreme Court you don't even know if there will be
Of course, we all know the case of aerial spraying. So, a lot of a nuisance; saka na kayo mag file pag nandiyan na.
big companies were involved. The argument was that they
don’t spray anymore. But what if somebody still gets sick So, there are times when the court is saying, “Prevent.” But
because of that? Pwede man. there are times that the court is saying it's premature and you
have to wait for it to exist.
We had a maintenance guy who came from a banana
plantation, he stopped working there kasi nagkakasakit-sakit 3. EXTRAJUDICIAL ABATEMENT
na siya. And then he resigned because of his worsening
health. A few years after we just learned that he died talaga. So take note that (1) and (2) may be brought by an individual
I don’t know if they were able to collect. if the nuisance is especially injurious to himself. Why?
Because under the law, it is the mayor who can sue for
Article 698. abatement of public nuisance. But a private person may sue
Lapse of time cannot legalize any nuisance, whether public for abatement of public nuisance if it is especially injurious to
or private. him under Article 703.

Now going back to that abattoir. [Ma’am tells the story of a

If you relate that to Article 1143(2) –
public official’s wife who lived in Woodridge Subdivision who
An action to abate a public or private nuisance is not
reprimanded the employees of the abattoir; and one day
extinguished by prescription.
found their garden strewn with smelly animal innards.]
It does not prescribe. So,kahit matagal na wala yung nuisance
According to the law, it is the mayor. That’s a public nuisance.
pwede ka pa rin magcollect ng damages because of 697.
We already know that’s a nuisance where everybody’s
affected in different degrees--but since they, the family was
Article 699. specially injured by that abattoir, pwede. Private persons can
The remedies against a public nuisance are: for sue for abatement of a public nuisance.
(1) A prosecution under the Penal Code or any local
ordinance: or
(2) A civil action; or

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Now what if the nuisance is merely private? Hindi public. So

civil action lang and extrajudicial abatement, provided by the From the FT:Squatting is unlawful and no amount of
Civil Code. acquiescence on the part of the city officials will elevate it
into a lawful act. In principle, a compound of illegal entry
HOWEVER (with emphasis ni Ma’am), not just because Article and official permit to stay is obnoxious to our concept of
705 says civil action and extrajudicial abatement, does that proper official norm of conduct. Because, such permit
mean if it’s a private nuisance hindi na pwede mag file ng does not serve social justice; it fosters moral decadence. It
*inaudible* Pwede! Don’t base it on 705, but just base it on does not promote public welfare; it abets disrespect for
that particular law, like the No Smoking Law. the law. It has its roots in vice; so it is an infected bargain.
Official approval of squatting should not, therefore, be
Example: Kunyari, magkatabi ng bahay sa subdivision. Yung permitted to obtain in this country where there is an
isa buga ng buga, yung kapitbahay nya may sakit. He’s there, orderly form of government.
staying there in his house, trying to recuperate and then
naaamoy nya yung ano. So, siya lang yung naapektuhan ng We, accordingly, rule that the Manila mayors did not have
smoke. Is it a private nuisance? Yes. But it’s also a violation of authority to give permits, written or oral, to defendants,
the smoking ordinance. So,pwede file-an ng kaso. and that the permits herein granted are null and void.

Let’s go to extrajudicial abatement. So this can be done, but 3. Let us look into the houses and constructions planted by
there’s a procedure to be taken. defendants on the premises. They clearly hinder and
impair the use of that property for school purposes. The
REQUISITES FOR ABATEMENT OF A NUISANCE WITHOUT courts may well take judicial notice of the fact that
JUDICIAL PROCEEDINGS housing school children in the elementary grades has been
1. If you want to abate a nuisance and still is a perennial problem in the city. The selfish
extrajudicially, then you must show first that the interests of defendants must have to yield to the general
nuisance is especially injurious to you. good. The public purpose of constructing the school
building annex is paramount.10
2. Make a demand on the owner or possessor of the
property to abate the nuisance. In the situation thus obtaining, the houses and
constructions aforesaid constitute public nuisance per se.
[Short-cut story: Filipinos are pinaka balat-sibuyas. And this, for the reason that they hinder and impair the
When you ask the owner to remove the thing use of the property for a badly needed school building, to
blocking the road, magalit; or the trisikad driver to the prejudice of the education of the youth of the land.11
not drive along the highway, awayin ka pa. And They shackle the hands of the government and thus
about her dad being a biker, where a kid tried to obstruct performance of its constitutionally ordained
yugyug LOL the expensive bike, and the owner obligation to establish and maintain a complete and
kindly told the kid to stop but the kid’s father got adequate system of public education, and more, to
angry saying it’s just a bike (but ma’am said those "provide at least free public primary instruction".12
bikes are more expensive than cars).]
Reason dictates that no further delay should be
So, going back to the requisites, normally, the countenanced. The public nuisance could well have been
demand will 100% of the time be rejected or summarily abated by the city authorities themselves, even
ignored. without the aid of the courts.

3. The abatement must be approved by the City We’ll look at the remedies for abatement. But there is what
Engineer or Provincial Health Officer, which is we call, summary abatement.
required under Article 700. The district health
officer. But in chartered cities, the city engineer. I What kind of nuisance can be summarily abated? A nuisance
don’t know if it’s still applicable now, but that’s per se.
under the law.
LUCENA GRAND CENTRAL TERMINAL VS. JAC LINER
4. You must seek the assistance of the police. SC said, “Unless a thing is a nuisance per se, it may not be
abated by an ordinance without judicial proceedings.” So, if it
5. The abatement must be done in such a way that it is a nuisance per se, it can be done. Summary abatement can
does not breach the public peace or cause be done.
unnecessary injury.
In the olden days, these common carriers, bus companies, had
6. Thevalue of the thing abated does not exceed their own terminals. Ganun ang style dati. But nowadays, it’s
three thousand pesos (P3,000). now a grand central terminal.

So, in the City of Lucena, the city council enacted two

CITY OF MANILA VS. GARCIA ordinances. One is that there will be a central terminal
The city mayor actually entered into lease contracts with wherein all of the buses will just go there, and this terminal
some people who entered the public plaza. Naglagay ng mga will be outside the city limits. And that this central terminal is
payag2x, mga tindahan doon. Instead of removing them from given to this one entity, called the Lucena Grand Terminal
the plaza, which is public domain yan for public use, the company, who’s given the franchise to operate this central
mayor entered into lease contracts with them. terminal. So that was one ordinance.

SC: That is not allowed. And the SC said, “The city mayor of The second ordinance prohibited the use of the other
Manila cannot legalize forcible entry to public property by the terminals. So effectively this ordinance closed down the
simple expedient of giving permits, or, for that matter, private terminals. So here comes Jac Liner, saying, “How can
executing leases.” the city council, by an ordinance, effectively close down

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

private property, private business? Hindi naman ito LGUs. So, if you look at the new streets now, wala na yung
nuisance.” mga arcades. Yung sa mga old streets lang.

According to the council, mga nuisance yan. Yang mga Of course, in San Pedro, merong mga arcades, ginawan
terminal na yan. It can be summarily abated, closed down. naman ng tindahan ng mga sidewalk vendors. Those sidewalk
vendors are actually using private property. Hindi lang alam
Are those private terminals considered a nuisance? ng mga establishment owners na kanila pala yan. That’s not
part of the street; it’s private property. Naging free-for-all na.
SC: NO. If you look at Article 694, merong enumeration dyan.
Does the terminal actually impede the use of a property? So here, itong si Justice Gancayco, when he bought this
Wala man. Does hinder the use of a property? Wala. Does it property along EDSA, he asked for an exemption. In 1965, he
obstruct or interfere with the free passage of any highway? sought the exemption of ** building, he constructed on his
Hindi. So how can you say that this is a nuisance. If you want property for ** that it be exempted from constructing an
to call something a nuisance, make sure it’s one of those. arcade. This was approved by the city council.

Sabi ng SC, ang mga nuisance, yung mga bus na humihinto sa

gitna ng daan. They obstruct the free passage of the road. Yan
ang nuisance, but not the terminal. But the SC said, granting
arguendo that these terminals actually cause these buses to
enter the city and causing traffic, it is not a nuisance per se.
And therefore, if it’s a nuisance, it still cannot be abated via
an ordinance. Why? Because if you look at the provisions of
the Code, one has to go to court, and the court must declare
that thing to be a nuisance per se. So, if this is the arcade and this is the EDSA, I can walk.
Pagdating ko na sa dulo, may wall. So,I will go out, walk sa
The physical abatement of the nuisance can be done by EDSA, ikot ako dun sa kanyang building, and then go back in.
anyone, any government entity. But the courts have to Kasi exempted siya eh. So, the people reroutedto walk along
declare that to be a nuisance. EDSA.

If you read the case of – Here comes the MMDA, Bayani Fernando. He conducted
operations to clear obstructions along the sidewalk of EDSA.
ILOILO ICE AND COLD STORAGE VS. MUNICIPAL COUNCIL And there was this resolution passed by the MMDA which
Yung ice plant, diba merong ordinance na naman na pina authorized the entity to clear all illegal structures and
pasara yung ice plant. constructions. So, in 2003, MMDA sent a notice of demolition
to Justice Gancayco, alleging that a portion of his property
SC: Before the council can close it down or abate it, there violated the ordinance of Quezon City and gave the Justice 15
must be a declaration from the court that that is a nuisance. days to remove it. Angtawag jan ay wing walls. But he did not
That is the only time. So that is why summary abatement is comply, saying that he was given an exemption by the city
not allowed. One has to go through the process. Declaration council. Ano ang ginawa ng MMDA? Pina demolish, so that
by the court of what kind of nuisance it is. the people could freely walk through.

What about the nuisance per se? In the case of CITY OF WON the wing walls of the building are considered nuisance
MANILA, the SC said pwedei-summarily abate. per se that can be summarily abated. Kasi summary ang
ginawa ng MMDA, they did no go to court.
What is a nuisance per se? How does the SC define it? There
are many definitions of a nuisance per se. In the case of SC: No! The wing walls of the building are not nuisance per
BRAGA VS. PEOPLE, “It’s one which affects the immediate se. Why? Because Justice Gancayco was given an exemption.
safety of persons and property.” In another, “One that is a
nuisance all times and under all circumstances.” “The fact that in 1966 the City Council gave Justice
Gancayco an exemption from constructing an arcade is an
If you remember this case of – indication that the wing walls of the building are not
nuisances per se. The wing walls do not per se
GANCAYCO VS. CITY GOVERNMENT OF QUEZON AND MMDA immediately and adversely affect the safety of persons
Here was this justice of the SC Gancayco. And this case was and property.” Really? Really? The pedestrians have to go
decided by former CJ Sereno, en banc 2011. to the street and walk around that portion of the building,
then go back, and it does not affect? Really? “The fact that
In 1950, this retired justice Gancayco bought a lot along EDSA. an ordinance may declare a structure illegal does not
If you walk along San Pedro Street, can you walk freely necessarily make that structure a nuisance.”
without being hit by a jeepney or car? You can, actually. Some
parts of it kasi merong mga tinatawag na arcade. In the past, “Clearly, when Justice Gancayco was given a permit to
may zoning ordinance ang mga LGU that if you construct a construct the building, the city council or the city engineer
building in this particular road, you have to put an arcade. did not consider the building, or its demolished portion, to
What’s an arcade? Yung ground floor ng building mo, it should be a threat to the safety of persons and property. This fact
be open to the public for passage. You actually surrender a alone should have warned the MMDA against summarily
portion of your property, that you allow people to use it. demolishing the structure.”

So, in Quezon City, it was an ordinance issued in 1956, Does the MMDA have the power to declare a thing a
requiring the construction of arcades for commercial nuisance?
buildings constructed in zones designated as business zones.
At the time this ordinance was passed, there was no Building SC: No. Only courts of law have the power to determine
Code yet passed by Congress. So, the regulation of whether a thing is a nuisance.
construction of buildings was left to the discretion of the

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

the City Engineer’s Office; or (2) the Department of Health or

So that even the city council cannot declare a thing as a City Health Officer. Remember, only the court can declare
nuisance per se and order its condemnation.It does not have something a nuisance. For extra-judicial abatement, di pwede
the power to find, as a fact, that a particular thing is a nuisance deretso. In this case, the clearance must be acquired with the
when such thing is not a nuisance per se. So, exception ang City Engineer and the latter will declare if the subject is a
nuisance per se. Nor can it authorize the extrajudicial nuisance that can be abated extra-judicially and if done, the
condemnation and destruction of that as a nuisance which in proper steps has to be taken.
its nature, situation or use is not such. Those things must be
determined and resolved in the ordinary courts of law. If a There are other kind of nuisance. But the abatement thereof
thing be in fact, a nuisance due to the manner of its operation, is not based on the Civil Code. Examples –
that question cannot be determined by a mere resolution of
the Sangguniang Bayan. AQUINO V. MUNICIPALITY OF MALAY (2014)
Boracay Island West Cove is a hotel in Boracay. BIWC applied
But what is this nuisance per se? Why can it be summarily for a zoning compliance with the Municipal Government of
abated? There’s only one reason given by the SC. A nuisance Aklan. The application was for a building permit to construct
per se can be summarily abated based on the UNDEFINED a three-story hotel over a 998 sqm lot. But the application
LAW OF NECESSITY. There is none. It is undefined. So that is was made after the hotel started to operate. The application
always what the SC says in its decisions. was denied because the hotel is within the no-build zone – an
area where properties, even if private, are prohibited to be
And jurisprudence is always citing that. Jurisprudence ignores constructed within 25 meters from the high water mark. So,
the “public nuisance,” “private nuisance” as used by the Civil the Mayor of Aklan issued an executive order ordering the
Code. closure and demolition of the hotel. So, there was a
demolition. Here comes the President of the hotel saying that
the hotel cannot be summarily abated because it is not
September 3, 2018 nuisance per se. According to him, the proper steps and
proceedings must be taken and they should have filed a civil
RANA V. LEE WONG (2014) action. A hotel is not nuisance per se. Tama ba? Yes. If you
Rana, Uy, and Wong are neighbors. Rana’s and Uy’s lots are put it in a proper place, it is not a nuisance. (Remember: Exta-
beside each other, while Wong’s is across the street. The judicial abatement hanggang P3,000 lang. So, hindi pwede i-
terrain of Rana’s lot is slope-y. So, Rana could not drive his extra-judicially abate ito, even though may clearance from the
car out of his garage to go to the road because of the City Engineer)
difference in the level. What did he do? He constructed a
ramp para makababa ‘yung kotse niya. And by constructing Was the mayor correct in issuing the executive order and
it, he occupied half of the road. Also, between Rana and Uy, issuing the demolition order?
may slope ‘din ‘yung kay Rana but there was a fence to divide
the lots. (ang lowest part nung slope nasa may fence na). SC: YES, but not based on the Civil Code but based on the LGC
Rana also filled up the portion where there is a slope. So the Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to
soil is actually putting pressure on the perimeter wall order the closure and removal of illegally constructed
between Rana and Uy. So, Uy and Wong filed and action for establishments for failing to secure the necessary permits.
abatement of nuisance and damagaes against Rana. During
the pendency of the case, Wong filed a motion for leave to be Section 444.The Chief Executive: Powers, Duties,
allowed to bring heavy equipment for the development of his Functions and Compensation. –
lot to the use of the subject road as access to his lot. It was
granted. But what he did was pinatag niya ‘yung may ramp. xxxx
So Rana nanaman could not exit from his garage. (b) For efficient, effective and economical governance the
purpose of which is the general welfare of the municipality
Is the ramp a nuisance? and its inhabitants pursuant to Section 16 of this Code, the
municipal mayor shall:
SC: YES. The nuisance that affected Wong is the fifth kind of
that which obstructs the use of public road. Half of the road xxxx
was eaten up by the ramp. The motorists could only use only (4) Initiate and maximize the generation of resources
one side of the road. That’s a nuisance. and revenues, and apply the same to the
implementation of development plans, program
Is the filling up of soil against the perimeter wall a nuisance? objectives and priorities as provided for under
SC: YES. It endangers the safety of the neighbor because of Section 18 of this Code, particularly those resources
the soil that is putting pressure on the perimeter wall. and revenues programmed for agro-industrial
According to the SC, Rana must put a retaining wall which is development and country-wide growth and
sturdier. progress, and relative thereto, shall:
(5)
Definitely Uy and Wong availed of the right remedy. xxxx
(vi) Require owners of illegally constructed
When Wong made patag (haha conyo si maam 😊) the road, houses, buildings or other structures to obtain the
what did he in effect do? necessary permit, subject to such fines and
penalties as may be imposed by law or ordinance,
SC: Wong made an extra-judicial abatement of the nuisance. or to make necessary changes in the construction
When you already file a civil action to abate a nuisance, he of the same when said construction violates any
cannot extra-judicially abate. Or even if you can, you must get law or ordinance, or to order the demolition or
the approval of the proper government entity because it is a removal of said house, building or structure
requirement under Article 703 and 704 which says that when within the period prescribed by law or ordinance.
extra-judicial abatement is done, there must be
determination by the proper government entity - either (1)

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Here, the application for the permit was denied. Therefore,

the building was illegally constructed. So, the LGC gave the Illustration:
mayor the authority to demolish.
Property of B
Same thing happened in –

RP V. MIJARES (2009) Property of A

There were squatters in a government facility which is a
Philcomsat lot. This is the satellite of the Philippine ROAD
government. So, meron pa lang mga nagbahay ‘dun na mga
squatters. They were removed by the mayor. According to
the squatters, they cannot be summarily removed. There is a lot belonging to A and B. As you can see, B, has no
access to the highway.
Are they nuisance?

SC: YES, under the fifth kind or that which impairs the use of Property of B
property.
Way
Can they be summarily abated or removed without going to Property of A (Easement)
court?
ROAD
SC: YES, not under the Civil Code but under PD 1845 and PD
1848 which declared that area as a security zone to ensure its So, if A grants an easement of right of way in favor of B
security and uninterrupted operation considering the vital through the property of A, he is imposing upon his own
role of the earth station in the country’s telecommunications immovable an encumbrance for the benefit of another
and national development. Here, a special law was applied to immovable belonging to a different owner. This is a real
authorize the removal of the squatters from the security zone easement.
where the Philcomsat house its satellite.
What if the property is not that of B, but maybe a barangay ,
school, or market, etc.? So, if A grants a right of way for the
TITLE VII. - EASEMENTS OF SERVITUDES people to go to the barangay, that is a personal easement –
CHAPTER 1. - EASEMENTS IN GENERAL for the benefit of the community or of one or more persons.

KINDS OF ESTATE IN EASEMENTS

The terms easements and servitudes are interchangeably
1. SERVIENT estate
used in the Civil Code.
 One that is burdened by an easement.
▪ EASEMENTS – used in common law countries like
U.S.  In the example above, the servient
▪ SERVITUDES – used in civil law countries; broader estate is that of A.
than easements 2. DOMINANT estate
 One which is benefited as a result of an
In the Philippines, although we are a civil law country, we are easement
more familiar with the term “easements”.  In the example above, the dominant
estate is that of B
 NOTE: In personal easement, there is no
SECTION 1. - DIFFERENT KINDS OF EASEMENTS dominant estate.

Article 613. BORBAJO V. HIDDEN VIEW (2005)

An easement or servitude is an encumbrance imposed Borbajo is a lot owner in Hidden View subdivision. He has two
upon an immovable for the benefit of another immovable lots in the subdivision. She also bought the property behind
belonging to a different owner. Hidden View and developed it into her own subdivision (the
subdivision has two main gates – in front and in the back).
The immovable in favor of which the easement is Because there was no access to the mainroad, pinadaan niya
established is called the dominant estate; that which is ‘yung mga trucks niya to go to her own subdivision. So, the
subject thereto, the servient estate. (530) homeowners of the Hidden View became very irritated with
the passage of the heavy equipment. So, the Homeowner’s
Association decided to close the entrance at the back portion.
Article 614. So, the trucks of Borbajo were not allowed to enter. Borbajo
Servitudes may also be established for the benefit of a claims that she is entitled of a legal easement of right of way
community, or of one or more persons to whom the claiming that she does not have access to the road.
encumbered estate does not belong. (531)
Is she entitled to an easement of right of way through the
DEFINITION OF EASEMENT OR SERVITUDE roads of the Hidden View subdivision?
It is an encumbrance imposed upon an immovable for the
benefit of either: SC:NO. She is not entitled to an easement of right of way.
▪ For the community or of one or more persons Because an easement is an encumbrance that is imposed
(PERSONAL EASEMENTS) upon an immovable for the benefit of another immovable
▪ another immovable belonging to a different owner that belongs to a different owner. If you remember in our
(REAL EASEMENTS) discussion on condominiums, under the Condominium Law all
the unit owners are co-owners of the common areas. Pareho
The most popular kind of easement is the easement of road lang ‘yan sa subidivisions. So, Barbajo is a lot owner.
right of way. Therefore, she is a co-owner of the roads in the subdivision.

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

As a co-owner of the roads and the owner of the lots behind encumbrance on real property, be annotated on the title of
the subdivision, hindi pwede ang easement because the servient estate.
kailangan separate owners.
Example: A is the servient owner and B is the dominant owner.
Can the trucks pass through the roads of Hidden View ▪ What if B sells his lot to C? Walang naka-register
subdivision? na encumbrance sa title ni B. So, there was a
transfer of title to C. Does that mean that the
SC: YES. Because we already know in our discussion in co- easement of B is extinguished?
ownership, that a co-owner can use the property owned in NO, because there is no need to annotate on the
common as long as she was using it for the purpose for which dominant estate’s title?
it was intended. Para saan ba ‘yung mga daan? Para daanan! ▪ What if A sells his property to D? Then, there is no
annotation of the encumbrance in the title. What
Article 615. is the effect?
Easements may be continuous or discontinuous, apparent It extinguishes the easement.
or nonapparent.
GENERAL RULE: Unrecorded encumbrance of easement of
Continuous easements are those the use of which is or right of way in the title extinguishes the easement if the
may be incessant, without the intervention of any act of servient estate is transferred to a 3rd person.
man.
EXCEPTION:
Discontinuous easements are those which are used at ▪ The grantee knew of the existence of the
intervals and depend upon the acts of man. easement.
▪ There is an understanding or obligation that the
Apparent easements are those which are made known and easement would continue to exists
are continually kept in view by external signs that reveal
the use and enjoyment of the same. Article 618.
Easements are indivisible. If the servient estate is divided
Nonapparent easements are those which show no between two or more persons, the easement is not
external indication of their existence. (532) modified, and each of them must bear it on the part which
corresponds to him.
Article 616.
Easements are also positive or negative. If it is the dominant estate that is divided between two or
more persons, each of them may use the easement in its
A positive easement is one which imposes upon the owner entirety, without changing the place of its use, or making
of the servient estate the obligation of allowing something it more burdensome in any other way. (535)
to be done or of doing it himself, and a negative easement,
that which prohibits the owner of the servient estate from Easements are indivisible. If the estates are divided, the
doing something which he could lawfully do if the easement is not modified. Just read 618.
easement did not exist. (533)
CHARACTERISTICS OF AN EASEMENT
Article 615 and 616 gives you the kinds of easement. We will 1. It is a real right.
not dwell on what the definitions are. That is very simple. 2. It is imposable only on another’s property.
3. It is a limitation or encumbrance on the servient’s
Article 617. estate for another’s benefit.
Easements are inseparable from the estate to which they 4. It is intransmissible.
actively or passively belong. (534)  You cannot transfer an easement. You
can only transfer the land
If you there is an easement of right of way on the lot of A in 5. It is indivisible.
favor on the lot of B, that easement of right of way is part of 6. It is inseparable from the estate to which it belongs.
the estate of A. It is not separate.
Article 619.
If that easement of right of way is separate from that of A, it Easements are established either by law or by the will of
is not an easement. It is just another lot. If independent to the owners. The former are called legal and the latter
the lot that they are attached, they do not exist. voluntary easements. (536)

CONSEQUENCES OF INSEPARABILITY WAYS OF ESTABLISHING AN EASEMENT (FROM THE POV OF

It cannot be – THE GRANTOR)
▪ Sold 1. By LAW
▪ Donated  It is also called as LEGAL Easements
▪ mortgaged independently to the real property to  Even if the owner does not agree, if it is
which they are attached. the law that establishes it, then the
owner cannot do anything about it.
Example: A cannot sell the easement to B. But he can sell the 2. By WILL OF THE OWNER
property where the easement is. So, kailangan niyang i-  It also called as VOLUNTARY easements.
subdivide ‘yan at ibenta ‘yung portion, not as an easement but
as a separate parcel of land. One goes to court asking for a legal easement of right of
way. Are there judicial easements?
EFFECT OF REGISTRATION OF THE EASEMENT? It is not the court that establishes the easement. It is the court
If you are the dominant owner and there is an easement in which will say that there is an easement established by law. It
your favor, you better insist that the easement, which is an is not creating one, but merely declares the existence of an

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

easement – whether created by law or by will of the owner of Do you need just title? No.
the servient estate.
The important thing is you know when to start counting the
ten year period.
SECTION 2. - MODES OF ACQUIRING EASEMENTS
Let’s go to the cases.
Article 620.
Continuous and apparent easements are acquired either LIWAG V. HAPPY GLEN LOOP (2012)
by virtue of a title or by prescription of ten years. (537a) FGR is the developer of Happy Glen Loop Subdivision. When
he developed it, he placed a water facility on Lot 11, Block 5
WAYS OF ACQUIRING AN EASEMENT (FROM THE POV OF of the Subdivision. What are those facilities? That would be
THE GRANTEE) the water treatment, mga tangke, sewage systems, etc. that
1. By virtue of a TITLE provides the water to the homeowners. For thirty years, the
2. By PRESCRIPTIONOF 10 YEARS residents of the subdivision relied on this facility as their only
 620 says that continuous and apparent source of water. Now, itong si FGR may utang kay Marcelo.
easement may only be acquired through So, to pay the debt, FGR assigned all the rights over the
prescription. The rest can only be remaining lots to Marcelo. Now, Marcelo is the owner of the
acquired by virtue of a title. remaining lots in the subdivision. Anong ginawa ni Marcelo?
He sold Lot 11, Block 5 where the water treatment facilities
Why? Because of Article 1188 - were located to a certain Mr. Liwag. Eto naming si Mr. Liwag,
“Possession has to be in the concept of di niya tiningnan ‘yung lote. Binili niya lang. Later, Mr. Liwag
an owner, public, peaceful and died. Mrs. Liwag now wanted to construct a house on the lot.
uninterrupted.” Siyempre, if you are an owner in the subdivision and ¾ of your
lot is occupied by water treatment facilities, di ka pa papalag?
If it is discontinuous, it is interrupted. If Remember, that an owner has a right to enjoy the entire
it is apparent, it is not public. Therefore, property! Now, Mrs. Liwag wrote to the association and
it must be continuous and apparent. imposed that the facilities be removed form her lot. She said
that as an owner, she has the right. Remember the limitations
COSTABELLA VS. CA (1991) on ownership like the impositions?
There was this path which belongs to Costabella Hotel. Pero
at that time, the hotel was still small. So, meron siyang empty Does an easement of water facility exist on Lot 11, Block 5?
lot na katabi. There was this path that was ebing used by the
residence of the area – they pass through that lot since time SC: YES. Therefore, walang choice si Mrs. Iwag but live with
immemorial. Sino may-ari? Si Costabella. So, Costabella the easement. Pwede siya magpahawa nang bahay pero she
decided to expand the hotel and wanted to build in the empty has to allow that water treatment facility to remain there.
lot na dinadaanan ‘nung mga people (conyo tologoh!). So,
sinara nila. Here comes the people saying that they have been How did the homeowners established the easement?
using the path since time immemorial and concluded that
they acquire the easement of right of way through SC: It was established through the voluntary will of FGR, the
prescription. Therefore, Costabella no longer has the right to owner of the lot.
close that area or prevent them from passing through that
area. How was it acquired?

Did the people acquired the easement of right of way through SC: The title could either be:
prescription? 1. The law; or
2. The voluntary will of the owners.
SC: NO. The Supreme Court has been unanimous and
consistent in declaring that an easement of right of way is This one was acquired by virtue of the title through the
discontinuous. It may be apparent – you may be able to see voluntary will of the owner of the lot. But at the same time,
it – but it is discontinuous because it depends on the usage of it was also acquired by prescription. Why? Because it has
man. S been there for thirty years. Is it apparent? Yes, it can be seen.
Is it continuous? Yes, kasi may pagka-aqueduct din ito. So,
being apparent and continuous, it was acquired through
Art. 646.
prescription.
For legal purposes, the easement of aqueduct shall be
considered as continuous and apparent, even though the
Let’s continue.
flow of the water may not be continuous, or its use
depends upon the needs of the dominant estate, or upon
From what point do you count the 10-year prescriptive
a schedule of alternate days or hours. (561)
period in order to acquire an easement by prescription?
▪ If it is a POSITIVE EASEMENT, you count from the
AQUEDUCT day the dominant estate began to exercise it.
By express provision of law, an aqueduct is considered as (Memorize this!)
continuous and apparent kahit hindi nakikita because it is ▪ If it is a NEGATIVE EASEMENT, begin counting from
under the ground and even though there is no water. Ano ba the time notarial prohibition was made by the
ang aqueduct? Daanan nang tubig diba? (AQUA – water; dominant estate on the servient estate.
DUCT – passage way)
Illustration on how easement is acquired though
Thus, it can be acquired through prescription. prescription:
▪ POSITIVE EASEMENT
What is the period of prescription?10 years.
A and B are neighbors and they own a party wall.
Is there good faith and bad faith? No. What’s a party wall? It is a wall between two

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4-Manresa | Ateneo de Davao University College of Law

estates that is on the boundary line. There is a That is LEGAL OBSTRCUTION. So, B can construct
presumption that that wall is party wall and is on his lot provided the construction is three (3)
governed by the rules of co-ownership. meters away from the boundary line.

Under the succeeding provisions, it is states that no What if you B is a commercial lot owner in the city? Diba dikit-
co-owner is allowed to make a window in a party dikit ‘yan sila? You can build up to the boundary line! Sa
wall without the consent of the other. Bawala ‘yan. subidivision lang naman ‘yang may two or three or whatever
meter restriction na pinipirmahan. B can build up to the
If A makes a window in the party wall in January 15 boundary line provided A has not acquired the easement. So,
2000, can B close the window? YES, he can close it before 10 years from the notarial prohibition, he can build up
or demand that A close it at any time. Kasi nga to the boundary line.
bawal. That is his legal right.
But if A acquired the easement, because of the notarial
What ifB is tamad and he did not have it closed and prohibition, the building of B must be three (3) meters away.
it is already January 16, 2010, can B close it? NO. That is what obstruction means – legal and not physical
Because A already acquired the easement of light obstruction.
and view by prescription of ten years counted by
the time the window was opened in January 15, EASEMENT OF LIGHT AND VIEW
2000. So, ‘yung kay A easement of light and view ‘yun. He can enjoy
the morning sun and he has the view of the lot of B.
So, if it is a positive easement, you count from the
date the dominant estate began to exercise it – the Is it positive or negative? It depends.
day the window is opened.
If it is made on one’s own wall and the wall does not extend
▪ NEGATIVE EASEMENT on the neighbor’s lot, that is NEGATIVE.
In 1997, A opened a window on the wall of his
house beneath the ceiling joists to admit light. POSITIVE - If it is made on one’s own wall which extends over
the neighboring land or if made on a party wall.
Lot A Lot B
Article 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. (540a)

2 meters This refers to EASEMENTS ACQUIRED BY VIRTUE OF A TITLE.

The title is either (1) the law; or (2) voluntarily given.
A has a house with a window two meters from the
party wall. B has a lot with no house. When B PROVING THE EXISTENCE OF EASEMENTS
opened the window, can B obstruct the light? How do you prove the existence of an easement acquired by
virtue of a title? If you have a deed of recognition of the
YES. If does not made a notarial prohibition servient estate’s owner. It could be a letter, annotation on
prohibiting B from making the obstruction, B can the title, whatever as long as the servient estate recognized
obstruct the light. the fact that he voluntarily established an easement.
Therefore, the dominant owner acquired it by virtue of a title
What if A make the notarial prohibition in 1997 and and that is the proof.
B made an obstruction in 2004?
How do you prove the existence of a legal easement? The
YES, B can still obstruct the light because it’s only final judgment of the court that says that there is indeed a
2007. 8 years pa lang. You count not from the legal easement of, for example, right of way that the
opening of the window but from the time of dominant owner should enjoy
notarial prohibition.
BOGO-MEDELLIN MILLING V. CA (2003)
What do you mean by OBSTRUCTION? Do you Feliciana Santillan owns a large track of land in Medellin,
mean that B cannot build on his own lot? Diba an Cebu. It is unregistered. She sold the lot to Magdaleno Valdez
owner has the right to enjoy his property? Diba an in December 9, 1935. Prior to the sale, there was already
owner can build as high as he can as long as can railroad tracks traversing the property. The railroad tracks
benefit from it? Then, tinakpan niya ‘yung where constructed by BOMEDCO (Bogo-Medellin Milling Co).
sunlight. Can he do it? Is this considered as The tracks were used for hauling sugar cane from the fields to
obstruction? the sugar mill. Santillan, the original owner, actually granted
There is only physical obstruction. What we are to BOMEDCO a rail road right of way for thirty (30) years –
talking here is LEGAL OBSTRUCTION. that was in 1929. In 1935, binenta niya to Valdez – six (6)
years pa lang. So, Valdez respected it. It was to expire in
Article 673. Whenever by any title a right has been 1959. Meanwhile, namatay na si Magdaleno Valdez and his
acquired to have direct views, balconies or heirs now are the owners of the property. Now, the heirs are
belvederes overlooking an adjoining property, the saying to Bomedco to get out and remove the rail road tracks
owner of the servient estate cannot build thereon since nag-expire na ‘yung railroad right of way.
at less than a distance of three (3) meters to be ▪ BOMEDCO alleged that they already acquired
measured in the manner provided in article 671. ownership over that strip of land through
acquisitive prescription kasi unregistered. They

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4-Manresa | Ateneo de Davao University College of Law

have been using it since 1929 and it is already more title for value in good faith shall hold the same free of all
than thirty (30) year since then. encumbrances, except those noted on said certificate, and
▪ Even if, according to them, they did not acquire any of the following encumbrances which may be
that portion of the land, they acquired the subsisting namely:
easement of right of way by prescription.
xxx
SC: BOMEDCO did not acquire ownership of the strip of land Third. Any public highway, way, private way, ... or any
by acquisitive prescription because the possession was not government irrigation, canal, or lateral thereof ...”
adverse – not in the concept of owner. BOMEDCO recognized
ownership by Santillan then Valdez. So, this easement of roadway which belongs to the City of
Davao was acquired by virtue of a title and not by prescription
Also, there is no acquisition of right of way by prescription kasi hindi pwede. The title is the law which is Section 39 of
because this is an easement of right of way which is Act 496.
discontinuous. Therefore, it cannot be acquired by
prescription. You have to distinguish this from those roads na naga-
encroach on private properties after the issuance of the title.
The SC said that whatever easement BOMEDCO acquired I Kunwari you discovered namerongnag-encroach na road, you
virtue of a title disappeared when it expired. look at your title – 1900. Kailan ginawa yung daan? 1950.
Pwede ba sabihin nang government na they already acquired
What could BOMEDCO have done? According to the SC, it by prescription? No, that is not based on Act 496. It must
BOMEDCO never acquired any title over the use of the exist before the issuance of the title. If it exists after the
railroad right of way whether by law, donation, testamentary issuance of the title, the government must expropriate. Wala
succession or contract. Its use of the right of way, however nang easement.
long, never resulted in its acquisition of the easement. If
BOMEDCO (1) subsequently entered into a contractual right In the case of Velasco, she still owns that portion but the City
of way with the heirs for the continued use of the land under of Davao has the right to use it because it is already an
the principles of voluntary easements or (2) it had filed a case easement acquired by virtue of a title.
against the heirs for conferment on it of a legal easement of
right of way under Article 629 of the Civil Code, then title over
the use of the land is deemed to exist. But BOMEDCO did not September 10, 2018
do such thing. Therefore, BOMEDCO did not have any
easement of railroad right of way over the property. (Review on the Modes of Acquiring Easements)

DELA CRUZ V. RAMISCAL (2005) So, from the point of view of one who is benefited, easement
According to Dela Cruz, they were passing through a path on may be acquired either by virtue of a (1) title and (2) by
the property of Ramiscal for the longest time. Alam niyo prescription.
naman na this is a right of way and could not be acquired
through prescription. But they were alleging that they What do you mean by title?
acquired it by virtue of a title through voluntary will of the By the VOLUNTARY WILL of the owner or by the agreement
owner. Kasi, nagpaalam daw sila ‘dun sa caretaker nung may- of the parties, so there must be some kind of a proof, eg.
ari. At pinayagan daw sila nung caretaker na dumaan doon. donation, deed of assignment, or any document, agreement
wherein an easement is granted by the owner.
Is that enough?
Other way is BY LAW.If the easement was established by law.
SC: NO. When you talk about voluntary will, it must be the
owner of the servient estate, not a mere caretaker. It is, Acquisition by prescription takes 10 years. This can only
therefore, foolhardy for Dela Cruz to believe that the alleged happen if the easement is continuous and apparent. We know
foreman of Ramiscal had the authority to bind Ramiscal that the easement of a right of way is discontinuous. Included
relating to the easement of right of way. in that term “right of way”, we have rail road tracks.

Let’s go to a very important case which is a Davao case – Included also in that term, “right of way” is in the case of
VELASCO v CUSI.If the City is using property as part of the
FE VELASCO V. CUSI (1981) road, that is also considered a right of way and that cannot be
The lot of Velasco is beside Bolton Street. The lot has been acquired by prescription.
owned by Velasco since the beginning of 19th century. In
1970, Velasco discovered that a portion occupied by Bolton In VELASCO v CUSI it was acquired by virtue of a title because
Street is actually part of his property – 2.5-meter wide and 10- the road was already subsisting before the title (OCT) was
meter long. Nakalagay sa titulo! The mother title, OCT 638, issued. It was issued in 1911 but the road was already
was issued in 1911. But, Bolton Street was there before 1911. subsisting before that. What is the basis of saying that it was
Now, Velasco is saying that the government has no right to by virtue of a title? ACT 496, Sec. 39.
use her property because it is equivalent to an easement of
road way. And we know very well that it cannot be acquired Article 624.
through prescription because it is discontinuous. The existence of an apparent sign of easement between
two estates, established or maintained by the owner of
Is an easement of road way acquired by the City of Davao? both, shall be considered, should either of them be
alienated, as a title in order that the easement may
SC: YES. Looking at the basis for the titles in the name of the continue actively and passively, unless, at the time the
registered owners, it is based on provisions of Section 39 Act ownership of the two estates is divided, the contrary
496 which says – should be provided in the title of conveyance of either of
“Every person receiving a certificate of title in pursuance them, or the sign aforesaid should be removed before the
of a decree or registration, and every subsequent execution of the deed. This provision shall also apply in
purchasers of registered land who takes a certificate of

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4-Manresa | Ateneo de Davao University College of Law

case of the division of a thing owned in common by two or When will the easement be considered not to exist?When
more persons. (541a) the contrary should be provided in the title of conveyance of
either of them or the sign aforesaid should be removed before
Art. 624 is one the most important provisions in easements. the execution of the deed.

We have an estate that is originally owned by one owner. In CARGANTOS v TAN YANON that is exactly what happened
and the SC said that the existence of the doors and windows
CARGANTOS V TAN YANON on the eastern side of the house is equivalent to a title for the
We have A who is the original owner of the estate and then visible and permanent sign of an easement, is the title that
there is a house with big windows which receives morning sun characterizes its existence. The SC continued, it should be
and there is a garden with a little pond, some trees, there is noted however when the law declares that an easement is to
view and light. continue, the easement actually arises for the first time ONLY
UPON ALIENATION of either estate in as much as before that
there is no easement to speak of.

TANEDO V BERNAD
Same situation, the estate was originally owned by A and the
estate had a multi-story building and on the other side of the
building was a septic tank. There were pipes going to the
septic tank from the other lot. A divided the estate into two
and alienated it to X and Y. Y wanted to block and cut-off the
(pictures/illustrations taken from the notes of ms. Algene pipes because he did not want the septic tank in his lot to be
cutamora) used anymore by the building.

A divides the estate into two. There exists an apparent sign SC: Y cannot block the septic tank because there is an
of easement between the two estate. Apparent sign that apparent sign of an easement. The apparent sign of an
there is an easement of light and view. easement does not have to be seen. Apparently, there is a
septic tank and there is a pipe going there from the building
What is the apparent sign?The fact that the big windows (to the lot of Y). The SC said, that the use of the septic tank is
receive the morning sun and the fact that there is a nice view continued by operation of law. The new owners of the
from the windows. servient estate who is X cannot impair in any manner
whatsoever the use of the easement. Here, this is an
A alienates the estate (left side) to X and (the right side) to Y. easement of drainage.

What are the effects of alienations to different EXCEPTIONS:

persons?GENERAL RULE is that the existence of apparent
signs of easements shall be considered as a title in order for ANECO v LANDEX
the easement to continue actively and passively. We have here, FHDI, the original owner of this stretch of land.
FHDI is a subdivision developer, it already had a subdivision
From the Book of Paras: plan made wherein there are already certain lots in the plan
When the estate is owned by A, there was no easement to and there were certain road lots. FHDI changed its mind and
speak of because if there is only one owner, there is no did not push through with the subdivision but instead sold the
easement. But when he divided the estate, there would be an lots to ANECO. Both parties were informed by FHDI that it
apparent sign of easement there of light and view. already abandoned their plan to make a subdivision and they
just sold the lots as ordinary lots.
Easement only comes into easement when the estate is
divided and alienated. What did Landex do? Placed a wall to block-off ANECO.
ANECO was saying that there was an apparent sign of
How was the easement acquired?In this case, by virtue of a easement when FHDI sold the road lots, hence, Landex cannot
title because if the law says it shall be considered as a title. In block the road lots because of the existence of the apparent
other words, X now has an easement of light and view. signs of easements.
Therefore, Y cannot obstruct the light and view enjoyed by X.
Is Aneco correct?
What do you mean by obstruction? LEGAL obstruction.
SC: NO. Because at the time of the sale, the lots sold by FHDI
Y can still build on his land, he can build a skyscraper on his were not subdivision lots based on the express stipulations in
land but it must not be less than three meters from the the deed of sale. FHDI was no longer interested in pursuing its
boundary line. subdivision plans. Whatever alleged road lots were there in
the plan ceased to be road lots. Here, the contrary was
Is notarial prohibition required?NO. Because notarial provided in the title of the conveyance. They were informed
prohibition will just start the running of the prescriptive that those were not road lots anymore but ordinary lots.
period if the easement is once to be acquired by prescription. Therefore, there is no easement to speak of.
There is no need for the 10 year prescriptive period because
the easement was already acquired by virtue of a title. PRIVATIZATION v LEGASPI (BAR Q)
Caruff Development owned four lots in Roxas
So, you have to distinguish between the negative easement Boulevard.Caruff wanted to develop a condominium project
which is acquired by prescription and this easement which is and borrowed money from the DBP(PNB) and mortgage (Let
acquired by title Art. 624. Instant yan. The moment the estate say we have lots 1,2,3,4, so we have 1,2,3 which were
is divided into two andyan na yang easement of light and mortgage) to DBP(PNB). The amount borrowed was used to
view. build three condominiums (The Legaspi Towers) in Roxas
Boulevard. This Lot 4 is where the power house and the water
pumps. From Lot 4 comes the water source and the source of

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

SECTION 3. - RIGHTS AND OBLIGATIONS OF THE OWNERS

OF THE DOMINANT AND SERVIENT ESTATES

Article 627.
The owner of the dominant estate may make, at his own
expense, on the servient estate any works necessary for
the use and preservation of the servitude, but without
altering it or rendering it more burdensome.
electricity of the three condominium towers. Later, Caruff was
not able to pay for the loan and PNB foreclosed. The Asset For this purpose he shall notify the owner of the servient
Privatization Trust (APT) took over the foreclosed assets of estate, and shall choose the most convenient time and
PNB. There three lots (Lots 1,2,3) were foreclosed by APT. The manner so as to cause the least inconvenience to the
Lot 4 was left to the Legaspi Homeowners Association. So, owner of the servient estate. (543a)
there are now two owners, APT and Legaspi wala na si Caruff.
(Caruff still own the Lot 4)
Article 628.
Should there be several dominant estates, the owners of
Before it was transferred to Legaspi, Caruff entered into an
all of them shall be obliged to contribute to the expenses
agreement with APT that Caruff would swap Lot 4. APT
referred to in the preceding article, in proportion to the
accepted Lot 4 so that Lots 1,2,3 of Caruff were turned over
benefits which each may derive from the work. Any one
to Legaspi Towers Homeowners Association. APT wanted to
who does not wish to contribute may exempt himself by
remove the power house and the water pumps from Lot 4.
renouncing the easement for the benefit of the others.
According to Legaspi Towers Homeowners Association there
was an apparent sign of an easement and therefore it should
be allowed to continue and it even went saying that Caruff Article 629.
instituted a voluntary easement when it constructed the The owner of the servient estate cannot impair, in any
pump on the property but that cannot be so because Caruff manner whatsoever, the use of the servitude.
was the owner of the entire lot so there can be no voluntary
easement in favor of somebody else, so that is not the correct Nevertheless, if by reason of the place originally assigned,
argument. Now, alleging that Art. 624 applies, when the or of the manner established for the use of the easement,
property was divided into 2, one to APT and the other portion the same should become very inconvenient to the owner
to Legaspi Towers, there was an apparent sign of easement. of the servient estate, or should prevent him from making
any important works, repairs or improvements thereon, it
Is Legaspi Towers correct? may be changed at his expense, provided he offers
another place or manner equally convenient and in such a
SC: NO. Because in the agreement entered between Caruff way that no injury is caused thereby to the owner of the
and APT, it is stated that Caruff assigns, transfers, conveys in dominant estate or to those who may have a right to the
favor of APT all its rights, title and interests in Lot 4 situated use of the easement. (545)
at the back of the Legaspi Towers free from any liens and
encumbrances. An easement is an encumbrance. So, if it free Article 630.
from encumbrance then there is no easement. The owner of the servient estate retains the ownership of
the portion on which the easement is established, and
According to the SC, when the property was assigned to APT, may use the same in such a manner as not to affect the
no easement arose or was voluntary created from the transfer exercise of the easement. (n)
of ownership considering that the parties particularly Caruff
pledge that it was assigning, transfering and conveying the I will just discuss the obligation of the dominant owner under
subject property free from all liens and encumbrances. Art. 627. The dominant owner must not alter the easement
and he must not render it more burdensome. Eg. In an
Okay, so that is the exception. easement of right of way, he cannot turn it into a parking lot.

Art. 624 also applies to division of a thing owned in common

by two or more persons if there is co-ownership and they
partition.

Article 625.
Upon the establishment of an easement, all the rights
necessary for its use are considered granted. (542)

Just read it.

Article 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. (n)

So, if the easement is for the right of way, then he can only
use it as a right of way not as a parking lot. If the easement is
in favor of the estate of B, then is only for the estate of B and
not the estate of C. That's Art. 626.

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4-Manresa | Ateneo de Davao University College of Law

Whether or not the sugar cane of F,G, and H may pass through
the rail road tracks of A,B,C, and D.

HELD: The SC said YES. In the milling contract between North

Negros and A,B,C,D, and E, there was a provision there that
stated there that each hacienda owner must construct a rail
road on their own property that goes into the milling site. The
object of the milling contract for which arises the easement in
question is undoubtedly to obtain mutual benefits to the
producers of sugar cane and North Negros. In the contract
establishing an easement of way in favor of North Negros for
the construction of a rail road, it is contrary to the nature of
the contract to pretend that only sugar cane growing on the
servient estate can be transported on said rail roads. An
easement having been established in favor of North Negros,
A,B,C,D, and E cannot limit its use to the transportation of
their own sugar cane as there is no express stipulation to that
effect. Why? For there would be no need of an easement if
they only transport their own sugar (cane). The purpose of
having an easement of way is for North Negros to transport
other people's sugar, to pass through, kasi kung sarili lang nila
na sugar cane, then what is passing through, there is no
easement. Nobody is enjoying the easement.

According to A,B,C,D, and E, by allowing other's sugar canes

to pass through, their estates would make the easement more
burdensome. Are they correct?

HELD: The SC said NO. What is prohibited by Art. 627 is that

North Negros in extending the road reparing, it should occupy
a greater area of land of the servient estate or deposit
excavations or building materials outside of the area of 7-
meter but wala naman eh, 7 meters lang yung way, 7 meters
lang yung ginamit. There was no expanding of it. There was
no putting of anything outside of it. Therefore, just by bringing
through (passing through) with the sugar cane of other
hacienda owners does not make the easement more
burdensome. (North Negros) did not do anything beyond the
purpose of the easement. Even if the frequency doubled, it is
still the same 7 meter wide.

He is still the owner, there is an easement there. Can he use

it? Sure! He is still the owner, he is just allowing other people
to use it if there is an easement there.

PILAR v DUMADAG (2013)

Pilar Development – Pilar Village owned by the Villars (Manny)
in Las Pinas. Beside its subdivision, a registered lot (within
Pilar Village) which was designated as “open space” of Pilar
VALDERAMA V NORTH NEGROS SUGAR (EN BANC) Village intended for its recreational facilities and amenities for
The sugar mill of North Negros is situated in the center of subdivision residents. These open spaces are still owned by
several haciendas belonging to different owners. There are the subdivision developer (registered under the developer's
rail road tracks that traversed the different haciendas so that subdivision name). Apparently, the open space with a slopy
the sugar cane can be delivered to the milling site. In the areas going to the creek was occupied by certain Dumadag,
Hacienda of A, he uses the rail road tracks to deliver the sugar et. al. They built a chantice on a particular open space. The
mill na kinukuha ng North Negros dun dumadaan. There came land situated by Dumadag was situated on the slopy area
a time na North Negros wanted more supplies but the going down the creek and there is a 3-meter legal easement
(existing) hacienda owners did not cope up with the demand there. Pilar argues that although the portion of the lot
of the sugar cane. So, North Negros entered into contracts occupied Dumadag is within the 3-meter strip preserved for
with other hacienda owners. (North Negros traverses, using public easement, it still retains ownership thereof. The strip
the rail road tracks, thru the existing) haciendas to pick up the does not form part of the public dominion and Pilar Village
sugar cane from the outsiders. According to A,B,C,D, and E, cited Art. 630.
the easement of way which of them has established in their
respective haciendas was only for the transportation of the ISSUE: Whether or not Pilar is correct in citing Art. 630.
sugar canes of the owners thereof, therefore, North Negros
has no other right over the easement or otherwise cause its HELD: The SC said NO. There are special rules applicable here
locomotives and wagons to run across A,B,C,D, and E estate such as the DENR Administrative Order 99-21, RA 1273, PD
for the purpose of transporting the sugar canes of any 705, 1067. Section 2 of DENR AO ...when titled lands are
agriculturists or haciendas outside of it. subdivided or consolidated-subdivided into lots for residential,
commercial, industrial purposes the segregation of the three-
meter wide strip along the banks of rivers or streams shall be
observed and be made part of the ocean space requirement

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pursuant to PD 1216 and the strip shall be preserved and shall (6) By the redemption agreed upon between the
not be subject to subsequent subdivision...Hence, in the case owners of the dominant and servient estates.
of subdivisions, the allocation of the three-meter strip along (546a)
the banks of a stream is required and shall be considered as
forming part of the open-space requirement. GROUNDS FOR THE EXTINGUISHMENT
1. By merger in the same person of the ownership of
According to the SC, these special laws show that Pilar's
thedominant and servient estate”
ownership and possession has been limited by law with
respect to the three-meter strip.
When the dominant and the servient owner become one
person.
Under Art. 638, the banks of rivers and streams, even in case
they are of private ownership, are subject throughout their
CHARACTERISTICS -
entire length and within a zone of three-meters along their
1. The merger must be absolute.
margins, to the easement of public use in the general interest
2. There must be no condition.
of navigation, floatage, fishing, and salvage.
3. It must be complete not partial.
4. It must be permanent and not temporary.
So, if you are a riparian owner as in the case of Pilar Village,
they have a creek along the village. Three meters of that
CABACUNGAN v CORRALES
cannot be built on, cannot be used as a parks, you cannot
Mr. Corales was the neighbor of the Soria sisters. Let us say
because it is a legal easements of river banks. For navigation,
this is the lot of Mr. Corales. He has a house here and it is
floatage, fishing and salvage.
owned by sisters A,B,C,D, and E. Whenever it rains, the water
would fall on the other lot. Now if you look at Art. 674
Accrording to the SC, Pilar cannot touch it, build over it,
cannot even use it as a park. NO. So yung open spaces ng Pilar
Art. 674 The owner of a building shall be obliged
hanggang duon lang sa before the three-meter strip. What
toconstruct its roof or covering in such manner that the
about yung mga settlers? The SC said, Pilar cannot file an
rainwater shall fall on his own land or on a street or public
action publiciana because it cannot possess the three-meter
place,and not on the land of his neighbor xxx.
strip.
What he (Mr. Corales) did was he bought the shares of A and
What can Pilar do? File an action for mandamus to compel the
B. He became the co-owner of the land. If he did not buy,
local government of Las Pinas to enforce with reasonable
there would be a legal easement in favor of A,B,C,D, and E
dispatch the eviction, demolition, and relocation of
wherein this would be the dominant estate and the servient
respondents (Dumadag) and another persons similarly
estate wherein Q (?) is not allowed to have his water fall on
situated (in order to give flesh to one of the avowed policies
the neighboring estate. Now he is saying that he is already a
of RA 7279, which is to reduce urban dysfunctions,
co-owner and therefore the easement is extinguished, cause
particularly those that adversely affect public health, safety,
there is a merger.
and ecology.) So when it comes to such easement of three-
meter strip under Art. 638, although it is still owned by the
Art. 674 xxx even though the adjacent land may belong
owner of the land, the owner of the land cannot file action
totwo or more persons, one of whom is the owner of the
publiciana or an ejectment cases against anyone who is
roof. xxx
occupying but merely mandamus to compel the government
to be the one to remove these informal settlers. If you want
It does not apply even though he is a co-owner of the other
to read the case … (read it).
estate, he has still to respect the other estate by not letting
the water from his roof fall over there.

The SC said there is no merger that would extinguish the

SECTION 4. - MODES OF EXTINGUISHMENT OF EASEMENTS
easement because the merger was not complete. He did not
become the full owner of the estate. He is merely a co-owner,
Article 631. a partial owner. Therefore, easement is not extinguished.
Easements are extinguished:
(1) By merger in the same person of the ownership 2. By nonuser for ten years; with respect to
of the dominant and servient estates; discontinuous easements, this period shall be
(2) By nonuser for ten years; with respect to computed from the day on which they ceased to
discontinuous easements, this period shall be be used; and, with respect to continuous
computed from the day on which they ceased easements, from the day on which an act contrary
to be used; and, with respect to continuous to the same took place
easements, from the day on which an act
contrary to the same took place; From what point you count the 10-years? The easement may
(3) When either or both of the estates fall into such be acquired by prescription, an easement may also be lost or
condition that the easement cannot be used; extinguished by prescription.
but it shall revive if the subsequent condition of
the estates or either of them should again So, if it is a right of way, from the point where it is no longer
permit its use, unless when the use becomes used at all. Count from that date.
possible, sufficient time for prescription has
elapsed, in accordance with the provisions of If it is continuous, the period should be computed on the day
the preceding number; which an act contrary to the same took place. An example of
(4) By the expiration of the term or the fulfillment a continuous easement is an easement of aqueduct. If it is
of the condition, if the easement is temporary blocked or cut-off, wait 10 years and it will extinguish. It can
or conditional; be revived as long as the 10-year period has not yet elapsed.
(5) By the renunciation of the owner of the
dominant estate;

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BENEDICTO V CA AND HERAS period starts from the time it is possible to use again but it is
The original owner of the lot is Miriam Hedrick. She sold this not used. If is really extinguished not because of bad condition
lot to Claro M. Recto and Recto sold the lot to Benedicto. or impossibility but because of non-use for 10 years.
Hedrick sold the other lot to Heras. In the deed of sale from
Hedrick to the two buyers, there is a stipulation there which 4. By the expiration of the term of the fulfillment of
says there will be an easement of right of way wherein half the condition, if the easement is termporary or
will be taken from this lot and from that lot. The owners have conditional;
been using this easement. In the front of the lot of Heras,
there are several buildings. He would pass through here in Like in the case of Magdalena Valdez wherein the easement
order to go to the back. of right of way for the rail road tracks is only for a period of
30 years. After 30 years it is extinguished. It is up to the
In 1941, Heras demolished the buildings.In 1946, Benedicto dominant estate owner to ask for an extension or to renew. It
put a wall para di na makadaan si Heras. There was an issue is extinguished.
that this portion nakuha lahat ng lote niya.In 1955, Heras filed
an action against Benedicto to open those walls because 5. By the renunciation of the owner of the dominant
there was an existing easement that was volunarily estate; and
established by the original owner, Hedrick.
The right here belongs to the dominant owner, so he can
According to Benedicto, the action has prescribed. The renounce his right.
easement was already extinguished by non-use for 10 years-
in 1941, the buildings were demolished so Heras no longer From Cutie Notes: For renunciation to be a ground for
needed the alley way, he can go to his lot from the front. extinguishment, it must be:
a. Express
ISSUE: Was the easement extinguished? b. Clear
c. Specific
HELD: NO. Because according to the SC, the non-use must be
indubitable, meaning, it was proven that or no doubt that he It cannot be implied. So, it cannot be confused with non-use.
did not use that easement anymore from 1941. This does not require a prescriptive period. According to our
author, it can be tacit or implied as long as there are acts
If it is just an allegation, that is not enough to establish to start which express renunciation beyond doubt. That is a matter of
the running of the 10-year period. The SC said that in any case proof now which can be brought to Court.
if ever there was non-use, it only started in 1946 when he
blocked it. From that point hindi na talaga magamit ni Heras. GENERAL RULE:Renunciation must be expressed.
If you count 1946 to 1955, when the action was filed, it is only
9 years. Therefore, the easement was not extinguished. EXCEPTION:It can be implied if there are acts showing
renunciation beyond doubt.
There was another allegation that it was no longer necessary
and if you look at Art. 655 under legal easement. If the 6. The redemption agreed upon between the
easement is no longer necessary, the owner of the servient owners of the dominant and servient estates.
estate can actually demand that the easement be
extinguished. Yun ang sabi ni Benedicto, it is no longer They can agree on the redemption if they want.
necessary. So he is demanding that the easement be
extinguised. From Cutie Notes: The grounds under Art. 631 are not
exclusive.
ISSUE: Is he correct?
OTHER CAUSES OF EXTINGUISHMENT OF EASEMENT
HELD: NO. Because Art. 655 is under legal easements. It only 1. Expropriation of the (entire) servient estate
talks of legal easements of right of way. This is a voluntary 2. Permanent impossibility to make use of the
easement. So it does not matter if it is needed or not. If it was easement
voluntarily established by the owner, the non-necessity will 3. Annulment or rescission of the title constituting
not extinguish the easement. Non necessity will only the easement
extinguish an easement which a legal easement. 4. Abandonment of the servient estate
5. Dissolution of the right of the grantor to create
3. When either of both of the estate fall into such the easement as when there is redemtption of the
condition that the easement cannot be used; but property sold a retro
it shall revive if the subsequent condition of the 6. Registration of the servient estate as free
estates or either of them should again permit its  Unless there is a document or admission
use, unless when the use becomes possible, by the servient owner
sufficient time for prescription has elapsed, in 7. In case of legal easement of right of way, the
accordance with the provisions of the preceding opening of an adequate outlet to the highway
number;(BAD CONDITION OR IMPOSSIBILITY OF
USE) Article 632.
The form or manner of using the easement may prescribe
Kung binaha ang right of way for 20 years at hindi nagamit as the easement itself, and in the same way. (547a)
for 20 years,according to the provision it is extinguished,
however, it shall revive if the subsequent condition of the
Article 632.
estate either of them should again permit its use.
The form or manner of using the easement may prescribe
as the easement itself, and in the same way. (547a)
Let us say, nagdry up ang right of way na naging river after 20
years and now it can be used, so is it extinguished? No, it is
revived. It will only be extinguished if upon revival when it’s Easement is indivisible.
possible for use, nobody uses it for 10 years. So, the 10-year

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4-Manresa | Ateneo de Davao University College of Law

CHAPTER 2. - Legal Easements

SECTION 1. - General Provisions Article 638.
The banks of rivers and streams, even in case they are of
Article 634. private ownership, are subject throughout their entire
Easements imposed by law have for their object either length and within a zone of three meters along their
public use or the interest of private persons. (549) margins, to the easement of public use in the general
interest of navigation, floatage, fishing and salvage.
LEGAL EASEMENTS
They are those that established by law. Estates adjoining the banks of navigable or floatable rivers
are, furthermore, subject to the easement of towpath for
We have legal easements really for the public, for the benefit the exclusive service of river navigation and floatage.
of the public. But we also have legal easements for private
persons. Like a legal easement of right of way. If it be necessary for such purpose to occupy lands of
▪ For public use private ownership, the proper indemnity shall first be
▪ For the interest of private persons paid. (553a)

Article 635. Article 639.

All matters concerning easements established for public Whenever for the diversion or taking of water from a river
or communal use shall be governed by the special laws or brook, or for the use of any other continuous or
and regulations relating thereto, and, in the absence discontinuous stream, it should be necessary to build a
thereof, by the provisions of this Title. (550) dam, and the person who is to construct it is not the owner
of the banks, or lands which must support it, he may
Easements established for public or communal use shall be establish the easement of abutment of a dam, after
governed by: payment of the proper indemnity. (554)
1. Special laws and regulations
2. Provisions of the Civil Code Article 640.
Compulsory easements for drawing water or for watering
PILAR VILLAGE v LAS PINAS animals can be imposed only for reasons of public use in
Even though we have Art. 635, there is a special law that says favor of a town or village, after payment of the proper
that even if you're not the owner of the lot and there is a legal indemnity. (555)
easement there for public use, navigation, floatage, and all
those, you cannot use it for any purpose. Those are special Article 641.
laws that will govern that. If there are no special laws, then Easements for drawing water and for watering animals
the provisions of this title. carry with them the obligation of the owners of the
servient estates to allow passage to persons and animals
What about easements for the interest of private persons? to the place where such easements are to be used, and
the indemnity shall include this service. (556)
Article 636.
Easements established by law in the interest of private Article 642.
persons or for private use shall be governed by the
Any person who may wish to use upon his own estate any
provisions of this Title, without prejudice to the provisions
water of which he can dispose shall have the right to make
of general or local laws and ordinances for the general it flow through the intervening estates, with the obligation
welfare. to indemnify their owners, as well as the owners of the
lower estates upon which the waters may filter or
These easements may be modified by agreement of the descend. (557)
interested parties, whenever the law does not prohibit it
or no injury is suffered by a third person. (551a)
Article 643.
Just read.
One desiring to make use of the right granted in the
preceding article is obliged:
LEGAL EASEMENT
(1) To prove that he can dispose of the water and
1. Easements relating to waters that it is sufficient for the use for which it is
 Art. 113 of The Law of Waters – a intended;
servient owner has the right to control (2) To show that the proposed right of way is the
the descent of the water. most convenient and the least onerous to third
2. The three (3) meter easement persons;
(3) To indemnify the owner of the servient estate
in the manner determined by the laws and
regulations. (558)
SECTION 2. - EASEMENTS RELATING TO WATERS
Article 644.
Article 637.
The easement of aqueduct for private interest cannot be
Lower estates are obliged to receive the waters which
imposed on buildings, courtyards, annexes, or outhouses,
naturally and without the intervention of man descend
or on orchards or gardens already existing. (559)
from the higher estates, as well as the stones or earth
which they carry with them.
Article 645.
The owner of the lower estate cannot construct works The easement of aqueduct does not prevent the owner of
which will impede this easement; neither can the owner the servient estate from closing or fencing it, or from
of the higher estate make works which will increase the building over the aqueduct in such manner as not to cause
burden. (552) the latter any damage, or render necessary repairs and

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cleanings impossible. (560) Who he must indemnify?The servient owners and the owners
of the lower estate upon which the water filter may descend.
Article 646.
What else is his obligation if he has a legal easement of
For legal purposes, the easement of aqueduct shall be
aqueduct?He must keep the aqueduct in proper use and care
considered as continuous and apparent, even though the
(Art. 130 of The Law of Waters) and to keep necessary
flow of the water may not be continuous, or its use
materials for its use (Art. 132 of The Law of Waters).
depends upon the needs of the dominant estate, or upon
a schedule of alternate days or hours. (561)
Art. 643 before he can get an easement of aqueduct, he must
prove again that he can dispose of the water.
Article 647.
One who for the purpose of irrigating or improving his What do we mean by this term “dispose”? It is the state who
estate, has to construct a stop lock or sluice gate in the owns the water, this is property of the public dominion. So
bed of the stream from which the water is to be taken, who can dispose of the water? The State. So kailangan niya
may demand that the owners of the banks permit its ng permit. That is what mean by the phrase he can dispose
construction, after payment of damages, including those the water. He has a PERMIT from the proper government
caused by the new easement to such owners and to the entity.
other irrigators. (562)
He must prove that the water is sufficient for the use for
ARTICLE 648. which it was intended. If that is only a a creek, na ganyan lang
The establishment, extent, form and conditions of the ka wide, 1 foot lang tapos ang kanyang gusto iirrigate na
servitudes of waters, to which this section refers, shall be farmland is 5 hectares. Hindi kaya, hindi nalang siya bibigyan
governed by the special laws relating thereto insofar as no ng permit no?
provision therefor is made in this Code. (563a)
He must show that the propose right of way be the most
Article 642. convenient and the least onerous to third persons. Definitely,
Any person who may wish to use upon his own estate any he will propose .
water of which he can dispose shall have the right to make
it flow through the intervening estates, with the obligation He must indemnify. He must pay indemnity.
to indemnify their owners, as well as the owners of the
lower estates upon which the waters may filter or ESTATE OF BANZON v MARIANO BANZON
descend. (557) We have two brothers here, si Jose at Mariano. So this is the
river, there are two aqueducts that go through the estate of
Jose. Jose died. The wife wanted the two aqueducts removed.
EASEMENT OF AQUEDUCT
This is a legal easement. According to Mariano, in 1905, he opened a canal together
with Jose, the brother. He and his brother Jose constructed
It is the right to make water flow thru intervening estates in the first canal in 1905 as well as the maintenance of the same
order that one may make use of said waters. and the integral part of the irrigation system. Both of them
benefited during the lifetime of Jose. After the death of Jose,
What do we mean by “which he can dispose”?What are the all his heirs benefited from canal no. 1. The second canal,
rights of an owner?To enjoy, dispose, and to recover. canal no. 2, was actually built by Mariano with the knowledge
of Jose and it was built with the most convenient place, nasa
Article 643. pinakadulo (ang first canal nasa gitna ng property). It was the
One desiring to make use of the right granted in the most convenient and least prejudicial to third persons. He
preceding article is obliged: applied for a water permit from the Director of Public Works.
(1) To prove that he can dispose of the water and He got all those things.
that it is sufficient for the use for which it is
intended; ISSUE 1: Can the widow of Jose close down those two
(2) To show that the proposed right of way is the aqueducts?
most convenient and the least onerous to third
persons; HELD 1: SC said for the first one (canal no.1) YES. Because even
(3) To indemnify the owner of the servient estate though it was alleged by Mariano that he built the canal with
in the manner determined by the laws and Jose, there was no annotation in the title of the lot na
regulations. (558) merong easement doon. So there was no voluntary easement
that was established. Kumbaga upon mere tolerance lang.
Mariano was not able to prove the establishment of a
voluntary easement.

(From Cutie Notes: According to Section 39 of Act 496, the

registration of a servient estate under the Torrens system
extinguishes all the easements as to which it is subject and
which have not been noted on the certificate of title issued in
accordance with the proper decree of registration.
C wants to irrigate his rice land, there is no water source may
drought so he wants to get water from the river. By having a Which of the two kinds of easement is referred to by Act. 496
legal easement of aqueduct, he can have the water flow thru Section 39? Only voluntary easements. A legal easement does
the estate of A and B and pagtumolo kay D and E, he has to not have to be annotated in any title of an estate because it is
indemnify. established by law. The law itself says that the easement
should exist.)

ISSUE 2: What about the second canal (canal no. 2)

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ng tubig. As long as he does not block the flow of the water,

HELD 2: According to the SC that cannot be closed because it he can build over it. Provided, such building does not cause
was a legal easement. All of the requisites are present: damage to the aqueduct, or render necessary repairs and
1. He was able to get a permit; cleanings impossible.
2. It is the most convenient and less onerous to
thirdpersons; and Article 646.
3. He was willing to pay For legal purposes, the easement of aqueduct shall be
 This requisite does not have to considered as continuous and apparent, even though the
comebefore getting the easement of flow of the water may not be continuous, or its use
aqueduct, if you are willing topay depends upon the needs of the dominant estate, or upon
indemnity to the servient owner already a schedule of alternate days or hours. (561)
a compliance to the third requisite under
Art. 643). To remind you, Art. 646 says, it is the law that says so.

Article 647.
VALISNO V ADRIANO (MAY 23, 1988) One who for the purpose of irrigating or improving his
We have here the river and originally the lot was owned by estate, has to construct a stop lock or sluice gate in the
Eladio Adriano. In the rice land, there was an aqueduct that bed of the stream from which the water is to be taken,
was built by Eladio from the river. It is use to irrigate the entire may demand that the owners of the banks permit its
farm land. When he died, he had two children, Felipe and construction, after payment of damages, including those
Honorata. They became co-owners. Honorata sold her caused by the new easement to such owners and to the
portion to Valisno. The heirs of Felipe wanted to close down other irrigators. (562)
the aqueduct claiming that there was no legal easement of
aqueduct none of the requisites under Art. 643 is present.
Ginagamit ni Valisno ang canal the water from there without Article 648.
getting any permits and it is not convenient. There was no The establishment, extent, form and conditions of the
payment of indemnity. servitudes of waters, to which this section refers, shall be
governed by the special laws relating thereto insofar as no
ISSUE: Can he close down the aqueduct? provision therefor is made in this Code. (563a)

HELD: The SC said NO.

Does Valisno have to pay indemnity? SECTION 3. - EASEMENT OF RIGHT OF WAY

HELD: NO. Because this is an easement that is established by Article 649.

law, a legal easement not under Art. 642 and 643 but under The owner, or any person who by virtue of a real right may
Art. 624. cultivate or use any immovable, which is surrounded by
other immovables pertaining to other persons and
If you look at the situation, it was originally owned by one without adequate outlet to a public highway, is entitled to
person. There was already a sign of an easement there which demand a right of way through the neighboring estates,
is the existence of the canal and then divided it into two, after payment of the proper indemnity.
automatically the existence of an apparent sign of an
easement is equivalent to a title. He acquired it not under Should this easement be established in such a manner that
Arts. 642 and 643 but under Art. 624. its use may be continuous for all the needs of the
dominant estate, establishing a permanent passage, the
Be very careful when reading the facts. indemnity shall consist of the value of the land occupied
and the amount of the damage caused to the servient
Article 644. estate.
The easement of aqueduct for private interest cannot be
imposed on buildings, courtyards, annexes, or outhouses, In case the right of way is limited to the necessary passage
or on orchards or gardens already existing. (559) for the cultivation of the estate surrounded by others and
for the gathering of its crops through the servient estate
You cannot make an aqueduct go through this. Kailangan it without a permanent way, the indemnity shall consist in
must be outside of this. Don't go through a building or a the payment of the damage caused by such encumbrance.
garden.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a)
Article 645.
The easement of aqueduct does not prevent the owner of
the servient estate from closing or fencing it, or from EASEMENT OF RIGHT OF WAY
building over the aqueduct in such manner as not to cause It is an easement of privilege by which one person or a
the latter any damage, or render necessary repairs and particular class of persons allowed to pass over a land of
cleanings impossible. (560) another, usually through one particular path.

However, if there is already an aqueduct like in this case We already know that there is a particular path that is being
(referring to the Valisno case) andyan na ang aqueduct in used if there is an easement of right of way but it is not the
favor of Valisno, can Felipe fence his estate? Can he put a only kind of right of way. Meron yung dadaan ka lang. Let's
fence over the aqueduct? look at it. Art. 649.

YES. He can build over the aqueduct. He can put something Who is entitled to demand a right of way to neighboring
over there. A garage on top of the aqueduct? Yes, he can! That estates?
is his property. Anyway, aqueduct lang naman yan eh, daanan

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1. The owner of the estate surrounded by other SC: NO. Because it was only by mere of tolerance. There was
estates owned by other persons. An owner can no proof or document, no admission, nothing. No voluntary
demand. easement.
2. Any person by virtue of a real right may cultivate or
use it as a usucfructuary of the estate can actually What about legal easement? Were all the requisites present?
demand a legal easement of right of way.
SC: He may be isolated with no access because the
So, if you look at Arts. 649 and 650 those are the requisites. passageway of the Ipapo property is already under water
naging river na hindi na pwedeng lagyan ng daan. He does
REQUISITES: not have an adequate outlet.
1. The estate is surrounded by the estate of others
But, according to the SC, his isolation was due to his own
It is locked-in. acts. If he had developed the road, in the Ipapo land, right
away then he would have an adequate outlet. But he did not
2. There is no adequate outlet to a public highway do so. Therefore, he is not entitled to a legal easement
through the estate of Floro.
If you wanted to bring a car inside and meron lang maliiiiiiiit
na iskinita na pantao lang, that is not adequate. I just want to remind you of this - if there is no subsisting way
then there must be expropriation.
3. There must be payment of the proper indemnity
How much is t'he indemnity to be paid?If you look at Art. 649.
May legal easement na like the easement of water na you It says “in case the right of way is limited to the necessary
don't have to pay indemnity. We already saw easements of passage for the cultivation of the estate surrounding by
aqueduct under Arts. 642 and 643 and legal easement of right others and for the gathering of its crops through the servient
of way Art. 649 indemnity must be paid. estate without a permanent way, the indemnity shall consist
in the payment of the damage caused by such encumbrance.
4. It must be established at the point least “
prejudicial to the servient estate, it is not
necessarily the shortest distance For example yung estate that is surrounded by durian
plantation (seasonal), yung mga harvesters makikidaan doon
This requisite always comes out in the bar. sa servient estate perso kahit saan lang like under the trees.
Is indemnity required?
5. The isolation must not be due to the estate
owner's own acts; Only if there is damage caused to the servient estate. So kung
wala naman, like dumaan lang siguro ng for one month in a
6. It is demandable only by the owner of the estate year. Walang fixed path, only when there is damage.
or one with a legal right like a usufructuary
What about if it is permanent or it is fixed?Should this
easement be established in such a manner that its use may be
FLORO V LLENADO continuous for all the needs of the dominant estate
Floro is the owner of Floro Park Subdivision. This subdivision establishing of permanent passage, the indemnity should
has its own subdivision roads that go to MacArthur Highway. consist of the value of the land occupied and the amount of
Llenado owned a subdivision behind Floro. Etong si Llenado the damage caused to the servient estate. The value of the
when he applied for his permit to construct a subdivision land.
(everytime you apply if you are a developer, you have to show
where your right of way is to the mainroad), ang nakalagay This was a big issue in the case of –
sa application ni Llenado, dito nakalagay yong right of way
nya...*Mam illustrates on the board* NAPOCOR v MANUBAY
In this case, we have towers, the lines, so let us say that this
While the subdivision of Llenado was being constructed, tower stays on this lot and the other tower to the other lot.
nagpaalam siya kay Floro na pwede bang habang dinedevelop Napocor constructed two towers in the private land of
namin (ang subdivision) we will pass through your subdivision Manubay. Nag-expropriate sila.
like mga trucks and all those things. Sabi ni Floro sige but only
until such time na nadevelop na ninyo yong access road nyo According to Napocor, they will pay an easement fee of 10%
through the Ipapo property. of the value of the property.

However, Llenado continued to use the road and did not NAPOCOR cited Sec. 3-A of RA 6395 (Charter of NAPOCOR)
bother to develop his proposed access through the Ipapo
property and nainis si Floro so he barricated and prevented This law prescribes as just compensation for the acquired
Llenado from passing through. easement of a right of way over an expropriated property an
easement fee in an amount not exceeding 10 percent of the
Llenado filed an action in court against Floro, he said that, market value of such property.
one, Floro gave him a voluntary easement of right of way and,
two, granting arguendo that there was no voluntary ISSUE: Is NAPOCOR correct for the 10%?
easement established, he had the legal easement of right of
way because his properties are isolated and all those HELD: The SC court said NO. It is the market value not 10%.
requisites. Art. 649 says the value of the land occupied.

Was there a voluntary easement established by Floro in the From FT: Granting arguendo that what petitioner acquired
favor of Llenado? over respondents property was purely an easement of a right
of way, still, we cannot sustain its view that it should pay only
an easement fee and the the full value of the property. The

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4-Manresa | Ateneo de Davao University College of Law

acquisition of such an easement falls within the purview of the We learned that the dominant owner must not make the
power of eminent domain. This conclusion finds support in easement more burdensome. And we looked at the case
similar cases in which the SC sustained the award of just where railroad tracks were used by the outsiders and
compensation for private property condemned for public use. according to the Supreme Court, as long as you do not widen
it, and use the same 7-meter easement and not go beyond it,
Republic v PLDT then that doesn’t make the easement more burdensome.
Normally, of course, the power of eminent domain results in What makes it more burdensome? You make the 7 meters as
the taking or appropriation of title to, and possession of, the 10 meters. So if the voluntary easement given is 7 meters,
expropriated property; but no cogent reason appears why the hanggang 7 meters lang talaga ang dominant owner.
said power may not be availed of to impose only a burden
upon the owner of condemned property, without loss of title Article 651.
and possession. It is unquestionable that real property may, The width of the easement of right of way shall be that which
through expropriation, be subjected to an easement of right is sufficient for the needs of the dominant estate, and may
of way. accordingly be changed from time to time. (566a)

True, an easement of a right of way transmits no rights except

ENCARNACION vs. COURT OF APPEALS (1991)
the easement itself, and respondent retains full ownership of
Tomas Encarnacion is the owner of the dominant estate which
the property. The acquisition of such easement is,
is bounded on the north by the servient estates of Eusebio de
nevertheless, not gratis. As correctly observed by the CA,
Sagun and Mamerto Masigno, on the south by a dried river
considering the nature and the effect of the installation power
and the Taal Lake. The servient estate is bounded on the north
lines, the limitations on the use of the land for an indefinite
by the National Highway.
period would deprive respondent of normal use of the
property. For this reason, the latter is entitled to payment of
Prior to 1960, persons going to the national highway would
a just compensation, which must be neither more nor less
just cross the servient estate at no particular point. In 1960,
than the monetary equivalent of the land.
Sagun and Masigno enclosed their lands with a fence but
provided a road path 25 meters long and about 1 meter in
The owner of the property was so lucky kung may easement
width. At this time, Encarnacion started his plant nursery
like this.He gets to keep the property kanya parin and he will
business on his land. When his business flourished, it became
be paid of the value of the property PLUS the amount of
more difficult to transfer the plants and garden soil through
damage caused.
the use of a pushcart so Encarnacion bought an owner-type
jeep for transporting the plants. However, the jeep could not
pass through the roadpath so he approached Sagun and
September 17, 2018
Masigno asking them if they would sell to him 1-½ meters of
their property to add to the existing roadpath but the 2
NATIONAL POWER CORPORATION vs. BENJAMIN ONG CO
refused the offer.
(2009)
This Court has repeatedly ruled that when petitioner takes
Encarnacion then instituted an action before the RTC to seek
private property to construct transmission lines, it is liable to
the issuance of a writ of easement of a right of way over an
pay the full market value upon proper determination by the
additional width of at least 2 meters. The RTC dismissed the
courts.
complaint for there is another outlet, which is through the
dried riverbed. This was affirmed by the CA thus the case at
In National Power Corporation v. Manubay Agro-Industrial
bar.
Development Corporation, we held that the taking of
property was purely an easement of a right of way, but we
He had a jeepney because of his garden business, and it cannot
nevertheless ruled that the full market value should be paid
fit in the 1-meter path, so he wanted to widen it but the
instead of an easement fee.
servient owner refused saying that he cannot make the
easement more burdensome.
That FULL MARKET VALUE, does it only refer to the area
occupied by the tower? NO! Even the area beneath the
Is the servient owner correct?
transmission lines is included in the computation. It says here:
HELD: NO. Because this is a legal easement, which is
This Court is mindful of the fact that the construction of the
governed by Art. 651. It is the need of the dominant owner,
transmission lines will definitely have limitations and will
which will determine the width of the easement.
indefinitely deprive the owners of the land of their normal
use. The presence of transmission lines undoubtedly restricts
Where a private property has no access to a public road, it has
respondents use of his property. Petitioner is thus liable to
the right of easement over adjacent servient estates as a
pay respondent the full market value of the property.
matter of law.
Remember when we took up Art. 430, the owner of land can
With the non-availability of the dried riverbed as an
build as high as he can benefit, and if there are transmission
alternative route to the highway, we transfer our attention to
lines, how can he build as high as he can benefit? So there’s a
the existing pathway which straddles the adjoining properties
limitation, so that should be included in the computation.
of the De Sagun heirs and Mamerto Magsino.

Article 650. The courts below have taken against petitioner his candid
The easement of right of way shall be established at the point admission in open court that he needed a wider pathway for
least prejudicial to the servient estate, and, insofar as the convenience of his business and family. (TSN, August 2,
consistent with this rule, where the distance from the 1985, pp. 24-26). We cannot begrudge petitioner for wanting,
dominant estate to a public highway may be the shortest. that which is convenient. But certainly that should not detract
(565) from the more pressing consideration that there is a real and
compelling need for such servitude in his favor.

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4-Manresa | Ateneo de Davao University College of Law

Article 651 of the Civil Code provides that "(t)he width of the RTC rendered a Decision granting petitioners the right of way
easement of right of way shall be that which is sufficient for across respondent's subdivision saying: The adverted route by
the needs of the dominant estate, and may accordingly be [respondent] is unfeasible and unavailing. The route, aside
changed from time to time." This is taken to mean that under from being hilly, has to traverse raw lands [denominated]
the law, it is the needs of the dominant property which 3043-A which belong to different owners with no designated
ultimately determine the width of the passage.And these road lot thus the impossibility of free access thereon. Aside
needs may vary from time to time. from that fact it is not passable by vehicular means. Whereas
if [petitioners] would pass through the [respondent's] road lot
When petitioner started out as a plant nursery operator, he particularly Lot 15 access to the Marcos Highway is readily
and his family could easily make do with a few pushcarts to available to [petitioners'] property. Only a fence [separates]
tow the plants to the national highway. But the business grew the Filinvest Subdivision and the [petitioners'] property
and with it the need for the use of modern means of [which] could be removed x x x anytime.
conveyance or transport. Manual hauling of plants and garden
soil and use of pushcarts have become extremely While in the survey of the property of the [petitioners] it is
cumbersome and physically taxing. To force petitioner to shown that the distance from the subject lot to the Marcos
leave his jeepney in the highway, exposed to the elements Highway is approximately 2,350 meters and the distance from
and to the risk of theft simply because it could not pass Sumulong Highway to the subject lot is 1,400 meters, such
through the improvised pathway, is sheer pigheadedness on short distance could not be used as absolute basis to deny the
the part of the servient estate and can only be counter- [petitioners] the relief prayed for.
productive for all the people concerned. Petitioner should not
be denied a passageway wide enough to accommodate his The CA affirmed petitioners' entitlement to legal easement of
jeepney since that is a reasonable and necessary aspect of the right of way. However, it set aside the P400, 000.00 indemnity
plant nursery business. fixed by the RTC considering that the exact area of the right of
way, as well as its value per square meter, had not yet been
We are well aware that an additional one and one-half (1 1/2) determined.
meters in the width of the pathway will reduce the servient
estate to only about 342.5 square meters. But petitioner has The main issue then assigned for resolution is whether the CA
expressed willingness to exchange an equivalent portion of was correct in ruling that the property subject of the right of
his land to compensate private respondents for their loss. way pertains not only to Road Lot 15 but to the whole stretch
Perhaps, it would be well for respondents to take the offer of of road network commencing from Road Lot 15, then passing
petitioner seriously. But unless and until that option is through Road Lots 3, 10, 6, 4, 2 and 1, all the way to Marcos
considered, the law decrees that petitioner must indemnify Highway.
the owners of the servient estate including Mamerto Magsino
from whose adjoining lot 1/2 meter was taken to constitute HELD: The right of way granted to petitioners covers the
the original path several years ago. Since the easement to be network of roads within respondent's subdivision and not
established in favor of petitioner is of a continuous and merely Road Lot 15. So, it is the entire 2, 350 meters!
permanent nature, the indemnity shall consist of the value of
the land occupied and the amount of the damage caused to In the case of a legal easement, Article 649 of the Civil Code
the servient estate pursuant to Article 649 of the Civil Code. prescribes the parameters by which the proper indemnity
may be fixed. Since the intention of petitioners is to establish
Atty. S: Voluntary easement, kung 7 meters lang yung a permanent passage, the second paragraph of Article 649 of
binigay, that’s it. Unless papayag yung may-ari, no problem, the Civil Code particularly applies: xxx Should this easement
pwede ma widen. But he cannot invoke Art. 651, because Art. be established in such a manner that its use may be
651 can only be invoked if the easement is a legal easement. continuous for all the needs of the dominant estate,
establishing a permanent passage, the indemnity shall consist
DE GUZMAN vs. FILINVEST (2015) of the value of the land occupied and the amount of the
De Guzman’s lot is surrounded. Definitely, he is entitled to a damage caused to the servient estate.
legal easement of right of way. The most practical route to the
highway is through the Filinvest homes subdivision because The Court, however, deems it necessary to modify the width
there are already existing roads. The issue here is how much of the easement, which would serve as basis in fixing the value
should De Guzman pay Filinvest with respect to indemnity. of the land as part of the proper indemnity.
(Ma’am started drawing on the board, nagkuha nalang ko sa
FT) Article 651 provides: The width of the easement of right of
way shall be that which is sufficient for the needs of the
De Guzman’s property is enclosed and surrounded by other dominant estate, and may accordingly be changed from time
real properties belonging to various owners. One of its to time.
adjoining properties is Filinvest Home Subdivision Phase IV-A,
a subdivision owned and developed by respondent Filinvest The right of way constituting the easement in this case
Development Corporation (respondent) which, coming from consists of existing and developed network of roads. This
petitioners' property, has a potential direct access to Marcos means that in their construction, the needs of the dominant
highway either by foot or vehicle. As such, petitioners filed on estate were not taken into consideration precisely because
August 17, 1988 a Complaint for Easement of Right of Way they were constructed prior to the grant of the right of way.
against respondent before the Regional Trial Court (RTC) of During the remand proceedings, it was established that the
Antipolo. width of the affected roads is 10 meters. Multiplied by the
distance of 2,350 meters, the total area to be indemnified is
Respondent alleged in its Answer that petitioners have an 23,500 square meters and at a price of P1, 620.00 per square
access to Sumulong Highway through another property meter, petitioners must pay respondent the whopping
adjoining the latter's property. In fact, the distance from amount of P38, 070,000.00 for the value of the land. Under
petitioners' property to Sumulong Highway using the said the circumstances, the Court finds it rather iniquitous to
other property is only 1,500 meters or shorter as compared to compute the proper indemnity based on the 10-meter width
the 2,500-meter distance between petitioners' property and of the existing roads. To stress, it is the needs of the dominant
Marcos Highway using respondent's subdivision. estate, which determines the width of the passage. And per

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

their complaint, petitioners were simply asking for adequate after paying a indemnity. However, the donor shall not be
vehicular and other similar access to the highway. To the liable for indemnity. (n)
Court's mind, the 10--meter width of the affected road lots is
unnecessary and inordinate for the intended use of the These two provisions are the rules when there is alienation.
easement. At most, a 3-meter wide right of way can already
sufficiently meet petitioners' need for vehicular access. It If the estate of the seller is the enclosing estate, and the
would thus be unfair to assess indemnity based on the 10- buyer’s lot is enclosed, the seller must provide an easement
meter road width when a three-meter width can already of right of way. That is a must. Does the buyer have to pay
sufficiently answer the needs of the dominant estate. indemnity? NO.

Therefore, bearing in mind Article 651, the Court finds proper But if the seller sells his estate that is adjacent to the road
a road width of 3 meters in computing the proper indemnity. tapos na enclosed sya, does the buyer have to give him a right
Thus, multiplying the road length of 2,350 meters by a road of way? YES, but the seller has to pay. Bakit hindi nalang nya
width of 3 meters, the total area to be indemnified is 7,050 binenta yung buo, nagtira sya ng right of way for him. Kung
square meters. At a value of P1, 620.00 per square meter, the binenta nya yung buo, then he has to pay for the right of way.
total value of the land to form part of the indemnity amounts
to P11, 421,000.00. It must be made clear, however, that If the estate of the donor is the enclosing estate, the donee
despite their payment of the value of the land on the basis of must pay the donor. Syempre binigay lang sa kanya.
a three-meter road width or basically for a one-way traffic
road only, petitioners must be allowed to use the roads within If the estate of the donor is the enclosed estate, and he gets
respondent's subdivision based on the existing traffic patterns a right of way from the donee, there is no need for indemnity.
so as not to disrupt the traffic flow therein.
Article 654.
In addition, petitioners must bear as part of damages the
If the right of way is permanent, the necessary repairs shall be
costs for the removal of the fence in Road Lot 15. Also, the
made by the owner of the dominant estate. A proportionate
Court takes judicial notice that subdivision residents are
share of the taxes shall be reimbursed by said owner to the
paying monthly dues for purposes of road maintenance,
proprietor of the servient estate. (n)
security, garbage collection, use and maintenance of other
subdivision facilities, etc. In view of the fact that the road lots
affected would be used by the dominant estate in common Aside from paying the market value and damages, ano pa
with the subdivision residents, the Court deems reasonable to kaylangan bayaran ng dominant owner?
require petitioners to pay the homeowner's association in a. NECESSARY REPAIRS;
respondent's subdivision, by way of monthly dues, an amount b. A PROPORTIONATE SHARE OF THE TAXES.
equivalent to half of the rate of the monthly dues that the  Kunwari the right of way occupies 10% of
subdivision residents are being assessed. This shall serve as the land, the servient owner pays the
petitioners' share in the maintenance of the affected road realty taxes kase kanya yung property,
lots. but the dominant owner must pay 10%
of the taxes.
In easement of right of way, there is no alienation of the land
occupied. Article 655.
If the right of way granted to a surrounded estate ceases to
Petitioners argue that it is unfair to require them to pay the be necessary because its owner has joined it to another
value of the affected road lots since the same is tantamount abutting on a public road, the owner of the servient estate
to buying the property without them being issued titles and may demand that the easement be extinguished, returning
not having the right to exercise dominion over it. The what he may have received by way of indemnity. The interest
argument is untenable. Payment of the value of the land for on the indemnity shall be deemed to be in payment of rent
permanent use of the easement does not mean an alienation for the use of the easement.
of the land occupied. In fact under the law and unlike in
purchase of a property, should the right of way no longer be The same rule shall be applied in case a new road is opened
necessary because the owner of the dominant estate has giving access to the isolated estate.
joined it to another abutting on a public highway, and the
servient estate demands that the easement be extinguished, In both cases, the public highway must substantially meet the
the value of the property received by the servient estate by needs of the dominant estate in order that the easement may
way of indemnity shall be returned in full to the dominant be extinguished. (568a)
estate. This only reinforces the concept that the payment of
indemnity is merely for the use of the right of way and not for If it is a voluntary easement, non-necessity is not a mode of
its alienation. extinguishing the easement. Whether necessary or not, it
doesn’t matter because it is a voluntary easement.
Article 652.
Whenever a piece of land acquired by sale, exchange or But if it is a legal easement under 655, if the right of way
partition, is surrounded by other estates of the vendor, granted to a surrounded estate ceases to be necessary
exchanger, or co-owner, he shall be obliged to grant a right of because its owner has joined it to another abutting on a public
way without indemnity. road, (nakabili yung owner ng lot na meron na syang access
to the public road) the owner of the servient estate MAY
In case of a simple donation, the donor shall be indemnified DEMAND (not automatic extinguishment) that the easement
by the donee for the establishment of the right of way. (567a) be extinguished, returning what he may have received by
way of indemnity.
Article 653.
“May demand” – why? Kung ako yung servient owner,
In the case of the preceding article, if it is the land of the
binayaran na ako ng 11M tapos meron na syang access, will I
grantor that becomes isolated, he may demand a right of way
demand? NO, because kailangankong isuli yung 11M. So,

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4-Manresa | Ateneo de Davao University College of Law

parang security lang yan, if the easement will no longer be brought in heavy equipment and construction materials. On
needed in the future, the servient owner had to return the the other hand, petitioner prayed that his contractors,
amount paid. visitors, and other representatives be allowed access and
persons he has authorized be allowed to install power lines
Hindi naman yung mga damages, but the market value. And over private respondent’s property. The trial court amended
the interest on the indemnity shall be deemed to be payment the writ granting petitioner’s prayer.
of rent for the use of the easement.
On appeal, the Court of Appeals set aside the amended writ
Again, there is no automatic extinguishment on the ground and reinstated the original writ.
of non-necessity in case of legal easement. It is a right given
to the servient owner to demand that the easement be Whether or not the right of passage allowed in the
extinguishment but he has to return the indemnity paid. uncontested original writ applies not only to the petitioner and
his household, but also to his visitors, contractors,
Article 656. construction workers, authorized persons, heavy equipment
If it be indispensable for the construction, repair, machinery, and construction materials as well as the
improvement, alteration or beautification of a building, to installation of power lines.
carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work, HELD: It can be allowed temporarily for construction
the owner of such estate shall be obliged to permit the act, purposes. But yung power lines under, that is not under 656.
after receiving payment of the proper indemnity for the
damage caused him. (569a) The Court partially granted the petition. It held that the writ
issued by the trial court is to preserve status quo. Necessarily,
it does not cover the use of the subdivision roads for ingress
1st instance – to pass through, to carry materials to the
and egress of construction workers, heavy equipment,
construction site.
delivery of construction materials, and installation of power
lines since there were no improvements introduced then. But
This is also a legal easement, the owner of the land of passage
under Article 656 of the New Civil Code, if the right of way is
cannot refuse but he is entitled to indemnity.
indispensable for the construction, repair, improvement,
alteration or beautification of a building, a temporary
2nd instance – to raise scaffoldings.
easement is granted after payment of indemnity for the
damage caused to the servient estate.
If you notice yung mga subdivisions or yung mga lots na hindi
masyadongmalaki, there’s a construction, san ang tambakan,
In the present case, the trial court found that irrespective of
dun sa kabilang lote. Andun din yung mga scaffoldings. Dapat
which route petitioner used in gaining access to his property,
yung owner ng neighboring lot na ginagamit may bayad yan
he has to pass private respondent's subdivision. Thus,
under 656.
petitioner may be granted a temporary easement after the
payment of the proper indemnity. Hence, the court ordered
Related to this topic is the case of –
private respondent to allow the right of passage thru the
subdivision by the petitioner's visitors and guests,
FAUSTO R. PREYSLER vs. COURT OF APPEALS (2006)
contractors, construction workers, heavy equipment vehicles,
Fausto Preysler, Jr. and his wife owned lots in the Tali Beach
and delivery construction materials. But the Court did not
Subdivision and also two parcels of land adjacent to the
allow the installation of electric power lines because it is a
subdivision. The subdivision was owned by respondent Far
permanent easement, which is not covered by Article 656.
East Enterprises, Inc. It is near the beach, di talaga
beachfront. Between Tali beach and the beach is property
We hereby order (a) private respondent to allow the right of
owned by Preysler. He had absolutely no access to the
passage thru the subdivision by the petitioner's visitors and
highway except through the subdivision. Si preysler
guests, contractors, construction workers, heavy equipment
nagkaroon ng construction, so he wanted his trucks, cables,
vehicles, and delivery construction materials; and (b)
to go through the subdivision papunta sa lot nya.
petitioner to pay private respondent the indemnity therefor
to be determined by the trial court. The case is hereby
To gain access to the two parcels petitioner has to pass
REMANDED to the trial court for the determination of the
through private respondent’s subdivision. Petitioner offered
proper amount of indemnity for the temporary easement
P10, 000 for the easement of right of way but private
under Article 649.
respondent refused it for being grossly inadequate. Hence,
the latter barricaded the front gate of petitioner's property to
So, you have to determine what is the applicable provision. It
prevent petitioner and his family from using the subdivision
is not automatic na if it is legal easement of right of way, ayan
roads to access said parcels.
na 649 because we also have 656.
Petitioner then filed with the RTC a Complaint for Right of
Way with prayer for preliminary prohibitive injunction against
private respondent. The trial court issued an Order for private
SECTION 4. - EASEMENT OF PARTY WALL
respondent to remove the barricade and refrain from
hindering petitioner’s entry and exit from the subject
properties and for the free passage of petitioner in the Article 658.
subdivision of private respondent pending the litigation. The easement of party wall shall be governed by the
provisions of this Title, by the local ordinances and customs
Sometime thereafter, petitioner used the subdivision road to insofar as they do not conflict with the same, and by the rules
transport heavy equipment and construction materials to of co-ownership. (571a)
develop his property. Consequently, private respondent
moved to dissolve theorist of preliminary injunction claiming PARTY WALL – This is a wall at the dividing line of estates.
that the petitioner violated its right to peaceful possession
and occupation of Tali Beach Subdivision when petitioner If there is a wall between 2 estates, the law presumes that it

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

is a party wall. Co-ownership governs the wall.

(Cutie Notes, 2014)

NATURE OF EASEMENT OF PARTY WALL – It is a compulsory

kind of ownership in a sense that the two estate owners are
forced to be co-owners of each other because the shares
This one is presumably the party wall the dividing wall of the
cannot be physically separated.
two buildings up to the point of common elevation.
If you don’t want to be a co-owner with a neighbor, you build
What is there is a window here in the dividing wall between
your wall inside your property so that there will be no
the two buildings that is already an exterior sign not this one
presumption. Ang iba kase, they get the boundary line and
this wall is not a party wall. (?)
then yung hollow block nasagitna. Definitely, that is a party
wall.
(2) Whenever the dividing wall is, on one side, straight and
plumb on all its facement, and on the other, it has similar
Article 659. The existence of an easement of party wall is
conditions on the upper part, but the lower part slants or
presumed, unless there is a title, or exterior sign, or proof to
projects outward;
the contrary:
Xxx
It doesn’t only apply to subdivision lots where you have a
fence, it also applies to:

(1) In dividing walls of adjoining buildings up to the point of

common elevation;
(Cutie Notes, 2014) (3) Whenever the entire wall is built within the boundaries of
one of the estates;

(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. (572) (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;
Yung mga barbwire fences or hedges dyan sa mga bukid
bukid. That’s also considered as party wall.

How is the presumption of a party wall rebutted?

1. Title to the contrary - your party wall is included
in the certificate of title;
2. Proof to the contrary - it could be a document,
technical description, that will tell that a party
wall is inside a property;
(5) Whenever the dividing wall between courtyards, gardens,
3. Exterior signs to the contrary
and tenements is constructed in such a way that the coping
• When there is conflict between a title and sheds the water upon only one of the estates;
an exterior sign – the title prevails.

Let’s review what are these exterior signs: (All diagrams of

exterior signs are from Cutie Notes)

Article 660. It is understood that there is an exterior sign,

contrary to the easement of party wall:
xxx

(1) Whenever in the dividing wall of buildings there is a

window or opening; (6) Whenever the dividing wall, being built of masonry, has
stepping stones, which at certain intervals project from the
surface on one side only, but not on the other;

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4-Manresa | Ateneo de Davao University College of Law

The above documentary evidence has not been overcome by

any other presented by the petitioner, but apart from that
record discloses the existence of certain unquestionable
signs. These consist of constructions made by the petitioner
himself on his own property, which entirely destroy any
presumption that it is a party wall, and indeed gives rise to a
presumption against it.
(7) Whenever lands inclosed by fences or live hedges adjoin
others which are not inclosed. Article 661. Ditches or drains opened between two estates
are also presumed as common to both, if there is no title or
In all these cases, the ownership of the walls, fences or hedges sign showing the contrary.
shall be deemed to belong exclusively to the owner of the
property or tenement which has in its favor the presumption There is a sign contrary to the part-ownership whenever the
based on any one of these signs. (573) earth or dirt removed to open the ditch or to clean it is only
on one side thereof, in which case the ownership of the ditch
For example, B opens this window. It is for his favor. This one, shall belong exclusively to the owner of the land having this
the beams are using as support itong wall na ito. So there are exterior sign in its favor. (574)
two exterior signs in favor of B. therefore, this wall,
presumably a party wall, is no longer a party wall. The exterior Article 662. The cost of repairs and construction of party walls
signs would show that B owns it. and the maintenance of fences, live hedges, ditches, and
drains owned in common, shall be borne by all the owners of
What if it was A who opened the window? And then B has the lands or tenements having the party wall in their favor, in
these beams. So the exterior signs conflict each other. They proportion to the right of each.
cancel out each other. Despite the existence of exterior signs,
it is again presumed that it is a party wall. Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his part-ownership,
This case, we have an exterior sign in favor of B, and 2 exterior except when the party wall supports a building belonging to
signs in favor of A, therefore, the wall belongs to A. him. (575)

EDWIN CASE vs. THE HEIRS OF TUASON Y SANTIBAÑEZ

Article 663. If the owner of a building, supported by a party
(1909)
This refers to the Tuazon estate in Cubao. It's very huge estate, wall desires to demolish the building, he may also renounce
and the wall is how many meters thick. So, pwede kang his part-ownership of the wall, but the cost of all repairs and
work necessary to prevent any damage which the demolition
magpatayo ng bahay on top of the wall. Andaming exterior
may cause to the party wall, on this occasion only, shall be
signs. Magkapit bahay yan sila si Case and si Tuason. there
borne by him. (576)
are lots of exterior signs that would indicate that that the wall
is a party wall because nag cancel out lang sila or baka mas
maraming signs in favor of Edwin Case. But, despite all those Article 664. Every owner may increase the height of the party
signs the title to the property of Tuason indicated that the wall wall, doing so at his own expense and paying for any damage
is included. So, it doesn't matter if there are a hundred which may be caused by the work, even though such damage
thousand exterior signs, the title will prevail. be temporary.

Under article 572 of the Civil Code the easement of party walls
is presumed, unless there is a title or exterior sign, or proof to
the contrary, among others, in dividing walls adjoining SECTION 5. - EASEMENT OF LIGHT AND VIEW
buildings up to the common point of elevation.
Article 667. No part-owner may, without the consent of the
The legal presumption as to party walls is limited to the three
others, open through the party wall any window or aperture
cases dealt with in the said article of the code, and is that of
of any kind. (580)
juris tantum unless the contrary appear from the title of
ownership of the adjoining properties, that is to say, that the
entire wall in controversy belongs to one of the property If there is a window made by one owner, the other owner
owners, or where there is no exterior sign to destroy such cannot close it, or demand that it be closed within 10 years
presumption and support a presumption against the party from the opening of the window.
wall. (Art. 573, Civil Code.)
If there is no closing within the 10 year period, after 10 years
The intermediate portion of the walls in question, lying then, the one who opened the window would have acquired
between numbers 6 and 13 on the defendants' plan, the easement if light and view.
equivalent to a little more than numbers 30 to 25 on the plan
of the petitioner, is the portion against which no other wall
appears to have been erected on the land owned by Mr. Case.
In spite of this it can not be presumed that the aforesaid
portion was a party wall, and that it was not exclusively
owned by the defendants, inasmuch as the latter have proven
by means of a good title that has not been impugned by the
petitioner, that when one of their ancestors and principals
acquired the property the lot was already inclosed by the wall
on which the building was erected; it must therefore be
understood that in the purchase of the property the wall by
which the land was inclosed was necessarily included.

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4-Manresa | Ateneo de Davao University College of Law

If your house is diagonal/oblique, hindi sya talaga directly

Article 668. The period of prescription for the acquisition facing the other property, there must be a 60-cm distance
of an easement of light and view shall be counted: from the end point. Why is this? So that one cannot peek into
1. From the time of the opening of the window, if another person’s property.
it is through a party wall; or
2. From the time of the formal prohibition upon Take note of this:
the proprietor of the adjoining land or The non-observance of these distances does not give rise to
tenement, if the window is through a wall on prescription.
the dominant estate. (n)

“ (2) From the formal or notarial prohibition is issued. “

Let’s say itong si A, 1975 pa yung bahay nya dyan, he has big
windows, tapos this is only 1.8 meters yung kanyang distance.
Nag notarial prohibition sya kase ito yung morning sun. Si B
kunwari wala pangbahay si B, nag notarial prohibition si A in
1980, now, it’s 2018, 38 years na. what can B not do?
• B cannot build a house that is in less than 3 meters.
He cannot obstruct the light and view of A.
• But, despite the passage of 38 years or plus 5, 43
years, B can still demand that the big windows be
closed because the non-observance of these
distances does not give rise to prescription. A can
never acquire an easement of big windows. Light
and view, pwede, notarial prohibition.
• Because the distance is 1.8, B can always demand
that the windows be closed or be made into
restricted windows.

Article 670. No windows, apertures, balconies, or other Is it permissible to build up to the boundary line? YES. Like
similar projections which afford a direct view upon or towards here in Uyanguren, dikit yung mga buildings basta walang
an adjoining land or tenement can be made, without leaving windows, basta solid wall, there is no problem, or restricted
a distance of two meters between the wall in which they are windows.
made and such contiguous property.
RESTRICTED WINDOWS – provided by Art. 669. When the
Neither can side or oblique views upon or towards such distances in article 670 are not observed, the owner of a wall
conterminous property be had, unless there be a distance of which is not party wall, adjoining a tenement or piece of land
sixty centimeters. belonging to another, can only make in it RESTRICTED
WINDOWS. What is that? It is an opening to admit light at the
The nonobservance of these distances does not give rise to height of the ceiling joints or immediately under the ceiling,
prescription. (582a) and of the size of thirty centimeters square, and, in every case,
with an iron grating imbedded in the wall and with a wire
screen.

Example: Toilet window sa taas na maliit. Para hindi talaga

This is not the Building Code ha. But this is the Civil Code. makasilip yung andun sa loob. The window is just below the
According to 670, if you have a house and you have big ceiling joist.
windows, your property must be at least 2 meters from the
boundary line. Article 669. xxx
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can close
them should he acquire part-ownership 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.
(581a)

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4-Manresa | Ateneo de Davao University College of Law

between 2 buildings na sa boundary na nya, pwede ang big

windows. But 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 three meters to be
measured in the manner provided in article 671. Any
stipulation permitting distances less than those prescribed in
This is not a party wall, this belongs to A, nagbukas sya ng article 670 is void. (585a)
window dyan, B can close the window if B acquires part
ownership thereof and becomes a co-owner. If he turns this
into a party wall. Why did he close it? Because he cannot put The title referred to here is acquired either by agreement,
a window on a party wall, since that is not allowed. This is donation, or prescription.
allowed if this is not a party wall. But if it is a party wall, since
it is not allowed, then B can close it. What can he do? He can And it also applies when the easement has been acquired
obstruct it by raising his building. Unless, meron nang under Art. 624.
easement of light and view na si A. What will give A that?
Notarial prohibition. Di na nya pwede dikitan, dapat dito sya Article 624. The existence of an apparent sign of easement
3 meters. between two estates, established or maintained by the owner
of both, shall be considered, should either of them be
• A restricted window is allowed, if it is made on one’s alienated, as a title in order that the easement may continue
own wall. It doesn’t matter if it is up to the boundary actively and passively, unless, at the time the ownership of
line provided it is in his wall. the two estates is divided, the contrary should be provided in
• Once it becomes a party wall, it can be closed, or it the title of conveyance of either of them, or the sign aforesaid
can be obstructed. should be removed before the execution of the deed. This
• Unless there is already an easement of light and view provision shall also apply in case of the division of a thing
acquired, in such case, there must be a 3-meter owned in common by two or more persons. (541a)
distance.
• The restricted windows are for LIGHT and NOT
VIEW.
SECTION 6. - DRAINAGE OF BUILDINGS
If you have a 2-meter distance, there’s no prohibition
whatsoever. You can have the whole floor to ceiling window. Article 674. The owner of a building shall be obliged to
Nobody can demand that it be closed. construct its roof or covering in such manner that the rain
water shall fall on his own land or on a street or public place,
and not on the land of his neighbor, even though the adjacent
land may belong to two or more persons, one of whom is the
owner of the roof. 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. (586a)

CABACUNGAN vs. CORALES (1954)

Article 671. The distance referred to in the preceding article The roof was positioned in such a way that the water would
shall be measured in cases of direct views from the outer line fall on the neighbor’s land. This is a legal easement. We do not
of the wall when the openings do not project, from the outer see it, but it’s there.
line of the latter when they do, and in cases of oblique view
from the dividing line between the two properties. (583) For a third cause of action, the complaint alleges that in
January, 1950, defendants, being owners of a lot contiguous
to the land here in question, constructed a building on said lot
Article 672. The provisions of article 670 are not applicable to with balcony and windows less than three meters distant
buildings separated by a public way or alley, which is not less from said land and with roof that drains rain water into it in
than three meters wide, subject to special regulations and violation of Article 670 and 674, respectively, of the New Civil
local ordinances. (584a) Code. Plaintiffs, therefore, pray that the said balcony and
windows be ordered closed and the roofs constructed in such
a way that rain water would not fall on plaintiffs' land. Taking
the view that, with the acquisition by defendants of a share in
the land in question, the easement of light, view and drainage
was extinguished "by merger in the same person of the
ownership of dominant and servant estates" pursuant to
Article 631 of the New Civil Code, the lower court ruled out
this cause of action. This view if patently erroneous. As
defendants have not become sole owners of the servient
Let’s say we have here 2 buildings with big windows, let’s say estate, for they have acquired only a part interest therein, it
the boundary is here, this is 1.5, and this is 1.5, pwede ba itong cannot be said that in this case ownership of the dominant
xxx. No. Because kailangan 2 meters and distance from the and servient estates has been merged in the same person for
boundary line. the purposes of the article cited.

What if this is not a boundary but an alley, a public way or And as to the matter of drainage, Article 674 of the New Civil
alley, which is 3 meters wide. If there is a 3-meter alley Code specifically provides "that the owner of a building shall

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

be obliged to construct its roof or covering in such a manner land of another, the latter may cut them off himself within his
that the rain water shall fall on his own land or on a street or property. (592)
public place, and not on the land of his neighbor, even though
the adjacent land may belong to two or more persons, one of
Article 681. Fruits naturally falling upon adjacent land belong
whom is the owner of the proof."
to the owner of said land. (n)

Article 675. The owner of a tenement or a piece of land,

subject to the easement of receiving water falling from roofs,
may build in such manner as to receive the water upon his
SECTION 9. - LATERAL AND SUBJACENT SUPPORT (N)
own roof or give it 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. (587) 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.
Article 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to give an
• LATERAL SUPPORT – when both the land being
outlet through the house itself to the rain water collected
supported and the supporting land are on the
thereon, the establishment of an easement of drainage can
SAME PLANE.
be demanded, giving an outlet to the water at the point of the
contiguous lands or tenements where its egress may be
While a person may excavate on his own land, he cannot do
easiest, and establishing a conduit for the drainage in such
so if by such action, adjacent buildings would collapse or
manner as to cause the least damage to the servient estate,
adjacent lands crumble.
after payment of the property indemnity. (583)
If you remember the time in Abreeza, because of the
constructions sa Tower, they were digging their parking
basement, nahulog yung road going to the back. They should
make sure that the neighboring land would not fall.
SECTION 7. - INTERMEDIATE DISTANCES AND WORKS FOR
CERTAIN CONSTRUCTIONS AND PLANTINGS • SUBJACENT SUPPORT – support from underneath
when the land supported is ABOVE the supporting
Article 677. No constructions can be built or plantings made land.
near fortified places or fortresses without compliance with
the conditions required in special laws, ordinances, and This is not very common here in the Philippines. But in
regulations relating thereto. (589) developed countries, there’s a city under the ground.

Article 678. No person shall build any aqueduct, well, sewer, CASTRO vs. MONSOD (2011)
furnace, forge, chimney, stable, depository of corrosive This is the house of Monsod and this is Castro. Originally,
substances, machinery, or factory which by reason of its magkalevel yung kaning lands. When Manuela Homes
nature or products is dangerous or noxious, without developed, they dug. So andito na yung level ng Manuela
observing the distances prescribed by the regulations and Homes. And they built a retaining wall.
customs of the place, and without making the necessary
protective 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. (590a)

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 two meters from Castro started making some excavations. Ninyerbyos si
the dividing line of the estates if tall trees are planted and at Monsod, baka daw mahulog yung property nya.
a distance of at least fifty centimeters if shrubs or small trees
are planted. In February 2000 respondent caused the annotation of an
adverse claim against 65 sq. m of petitioner's property. The
Every landowner shall have the right to demand that trees adverse claim was filed without any claim of ownership over
hereafter planted at a shorter distance from his land or the property. Respondent was merely asserting the existing
tenement be uprooted. legal easement of lateral and subjacent support at the rear
portion of his estate to prevent the property from collapsing,
The provisions of this article also apply to trees, which have since his property is located at an elevated plateau of 15 feet,
grown spontaneously. (591a) more or less, above the level of petitioner’s property. The
digging could cause his property’s collapse.
Article 680. If the branches of any tree should extend over a
Respondent also filed a complaint for malicious mischief and
neighboring estate, tenement, garden or yard, the owner of malicious destruction before the office of the barangay
the latter shall have the right to demand that they be cut off
chairman. In defiance, petitioner filed a complaint for
insofar as they may spread over his property, and, if it be the
damages with TRO/WPI before the RTC. He also prayed that
roots of a neighboring tree which should penetrate into the

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4-Manresa | Ateneo de Davao University College of Law

the Register of Deeds be ordered to cancel the annotation of misplaced since he does not have a claim over the ownership
the adverse claim on his title. of the land. In reality, what respondent is claiming is a judicial
recognition of the existence of the easement of subjacent and
Prior to the filing of the case, there were deposits of soil and lateral support over the 65 sq. m. portion of petitioner’s
rocks about 2 meters away from the front door of the house property covering the land support/embankment area. His
of petitioner. As such, petitioner was not able to park her reason for the annotation is only to prevent petitioner from
vehicle at the dead-end portion of Garnet Street. When removing the embankment or from digging on the property
petitioner noticed a leak that caused the front portion of her for fear of soil erosion that might weaken the foundation of
house to be slippery, she hired construction workers to see the rear portion of his property which is adjacent to the
where the leak was coming from. The workers had already property of petitioner.
started digging when police officers sent by respondent came
and stopped the workers from finishing their job. Article 684 of the Civil Code provides that no proprietor shall
make such excavations upon his land as to deprive any
Petitioner: When she bought the property in 1994, there was adjacent land or building of sufficient lateral or subjacent
no annotation or existence of any easement over the support. An owner, by virtue of his surface right, may make
property. Respondent neither asked permission nor talked to excavations on his land, but his right is subject to the
her with regard to the use of 65 sq.m. of her property as limitation that he shall not deprive any adjacent land or
easement. Petitioner also admitted that the title does not building of sufficient lateral or subjacent support.
cover the open space at the dead-end portion of Garnet
Street. Between two adjacent landowners, each has an absolute
property right to have his land laterally supported by the soil
Respondent: When he bought the property in 1983, the land of his neighbor, and if either, in excavating on his own
elevation of Moonwalk Village (where P lived) was almost on premises, he so disturbs the lateral support of his neighbor’s
the same level as Manuela Homes (where R lived). However, land as to cause it, or, in its natural state, by the pressure of
sometime in 1985 and 1986, Pilar Development Corp., the its own weight, to fall away or slide from its position, the one
developer of Manuela Homes, bulldozed, excavated, and so excavating is liable. Here, an easement of subjacent and
transferred portions of the elevated land to the lower lateral support exists in favor of respondent. It was
portions of Manuela Homes. Thus, Manuela Homes became established that the properties of petitioner and respondent
lower than Moonwalk Village. Before the said excavation, adjoin each other.
respondent was assured by PDC that an embankment will be
retained at the boundary of Manuela Homes and Moonwalk A permanent injunction on the part of petitioner from making
Village, which is more or less 15 feet higher than Manuela injurious excavations is necessary in order to protect the
Homes. Manuela Homes retained the embankment consisting interest of respondent. However, an annotation of the
of soil and rocks. existence of the subjacent and lateral support is no longer
necessary. It exists whether or not it is annotated or
Respondent had the open space riprapped with stones as registered in the registry of property. A judicial recognition
reinforcement against any potential soil erosion, earthquake, of the same already binds the property and the owner of the
and possible digging by any person. Respondent asserted that same, including her successors-in-interest. Otherwise, every
the affidavit of adverse claim was for the annotation of the adjoining landowner would come to court or have the
lateral and subjacent easement of his property over the easement of subjacent and lateral support registered in order
property of petitioner, in view of the latter’s manifest for it to be recognized and respected.
determination to remove the embankment left by the
developer of Manuela Homes. If there is a legal easement in your favor, you just have to go
to court and ask the court to judicially recognize that legal
1st issue: Whether the easement of lateral and subjacent easement.
support exists on the subject adjacent properties. YES. It
exists everywhere. Why is there a danger in annotating? Otherwise, every owner
would come to court and have the easement of subjacent and
So, Castro is obliged not to make any excavations or diggings lateral support registered in order for it to be recognized. The
that would cause the collapse of the wall of Monsod. It exists. ROD cannot do anything else anymore. So, legal easements
It is a legal easement. need not be annotated.

Monsod wants the court to annotate in the title of Castro that Article 685. Any stipulation or testamentary provision
there exists a legal easement of lateral and subjacent support allowing excavations that cause danger to an adjacent land or
in his favor. building shall be void.

2nd issue: whether the same may be annotated at the back of

the title of the servient estate. Can the ROD be compelled to Article 686. The legal easement of lateral and subjacent
annotate it? NO. support is not only for buildings standing at the time the
excavations are made but also for constructions that may be
If it is a legal easement, it doesn’t have to be annotated. Ano erected.
lang kaylangan i-annotate sa title ng servient estate?
Voluntary easements. Under 617, it is not there in the title, Article 687. Any proprietor intending to make any excavation
then the voluntary easement does not exist. contemplated in the three preceding articles shall notify all
owners of adjacent lands.
SC declared that an easement exists, but annotation is not
necessary. It exists whether or not it is annotated or
registered. The right of the owner under NCC 437 is limited by
(1) servitudes or easements, (2) special laws, (3) ordinances,
(4) reasonable requirements of aerial navigation, and (5)
rights of third persons. Respondent’s assertion that he has an
adverse claim over the 65 sq.m. property of petitioner is

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4-Manresa | Ateneo de Davao University College of Law

CHAPTER 3. - VOLUNTARY EASEMENTS

The existence of a zoning ordinance prohibiting factories in
Article 688. Every owner of a tenement or piece of land may the area is immaterial. The ordinance might be repealed at
establish thereon the easements, which he may deem any time; and if so repealed, this prohibition would not be
suitable, and in the manner and form which he may deem enforceable against new purchasers of the land, who may be
best, provided he does not contravene the laws, public policy ignorant thereof. The same remark applies to Rafaela's
or public order. (594) promise not to build a factory on the lot: new owners might
not be bound.
There are voluntary easements that do not have to be for the
A problem might arise if and when the ordinance is amended
benefit of another immovable or for a benefit of a community
so as to convert the area into an industrial zone — impliedly
or a certain number of persons. It could just be there because
permitting factories. Probably, the limitation might still bind
the owner wants it. He wants to put an encumbrance on
the lot owner (with annotation) ; but it is not the present
himself.
issue, and we do not now decide it.
This is normally done by subdivision developers. Originally,
Kase kung tanggaling, yung buyer na susunod, malay ba nya
developers own subdivision lots, when the buyer buys a lot
na meron palang restrictions.
from them, he cannot not sign the deed of restrictions.
However, in the case of –
Under the Civil Code, one can build up to the boundary line,
that’s yours, use it. But, yung mga restriction ng subdivision,
NORTH NEGROS SUGAR CO. vs. SERAFIN HIDALGO (1936)
ang iba kaylangan from the back wall may 3 meters, etc. So,
There is a sugar mill in the middle of their property. North
that is already an easement, an encumbrance, a limitation on
Negros constructed a road for people to pass from the town
one’s right to enjoy. Other examples: hindi pwede 3 storey,
up to the milling site. Dun sa milling site may mga
yung bakod kailangan 1 meter lang yung hollow block, the rest
establishments din. Not only North Negros’ employees are
should be open. So, these are the easements imposed by the
allowed to pass there but also anybody can pass. Even
owner.
vehicles are allowed to pass but charged 15-centavo toll fee
per truck. Pedestrians could go through.
TRIAS vs. ARANETA (1965)
M Tuason and Co. owned a piece of land that was part of a
There was this hacienda, to go there, people take a shortcut
subdivision. Thru broker Araneta Inc (of Araneta Coliseum
through the milling site. Hidalgo, meron syang tubaan. Yung
fame), this civic-minded company sold the land to Mr Lopez
mga trabahante ng North Negros, they all go there after work.
with the condition that said lot should never be used to erect
Nagalit yung North Negros kase yung mga trabahante instead
a factory. This imposition was annotated to the TCT.
na matapos ng 5pm, 4pm nagmamadali na para makapunta
sa tubaan. North Negros ordered the security guards to
A series of transfers and conveyances later, the lot ended up
prohibit Hidalgo from passing sa kanilang road. Definitely this
in the hands of the gorgeous Ms. Rafaela Trias. She was
is a voluntary easement, maraming ibang daanan, but this
dismayed with the annotation that stated “. That no factories
was provided for the benefit of the community, no
be permitted in this section.”
prohibitions, and no restrictions until Hidalgo was prohibited.
According to North Negros that the easement is voluntary for
Ms. Trias felt that the annotation impaired her dominical
the benefit of the community and even though Hidalgo used
rights and therefore illegal and existed as mere surplusage
it for 50 years, he has not acquired an easement of right of
since existing zoning regulations and ordinances already
way because it is discontinuous. He definitely did not acquire
prevented the erection of factories in the vicinity. Worse, the
by virtue of a title.
annotation possibly hindered her plans to obtain a loan. She
accordingly raised the issue to the court and received relief.
Can North Negros do this?
Later on, Gregorio Araneta moved for reconsideration stating
HELD: NO. NorthNegros has a right to its use upon paying the
that the imposition resulted from a valid sales transaction
passage fees required by the plaintiff. Indeed the latter may
between her predecessors in interest. He alleged that the
close it at its pleasure, as no period has been fixed when the
court held no authority to overrule such valid easement and
easement was voluntarily constituted, but while the road is
impaired the right to contract.
thrown open, the plaintiff may not capriciously exclude the
defendant from its use.
Is she entitled to the removal or the cancellation of the
annotation on her title?
Either you close it, or you allow everyone. Unless from the
beginning, it was established there that someone isn’t
HELD: NO. Such prohibition is similar to other conditions
allowed to use the road.
imposed by sellers of subdivision lots upon purchasers
thereof, in and around Manila. It is in reality an easement,1
JABONETE, ET AL. vs. JULIANA MONTEVERDE, ET AL (1966)
which every owner of real estate may validly impose under
There was a right of way that was granted to certain people,
Art. 688 of the New Civil Code, which provides that "the
A, B, C, D, and E. it was a personal easement (specifically for
owner of a piece of land nay establish thereon the easements
certain persons). It was not a real easement (for the benefit
which he may deem suitable, ... provided he does not
of the estate, it doesn’t matter who the people are there). It
contravene the law, public policy or public order".
was for the benefit only of A, B, C, D, and E. Binentayun kay X.
Pwede bang dumaan si X?
The limitation is essentially a contractual obligation, which the
seller, Tuason & Co., Inc. (thru Araneta Inc.) imposed, and the
HELD: NO. it was a clear. This is not a real easement na pwede
purchaser agreed to accept. Of course, it restricts the free use
successors in interest. Under the aforesaid order of May 24,
of the parcel of land by the purchaser. However, "while the
1954, the easement awarded or secured by the lower court to
courts have manifested some disfavor of covenants restricting
the plaintiffs was strictly a personal one. The right of way
the use of property, they have generally sustained them
granted was expressly limited to the latter and their "family,
where reasonable, and not contrary to public policy ....”
friends, drivers, servants and jeeps."

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

The servitude established was clearly for the benefit alone of Corporation. Included in such sale was half or 7.5 meters
the plaintiffs and the persons above enumerated and it is width of the Mangyan road. The said corporation assigned its
clear that the lower court, as well as the parties addressed by rights, with the consent of the Tuasons, to AdMU through a
the said order, did not intend the same to pass on to the Deed of Assignment with Assumption of Mortgage. Ateneo
plaintiffs' successors-in-interest. In other words, the right later on sold to Maryknoll the western portion of the land.
acquired by the original plaintiffs was a personal servitude Tuason developed their land, which is now known as La Vista.
under Article 614 of the Civil Code, and not a predial servitude
that inures to the benefit of whoever owns the dominant On January, 1976, Ateneo and La Vista acknowledged the
estate. voluntary easement or a Mutual right of way wherein the
parties would allow the other to use their half portion of the
Article 689. The owner of a tenement or piece of land, the Manyan road (La Vista to use AdMU’s 7.5 meters of the
usufruct of which belongs to another, may impose thereon, Mangyan road and also the other way around.) Ateneo
without the consent of the usufructuary, any servitudes, auctioned off the property wherein Solid Homes Inc., the
which will not injure the right of usufruct. (595) developer of Loyola Grand Villas, was the highest bidder.

ADMU transferred not only the property, but also the right to
This is in relation to easements and usufruct.
negotiate the easement on the road to Solid Homes which
developed the subdivision called Loyola Grand Vilas.
Who can establish an easement, the naked owner or the
However, La Vista did not want to recognize the easement
usufructuary? It is the naked owner. Does he need the
thus they block the road using 6 cylindrical concrete and some
consent of the usufructuary? NO.
guards over the entrance of the road blocking the entrance of
the residents of Loyola Grand Villas. Loyola Grand Villa
Article 690. Whenever the naked ownership of a tenement or homeowners used the Manyan Road to go their subdivision.
piece of land belongs to one person and the beneficial So, pumalag si La Vista Homeowners Association claiming that
ownership to another, no perpetual voluntary easement may they are not allowed to pass through the Mangyan Road
be established thereon without the consent of both owners. because this is only for AdMU, the successors in interest of
(596) PBC. Solid Homes Inc. filed for injunction and La vista in turn
filed a third party complaint against AdMU.
Article 691. In order to impose an easement on an undivided
tenement, or piece of land, the consent of all the co-owners Whether or not there is an easement of right of way? Can the
shall be required. Loyola Grand Villa residents use the Mangyan road?

The consent given by some only, must be held in abeyance HELD: YES. All of these homeowners here are servient and
until the last one of all the co-owners shall have expressed his dominant owners of each other. Because they all contributed
conformity. 7 meters something both sides of the road.

But the consent given by one of the co-owners separately Some of the arguments of the La Vista were that Loyola
from the others shall bind the grantor and his successors not residents had adequate outlet through the Marikina to a
to prevent the exercise of the right granted. (597a) public highway using other roads and also that AdMU has not
yet finalized the negotiation of the easement. So, there’s no
need for this easement of right of way. Is La Vista correct? NO.
Can one co-owner impose an easement on undivided co-
owned property without the consent of others? NO. This is an
Non-necessity is not a cause for the extinguishment of
act of alteration. And therefore the consent must be given
easement of right of way if the easement is voluntary.
unanimously but need not be obtained simultaneously.
There was a voluntary easement of right of way, which was
Article 692. The title and, in a proper case, the possession of acknowledged on January 1976 by the Tuasons and AdMU
an easement acquired by prescription shall determine the (the easement was established by PBC and the Tuasons, the
rights of the dominant estate and the obligations of the predecessors in interest). Being such, the 4 requisites for a
servient estate. In default thereof, the easement shall be compulsory easement need not be met. And like any other
governed by such provisions of this Title as are applicable contractual stipulation, the same cannot be extinguished
thereto. (598) except by voluntary recession of the contract establishing the
servitude or renunciation by the owner of the dominant lots.
This talks about the governing rules for voluntary easement. In the case at bar, all the predecessors-in-interest of both
parties recognized the existence of such easement and there
Article 693. If the owner of the servient estate should have was no agreement yet to revoke the same. The free ingress
bound himself, upon the establishment of the easement, to and egress along Mangyan Road created by the voluntary
bear the cost of the work required for the use and agreement is thus demandable.
preservation thereof, he may free himself from this obligation
by renouncing his property to the owner of the dominant The Court also emphasized that they are not creating an
estate. (599) easement but merely declaring one (there no such thing as a
judicial easement)
LA VISTA vs. COURT OF APPEALS (1997)
In AdMU, there were 2 schools there, Ateneo and Miriam
College. The controversy in this case is regarding the right of
way in Manyan road for the benefit of both sides. The road is
a 15-meter wide road abutting Katipunan Avenue on the
west, traverses the edges of La Vista Subdivision on the north
and of the Ateneo de Manila University and Maryknoll College
on the south. The said road was originally owned by the
Tuasons sold a portion of their land to Philippine Building

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

September 24, 2018 6. Acceptance by the donee – although delivery is not

required, the donation cannot be perfected
TITLE III. - DONATION without acceptance.
CHAPTER 1. - NATURE OF DONATIONS 7. Upon acceptance, the donee becomes the absolute
ownership over the property donated.
Article 725. Donation is an act of liberality whereby a
person disposes gratuitously of a thing or right in favor of CLASSIFICATION OF DONATIONS
another, who accepts it. (618a) 1. ACCORDING TO MOTIVE, PURPOSE, OR CAUSE
a. Simple Donation – Art. 725
This is a gratuitous contract. b. Remuneratory – Art. 726 When a person
gives to another a thing or right on
REQUISITES account of the latter's merits or of the
1. Decrease in the patrimony of the donor services rendered by him to the donor,
2. With the resultant increase in the patrimony of provided they do not constitute a
the donee demandable debt
3. Intent to do an act of liberality
Ex: Mr. X who is now a successful lawyer
HEIRS OF MARAMAG VS DE GUZMAN who was able to get a windfall, he wants
FACTS: Under Art. 739 we have here Laureto Maramag to reward his yaya for taking care of him
who had a wife and children. Aside from his wife, he had a since he was small. That does not
mistress in the name of Eva de Guzman with whom he also constitute a demandable debt, but he
had children. What he did, he took out insurance policies wants to give something on account of
and made the children as beneficiaries. When he died, the the yaya’s services.
insurance companies gave the children the proceeds.
c. Modal or Conditional – Art. 726 when
ISSUE: Was there a donation? Let’s say the children got 1 the gift imposes upon the donee a
million each from the Insurance Company, was there a burden which is less than the value of
donation of 1m each? the thing given, there is also a donation

HELD: NO, because the proceeds did not come from Ex: There is something asked for in
Laureto Maramag, but from the Insurance Company. What return. But, the burden must be less
came from Laureto are the payments for the premium. If than the value of the thing given. I will
ever there is a donation there, it would only be the value donate to you a car, but you will have to
of the premiums paid. If he only paid 100k each for the teach me how to play the piano. Of
insurance premium, then should there be a donation, it course, car is more expensive than piano
would only be limited to that extent. Because there must lessons.
be a decrease in the patrimony of the donor and a
resultant increase in the patrimony of the donee, the I am going to give you a car, provided you
same amount. In this case, since the proceeds are much do not get married.
greater than the premiums paid, then the entire proceeds
cannot be considered as a donation. Why is it an issue? d. Onerous – Art. 733. Donations with an
Because the legitimate children of Maramag are saying onerous cause shall be governed by the
that such amount should be collated. But the SC said No, rules on contracts and remuneratory
the amount must not be collated, if any only the value of donations by the provisions of the
the premiums paid. present Title as regards that portion
which exceeds the value of the burden
GENERAL CHARACTERISTICS OF DONATION imposed. (622)6
1. Essentially Gratuitous
2. It is by itself a mode of acquiring ownership ABELLO VS CIR
 Unlike in a contract of sale where delivery FACTS: This case involves the late Sen. Edgardo Angara
is necessary to transfer ownership. In who was one of the founding fathers of ACCRA Law Firm.
donation, delivery is not necessary. As long When he ran for Senate, each of his partners contributed
as the donation is valid, then there is to his campaign funds. Later, the partners were assessed
already an automatic transfer of ownership for donor’s tax. In their defense, the partners contend that
from the donor to the donee, even if the what they contributed is not actually a donation because
donor is still in possession of the property it will not directly benefit Angara, but his campaign.
and has not delivered the same to the Moreover, it cannot be donation because in a real
donee. donation, the intent to donate is an act of liberality.
However, in donating on campaign funds, there
ESSENTIAL CHARACTERISTICS OF A TRUE DONATION (ART. consideration is not merely an act of liberality. There is
725) something expected in return.
1. Consent, subject matter, and cause
ISSUE: Should the contributions to the campaign fund of
2. Formalities under 747 and 749
Angara be considered as donations?
3. Generally Irrevocable
4. Intent to benefit the donee (animus donandi)
HELD: Yes. Reference was made to Art. 725, then to the
5. Resultant decrease in the patrimony or assets of
elements. The present case falls squarely within the
the donor
definition of a donation. Petitioners, the late Manuel G.

6
MRS does not like this provision since it’s not really a donation,
but just take note that there is unfortunately, a 4th classification

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Abello, Jose C. Concepcion, Teodoro D. Regala and Avelino Metro Manila. This action was brought against 26
V. Cruz, each gave P882,661.31 to the campaign funds of defendants, none of whom are respondents in this
Senator Edgardo Angara, without any material case. The Llamas Spouses filed before the RTC to be
consideration. All three elements of a donation are allowed to intervene. They claimed that they were
present. The patrimony of the four petitioners were excluded from the expropriation case despite having
reduced by P882,661.31 each. Senator Edgardo Angaras properties affected by the road widening project. RTC
patrimony correspondingly increased by P3,530,645.24. denied payment for areas covered by the title of the
There was intent to do an act of liberality or animus Llamas spouses and noted that according to the DPWH, the
donandi was present since each of the petitioners gave areas were subdivision road lots, which the Llamas
their contributions without any consideration. Spouses "no longer owned"and which "belonged to the
community for whom they were made." In insisting on a
Since animus donandi or the intention to do an act of compulsion on subdivision owners and developers to cede
liberality is an essential element of a donation, petitioners open spaces to government, the DPWH references P.D.
argue that it is important to look into the intention of the No. 957, as amended by P.D. No. 1216, otherwise known
giver to determine if a political contribution is a gift. as the Subdivision and Condominium Buyer's Protective
Petitioners argument is not tenable. First of all, donative Decree. It provides that the use of the word "shall"-
intent is a creature of the mind. It cannot be perceived subdivision developers to donate to the city or
except by the material and tangible acts which manifest its municipality with territorial jurisdiction over the
presence. This being the case, donative intent is presumed subdivision project all such roads, alleys, sidewalks, and
present when one gives a part of ones patrimony to open spaces. It also imposes upon cities and municipalities
another without consideration. Second, donative intent is the concomitant obligation or compulsion to accept such
not negated when the person donating has other donations.
intentions, motives or purposes which do not contradict
donative intent. This Court is not convinced that since the ISSUE: WON just compensation should be paid to Spouses
purpose of the contribution was to help elect a candidate, Llamas for the subdivision road lots.
there was no donative intent. Petitioners contribution of
money without any material consideration evinces animus HELD: Yes. One cannot speak of donation and compulsion
donandi. The fact that their purpose for donating was to on the same breath. A donation is an act of liberality. To be
aid in the election of the donee does not negate the considered a donation, an act of conveyance must
presence of donative intent. necessarily proceed freely from the donor's own,
unrestrained volition. A donation cannot be forced: it
LAGAZO VS CA cannot arise from compulsion, be borne by a requirement,
FACTS: LadyX lives in Canada and she donated a parcel of or otherwise be impelled by a mandate imposed upon the
land to her Grandson Y who is here in the Philippines. So donor by forces that are external to him or her. Section 31
she wrote a letter manifesting her intention to donate a 's compulsion to donate (and concomitant compulsion to
parcel of land, photocopy title, etc. so grandson went to accept) cannot be sustained as valid. Not only does it run
the Register of Deeds, City Treasurer, etc then he later afoul of basic legal concepts; it also fails to withstand the
found out that there were arrears in the RPT. So grandson more elementary test of logic and common sense. As there
paid for the mejoras the amount of which is almost is no such thing as an automatic cession to government of
equivalent to the value of the lot ☺ Since, X did not know subdivision road lots, an actual transfer must first be
about all these developments as Y did not inform her effected by the subdivision owner: "subdivision streets
anything about it, she later sold the property to another. belonged to the owner until donated to the government or
What kind of donation was made by X to Y? X contends until expropriated upon payment of just compensation." A
that it is a simple donation since Y is her grandson and it is "positive act"must first be made by the "owner-developer
an act of liberality because of her love and affection to him. before the city or municipality can acquire dominion over
According to Y, it cannot be a simple donation since it is the subdivision roads."As there is no such thing as an
onerous. automatic cession to government of subdivision road lots,
an actual transfer must first be effected by the subdivision
ISSUE: Where the acceptance of a donation was made in a owner: "subdivision streets belonged to the owner until
separate instrument but not formally communicated to donated to the government or until expropriated upon
the donor, may the donation be nonetheless considered payment of just compensation." "The local government
complete, valid and subsisting? Where the deed of should first acquire them by donation, purchase, or
donation did not expressly impose any burden -- the expropriation, if they are to be utilized as a public road."
expressed consideration being purely one of liberality and So if the owner does not want to donate, then it will have
generosity -- but the recipient actually paid charges to be expropriation, and when properties are
imposed on the property like land taxes and installment expropriated, there must be just compensation.
arrearages, may the donation be deemed onerous and
thus governed by the law on ordinary contracts? CITY OF ANGELES VS CA
FACTS: This case involves the same law discussed in the
HELD: It does not matter if he pays the taxes. What matters previous case (Section 31 thereof) which compels the
is the intent of the donor. The reason for donating, which owners to donate. The developer donated an area to the
is the love and affection of the donor to the donee, is City of Angeles. In the deed of donation, it contained
enough to show that this is a simple donation. provision that prohibited the construction of buildings and
it should be devoted and utilized solely for the site of the
RP VS LLAMAS7 Angeles City Sports Center (the condition to donate).
FACTS: The DPWH initiated an action for expropriation for However, the city built in it a drug rehabilitation center.
the widening of Dr. A. Santos Ave. (also known as Sucat This lot is adjacent to the subdivision.
Road) in what was then the Municipality of Paranaque,

7
This is a fairly new case. January 25, 2017 penned by Justice
Marvic Leonen.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

ISSUE: Can a donor who is not donating because of his the donor. In donations mortis causa, there is no need to for
intent to donate an act of liberality but because he is acceptance
forced to donate, make a conditional donation
Article 729. When the donor intends that the donation
HELD: Yes. The condition to build a sports complex on the shall take effect during the lifetime of the donor, though
donated land is contrary to law and should be considered the property shall not be delivered till after the donor's
as not imposed. The general law on donations does not death, this shall be a donation inter vivos. The fruits of the
prohibit the imposition of conditions on a donation so long property from the time of the acceptance of the donation,
as the conditions are not illegal or impossible. The shall pertain to the donee, unless the donor provides
contention of petitioners that the donation should be otherwise. (n)
unconditional because it is mandatory has no basis in
law. P.D. 1216 does not provide that the donation of the There is another kind of donation inter vivos. This is
open space for parks and playgrounds should be DONATIONS IN PRAESENTI.
unconditional. To rule that it should be so is tantamount to
unlawfully expanding the provisions of the decree. This donation take affect during the lifetime of the donor,
though the property shall not be delivered till after the
Article 726. When a person gives to another a thing or right donor’s death.
on account of the latter's merits or of the services rendered
by him to the donor, provided they do not constitute a Before the TRAIN Law, the estate tax is the highest of the
demandable debt, or when the gift imposes upon the donee taxes. So what the rich do is they donate to their children but
a burden which is less than the value of the thing given, there they will continue to possess and enjoy the fruits. So the
is also a donation. (619) property shall not be delivered, it’s just that the title of the
property be transferred. Is there transfer of ownership? Yes
Article 727. Illegal or impossible conditions in simple and as long as the donation is perfected because we know that
remuneratory donations shall be considered as not there is no need for delivery. Even if he holds on the property
imposed. (n) until he dies, he is no longer the owner, he already donated
it, he just has, maybe, a usufruct.
Article 728. Donations which are to take effect upon the But in a donation in praesenti, what is the donor keeping to
death of the donor partake of the nature of testamentary himself? Only the use.
provisions, and shall be governed by the rules established
in the Title on Succession. (620) What about the fruits? It pertains to the donee for this kind
of donation. But it says “unless the donor provides
KINDS OF DONATIONS otherwise.” (Although practically, if you are the donor, you
1. Inter Vivos will really get the fruits.) So it is just like a donation in usufruct.
2. Mortis Causa The right to dispose is transferred.

If it is a donation inter vivos, the formalities should be that of Article 730. The fixing of an event or the imposition of a
Article 749. If it is mortis cause, the formalities should be that suspensive condition, which may take place beyond the
of a will and testament with the 11 requisites. How do you natural expectation of life of the donor, does not destroy
know if it is inter vivos or mortis cause? the nature of the act as a donation inter vivos, unless a
contrary intention appears. (n)
DISTINGUISHING CHARACTERISTICS OF THE DONATIONS
MORTIS CAUSA
Article 731. When a person donates something, subject to
1. It conveys no title or ownership to the done before
the resolutory condition of the donor's survival, there is a
the death of the donor or that the donor should
donation inter vivos. (n)
retain the ownership (full or naked) and control of
the property while alive.
2. That before the donor’s death, the donation should Article 732. Donations which are to take effect inter vivos
be revocable by the donor at will (but revocability shall be governed by the general provisions on contracts
may be provided for indirectly by means of a and obligations in all that is not determined in this Title.
reserved power in the donor to dispose of the (621)
properties conveyed).
3. That the donation should be void if the donor Article 733. Donations with an onerous cause shall be
should survive the donee. governed by the rules on contracts and remuneratory
donations by the provisions of the present Title as regards
DEL ROSARIO VS FERRER that portion which exceeds the value of the burden
The deed of donation reads: “It is our will that this imposed. (622)
Donation Mortis Causa shall be irrevocable and shall be
respected by the surviving spouse…It is our further will Article 734. The donation is perfected from the moment
that any one surviving spouse reserves the right, the donor knows of the acceptance by the donee. (623)
ownership, possession and administration of this property
herein donated and accepted and this Disposition and
When is a donation deemed perfected? From the moment
Donation shall be operative and effective upon the death
the donor knows of the acceptance of the donee.
of the DONORS.” What does the SC do? It cancels out (just
like a party wall). So, you have to know the distinguishing
What theory is that? This is the cognition theory. The donor
characteristics.
should know that the done accepted the donation.
In donations inter vivos, there is an automatic transfer of
Going back to the case of LAGAZO VS CA, the donor-
ownership even though he has the right to dispose. In mortis
grandmother did not know she made a donation and probably
causa, it will be transferred to the donee after the death of
she also thought that her grandchild, who paid the taxes

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

therein, already died. Was the donation perfected? No, proved by preponderance of evidence in the same action.
because there was no knowledge by the donor that the done (n)
accepted it.
“(1) Those made between persons who were guilty of
adultery or concubinage at the time of the Donation”

CHAPTER 2. - PERSONS WHO MAY GIVE OR RECEIVE A HEIRS OF MARAMAG VS DE GUZMAN

DONATION Loreto Maramag got an insurance policy for the mistress.
What applies to donations also applies to insurance policies.
Article 735. All persons who may contract and dispose of She is not entitled to that. Only the policies in favor of the
their property may make a donation. (624) illegitimate children were recognized by SC. The one made to
the mistress was not recognized because of Article 739 (1).
Generally one who is of legal age can make the donation
(because he can enter a contract). He has to be the owner “In the case referred to in No. 1, the action for declaration of
because the right to dispose only belongs to the owner. nullity may be brought by the spouse of the donor or done.”
Take note that the action for declaration may be brought by
What about minors, those of unsound mind? They do not the spouse of the donor or the spouse of the donee. This
have the capacity to contract. These donations made by them donation is void. What you file is an action for declaration of
(minors and persons of unsound mind) are not void but nullity. This is not revocation. You want the donation nullified
voidable—valid until annulled. So minors can actually donate because it is void because the donee has no right under the
and this donation is valid until annulled. law. She cannot receive because she is the mistress or he is
the paramour.
Article 736. Guardians and trustees cannot donate the
property entrusted to them. (n) “the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.”
What is a guardian donates a property of the ward? What if The donor and donee do not need to be declared guilty in a
the trustee donates property of the beneficiary? That criminal case. This means that the donor or the donee does
donation is not voidable but void. not have to be declared guilty in a criminal case. What the
complainant should do is to file an action for declaration of
nullity and prove that there indeed, in that situation of
Article 737. The donor's capacity shall be determined as
adultery or concubinage, in the civil case. Proof required is not
of the time of the making of the donation. (n)
proof of guilt beyond reasonable doubt but merely
preponderance of evidence.
Article 738. All those who are not specially disqualified by
law therefor may accept donations. (625) “(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;”
GENERALLY SPEAKING, THE DONOR MUST BE:
1. Of legal age; If the wife hires a hitman to kill her husband, whatever was
2. Must be the owner of the property; and paid by the wife to the hitman is a donation. The difference in
3. Must be capacitated #1 from #2 is that in the latter, they must be found guilty--
 Meaning persons of unsound mind during convicted in a criminal case. Unlike #1, civil case is enough to
lucid moments; or minors who donate show adultery and concubinage. Here, there must be a
between 17 or 18 years old criminal case first before the donation is declared null and
The capacity shall be determined as of the time of making the void.
donation. So if I am a 17 years old and 364 days, so if you look
at Article 737, I am not capacitated. But legal luminaries are “(3) Those made to a public officer or his wife, descendants
insisting that making refers to perfection. So in other words, and ascendants, by reason of his office.”
if I am still a minor when I donated but the donation was
perfected, meaning when I found out the acceptance of the If I give a gift to the child of Sarah Duterte, that is void because
donee when I was already 18, then I was capacitated because I don’t know her. If I give her a gift, there is a presumption that
making refers to perfection. 8 I did it by reason of her office. It is a different story if I am a
godmother (ninang) of that child and a friend of the Mayor.
As long as you are not disqualified by law, you can be a donee. Know the difference. If you are giving a gift for the heck of it,
then it is presumed to be given by reason of one’s office.
Article 739. The following donations shall be void:
(1) Those made between persons who were guilty It includes the wife, descendants and ascendants. Brother or
of adultery or concubinage at the time of the sister is not included in the list.
donation;
(2) Those made between persons found guilty of But a public officer given a donation is not included here. So if
the same criminal offense, in consideration the public officer gives out food packs, there is no problem. It
thereof; is the public officer receiving the donation which the provision
(3) Those made to a public officer or his wife, pertains to. This provision does not prevent a public officer
descendants and ascendants, by reason of his from becoming a donor. Relatives not enumerated under the
office. law can validly be given unless the purpose is to have the
relative give it to the public officer.
In the case referred to in No. 1, the action for declaration
of nullity may be brought by the spouse of the donor or Article 740. Incapacity to succeed by shall be applicable to
donee; and the guilt of the donor and donee may be donations inter vivos. (n)

8
MRC said that the provision says “making” but the authors say
“perfection.” It’s up to you who you want to believe.

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

(4) Any heir of full age who, having

Who are these? Persons who are incapacitated under Article knowledge of the violent death of the
1032 and 1027. testator, should fail to report it to an
officer of the law within a month, unless
They are under the category of relative incapacity. 1027 talks the authorities have already taken action;
about incapacity by reason of undue influence—that the this prohibition shall not apply to cases
donee may have unduly influenced the donor and therefore wherein, according to law, there is no
any donation made to that person, to those person obligation to make an accusation;
enumerated here, are void. These donations are void and may (5) Any person convicted of adultery or
be nullified. concubinage with the spouse of the
testator;
These are not absolute but there are specific situations here. (6) Any person who by fraud, violence,
intimidation, or undue influence should
Article 1027. The following are incapable of cause the testator to make a will or to
succeeding: change one already made;
(1) The priest who heard the confession of (7) Any person who by the same means
the testator during his last illness, or the prevents another from making a will, or
minister of the gospel who extended from revoking one already made, or who
spiritual aid to him during the same supplants, conceals, or alters the latter's
(2) The relatives of such priest or minister of will;
the gospel within the fourth degree, the (8) Any person who falsifies or forges a
church, order, chapter, community, supposed will of the decedent. (756, 673,
organization, or institution to which such 674a)
priest or minister may belong;
(3) A guardian with respect to testamentary Article 741. Minors and others who cannot enter into a
dispositions given by a ward in his favor contract may become donees but acceptance shall be
before the final accounts of the done through their parents or legal representatives.
guardianship have been approved, even if (626a)
the testator should die after the approval
thereof; nevertheless, any provision made Can minors accept? Yes. There are times when the
by the ward in favor of the guardian when acceptance shall be done through their parents or legal
the latter is his ascendant, descendant, representatives.
brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of What if the godfather (ninong) gives the minor a
a will, the spouse, parents, or children, or condominium unit? It has to be in writing, in a public
any one claiming under such witness, document.
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health Can the minor sign it? No, although he can be a donee. The
officer or druggist who took care of the parents or legal representative is given the authority to sign.
testator during his last illness;
(6) Individuals, associations and When the donation is onerous (you want to give the minor
corporations not permitted by law to something but you are imposing a condition, for instance, you
inherit. (745, 752, 753, 754a) make the minor work in the bar as a condition), the parents
have to intervene because the burden might be too much.
In Article 1032, they are disqualified by reason of
unworthiness. Be very clear on this. When it comes to
Article 742. Donations made to conceived and unborn
unworthiness, the unworthiness of the donor came before
children may be accepted by those persons who would
the donation. That is why whatever donation is made to him
legally represent them if they were already born. (627)
is void because he abandoned their children (who is now the
donor) or led the child to lead a corrupt or immoral life etc.
Can you donate to a conceived and unborn child? Yes. It is
These acts are made prior to the donation. Remember, the
the parents who will accept the donation.
status of the donation made in these cases is void.

What usually comes out in the Bar is Article 1032 (3)—when Article 743. Donations made to incapacitated persons
the donee accused the donor of a crime punishable by shall be void, though simulated under the guise of another
imprisonment for 6 years or more, if the accusation has been contract or through a person who is interposed. (628)
found groundless.
What about incapacitated persons (under 739 and 740
Article 1032. The following are incapable of including guardians and trustee)? The donation is void. It
succeeding by reason of unworthiness: says in the provision “though simulated under the guise of
(1) Parents who have abandoned their another contract,” for instance:
children or induced their daughters to ▪ the husband says to the mistress that he will just
lead a corrupt or immoral life, or sell execute a deed of sale to sell it to the latter; or
attempted against their virtue; ▪ the husband says to the mistress that he will just
(2) Any person who has been convicted of an donate it to the brother or sister of her mistress.
attempt against the life of the testator,
his or her spouse, descendants, or These instances are still considered void.
ascendants;
(3) Any person who has accused the testator Article 744. Donations of the same thing to two or more
of a crime for which the law prescribes different donees shall be governed by the provisions
imprisonment for six years or more, if the
accusation has been found groundless;

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

concerning the sale of the same thing to two or more ▪ I can say “Belle I am donating to you the thermos”
different persons. (n) (I have to deliver it to Belle). I can also say that I
bought the thermos for her and subsequently hand
The beauty of some of the provisions here is that they match. her the receipt in order for her to claim it there. I
Double sale is in Article 1544. Double donation is in Article cannot say Belle I am donating to you the thermos
744. If there is no double donation, apply Article 1544. (and that’s it, nothing more is said). Where is it
now? It is not valid if I do not give anything to her.
In LAGAZO VS CA, there was no acceptance of the donation There has to be simultaneous delivery of the thing
made by the grandmother-donor who subsequently sold the or a document representing the donated.
property to be donated. Can Article 1544 or Article 744 be ▪ If I intend to donate to her something worth more
applied? No. These articles apply only when there is double than P5,000, it must be in a written document-in
donation (where there are 2 donations), or double sale (there writing. The acceptance thereof must also in
are 2 sales made). If there is 1 donation and 1 sale, you have writing.
to look at the validity of the first contract.
In this case, since the donation was not perfected, what is If it more than P5,000, the donation must be in
valid is the sale. writing and the acceptance must also be in writing.
What kind of “in writing”? It can be a birthday card
or a note. It does not have to be formal if it is
Article 745. The donee must accept the donation
movable.
personally, or through an authorized person with a special
power for the purpose, or with a general and sufficient
For movables, if the donation is in writing, the acceptance can
power; otherwise, the donation shall be void. (630)
be oral like saying “thank you” or a thank you card. That is
enough.
According to our authors, Article 744 has no retroactive
effect.
Article 749. In order that the donation of an immovable
How must the donee accept the donation? He can accept
may be valid, it must be made in a public document,
personally, meaning he or she can sign.
specifying therein the property donated and the value of
the charges which the donee must satisfy.
Is it a requirement that it is the donee himself or herself who
will sign the acceptance? No. The donee can execute an SPA
The acceptance may be made in the same deed of
in favor of the person who is tasked to accept the donation.
donation or in a separate public document, but it shall not
take effect unless it is done during the lifetime of the
Article 746. Acceptance must be made during the lifetime donor.
of the donor and of the donee. (n)
If the acceptance is made in a separate instrument, the
When should acceptance be made? It should be made during donor shall be notified thereof in an authentic form, and
the lifetime of the donor AND the donee. Both must be alive this step shall be noted in both instruments. (633)
until the donor knows of the acceptance.
What about immovable property? In Article 749, there are
Example: The donor makes the donation on June 1, and the
two kinds (those in which the donation and acceptance are
donee finds out about it on June 5, then the donee sent the
made in the same instrument; and those in which both are
acceptance to the donor who received it on June 10. However,
made in a separate instrument).
the donee died on June 6, or the donor died before he
1. The donation and the acceptance are in the same
receives the acceptance. The donation is not perfected. It was
instrument (public instrument)
never accepted.
Example: So in a deed of donation, it should specify
Article 747. Persons who accept donations in the real property and then signed by the donor. The
representation of others who may not do so by acceptance must be made in the same instrument
themselves, shall be obliged to make the notification and and state there that “I (the donee)… accepted the
notation of which article 749 speaks. (631) donation,” then signed by the donee. So there are
2 signatures in the same document. Since it is
Article 748. The donation of a movable may be made supposed to be in a public instrument, there has to
orally or in writing. be an acknowledgment by the notary public. Once
notarized, the donation and the acceptance is on
An oral donation requires the simultaneous delivery of the the same date, so, simultaneous. No need for the
thing or of the document representing the right donated. donor to find out the acceptance by the donee.

If the value of the personal property donated exceeds five 2. The donation and acceptance are made in a
thousand pesos, the donation and the acceptance shall be separate instrument.
made in writing. Otherwise, the donation shall be void.
(632a) Example: In the case of LAGAZO VS CA, the donor
is in Canada, the donee is in the Philippines. The
If the donation is made and the thing is movable, it can be acceptance, in this case, cannot be in the same
made orally or in writing. instrument but in another one. The Court said that
there are additional requirements under Article
Example: The tumbler bought in Daiso for P88 can be donated 749 which states that: “If the acceptance is made in
orally. a separate instrument, the donor shall be notified
thereof in an authentic form, and this step shall be
“An oral donation requires a simultaneous delivery of a noted in both instruments.” What kind of
thing.” notification? It must be authentic form such as
Example: text, mail, snail mail or video. Aside from

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

notification, it must be noted in both instruments enough that the donation is in a public instrument. Yung
(i.e. “note: the donor was notified that the requirements lang ng Article 749 and limitations thereof.
acceptance was made in a separate instrument
thru email dated.” Same note should be placed in
the other instrument). Both instruments must have
the annotation. CHAPTER 3. - EFFECT OF DONATIONS AND LIMITATIONS
THEREON
In the case of LAGAZO VS CA, when the case reached the CA,
the donee presented an affidavit which stated that he Article 750. The donation may comprehend all the present
accepted the donation given to him by the donor. According property of the donor, or part thereof, provided he reserves,
to him, his grandmother was still alive and the affidavit was in full ownership or in usufruct, sufficient means for the
sent to her. The Court said even if it is in a public instrument, support of himself, and of all relatives who, at the time of the
there was no notification and notation. Article 749 requires acceptance of the donation, are by law entitled to be
that the affidavit should contain both things. Since there was supported by the donor. Without such reservation, the
none, the acceptance has no value and the donation is still donation shall be reduced in petition of any person affected.
deemed not accepted. (634a)

What if somebody else is tasked to accept in the form of an If you are a donor, can you donate everything that you own?
SPA? So there is note #1 and #2 that the donation is made in Yes. All the present property of the donor are part thereof.
a separate instrument and was accepted by Mr. Z pursuant to
a special power of attorney. There must still be notification What is the condition? You can donate everything that you
and notification required by Article 749. Those are the own provided you reserve in full ownership or in usufruct
formalities in making a donation. sufficient means for the support of himself, and of all relatives
who, at the time of the acceptance of the donation, are by law
What if the donation of real property was made in a private entitled to be supported by him.
instrument? The donation is void. So there is a formal
requirement that has to be followed when making donations What if there is no reservation made? What if you forgot to
of real property. If it is not complied with, the status of the reserve and you realized you have nothing else to eat
donation is void unless it is a donation propter nuptias, which tomorrow? ☺ He can file a petition to reduce. The donor or
is governed by the Family Code not the Civil Code. the person entitled to be supported by him can file that
petition.
There can be no ratification of an acceptance which does not
follow the requirement of notification and notation. You We are talking here about valid donation. If he donated more
cannot go against the law, even if you are the donor. at the expense of sufficient means to support himself, the
donation is not void. What he must do is not to revoke
QUILALA VS ALCANTARA because donations are irrevocable, but he can have it
FACTS: There is a deed of donation, and an acceptance. The reduced. He should file an action for reduction.
donation was signed by both. However, in the 2nd page where
the acknowledgment is found stating “the persons appeared
Article 751. Donations cannot comprehend future
before the notary public,” only the donor is stated there. The
property.
donee’s name was not found in the acknowledgment. This
means that the donee did not appear before the notary public.
By future property is understood anything which the
According to the ones against the donation, the donation is
donor cannot dispose of at the time of the donation. (635)
void because it did not comply with the formalities.

ISSUE: Was there a valid donation in spite the acknowledgment Even if a donor is allowed to donate all his present property,
because he has the right to dispose of that, he has no right to
not stating therein that the donee appeared before the notary
dispose of future property.
public?
Example: For some, even during the lifetime of the donor-
HELD: There is already substantial compliance. The lack of an
parents, they have already a will and testament and so the
acknowledgment by the done before the notary public does
children already know that this is the property they will
not also render the donation null and void. The instrument
receive from them. Can any of the children donate what he or
should be treated in its entirety. It cannot be considered a
private document in part and a public document in another she will receive by reason of the will? No. He cannot donate
future property. Anything which the donor cannot dispose of
part. The fact that it was acknowledged before a notary public
at the time of the donation—meaning he is not yet the owner.
converts the deed of donation in its entirety in a public
instrument. The fact that the donee was not mentioned by the
notary public in the acknowledgment is of no moment. To be Article 752. The provisions of article 750 notwithstanding,
sure, it is the conveyance that should be acknowledged as a no person may give or receive, by way of donation, more
free and voluntary act. In any event, the done signed on the than he may give or receive by will.
second page, which contains the Acknowledgment only. Her
acceptance, which is explicitly set forth on the first page of the The donation shall be inofficious in all that it may exceed
notarized deed of donation, was made in a public instrument. this limitation. (636)

Registration of donation in the Register of Deeds is not a So is Article 752 withdrawing9 what it has provided in Article
requirement for the validity of the donation of real property. 751? No. The donor can still donate everything but
Registration is just to bind the whole world but it does not everything will be collated upon the death of the donor if it is
have anything to do with the validity of the donation. It is

9
MRS uses the term “making bawi”

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

excessive, because there is such a thing as legitime in this

country.10 Article 759. There being no stipulation regarding the
payment of debts, the donee shall be responsible therefor
Article 753. When a donation is made to several persons only when the donation has been made in fraud of
jointly, it is understood to be in equal shares, and there creditors.
shall be no right of accretion among them, unless the
donor has otherwise provided. The donation is always presumed to be in fraud of
creditors, when at the time thereof the donor did not
The preceding paragraph shall not be applicable to reserve sufficient property to pay his dets prior to the
donations made to the husband and wife jointly, between donation. (643)
whom there shall be a right of accretion, if the contrary
has not been provided by the donor. (637)
October 1, 2018
Situation: So I donate a parcel of land to A and B and C, and it
is 3000 square meters. It is understood to be in equal shares. Earlier, we talked about void donations. Void and therefore
The metes and bounds are not yet specified. So I donate to A, may be nullified so the action to be filed will be for declaration
B and C, and A dies, or is incapacitated or repudiates (DIP). of nullity of void donations. When you say void, it refers to
There will be no accretion among them. They are co-owners. those under:
To whom will the share of A go? Will it go to B or C? No, it
will go to the heirs of A. That is the death, incapacity of 1. Article 739 (those who are guilty of adultery,
repudiation of the donee. concubinage etc)
2. Article 740 (incapacity to succeed)
There will be accretion if donation is jointly made to husband 3. Article 1027 (
and wife provided the contrary is not provided by the donor. Art. 1027. The following are incapable of
So it is the donor who decides in cases of accretion. So the succeeding:
donor does not say anything, then this is the law that applies. (1) The priest who heard the confession
of the testator during his last illness,
Article 754. The donee is subrogated to all the rights and or the minister of the gospel who
actions which in case of eviction would pertain to the extended spiritual aid to him during
donor. The latter, on the other hand, is not obliged to the same period;
warrant the things donated, save when the donation is (2) The relatives of such priest or
onerous, in which case the donor shall be liable for minister of the gospel within the
eviction to the concurrence of the burden. fourth degree, the church, order,
chapter, community, organization,
The donor shall also be liable for eviction or hidden defects or institution to which such priest or
in case of bad faith on his part. (638a) minister may belong;
(3) A guardian with respect to
testamentary dispositions given by
Article 755. The right to dispose of some of the things
a ward in his favor before the final
donated, or of some amount which shall be a charge
accounts of the guardianship have
thereon, may be reserved by the donor; but if he should
been approved, even if the testator
die without having made use of this right, the property or
should die after the approval
amount reserved shall belong to the donee. (639)
thereof; nevertheless, any provision
made by the ward in favor of the
Article 756. The ownership of property may also be guardian when the latter is his
donated to one person and the usufruct to another or ascendant, descendant, brother,
others, provided all the donees are living at the time of the sister, or spouse, shall be valid;
donation. (640a) (4) Any attesting witness to the
execution of a will, the spouse,
Article 757. Reversion may be validly established in favor parents, or children, or any one
of only the donor for any case and circumstances, but not claiming under such witness,
in favor of other persons unless they are all living at the spouse, parents, or children;
time of the donation. (5) Any physician, surgeon, nurse,
health officer or druggist who took
Any reversion stipulated by the donor in favor of a third care of the testator during his last
person in violation of what is provided in the preceding illness;
paragraph shall be void, but shall not nullify the donation. (6) Individuals, associations and
(614a) corporations not permitted by law
to inherit.
Article 758. When the donation imposes upon the donee 4. Article 1031
the obligation to pay the debts of the donor, if the clause Art. 1031. A testamentary provision in favor of
does not contain any declaration to the contrary, the a disqualified person, even though made
former is understood to be liable to pay only the debts under the guise of an onerous contract, or
which appear to have been previously contracted. In no made through an intermediary, shall be void.
case shall the donee be responsible for the debts 5. Those void for failure to comply with some
exceeding the value of the property donated, unless a formalities under 747 (requirements of notification
contrary intention clearly appears. (642a) and notation)

10
MRS said that this promotes one of deadliest sins: Sloth. In worked hard for your money and you are obliged to give it to
other countries, the donations are made to the owner’s cat. ☺ In your children.
the Philippines, the very old thinking-- you are the one who

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

6. 749 (if donation is of an immovable, it should be in What are inofficious donations? Those that impair or
a public document) prejudice the legitime. Remember when the donation was
made, there was no legitime because he had no descendants,
In the LAGAZO CASE, the donee here was insisting that it was he had no ascendants.
onerous because he had to pay mejoras (property taxes),
remember that under 733, onerous donations are governed Under Article 761 the donation shall be revoked in so far as it
by contracts. So if provisions of contracts will govern then exceeds the portion that may be freely disposed of by will,
there is no need for acceptance. The issue here in this case is taking into account the whole estate of the donor at the time
there was no acceptance in accordance with 749. Kasi walang of the birth, appearance or adoption of a child.
acceptance na ginawa yung donee. However the Supreme
Court said it is a simple donation and therefore the formalities Example: X donated 1 million to his good friend Y. At the time
of 749 have to be complied with. of donation 1 million ang worth nung estate, pero after Y died,
his son B was born and at the time of birth nung heir nya, 500k
Art. 749. In order that the donation of an immovable na lang ang worth ng estate ni X. Should the donation to Y be
may be valid, it must be made in a public document, reduced?
specifying therein the property donated and the value
of the charges which the donee must satisfy. The answer is YES. Inofficious because X’s net estate is 1.5M
minus 1M donation. The legitime of B is 750k so the donation
The acceptance may be made in the same deed of is inofficious to the amount of 250k and it may be reduced by
donation or in a separate public document, but it shall that much. So if inofficious naman ang buong amount then
not take effect unless it is done during the lifetime of there is revocation.
the donor.
The procedure is you go to the donee and ask na isauli nya.
If the acceptance is made in a separate instrument, the Kung isauli, no problem. What if the donee refuses? Legal
donor shall be notified thereof in an authentic form, and remedy is to file an action for reduction.
this step shall be noted in both instruments.
What is the prescriptive period for revoking inofficious
donations under760? 4 years under 763, from the time of
birth of the first child or 4 years from the time information was
CHAPTER 4. - REVOCATION AND REDUCTION OF received of the child believed dead. The child need not
DONATIONS appear. The moment donor finds out na buhay pala anak niya,
the period will start to run.
Article 760. Every donation inter vivos, made by a person
having no children or descendants, legitimate or Article 763. The action for revocation or reduction on the
legitimated by subsequent marriage, or illegitimate, may grounds set forth in article 760 shall prescribe after four
be revoked or reduced as provided in the next article, by years from the birth of the first child, or from his
the happening of any of these events: legitimation, recognition or adoption, or from the judicial
(1) If the donor, after the donation, should have declaration of filiation, or from the time information was
legitimate or legitimated or illegitimate received regarding the existence of the child believed
children, even though they be posthumous; dead.
(2) If the child of the donor, whom the latter
believed to be dead when he made the This action cannot be renounced, and is transmitted, upon
donation, should turn out to be living; the death of the donor, to his legitimate and illegitimate
(3) If the donor subsequently adopt a minor child. children and descendants.
(644a)
If no action is filed between the 4 year period, you cannot
Article 761. In the cases referred to in the preceding revoke or reduce na.
article, the donation shall be revoked or reduced insofar
as it exceeds the portion that may be freely disposed of by Can this action for revocation or reduction be renounced?
will, taking into account the whole estate of the donor at No, if the donor dies within the prescriptive period, the action
the time of the birth, appearance or adoption of a child. is transmitted to the heirs and descendants.

760 is a kind of inofficious donation. We take 760 and 761 There’s a case where this lady in 1973, she was a childless
together. The donation under 760 is made inter vivos and we widow and so she donated a parcel of land with a 2-door
have to determine that the donor has no children or apartment to her grandnieces A and B and the title was
descendant, in short, no issue. S o, this person has no heir, no transferred to them. In 1974, she adopted a minor child C so
one to support, and he then makes a donation to a third she went to the donees and wanted to revoke the donation
person. However, after the donation is made, one of these earlier made. A and B refused so in 1975, which is within the
events happen. The acronym is BRA. prescriptive period, she filed an action for revocation under
▪ Birth 760. A and B said, “Yung dinonate sa amin, small part lang yan
▪ Reapperance or ng kanyang estate, so hindi inofficious.”
▪ Adoption
Can the donation be revoked?
Remember BRA.
SC: NO. If the donor wants to revoke under 760, she must
The donor should have children even though posthumous. Or show in her complaint that the donation is inofficious or that
perhaps the donor had a child who he thought was dead and it impairs the legitime of her adopted child. The complaint
the child reappears or perhaps the donor decides to adopt a must clearly allege that the donation made exceeded the free
MINOR child. If any of those happen, then the donor may portion.
reduce the donation if it is inofficious in accordance with 761.
Now, the other ground for revocation is noncompliance of the

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

condition. Sometimes the condition has value or sometimes it which donee is picked by the owner/developer. The consent
doesn’t, like “I will donate this car if you get married within a requirement before the same can be donated to the
year.” Wala namang value yan. Ano ang example ng may homeowners’ association emphasizes this point.
value? “I will donate this care but you have to be my driver.”
We hold that any condition may be imposed in the
Article 764. The donation shall be revoked at the instance donation, so long as the same is not contrary to law,
of the donor, when the donee fails to comply with any of morals, good customs, public order or public policy. The
the conditions which the former imposed upon the latter. contention of petitioners that the donation should be
unconditional because it is mandatory has no basis in law.
In this case, the property donated shall be returned to the P.D. 1216 does not provide that the donation of the open
donor, the alienations made by the donee and the space for parks and playgrounds should be unconditional.
mortgages imposed thereon by him being void, with the To rule that it should be so is tantamount to unlawfully
limitations established, with regard to third persons, by expanding the provisions of the decree. In the case at bar,
the Mortgage Law and the Land Registration Laws. one of the conditions imposed in the Amended Deed of
Donation is that the donee should build a sports complex
This action shall prescribe after four years from the on the donated land. Since P.D. 1216 clearly requires that
noncompliance with the condition, may be transmitted to the 3.5% to 9% of the gross are allotted for parks and
the heirs of the donor, and may be exercised against the playgrounds is “non-buildable,” then the obvious question
donee's heirs. arises whether or not such condition was validly imposed
and is binding on the donee. It is clear that the “non-
CITY OF ANGELES VS COURT OF APPEALS buildable” character applies only to the 3.5% to 9% area set
It was mandatory under PD 957 na dapat mag-donate ng by law. If there is any excess land over and above the3.5%
portion for public use, so gumawa ng condition yung to 9% required by the decree, which is also used or
developer ng subdivision na dapat health center or sports allocated for parks, playgrounds and recreational
center yung ipagawa. Ano ginawa ng City of Angeles, purposes, it is obvious that such excess area is not covered
nagpagawa ng drug rehab center. So the city did not comply by the non-buildability restriction.
with the condition.
Inasmuch as the construction and operation of the drug
Issue: Can the subdivision developer revoke the donation on rehabilitation center has been established to be contrary to
the ground of non-compliance? law, the said center should be removed or demolished. At
this juncture, we hasten to add that this Court is and has
SC: In pari delicto sila, may kasalanan din kasi yung developer. always been four-square behind the government’s efforts
He donated less than what was mandated by the law. The to eradicate the drug scourge in this country. But the end
developer cannot revoke the donation but the city was never justifies the means, and however laudable the
required to demolish the drug rehab center. purpose of the construction in question, this Court cannot
and will not countenance an outright and continuing
FT: Whether a subdivision owner/developer is legally violation of the laws of the land, especially when
bound under Presidential Decree No. 1216 to donate to the committed by public officials.
city or municipality the “open space” allocated exclusively
for parks, playground and recreational use. So what is the effect of non-compliance by the donee? What
if what was donated was property? If the property is still
HELD: PD 1216 (amending PD 957) defines open space as with the donee, he must return the same to donor.
an area reserved exclusively for parks, playgrounds,
recreational uses, schools, roads, places of worship, What if it is already sold or alienated? The encumbrance will
hospitals, health centers, barangay centers and other be considered void unless a third party is an innocent
similar facilities and amenities purchaser for value.

These areas reserved for parks, playgrounds and What if the donee does not want to return? Then the donor
recreational use shall be non-alienable public lands, and can revoke by unilateral act. Normally, if there is a donation
non-buildable. No portion of the parks and playgrounds with a condition, the donor will usually put there an automatic
donated thereafter shall be converted to any other purpose revocation clause where it says there that if donee fails to
or purposes.’“Upon their completion x xx, the roads, alleys, comply, donor can automatically revoke without need of court
sidewalks and playgrounds shall be donated by the owner proceedings.
or developer to the city or municipality and it shall be
mandatory for the local government to accept; provided, The prescriptive period for filing an action for revocation if 4
however, that the parks and playgrounds may be donated years from date of non compliance of the condition. This
to the Homeowners Association of the project with the particuar provision is a bit controversial because the SC is
consent of the city or municipality concerned. x xx.” treating this kind of donation as something else.
(amended sec. 31, PD 957)
DE LUNA VS ABRIGO (1990)
It is clear from the aforequoted amendment that it is no Case by J. Medialdea. In 1971 April 9, Prudencio de Luna
longer optional on the part of the subdivision donated parcel of land to Luzonian Foundation. There was a
owner/developer to donate the open space for parks and condition in the deed that the foundation must build a chapel
playgrounds; rather there is now a legal obligation to and school within five years from the donation. Dapat April 9,
donate the same. Although there is a proviso that the 1976, dapat may school and chapel na. The donation
donation of the parks and playgrounds may be made to the provided for automatic reversion clause in case of non-
homeowners association of the project with the consent of fulifillment of the condition. Luzonian accepted the donation
the city of municipality concerned, nonetheless, the in the same document subject to all the terms and condtiion
owner/developer is still obligated under the law to donate. stated therein. Augut 18, 1980 na. More than four years from
Such option does not change the mandatory character of the 5th year, the heirs of Prudencio filed a complaint to revoke
the provision. The donation has to be made regardless of donation alleging non complaince by Luzinonan Foundation.
Luzonian said that the action has prescribed. If you follow 764,

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4-Manresa | Ateneo de Davao University College of Law

the action has prescribed. conditions of the donation. However, said article does not
apply to onerous donations in view of the specific provision
However, SC treated this as an onerous donation. 764 does of Article 733 providing that onerous donations are
not apply daw to onerous donations because it is governed governed by the rules on contracts. The rules on
daw by the rules on contracts. So you follow the prescriptive prescription and not the rules on donation applies in the
period in contracts which is 10 years. case at bar.

MRS opinion: When you say onerousI give you, you give me. YULO VS ROMAN CATHOLIC BISHOP
Iba ‘yung condition. You are supposed to do something Yulo donated a parcel of land and in the deed of donation it
because I gave this to you. The condition to buld will not was stated there that it shall only be used as a home for the
benefit the donor. Well, SC said onerous daw. So the action aged and infirmary regardless of religion, race or creed, and
has not prescribed and this has been affirmed, this particular according to the deed, except with prior written consent of
decision, in many cases. donor, the donee shall not use the land except for the purpose
for which it as donated. So that was in 1977. From 1980 ang
DE LUNA VS ABRIGO ginawa ng donee they leased the land to different entities. 10
De Luna donated a portion of a 75 sq. m. lot to the yrs later in 1990, the donor wanted to revoke kasi hindi pa
Luzonian University Foundation. The donation was nabui-build yung home for the aged. The defense of the
embodied in a Deed of Donation Intervivos and was donee was that they did not breach naman the condition
subject to certain terms and conditions. In case of violation because they said that they were renting out the property in
or non-compliance, the property would automatically order to build the home for the aged.
revert to the donor. When the Foundation failed to comply
with the conditions, de Luna “revived” the said donation What kind of donation was made?
by executing a Revival of Donation Intervivos with the
following terms and conditions: SC: Onerous. Therefore it is not governed by 764 but by 733
(1) The Donee shall construct on the land and at its under contracts.
expense a Chapel, Nursery, and Kindergarten
School to be named after St. Veronica Did donee violate the terms and conditions of the donation?
(2) Construction shall start immediately and must
be at least 70% completed three years from the SC: Yes, there were violations because the donee leased out
date of the Deed unless the Donor grants the property without prior written consent of donor.
extensions
(3) Automatic reversion in case of violation WON the action to revoke the donation has prescribed.

The Foundation accepted and the donation was registered SC: No, because it is 10 years under the law on prescription
and annotated in the TCT. By a Deed of Segregation, the of written instruments.
foundation was issued a TCT for area the lot donated while
the remaining area was retained by the De Luna. The WON the donation should be revoked on the ground of
children and only heirs of the late De Luna (died after the violation by the done?
donation) filed a complaint with the RTC for the
cancellation of the donation on the ground that the terms SC: No, because the breaches were merely casual breaches
were violated. The Foundation defended itself by saying not material breaches. Kung casual lang, meaning may
that it had partially and substantially complied with the konting connection yung ginagawa nila sa condition imposed.
conditions and that the donor granted it an indefinite Pero pag wala, that is now material breach that would warrant
extension of time to complete construction. revocation of the donation. There were violations because
thedonee leased out the property without the consent of the
The RTC dismissed the petition on the ground of donor.
prescription (for being filed after 4 years). The heirs did not
file an MR and went straight to the SC. Whether or not the action to revoke the donation has
prescribed?
ISSUE: Whether the action prescribes in 4 years (based on
art. 764 NCC-judicial decree of revocation of the donation) SC: No because the period of prescription is 10 years if based
or in 10 years (based on art. 1144 –enforcement of a on a written instrument.
written contract)
WON the donation should be revoked on the ground of
RULING: 10 years. The donation subject of this case is one violation by the done?
with an onerous cause.
SC: No because the breaches were merely casual breaches
Under the old Civil Code, it is a settled rule that donations not material. Casual breach or violation, if there is a somewhat
with an onerous cause are governed not by the law on connection with what they are doing, that is not material
donations but by the rules on contract. On the matter of breach that would warrant the revocation of the donation.
prescription of actions for the revocation of onerous
donation, it was held that the general rules on prescription RP VS LEON SILIM
apply. The same rules apply under the New Civil Code as He donated a 5600 square meter lot to the Bureau of Public
provided in Article 733 thereof which provides: Donations Schools. In the deed of donation, Silim said that he is donating
with an onerous cause shall be governed by the rules on the lot to build therein a public school, exclusively. The
contracts, and remuneratory donations by the provisions donation was accepted. The PTA was able to raise funds to
of the present Title as regards that portion which exceeds build a school there but it was not enough. They wanted
the value of the burden imposed. government funding. However, the government funding was
not allowed if the lot was less than 1 hectare. So what BPS was
It is true that under Article 764 of the New Civil Code, to ask Palma to give her 1 hectare lot in exchange of the 5600
actions for the revocation of a donation must be brought square meter lot. Palma started building his house on the lot
within four (4) years from the non-compliance of the and the BPS started building the school in Palma’s lot. Silim

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4-Manresa | Ateneo de Davao University College of Law

tried to revoke the donation on the ground of non-compliance put up a Home Economic Laboratory. In an ocular inspection
of the condition which was to build a school only. participated in by the parties, their respective counsels and the
presiding judge, it was confirmed that the lot was barren save
ISSUE: WON there was non-compliance of the condition of the for the portion planted with palay and a demolished house.
donation.
ISSUE: Was there compliance with the condition such that the
HELD: No. Purpose is defined as that which one sets before him donated lot should not be returned to the donor? What kind of
to accomplish and attain an end, intention or aim or object, donation was made?
plan or project. What does the donor want? Isn’t it that a school
will be built? That is the main purpose. It is not to put a school HELD: This, according to SC, is absolute failure to comply with
on that particular lot, for as long as there will be a school. the condition. SC also said that this is an onerous donation.
Without the slightest doubt, the condition for the donation was
not in any way violated when the lot donated was exchanged In other words, by looking at these cases, is there still a
with another one. The purpose for the donation remains the conditional donation? Is Article 764 still extant? Can it still be
same which is the establishment of the school. The exchange used? It would be better if they repeal this provision because
of the lot for a much bigger one was in furtherance and all donations with a condition are treated like an onerous
enhancement of the purpose of the donation. There was no donation.
violation of the condition.
Can this right to revoke by the donor, whose condition was
DOLAR VS BARANGAY LUBLUB violated, be transmitted? Yes, the heirs of the donor are
Don VenancioDolar donated a lot to Barangay Lublub in Iloilo. expressly granted the right to revoke if the donor dies
The condition was for the purpose of establishing a public provided the prescriptive period does not elapse.
plaza, sports complex, public market, health centers and the
like for the use of barangay Lublub. It shall be known as Don Article 764. The donation shall be revoked at the instance
VenancioDolar Plaza and shall be so designated in a proper of the donor, when the done fails to comply with any of
landmark. The construction and development shall be initiated the conditions which the former imposed upon the latter.
and completed within 5 years from 1981-the time of donation.
Should it not be made or completed, the donation shall have In this case, the property donated shall be returned to the
no force and effect and the ownership of the lot shall revert donor, the alienations made by the donee and the
back to the donors including the unfinished improvements the mortgages imposed thereon by him being void, with the
done might have placed or constructed. There is an automatic limitations established, with regard to third persons by the
rescission or reversion clause. The barangay immediately took Mortgage Law and the Land Registration laws.
possession of the lot. In 1998, Dolar, after persistently asking
the barangay to return the donated lot, filed an action by virtue This action shall prescribe after four years from the
of the automatic rescission clause. The barangay insisted that noncompliance with the condition, may be transmitted to
it complied with the condition by constructing a building the heirs of the donor, and may be exercised against the
particularly PLDT, Water District, RTC and PNP. donee’s heirs.

ISSUE: Can Dolar revoke the donation for the failure of the The next ground for revocation is ACTS OF INGRATITUDE.
donee to build on the donated lot, the specific establishments
as provided in the condition, by virtue of the automatic Remember we talked about acts of unworthiness under
rescission clause? Article 1027 and 1031, one of those. When the donee is
unworthy, the donation is void because the act of
HELD: No. The automatic rescission or revocation clause only unworthiness was committed before the donation, so the
applies if the donee did not comply at all, meaning nothing can donation is void. So the action must be to nullify. But what
be seen at all on the lot. If the donee insists that there is we are talking about here is an act of ingratitude that is
substantial compliance, then the automatic revocation clause committed after the donation was made. So here we have a
will not work. If the deed of donation expressly provides for valid donation and the donee committed an act of ingratitude.
automatic rescission and reversion in case of breach of the The acts of ingratitude are there.
condition and the donee fails to comply with the condition, the
donated property reverts back automatically to the donor. What you have to remember is that:
Where however, the donee denies the rescission or challenges 1. The donation is valid; and
the propriety thereof, then only the final award, the court can 2. The act is committed after the donation.
conclusively settle whether the resolution is proper or not.
The donation now has a ground to revoke. Remember that the
So that is how the automatic rescission or revocation clause offenses here do not have to be criminal in the sense that
works—only when there is absolute failure to comply with the there is a criminal conviction.
condition.
Article 766. Although the donation is revoked on account
What is an example of an absolute failure to comply with the
of ingratitude, nevertheless, the alienations and
condition?
mortgages effected before the notation of the complaint
for revocation in the Registry of Property shall subsist.
SECRETARY VS. HEIRS OF DULAY
Dulay donated a 10,000 square meter lot to DECS. The deed
Later ones shall be void.
provided that for and in consideration of the benefits that may
be derived from the use of the property which is intended for
school purposes, the said donors transfer the lot to the donee. Article 767. In the case referred to in the first paragraph
The donation was made in 1981. In 1988 started constructing a of the preceding article, the donor shall have a right to
school on a lot 2 kilometers away from the lot which Dulay demand from the donee the value of the property
donated. In 1994 (13 years after), Dulay requested that the lot alienated which he cannot recover from third persons, or
returned to him considering that it was never used since 1981. the sum for which the same has been mortgaged.
DECS claimed that there was compliance since it was able to

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4-Manresa | Ateneo de Davao University College of Law

The value of said property shall be fixed as of the time of Neither can this action be brought against the heir of the
the donation. done, unless upon the latter’s death the complaint has
been filed.
Article 768. When the donation is revoked for any of the
causes stated in the article, or by reason of ingratitude or Can the right to revoke by reason of ingratitude be
when it is reduced because it is inofficious, the done shall transmitted to the heirs?
not return the fruits except from the filing of the GENERAL RULE: NO.
complaint.
EXCEPTIONS: Under Rule 3 Section 16 Rules of Court-- by
If the revocation is based upon noncompliance with any of substitution. The donor already instituted the action and dies
the conditions imposed in the donation, the donee shall before the termination of the case, the heirs will be
return not only the property but also the fruits thereof substituted.
which he may have received after having failed to fulfill
the condition. EXCEPTION TO THE EXCEPTION: The heirs can file:
1. When the act of ingratitude of the donee is to kill
What happens to the fruits? We have three grounds: the donor;
1. Inofficious 2. The donor dies without having known of the act;
2. Violation of the condition or
3. Acts of ingratitude 3. Circumstances clearly manifest that the donor
desired or intended to revoke but he was
If the donation is revoked, what about the fruits received by prevented by sickness, or insanity or a fortuitous
the done before the revocation? According to Article 768, the event.
fruits accruing from the time the action is filed must be
returned, if the ground is Article 760 or 771 or inofficious due Can it be instituted against the donee only? Yes, unless there
to impairment of legitime or 765-acts of ingratitude. is substitution.

If the ground is non-compliance of the condition, the fruits Article 771. Donations which in accordance with the
must be returned after failure to fulfill the condition. provisions of Article 752, are inofficious, bearing in mind
the estimated net value of the donor’s property at the
Article 769. The action granted to the donor by reason of time of his death, shall be reduced with regard to the
ingratitude cannot be renounced in advance. This action excess, but this reduction shall not prevent the donations
prescribes within one year, to be counted from the time from taking effect during the life of the donor, nor shall it
the donor had knowledge of the fact and it was possible bar the done from appropriating the fruits.
for him to bring the action.
For the reduction of donations the provisions of this
Chapter and of Article 911 and 912 of this Code shall
The act of ingratitude is committed against the donor. It is
govern.
personal to the donor. So, the action granted to the donor
cannot be renounced in advance. He cannot provide in the
deed of donation that he, the donor, is donating to the donee The last topic is revocation because of inofficiousness of the
a parcel of land and that if ever the donee commits an act of donation which impairs the legitime.
ingratitude after the donation, the former waives and will not
revoke the donation. That cannot be done. This is different from Article 760. Here, the computation of
the estate will be made upon the death of the donor. So all
The action prescribes within 1 year to be counted from the of the donations will be collated, then compute the estate. If
time the donor had knowledge of the fact and it was possible the donations are excessive, they will be reduced. The
for him to bring the action. If the donor did not know, then donation shall be considered inofficious when they exceed
the prescriptive period will not start to run. the free portion of the estate of the donor.

This action shall not be transmitted to the heirs of the donor Any reduction shall not prevent the donations from taking
because it is personal to the donor. The act was committed effect during the lifetime of the donor. Even if the donor
against the donor himself. So if the donor did not institute the donated his entire patrimony, that is valid. The collation shall
action, the heirs could not file, even if he dies before the be done at the time the donor dies. The donee can even
expiration of 1 year. Neither can the action be brought appropriate the fruits.
against the heirs of the donee unless upon the latter’s death,
a complaint has been filed. So if the donee dies, it cannot be DISTINGUISH ARTICLE 760 FROM 752
taken back from the heirs for the donee. ▪ In Article 760, the donor had no children or though
he had none at the time of the donation.
WHAT ARE THE RULES?
1. When a donation is revoked by reason of In Article 752, the donation impairs the legitime.
ingratitude, the right to file an action cannot be
renounced in advance by the donor. ▪ How do you revoke? In Article 760, you revoke
2. The action prescribes within 1 year from the time based on Article 761 which means you compute the
the donor had knowledge of the fact and provided estate of the donor at the time of BRA.
it is possible for him to bring the action.
For Article 752, you revoke under Article 771 which
Article 770. This action shall not be transmitted to the means you compute the estate of the donor at the
heirs of the donor, if the latter did not institute the same, time of his death.
although he could have done so, and even if he should die
before the expiration of one year. Example: In 1980, X gave a donation worth 1 million to
B. Let’s say X is single without issue. In 1980, X adopted
a minor while the value of his estate was 10 million. (So

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

there is no problem in his donation when he adopted Article 712. Ownership is acquired by occupation and by
because the donation was small in comparison to the intellectual creation.
value of the estate). In 2000, X died and this time, the
value of his estate was only 500,000. Compute the value Ownership and other real rights over property are
of his estate upon his death and if only 1 donation is acquired and transmitted by law, by donation, by testate
made, collate. The same computation as earlier. and intestate succession, and in consequence of certain
contracts, by tradition.
Article 772. Only those who at the time of the donor’s
death have a right to the legitime and their heirs and They may also be acquired by means of prescription.
successors in interest may ask for the reduction
ofinofficious donations. Those referred to in the preceding HOW OWNERSHIP ACQUIRED
paragraph cannot renounce their right during the lifetime 1. ORIGINAL MODE - independent of any pre-existing
of the donor, either by express declaration, or by title or right of another
consenting to the donation. a. Occupation (hunting; fishing ; finding
treasure)
The donee, devisees and legatees, who are not entitled to b. Intellectual Creation
the legitime and the creditors of the deceased can neither
ask for the reduction nor avail themselves thereof. 2. DERIVATIVE MODE - somebody else was the owner
before
If you want to reduce or revoke on the ground of a. By Law
inofficiousness, you must be a compulsory heir whose 1) Article 445 - the owner of the
legitime is impaired. Nobody else can file this kind of action. principal is the owner of the
Those referred to the preceding paragraph cannot renounce accessory;
their right during the lifetime of the donor. 2) Article 461 - change in the
course of the river, you are
What about the donees, devisees and legatees who are not the owner of the dried up
entitled to the legitime? What about the creditors of the river bed if it occupies your
donor, can they file an action to revoke or reduce on this property;
ground? NO. They should find another ground, but not this 3) Article 465 - formation of
provision. islands, if the island form on a
river that is non-navigable and
WHO CANNOT? it is closer to your bank
1. The donor himself because he is already dead by 4) Article 466 – Adjunction
this time; 5) Article 681-Roots of the trees
2. Voluntary heirs; that grow on one land
3. Devisees, legatees b. Donation
4. Creditors (but he can file under Article 1379-that c. Succession
the donation was made in fraud of creditors) d. Prescription

What is the prescriptive period? 5 years from the death of the What is occupation?
donor.
Article 713. Things appropriable by nature which are
GROUNDS FOR REVOCATION without an owner, such as animals that are the object of
1. Article 764 hunting and fishing, hidden treasure and abandoned
2. Article 765 movables, are acquired by occupation.

GROUND FOR REDUCTION

OCCUPATION
1. Article 760-BRA
2. Article 771 in relation to 752-inofficiousness It is the acquisition of ownership by seizing corporeal things,
3. Article 750-insufficient property is left personal property that has no owner made with the intention
4. Article 1387 - if the donation is made in fraud of of acquiring them and accompanied through legal rules.
creditors Occupation applies only to personal, corporeal property.

VOID, INEFFECTIVE AND UNPERFECTED DONATIONS Article 714. The ownership of a piece of land cannot be
1. Those that did not comply with the formalities; acquired by occupation.
2. Those made with property outside commerce of
man; Article 715. The right to hunt and to fish is regulated by
3. Those made with future property; special laws.
4. Those made to persons specially disqualified by
reason of public policy, unworthiness, and undue Article 716. The owner of a swarm of bees shall have a
influence (i.e. donations made between spouses) right to pursue them to another’s land, indemnifying the
possessor of the latter for the damage. If the owner has
Article 773. If, there being two or more donations, the not pursued the swarm, or ceases to do so within two
disposable portion is not sufficient to cover all of them, consecutive days, the possessor of the land may occupy or
those of the more recent date shall be suppressed or retain the same. The owner of domesticated animals may
reduced with regard to the excess. 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.
BOOK III. - DIFFERENT MODES OF ACQUIRING OWNERSHIP

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4-Manresa | Ateneo de Davao University College of Law

Article 717. Pigeons and fish which from their respective Title III – Intellectual Creation
breeding places pass to another pertaining to a different
owner shall belong to the latter, provided they have not Art. 721. By intellectual creation, the following persons
been enticed by some article or fraud. acquire ownership:
(1) The author, with regard to his literary,
Article 718. He who by chance discovers hidden treasure dramatic, historical, legal, philosophical,
in another’s property shall have the right granted him in scientific or other work;
Article 438 of this Code. (2) The composer, as to his musical composition;
(3) The painter, sculptor, or other artist, with
How do you distinguish occupation from prescription? respect to the product of his art;
(4) The scientist or technologist, or any other
Occupation Prescription person with regard to his discovery or
There is an original owner It is already owned by invention. (n)
somebody else
Original mode Derivative mode It talks about intellectual creation.
Period of possession is Period of possession is
shorter longer WHO ARE INTELLECTUAL CREATORS?
1. Authors
What is the finder’s keeper’s rule?  for their novels, screenplays, script, non-
fiction book, inspirational
2. Composers
Article 719. Whoever finds a movable, which is not
treasure, must return it to its previous possessor. If the  the one who writes the music, lyrics – the
latter is unknown, the finder shall immediately deposit it lyricist
with the mayor of the city or municipality where the 3. Painter, sculptors or other artists
finding has taken place.
Do not mind number 4. Because when you talk about number
The finding shall be publicly announced by the mayor for 3, this is created and therefore he automatically owns his
two consecutive weeks in the way he deems best. creation. But when it comes to inventions – yes, if a scientist
invents something, he owns his invention, but definitely not
If the movable cannot be kept without deterioration, or for the discovery.
without expenses which considerably diminish its value, it
shall be sold at public auction eight days after the If Junar discovers a new planet, do you own it,Junar? No.
publication. You can name it after you, but you cannot own the planet. So
hindi kasama dito ang discovery.
Six months from the publication having elapsed without
the owner having appeared, the thing found, or its value, INTELLECTUAL CREATION
shall be awarded to the finder. The finder and the owner It is the product of mental labor which is embodied in writing
shall be obliged, as the case may be, to reimburse the or some other form.
expenses.
Art. 722. The author and the composer, mentioned in
Article 720. If the owner should appear in time, he shall be Nos. 1 and 2 of the preceding article, shall have the
obliged to pay, as a reward to the finder, one-tenth of the ownership of their creations even before the publication
sum or of the price of the thing found. of the same. Once their works are published, their rights
are governed by the Copy right laws.
If you find a movable? Bring it to the proper government
The painter,sculptor or other artists shall have dominion
office. If you know who owns it, return it. But if you do not
over the product of his art even before it is copyrighted.
know who owns it, bring it to the proper government office,
then there will be publication, posting.
The scientist or technologist has the ownership of his
discovery or invention even before it is patented. (n)
If despite all of these things, the owner does not get his
property within 6 months then, the finder will become the
owner. They own their creations. But once works are published, their
rights are governed by the copyright laws. So, every
That is another mode of acquiring ownership – you find intellectual creation is owned by the creator, pero if gusto
something, you bring it to the proper government entity, the niyai-disseminate, that is another story.
owner does not get it, then the finder will become the owner.
What about letters?
If the owner collects his movable property because of
publication or posting or social media or advertisement in the Art. 723. Letters and other private communications in
TV, then he must pay the finder 10% or 1/10 of the sum of the writing are owned by the person to whom they are
price of the thing found. addressed and delivered, but they cannot be published or
disseminated without the consent of the writer or his
Now, it always happens in our country – taxi drivers finding heirs. However, the court may authorize their publication
large amount of money inside the taxi left by the pasahero. or dissemination if the public good or the interest of
Magkano ba yung binibigay sa taxi driver na nakakita, kunyari justice so requires.
1 million yung naiwan, magkano dapat yung sa taxi driver?
It’s P100,000. Pero minsan, P1,000 lang, tip lang. Because the Di nauso ang mga love letters ngayon noh? Noong panahon
taxi drivers do not know of Article 720. Kung alam lang nila ni Rizal sige lang siya sulat kay Josephine Bracken. So, the
yan, (naku!). paper kung nasaan yung letter, that is hers, because it was

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

delivered to her, she became the owner of the paper. But the
thoughts and ideas inside the letter, kay Rizal yan. We are going to discuss or review only copyrights,
trademarks, and patents. Yun lang sana pero may dinagdag
Now, pwede niya ba itong itapon sa basurahan? Of course, as sila sa bar coverage and that is what you call as the TTA –
the owner has the right to dispose. Kahit itapon niya ito, anjan Technology Transfer Arrangement.
pa rin naman yung sinulat, it is still in somebody’s head. So
she can throw it away, if she wants to she can burn it, but she Let’s start with the INTELLECTUAL PROPERTY OFFICE – IPO.
cannot disseminate.
When you answer your exams, you have to write the
Dissemination belongs to the writer, the owner of the complete words, “Intellectual Property Office,” akolang ang
thoughts and ideas. He is the only one who can disseminate. pwedeng mag “IPO.” Yung sa second year na naga “RTC,”
That is why the term is “copyright,” the right to copy belongs zero!
to the owner. Example, you can buy a book from the
bookstore, you own the book, pero di mo pwede ipa kopya, The IPO will be headed by the Director General (DG) assisted
bawal ang photocopying diba, pero may mga exceptions in by two Deputies (DDG).
the Intellectual Property Code.
Now, the IPO is divided into several bureaus – 7. In the past,
Art. 724. Special laws govern copyright and patent. (429a) anim lang yung bureaus. But RA 10372 added that 7th one, the
Bureau of Copyrights and Other Related Rights. Importante
Now , we will go to the INTELLECTUAL PROPERTY CODE (IPC). lahat itong bureaus, but the most important ones are the
ones in bold (pertaining to her ppt slide) and number 7.
This particular topic does not normally come out in Civil Law.
IPC questions come out in Mercantile Law. Pero you will never Now, Section 7 talks about the flow of appeal.
know, baka tanungin sa Civil Code.
SECTION 7. The Director General and Deputies Director
We are going to take up the main law on intellectual property General. ‑
which is RA 8293. This is promulgated on January 1, 1998.
7.1. Functions. ‑ The Director General shall exercise the
This has been amended by RA 9502 – the Cheaper Medicine’s following powers and functions:
Act. a) Manage and direct all functions and activities of
the Office, including the promulgation of rules
Also, RA 10372 amended RA 8293. and regulations to implement the objectives,
policies, plans, programs and projects of the
Now, the progenitor of RA 8293 are RA 165 – The Patent Law, Office: Provided, That in the exercise of the
and RA 166. authority to propose policies and standards in
relation to the following:
Let’s start. (1) the effective, efficient, and
economical operations of the Office
There is no need to discuss Sections 1 and 2 for they are all requiring statutory enactment
definitions. Let us start with Section 3. This is one of the most (2) coordination with other agencies of
important provisions in IP. government in relation to the
enforcement of intellectual property
SECTION 3. International Conventions and Reciprocity. – rights;
Any person who is a national or who is domiciled or has a (3) the recognition of attorneys, agents,
real and effective industrial establishment in a country or other persons representing
which is a party to any convention, treaty or agreement applicants or other parties before
relating to intellectual property rights or the repression of the Office; and
unfair competition, to which the Philippines is also a party, (4) the establishment of fees for the
or extends reciprocal rights to nationals of the Philippines filing and processing of an
by law, shall be entitled to benefits to the extent necessary application for a patent, utility model
to give effect to any provision of such convention, treaty or industrial design or mark or a
or reciprocal law, in addition to the rights to which any collective mark, geographic
owner of an intellectual property right is otherwise indication and other marks of
entitled by this Act. (n) ownership, and for all other services
performed and materials furnished
by the Office, the Director General
Let us say we have X, he is from Germany. He is domiciled in
shall be subject to the supervision of
Hongkong and he has a business in China. As long as either
the Secretary of Trade and Industry;
Germany, Hongkong or China is a party too any treaty or
convention that the Philippines is a signatory to (what are
b) Exercise exclusive appellate jurisdiction over all
examples: Berne Convention of 1981, Stockholm Act of 1967,
decisions rendered by the Director of Legal
Paris Act of 1971 etc.,) or if any of those countries extends
Affairs, the Director of Patents, the Director of
reciprocal rights to the nationals of the Philippines, then Mr.
Trademarks, and the Director of the
X is entitled to invoke any of those conventions if he files an
Documentation, Information and Technology
action here in the Philippines, or he can invoke our Intellectual
Transfer Bureau. The decisions of the Director
Property Code. Of course, do not forget, you can invoke
General in the exercise of his appellate
foreign laws, treaty or convention, pero you have to follow
jurisdiction in respect of the decisions of the
the Rules on Evidence – Rule 132 Section 25.
Director of Patents, and the Director of
Trademarks shall be appealable to the Court of
A foreigner can come here and sue a Filipino or another
Appeals in accordance with the Rules of Court;
foreigner for infringement of copyright, trademark etc.,
and those in respect of the decisions of the
provided those are present.

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Director of Documentation, Information and Pfizer asked for an extension of the writ, but it was denied
Technology Transfer Bureau shall be appealable by the DLA.
to the Secretary of Trade and Industry; and
Anong ginawa ng Pfizer? It filed a Special Civil Action for
c) Exercise original jurisdiction to resolve disputes Certiorari to the CA under Rule 65.
relating to the terms of a license involving the
author’s right to public performance or other Is that the correct procedure, who says yes? Raise your
communication of his work. The decisions of hand, I wanna see. Who says no? Alam ninyo o hindi? Ahhh
the Director General in these cases shall be magtanong kaya ako. (Recitation time haha)
appealable to the Secretary of Trade and
Industry. The answer is, it is the correct remedy. Actually this is a
provisional remedy – the application for the writ of
Every bureau is headed by a Director. preliminary injuction. The denial of the motion for
extension of the writ of preliminary injunction is an
Let’s say, if you file a complaint with the Bureau of Legal Interlocutory Order which is not appealable. Interlocutory
Affairs, eventually that will be decided by the Director of Legal orders cannot be appealed, thus, it is the correct remedy.
Affairs (DLA). Diba? Petition for Certiorari under Rule 65. In the case of
People vs. Mateo or ano yung Funeral Homes na case,
Or you file an application with the Bureau of Patents, lahat nang petition for certiorari, hindi na sa Supreme
whatever will be the decision of the examiner it will be Court kundi sa Court of Appeals na. You be very careful
decided by the Director of Patents (DP). when you are faced with a question.

And then the DT which is the Director of Trademarks. What are the functions of this bureau?

The DCORR is the Director of Copyright and Other Related SECTION 8. The Bureau of Patents. ‑ The Bureau of
Rights. Patents shall have the following functions:

All of the decisions of those four are appealable to the 8.1. Search and examination of patent applications
Director General (DG). You do not go straight to the courts, to and the grant of patents;
the RTC or CA. You must appeal to the DG. And from the DG
the appeal is made to the CA. And from the CA alam ninyo na 8.2. Registration of utility models, industrial
kung saan. Hindi na kailangang itanong yan. designs, and integrated circuits; and

Now we have the DDITTB – Director of the Documentation, 8.3. Conduct studies and researches in the field of
Information and Technology Transfer Bureau for the TTAs. If patents in order to assist the Director General in
it is the Director of the DITTB who will render the decision, formulating policies on the administration and
you will appeal to the DG. But from the DG, you do not go to examination of patents. (n)
the CA, you appeal to the Secretary of Trade and Industry
(STI). Because the IPO is under the DTI, ang boss nang DG is This is where you go if you are an inventor and you want to
the Secretary of Trade and Industry. register your invention, if you want to apply for patent for
your invention.
There are cases that are filed directly with the DG, for
example, a petition for special compulsory license. If you What the Bureau of Patents will do is to search for the same
want to appeal the decision of the DG, the original jurisdiction kind of invention, kasi kung meron ng kapareha yan, hindi na
of the DG, you go to the STI. From the STI you go to the pwedeng ipa-register. Once it is determined na there is
Supreme Court. (Atty S: Tingnanninyonalangbaka from STI to nothing like it, then it is the bureau that will grant the patent.
the CA, I’m not sure.) But anyway, DG to the STI if those two It is also in-charge of registering utility models, industrial
cases. designs and integrated circuits. If you want to know more
about industrial designs and integrated circuits, you ask the
In relation to that, we have the case of – third year na mga students ko sa IP, because we are not gonna
take that up.
PHILIPPINE PHARMA WEALTH (PPW) VS. PFIZER (2010)
Here we have a multinational drug company, Pfizer, which What about the Bureau of Trademarks?
is the registered patent owner of certain drugs such as
Sulbactam Ampicillin (generic name) – Unasyn (brand SECTION 9. The Bureau of Trademarks. ‑ The Bureau of
name). And the sole and exclusive distributor of such drug Trademarks shall have the following functions:
is Zueling Pharma in the Philippines.
9.1. Search and examination of the applications for
Here comes PPW, pinuntahanyungmga hospital and the registration of marks, geographic indications and
submitted bids for the supply of Sulbactam Ampicillin, other marks of ownership and the issuance of the
without the consent of Pfizer. Even if it is not Unasyn, certificates of registration; and
Pfizer has the registered patent for that particular drug
sulbactam ampicillin. 9.2. Conduct studies and researches in the field of
trademarks in order to assist the Director General in
So PPW is trying to sell this drug to the hospital in the formulating policies on the administration and
Philippines. What did Pfizer do? It asked for a writ of examination of trademarks. (n)
preliminary injunction from the Bureau of Legal Affairs.
Now, the Director of Legal Affairs (DLA) issued the writ If you want to register a trademark, you go to that bureau.
which was good for 90 days only. When the 90 day lapsed, And it will again search kung may kapareha ba ang trademark
nagcontinue pa rinyung PPW manligawsamga hospitals. So na gusto mong i-register. If wala, it is the bureau that will
issue certificates of registration for the trademarks. And it is

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

the bureau that will also conduct studies and research, same reasonable time which shall be fixed
with the Bureau of Patents. in the order;
ii. The acceptance of a voluntary
Section 9 – A – The Bureau of Copyright and Other Related assurance of compliance or
Rights. discontinuance as may be imposed.
Section 9-A. The Bureau of Copyright and Other Related Such voluntary assurance may
Rights. The Bureau of Copyright and Other related Rights include one or more of the following:
shall have the following functions: 1) An assurance to comply
with the provisions of the
9A.1. Exercise original jurisdiction to resolve intellectual property law
disputes relating to the terms of a license involving violated;
the author’s right to public performance or other 2) An assurance to refrain
communication of his work; from engaging in unlawful
and unfair acts and
9A.2. Accept, review and decide on applications for practices subject of the
the accreditation of collective management formal investigation;
organizations or similar entities; 3) An assurance to recall,
replace, repair, or refund
9A.3.Conductstudiesandresearches in the field of the money value of
copyright and related rights; and defective goods
distributed in commerce;
9A.4.Provide other copyright and related rights and
service and charge reasonable fees therefor. 4) An assurance to reimburse
the complainant the
Copyright is different from Patents and Trademarks because expenses and costs
in copyright, there is protection from the moment of creation. incurred in prosecuting
If you write a book, you don’t have to register, you the case in the Bureau of
automatically own the right to copy your book. Legal Affairs.

So there was no Bureau of copyright before kasi di man talaga The Director of Legal Affairs may also
kailangan i-register. If you look at the functions, wala man require the respondent to submit
nakalagay diyan na to grant a copyright, copyright is periodic compliance reports and file
automatic. Kinreate nalang ito kasi pwede man hindi mag a bond to guarantee compliance of
register noon. Pwede rin, but is not the primary function. his undertaking;

Next is the Bureau of Legal Affairs. This is the quasi-judicial

arm of the IPO. iii. The condemnation or seizure of
products which are subject of the
SECTION 10. The Bureau of Legal Affairs. ‑ The Bureau of offense. The goods seized hereunder
Legal Affairs shall have the following functions: shall be disposed of in such manner
as may be deemed appropriate by
10.1. Hear and decide opposition to the application for the Director of Legal Affairs, such as
registration of marks; cancellation of trademarks; subject by sale, donation to distressed local
to the provisions of Section 64, cancellation of patents, governments or to charitable or
utility models, and industrial designs; and petitions for relief institutions, exportation,
compulsory licensing of patents; recycling into other goods, or any
combination thereof, under such
10.2. guidelines as he may provide;
a) Exercise original jurisdiction in administrative
complaints for violations of laws involving iv. The forfeiture of paraphernalia and
intellectual property rights: Provided, That its all real and personal properties
jurisdiction is limited to complaints where the which have been used in the
total damages claimed are not less than Two commission of the offense;
hundred thousand pesos (P200,000): Provided,
further, That availment of the provisional v. The imposition of administrative
remedies may be granted in accordance with fines in such amount as deemed
the Rules of Court. The Director of Legal Affairs reasonable by the Director of Legal
shall have the power to hold and punish for Affairs, which shall in no case be less
contempt all those who disregard orders or than Five thousand pesos (P5,000)
writs issued in the course of the proceedings. nor more than One hundred fifty
(n) thousand pesos (P150,000). In
addition, an additional fine of not
b) After formal investigation, the Director for more than One thousand pesos
Legal Affairs may impose one (1) or more of the (P1,000) shall be imposed for each
following administrative penalties: day of continuing violation;

i. The issuance of a cease and desist vi. The cancellation of any permit,
order which shall specify the acts license, authority, or registration
that the respondent shall cease and which may have been granted by the
desist from and shall require him to Office, or the suspension of the
submit a compliance report within a validity thereof for such period of

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

time as the Director of Legal Affairs October 9, 2018

may deem reasonable which shall
not exceed one (1) year; Now, we are going to start with Patents.

vii. The withholding of any permit, What you have to remember all the time is that the different
license, authority, or registration intellectual property rights are distinct from each other. Do
which is being secured by the not mix them all up together.
respondent from the Office;
So what is a patent?
viii. The assessment of damages; PATENT is a grant made by the government to an inventor,
conveying and securing to him the exclusive right to make use
ix. Censure; and of his invention for a given period.

x. Other analogous penalties or So, when we talk about patents, we talk about inventions.
sanctions. (Secs. 6, 7, 8, and 9, When an inventor invents something, for example a machine.
Executive Order No. 913 [1983]a) There’s this guy who invented a machine which flies 25 ft.
Pwede gawing car to go around the city. So that is an
10.3. The Director General may by Regulations establish invention.
the procedure to govern the implementation of this
Section. (n) Who owns that machine? He does. He doesn’t need a patent
to own a machine because intellectual property is an original
WHAT ARE THE FUNCTIONS? mode of acquiring ownership. You create something, and you
▪ Hear and decide opposition to the application for own it.
registration of marks
▪ Cancellation of trademarks and patents, But who has the right to make use of it, to manufacture it, to
▪ Petitions for Compulsory Licensing of Patents distribute it, to sell it, to export it? If he does not secure a
 Hindi na dito, nalipat na ito sa DG under patent for that, somebody will copy his invention and do
RA 9502. whatever it is that he can to make money out of it.
▪ Exercise jurisdiction in administrative complaints
 hindi criminal So, to protect one’s creation, his invention, he must apply for
▪ Hold and Punish for contempt all those who a patent. So, he will be the only who will be given the right to
disregard orders and writs issued in the course of use, manufacture, distribute, sell, etc. his invention. However,
the proceedings not all inventions are patentable.
a. Can impose administrative penalties
 administrative only, criminal cases are Section 21. Patentable Inventions. - Any technical solution of
filed with the special commercial court a problem in any field of human activity which is new, involves
an inventive step and is industrially applicable shall be
So, we have already looked at the different bureaus in the IPO. Patentable. It may be, or may relate to, a product, or process,
or an improvement of any of the foregoing.
SECTION 17. Publication of Laws and Regulations. ‑ The
Director General shall cause to be printed and make WHAT IS PATENTABLE?
available for distribution, pamphlet copies of this Act, Any technical solution of a problem in any field of human
other pertinent laws, executive orders and information activity which is:
circulars relating to matters within the jurisdiction of the 1. New (or novel)
Office. (Sec. 5, R.A. No. 165a) 2. Involves an inventive step, and
3. Industrially applicable.
All laws and regulations shall be published, where? In the
IPO Gazette. It has its own gazette. Those are the requisites of patentability.

SECTION 19. Disqualification of Officers and Employees What can be patented? It could be a –
of the Office. ‑ All officers and employees of the Office a. Product
shall not apply or act as an attorney or patent agent of an b. Process
application for a grant of patent, for the registration of a c. Improvement of any of the foregoing.
utility model, industrial design or mark nor acquire, except
by hereditary succession, any patent or utility model, But what cannot be patented?
design registration, or mark or any right, title or interest
therein during their employment and for one (1) year Section 22. Non-Patentable Inventions. - The following shall
thereafter. (Sec. 77, R.A. No. 165a) be excluded from patent protection:

All officers and employees of the IPO during their 22.1. Discoveries, scientific theories and mathematical
employment and for 1 year thereafter, shall not apply for a methods, and in the case of drugs and medicines, the mere
grant of patent, registration of a utility model, industrial discovery of a new form or new property of a known
design or trademark or service mark, so hindipwedekahitna substance which does not result in the enhancement of the
inventor siya. Gusto niya mag put up ng company, he cannot known efficacy of that substance, or the mere discovery of
apply. Nor act as an attorney or patent agent of an application any new property or new use for a known substance, or the
for a grant of patent etc. He cannot act as a lawyer. mere use of a known process unless such known process
results in a new product that employs at least one new
So, the period is only 1 year from resignation or separation reactant.
from service. After that, pwedena.
For the purpose of this clause, salts, esters, ethers,
We will end here, that is the introduction. polymorphs, metabolites, pure form, particle size, isomers,

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

mixtures of isomers, complexes, combinations, and other Bar Question [1988]: X invented a method of improving the
derivatives of a known substance shall be considered to be tenderness of meat by injecting an enzyme solution into the
the same substance, unless they differ significantly in live animal shortly before slaughter. Is this invention
properties with regard to efficacy; patentable?

Number one there is DISCOVERIES. Discoveries are not Answer: Yes, because it is a process directed towards
inventions. They are already existing, and one just discovers improving a commercial product, meat tenderizer. An
it, like a new element. One cannot own it and cannot be invention possessing the following requisites may be the
patented. subject of an application for a patent:
1. It is new or novel.
SCIENTIFIC THEORIES and MATHEMATICAL METHODS, like 2. It has an inventive step.
the formula of getting the hypotenuse. Those are not 3. It is industrially applicable.
patentable.
Since the three requisites exist in that particular product,
The one in green is amended by the Cheaper Medicines Act to hence this product may be patented.
make cheaper medicines available to Filipinos. This Act tries
to find a way to make medicines cheaper. Bar Question [1989]: X invented a bogus coin detector which
could be used in self-operating gambling devices, otherwise
First, if it is a mere discovery of a new form or new property known as one-arm bandit. Can X apply for a patent?
of a known substance, which does not result in the
enhancement of the known efficacy of that substance, then Answer: No, it is not patentable because it is against public
it’s not patentable. order or morality. The operation of a self-operating gambling
device is a criminal offense in our country.
Second, if it’s a mere discovery of a new property or new use
of a known substance, for example glutathione. Glutathione Let’s expound on the three requisites of patentability.
is a known substance. It is known before to cure the liver. It is
medicine for the liver. But then it was discovered that it is FIRST REQUISITE - NEW OR NOVEL
good for skin whitening. So if you look around, you’ll see What do you mean by new or novel? To determine the
billboards. Any manufacturer can manufacture glutathione novelty of a product or invention, one must look at prior art.
because it’s not patentable.
So, what is not new? This provision does not define what is
Third, just memorize that. The mere use of a known process new but what is not new.
unless such known process results in a new product that
employs at least one new reactant. Section 23. Novelty. - An invention shall not be considered
new if it forms part of a prior art.
Then there is a list of enumeration of what is not patentable.
Just memorize this. So, what then is prior art?

22.2. Schemes, rules and methods of performing mental acts, Section 24. Prior Art. - Prior art shall consist of:
playing games or doing business, and programs for
computers; 24.1. Everything which has been made available to the public
anywhere in the world, before the filing date or the priority
22.3. Methods for treatment of the human or animal body by date of the application claiming the invention; and
surgery or therapy and diagnostic methods practiced on the
human or animal body. This provision shall not apply to 24.2. The whole contents of an application for a patent, utility
products and composition for use in any of these methods;
model, or industrial design registration, published in
accordance with this Act, filed or effective in the Philippines,
22.4. Plant varieties or animal breeds or essentially biological with a filing or priority date that is earlier than the filing or
process for the production of plants or animals. This provision priority date of the application: Provided, That the application
shall not apply to micro-organisms and non-biological and which has validly claimed the filing date of an earlier
microbiological processes. application under Section 31 of this Act, shall be prior art with
effect as of the filing date of such earlier application: Provided
Provisions under this subsection shall not preclude Congress further, That the applicant or the inventor identified in both
to consider the enactment of a law providing sui generis applications are not one and the same.
protection of plant varieties and animal breeds and a system
of community intellectual rights protection:
So, if you are an inventor and you want to have your invention
patented, you go to the Bureau of Patents and file an
Example: dog breeds, like American Bully which is new right
application for patent. The first thing that the Bureau of
now, and biological process for plants, like marcotting
Patents will do is search and examination. They will search if
your invention forms part of prior art. Nalabas na ba ito
22.5. Aesthetic creations; and anywhere in the world.

AESTHETIC CREATIONS cannot be patented because it only This is the most important requisite. If it is not new, wala na.
appeals to the senses. It cannot be used. To be patentable,
one must be able to use it. SECOND REQUISITE – INVENTIVE STEP
Even if it is new, if it does not involve an inventive step, it
22.6. Anything which is contrary to public order or morality. cannot be patented.

That is the simplest one and that is always the question asked
in the Bar.

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Section 26. Inventive Step. - applications are filed for the same invention, to the applicant
who has the earliest filing date or, the earliest priority date.
26.1. An invention involves an inventive step if, having regard
to prior art, it is not obvious to a person skilled in the art at But if you look at the provisions, it says “filing date or the
the time of the filing date or priority date of the application earliest priority date.” What does that mean?
claiming the invention. (n)
20.6. "Priority date" means the date of filing of the foreign
Let’s say I want to apply for a patent for this [tumbler]. I application for the same invention referred to in Section 31 of
invented this. Pakita ko ito doon sa examiner. Sa tingin mo, this Act.
she would know how to use it? Of course, obvious. Definitely,
this doesn’t have an inventive step. If the invention was made separately, the right to the patent
shall belong to the person who filed.
What is something that has an inventive step? If you buy this
product and open it, and you have to look at the instructions. If there are two applications, then the one who has the
If you don’t have to look at the instructions, it doesn’t have an earliest filing date can apply or the one with the earliest
inventive step. priority date.

So, if a person skilled in the art, say engineers, pagtingin nila Let’s go to right of priority.
alam na nila pano gamitin, it does not have an inventive step.
But if it is strange to anyone who is skilled in that particular Section 31. Right of Priority. - An application for patent
art, then it has an inventive step. filed by any person who has previously applied for the
same invention in another country which by treaty,
26.2. In the case of drugs and medicines, there is no inventive convention, or law affords similar privileges to Filipino
step if the invention results from the mere discovery of a new citizens, shall be considered as filed as of the date of filing
form or new property of a known substance which does not the foreign application: Provided, That:
result in the enhancement of the known efficacy of that a) the local application expressly claims priority;
substance, or the mere discovery of any new property or new b) it is filed within twelve (12) months from the
use for a known substance, or the mere use of a known date the earliest foreign application was filed;
process unless such known process results in a new product and
that employs at least one new reactant. c) a certified copy of the foreign application
together with an English translation is filed
So, this particular provision repeats what is not patentable. within six (6) months from the date of filing in
And it is repeated that if any of these three is present, then the Philippines.
the medicine does not have an inventive step.
What if we have inventor A in the Philippines and he applied
THIRD REQUISITE- INDUSTRIAL APPLICABILITY for a patent on June 10, 2010. Here comes inventor B, he goes
Section 27. Industrial Applicability. - An invention that can be to the Bureau of Patents and it’s the same invention and he
produced and used in any industry shall be industrially applies for his patent on September 10, 2010. Obviously,
applicable. inventor A is the first to apply.

What if B says that he applied for a patent for the same

So those are the three requisites of patentability. invention in his home country China. He already has an
application in China for the same patent on May 10, 2010. If
Now, who has the right to apply for a patent? Definitely, the that is the case, he has the earlier priority date. But what
inventor because he owns his creation. But what if the must he do? He must expressly claim priority in his local
inventor gives his invention to somebody else, then his heirs application in the Philippines. And also, provided that he filed
or assigns can apply for a patent. Baka namatay na yung it within 12 months from the date of the earliest foreign
inventor o hindi na interesado, inassign na lang sa iba. As long application and a certified copy of the foreign application
as there is a valid assignment, then that assignee can apply for together with an English translation is filed within 6 months
a patent. from the date of the filing in the Philippines.

Section 28. Right to a Patent. - The right to a patent belongs Let’s go to commission. What if a person A commissions B to
to the inventor, his heirs, or assigns. When two (2) or more create a machine. Who owns the patent?
persons have jointly made an invention, the right to a patent
shall belong to them jointly. Section 30. Inventions Created Pursuant to a Commission. -

Co-inventors or co-owners can apply for a patent. 30.1. The person who commissions the work shall own the
patent, unless otherwise provided in the contract.
What if the invention was made separately and
independently of each other? Meaning, there are two Generally, it is the person who commissions the work.
inventors and they invented the same thing. Do these two Meaning, si A. Not the inventor but A. Unless it is otherwise
things have to look exactly alike? No need! But we have two provided in the contract. So, this applies if there is no
inventors, A and B, and they invented the same product. agreement to the contrary.
Who has the right to apply? Of course, it is the first to apply. What if the employee is the inventor? This is very common in
drug companies.
Section 29. First to File Rule. - If two (2) or more persons have
made the invention separately and independently of each 30.2. In case the employee made the invention in the
other, the right to the patent shall belong to the person who course of his employment contract, the patent shall
filed an application for such invention, or where two or more belong to:

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4-Manresa | Ateneo de Davao University College of Law

a) The employee, if the inventive activity is not a administrative procedure relating to the application for
part of his regular duties even if the employee patent or the patent may be served.
uses the time, facilities and materials of the
employer. Now, this is one thing that makes an application very
b) The employer, if the invention is the result of controversial nowadays. This provision:
the performance of his regularly-assigned
duties, unless there is an agreement, express or Section 35. Disclosure and Description of the Invention. -
implied, to the contrary.
35.1. Disclosure. - The application shall disclose the invention
What if in a drug company, makeup ang inimbento? Ginamit in a manner sufficiently clear and complete for it to be carried
nya ang facilities ng employer niya. Can the employer say out by a person skilled in the art. Where the application
that he used our facilities and thus we own the patent? No. concerns a microbiological process or the product thereof and
If it is not part of his regular duties, the employee owns the involves the use of a micro-organism which cannot be
invention. sufficiently disclosed in the application in such a way as to
enable the invention to be carried out by a person skilled in
If it is part of his regular duties, then the employer owns the the art, and such material is not available to the public, the
invention. Unless, again, there is an agreement to the application shall be supplemented by a deposit of such
contrary. material with an international depository institution.

Let’s say we have A. He has an invention. On June 10, 2010,

This means that the applicant cannot keep his invention
he goes to the Bureau of Patents to apply for registration of
secret anymore. Ibulatlat na nila lahat sa Bureau of Patents.
his invention. Here comes B. He wants to oppose the
He has to reveal everything.
registration of A for whatever reason. Where does he go?
Now, if one applies for a patent, it must relate to one
A goes to the Bureau of Patents. If B wants to oppose, he must
invention only.
go to the Bureau of Legal Affairs. Opposition cases are with
the BLA.
Section 38. Unity of Invention. -
What are the grounds for opposition?
38.1. The application shall relate to one invention only or to a
The invention is not new or novel. It does not have an group of inventions forming a single general inventive
inventive step. It is not industrially applicable. What else? The concept.
applicant is not the inventor.
What if several independent inventions are claimed in one
Let’s discuss a little on procedure. application?

Section 32. The Application. – 38.2. If several independent inventions which do not form a
single general inventive concept are claimed in one
32.1. The patent application shall be in Filipino or English application, the Director may require that the application be
and shall contain the following: restricted to a single invention. A later application filed for an
a) A request for the grant of a patent; invention divided out shall be considered as having been filed
b) A description of the invention; on the same day as the first application: Provided, That the
c) Drawings necessary for the understanding of later application is filed within four (4) months after the
the invention; requirement to divide becomes final or within such additional
d) One or more claims; and time, not exceeding four (4) months, as may be granted:
e) An abstract. Provided further, That each divisional application shall not go
beyond the disclosure in the initial application.
Take note that it must be in English of Filipino.
The application must be severed. This is just the procedural
If you apply for a patent for your invention, you must have aspect on splitting. Just read that.
drawings.
38.3. The fact that a patent has been granted on an
Take note of this – application that did not comply with the requirement of unity
of invention shall not be a ground to cancel the patent.
32.2. No patent may be granted unless the application
identifies the inventor. If the applicant is not the inventor, the There are times na nakakalusot kahit na may two or more
Office may require him to submit said authority. inventions in one patent tapos na-grant, okay lang yun. It
doesn’t mean that the patent should be cancelled.
Can the applicant not be the inventor? Yes, if he is an assign
or heir. If the applicant is not the inventor, he must show his If you are a foreigner, you must comply with Section 39.
authority to apply.
Section 39. Information Concerning Corresponding Foreign
What if the applicant is not a resident of the Philippines? He Application for Patents. - The applicant shall, at the request
must appoint an agent. of the Director, furnish him with the date and number of any
application for a patent filed by him abroad, hereafter
Section 33. Appointment of Agent or Representative. - An referred to as the "foreign application," relating to the same
applicant who is not a resident of the Philippines must appoint or essentially the same invention as that claimed in the
and maintain a resident agent or representative in the application filed with the Office and other documents relating
Philippines upon whom notice or process for judicial or to the foreign application.

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4-Manresa | Ateneo de Davao University College of Law

Now, what is the filing date? Is it the date that you go there Section 46. Rights Conferred by a Patent Application After
and fill out the form? Publication. - The applicant shall have all the rights of a
patentee under Section 76 against any person who, without
Section 40. Filing Date Requirements. - his authorization, exercised any of the rights conferred under
Section 71 of this Act in relation to the invention claimed in
40.1. The filing date of a patent application shall be the the published patent application, as if a patent had been
date of receipt by the Office of at least the following granted for that invention: Provided, That the said person
elements: had:
a) An express or implicit indication that a
Philippine patent is sought; 46.1. Actual knowledge that the invention that he was using
b) Information identifying the applicant; and was the subject matter of a published application; or
c) Description of the invention and one (1) or
more claims in Filipino or English. 46.2. Received written notice that the invention that he was
using was the subject matter of a published application being
It shall be the date of receipt by the IPO of at least the identified in the said notice by its serial number: Provided,
foregoing elements. So pag nasubmit na yan, then that is the That the action may not be filed until after the grant of a
time that the applicant gets his filing date. patent on the published application and within four (4) years
from the commission of the acts complained of.
40.2. If any of these elements is not submitted within the
period set by the Regulations, the application shall be Section 46 is very important.
considered withdrawn.
Syempre, the application has already been published. Eto na
Now, there is classification and search. yung mga infringers. Halungkatin na yung mga application. So
Section 46 says that the applicant has all the rights of a
patentee under Section 76.
Section 43. Classification and Search. - An application that
has complied with the formal requirements shall be classified
If there is somebody who copies the invention, manufactures
and a search conducted to determine the prior art.
the invention, then the applicant already has a cause of action
to file an infringement case against the infringer.
So, complete the requirements first and then there will be the
search. Now take note, just because the applicant’s patent
application is pending, hindi ibig sabihin nyan na maghintay
Section 44. Publication of Patent Application. - sya. Pwede na nya imanufacture, pwede na ibenta. That’s why
you look at some products, may nakalagay Philippine Patent
44.1. The patent application shall be published in the IPO Pending. This means that there is an application for a patent
Gazette together with a search document established by or but it has not yet been granted. But that is his invention.
on behalf of the Office citing any documents that reflect prior Pwede na nya yan perahan.
art, after the expiration of eighteen (18) months from the
filing date or priority date. However, there is still no right of action. He can only file after
his patent is issued.
So, there is publication of the application. What happens
after publication? When the file the action? Only after the grant of the patent
on the published application and within 4 years from the
commission of the acts complained of.
44.2. After publication of a patent application, any interested
party may inspect the application documents filed with the
This next provision is new.
Office.

Section 48. Request for Substantive Examination. -

Pwede tingnan lahat nung mga secrets of the invention.
48.1. The application shall be deemed withdrawn unless
44.3. The Director General subject to the approval of the within six (6) months from the date of publication under
Secretary of Trade and Industry, may prohibit or restrict the Section 41, a written request to determine whether a patent
publication of an application, if in his opinion, to do so would application meets the requirements of Sections 21 to 27 and
be prejudicial to the national security and interests of the Sections 32 to 39 and the fees have been paid on time.
Republic of the Philippines.
48.2. Withdrawal of the request for examination shall be
Not the interest of the inventor. Wala silang pakialam dyan. irrevocable and shall not authorize the refund of any fee.
It is the interest of the Republic that will prevent publication
of the application. If you are the applicant, you should monitor what’s going on.
Within 6 months from the date your application is published,
Section 45. Confidentiality Before Publication. - A patent you must make a written request for substantial examination.
application, which has not yet been published, and all related Ano ba nangyayari sa application ko? Does it comply with
documents, shall not be made available for inspection Section 21? Is it new? Does it have an inventive step?
without the consent of the applicant.
E.I. DUPONT vs. DIRECTOR FRANCISCO (2016)
That is before publication. So ang may alam lang nyan yung Facts: On July 10, 1987, E.I. Dupont Nemours applied for a
examiner. But once it is published, any interested party can patent before the Bureau of Patents, Trademarks, and
look into the application. Technology Transfer. The application was for Angiotensin II
Receptor Blocking Imidazole (losartan), an invention related
to the treatment of hypertension and congestive heart

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4-Manresa | Ateneo de Davao University College of Law

failure.The patent application was handled by Atty. Nicanor D. Issue: WON patent inventions relating to drugs enjoy absolute
Mapili, the patent lawyer of Dupont. monopoly over the patent

On December 19, 2000, Dupont’s new counsel, Ortega, Del Ruling: No. The patent holder’s proprietary right over the
Castillo, Bacorro, Odulio, Calma, and Carbonell, sent the patent only lasts for three (3) years from the grant of the
Intellectual Property Office a letter requesting that an office patent, after which any person may be allowed to
action be issued on the patent application. manufacture, use or sell the invention subject to the payment
of royalties. A patent is a monopoly granted only for specific
In response, Patent Examiner Precila O. Bulihan of Intellectual purposes and objectives. Thus, its procedures must be
Property Office sent an office action marked Paper No. 2 on complied with to attain its social objective. Any request for
January 30, 2002, stating that: “It was noted that it took leniency in its procedures should be taken in this context.
thirteen (13) long years for the applicant to request for such Petitioner, however, has failed to convince this court that the
Office Action. This is not expected of the applicant since it is revival of its patent application would have a significant
an acceptable fact that almost all inventors/ applicants wish impact on the pharmaceutical industry.
for the early disposition for their applications.”
Public interest will be prejudiced if, despite petitioner's
Thus, Dupont filed a petition for revival of the patent inexcusable negligence, its Petition for Revival is granted.
application. However, the Director of Patents denied the Even without a pending patent application and the absence of
petition for being filed out of time. Dupont appealed to the any exception to extend the period for revival, petitioner was
Director-General and again was denied. Dupont filed a already threatening to pursue legal action against respondent
petition for review before the Court of Appeals but was again Therapharma, Inc. if it continued to develop and market its
denied. losartan product, Lifezar. Once petitioner is granted a patent
for its losartan products, Cozaar and Hyzaar, the loss of
Issue: WON Dupont’s appeal of the DG’s decision is proper competition in the market for losartan products may result in
higher prices. For the protection of public interest, Philippine
Ruling: Yes, because the DG’s order is final and not Patent Application No. 35526 should be considered a
interlocutory. Thus, follow the flow of appeal under Section 7 forfeited patent application.
of the IPC.
What is the purpose of the law on patents?
Issue: WON there is absolute confidentiality in patent
proceedings In that same case, the Court ruled that the PATENT LAW HAS
A THREE-FOLD PURPOSE:
Ruling: No. In the 1962 Revised Rules of Practice, the Bureau 1. Patent law seeks to foster and reward invention;
of Patents, Trademarks, and Technology Transfer previously 2. It promotes disclosures of inventions to stimulate
required secrecy in pending patent applications.The further innovation and to permit the public to
Intellectual Property Code, however, changed numerous practice the invention once the patent expires;
aspects of the old patent law. 3. The stringent requirements for patent protection.
seek to ensure that ideas in the public domain
Thus, the absolute secrecy required by the 1962 Revised Rules remain there for the free use of the public.
of Practice would not be applicable to a patent application
before the Intellectual Property Office. Section 13 of the 1962 So, that is deemed withdrawn if you don’t file within 6 months
Revised Rules of Practice does not appear in the Intellectual under the new law. Under the old law, it’s 4 months.
Property Code, in the Rules and Regulations on Inventions, or Withdrawal shall be irrevocable and shall not authorize the
in the Revised Implementing Rules and Regulations for refund of any fee.
Patents, Utility Models and Industrial Design. The Intellectual
Property Code now states that all patent applications must be Section 49. Amendment of Application. - An applicant may
published in the Intellectual Property Office Gazette and that amend the patent application during examination: Provided,
any interested party may inspect all documents submitted to That such amendment shall not include new matter outside
the Intellectual Property Office. the scope of the disclosure contained in the application as
filed.
Issue: WON an abandoned application may be revived
Can the application amend his application? Yes, provided
Ruling: An abandoned patent application may only be revived
that the amendment shall not include new matter outside the
within four (4) months from the date of abandonment. No
scope of the disclosure contained in the application.
extension of this period is provided by the 1962 Revised Rules
of Practice.
So when shall the application be granted?
According to the records of the Bureau of Patents,
Trademarks, and Technology Transfer Chemical Examining Section 50. Grant of Patent. -
Division, petitioner filed Philippine Patent Application No.
35526 on July 10, 1987. It was assigned to an examiner on 50.1. If the application meets the requirements of this Act, the
June 7, 1988. An Office Action was mailed to petitioner's Office shall grant the patent: Provided, That all the fees are
agent, Atty. Mapili, on July 19, 1988. Because petitioner failed paid on time.
to respond within the allowable period, the application was
deemed abandoned on September 20, 1988. Under Section 50.2. If the required fees for grant and printing are not paid in
113, petitioner had until January 20, 1989 to file for a revival due time, the application shall be deemed to be withdrawn.
of the patent application. Its Petition for Revival, however,
was filed on May 30, 2002, 13 years after the date of 50.3. A patent shall take effect on the date of the publication
abandonment.Petitioner’s patent application, therefore, of the grant of the patent in the IPO Gazette.
should not be revived since it was filed beyond the allowable
period. It shall be granted if the application meets the requirements
of the law and the fees are paid on time.

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4-Manresa | Ateneo de Davao University College of Law

Now, it shall take effect on the date of the publication of the Now how long will your patent last? A applied for a patent
grant in the IPO Gazette. It is not the date on the patent on June 10, 2010. Let’s say, the grant of his patent was
written on the certificate. It will take effect only from the date published in the IPO Gazette on June 10, 2018. It has been 10
of the publication of the grant in the IPO Gazette. years before it was granted. How much more does he have for
protection? It’s only 10 years.
FLOW OF APPEAL
If the patent examiner refuses to grant the application, the Section 54. Term of Patent. - The term of a patent shall be
applicant should appeal to the Director of Patents. If the twenty (20) years from the filing date of the application.
Director of Patent denies the application, appeal to the
Director General. If the Director General denies again the
The 20 years is counted from the filing date of the application
application, go to the Court of Appeals.
and not from the date of effectivity.

Patent Now, we have a patent issued to A. Here comes B. He wants

Examiner Director of Director Court of
refuses the Patents General Appeals to have the patent cancelled. He goes to the Bureau of Legal
grant
Affairs.

That is the flow. Note:

• Opposition and cancellation → Bureau of Legal Affairs
How many publications have we had? One, the application
was published. Next publication is the grant of the patent in Section 61. Cancellation of Patents. -
the IPO Gazette.
61.1. Any interested person may, upon payment of the
52.2. Any interested party may inspect the complete required fee, petition to cancel the patent or any claim
description, claims, and drawings of the patent on file with the thereof, or parts of the claim, on any of the following
Office. grounds:
a) That what is claimed as the invention is not new
or Patentable;
Now what shall the patent contain?
b) That the patent does not disclose the invention
in a manner sufficiently clear and complete for
Section 53. Contents of Patent. - The patent shall be issued in it to be carried out by any person skilled in the
the name of the Republic of the Philippines under the seal of art; or
the Office and shall be signed by the Director, and registered c) That the patent is contrary to public order or
together with the description, claims, and drawings, if any, in morality.
books and records of the Office.
The grounds are in Section 61.
THE PATENT SHALL CONTAIN
1. Issued in the name of the Republic What is the effect of cancellation of the patent?
2. Seal of the Office
3. Signature of the Director Section 66. Effect of Cancellation of Patent or Claim. - The
4. Description, claims, and drawings rights conferred by the patent or any specified claim or claims
cancelled shall terminate. Notice of the cancellation shall be
So, this is the flow of the patent application. published in the IPO Gazette. Unless restrained by the
Director General, the decision or order to cancel by Director
of Legal Affairs shall be immediately executory even pending
appeal.

Then there’s another publication in the IPO Gazette.

Who will cancel the patent? It is the Director of Legal Affairs

and it is immediately executory even pending appeal.

If the patentee doesn’t want his patent to be cancelled, he

must get a TRO from the Director General.

Now, Section 67 is very important. This comes out in the Bar.

Section 67. Patent Application by Persons Not Having the

Right to a Patent. -

67.1. If a person referred to in Section 29 other than the

applicant, is declared by final court order or decision as
having the right to the patent, such person may, within three
(3) months after the decision has become final:
a) Prosecute the application as his own application in
place of the applicant;
b) File a new patent application in respect of the
same invention;
c) Request that the application be refused; or
d) Seek cancellation of the patent, if one has already
been issued.

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4-Manresa | Ateneo de Davao University College of Law

He has to the the BP or the BLA. Under Section 68, it’s the
67.2. The provisions of Subsection 38.2 shall apply mutatis Court.
mutandis to a new application filed under Subsection 67.1(b). Now, if you’re the actual inventor or you were deprived
under Section 29, when shall you file your action in Court?
So, in relation to that is Section 29.
Section 70. Time to File Action in Court. - The actions
Section 29. First to File Rule. - If two (2) or more persons have indicated in Sections 67 and 68 shall be filed within one (1)
made the invention separately and independently of each year from the date of publication made in accordance with
other, the right to the patent shall belong to the person who Sections 44 and 51, respectively.
filed an application for such invention, or where two or more
applications are filed for the same invention, to the applicant It shall be filed one year from the date of publication. Pag
who has the earliest filing date or, the earliest priority date. sumobra na yan ng 1 year, pasensya.

So, we have A who applies for a patent on June 10. B has If it’s Section 44, publication of the application. If it’s Section
earlier priority date pero hindi sya pinansin ng Director of 51, publication of the grant of the patent.
Patents. Meaning, A was able to file and his patent
application is ongoing. What should B do? Section 71. Rights Conferred by Patent. -

According to Section 67, he must go to Court – Special 71.1. A patent shall confer on its owner the following exclusive
Commercial Court. He must ask the Court to declare that he’s rights:
the one who has the right to the patent. Now, once the Court a) Where the subject matter of a patent is a product, to
renders a decision that B has the right to the patent, what are restrain, prohibit and prevent any unauthorized
the remedies available to him? person or entity from making, using, offering for
b. If the patent application of A is still pending, B can sale, selling or importing that product;
prosecute the application as his own application in b) Where the subject matter of a patent is a process, to
place of A. Because of his final order by the Court, restrain, prevent or prohibit any unauthorized
he can say to the Bureau of Patents that he is now person or entity from using the process, and from
the applicant and not A. manufacturing, dealing in, using, selling or offering
for sale, or importing any product obtained directly
c. He can file a new patent application in respect of or indirectly from such process.
the same invention and show the Court order that
he is the one entitled. If the application is published, any person can make halungkat
na. And the applicant already has these rights.
For these first two remedies, he goes to the Bureau
of Patents. 71.2. Patent owners shall also have the right to assign, or
transfer by succession the patent, and to conclude licensing
d. B can request that the application be refused. Here, contracts for the same.
he goes to the Bureau of Legal Affairs.
Patent owners can also assign or transfer and conclude
But what if the patent was issued to the A? Then he must
licensing contracts.
seek cancellation of the patent before the Bureau of Legal
Affairs.
However, there are limitations of patent rights and they are
enumerated under Section 72.
However, he must avail of either of the four within 3 months
after the decision has become final.
Section 72. Limitations of Patent Rights. — The owner of a
patent has no right to prevent third parties from performing,
Section 68. Remedies of the True and Actual Inventor. - If a without his authorization, the acts referred to in Section 71
person, who was deprived of the patent without his consent hereof in the following circumstances:
or through fraud is declared by final court order or decision to
be the true and actual inventor, the court shall order for his 72.1. Using a patented product which has been put on the
substitution as patentee, or at the option of the true inventor, market in the Philippines by the owner of the product, or
cancel the patent, and award actual and other damages in his with his express consent, insofar as such use is performed
favor if warranted by the circumstances. after that product has been so put on the said market:
Provided, That, with regard to drugs and medicines, the
Ito naman, somebody applied for a patent but he’s not the limitation on patent rights shall apply after a drug or
inventor. medicine has been introduced in the Philippines or
anywhere else in the world by the patent owner, or by any
So, let’s say the real inventor is A. B applied for a patent thru party authorized to use the invention: Provided, further,
fraud. Here comes A. Can A come to the Bureau and say that That the right to import the drugs and medicines
he is the true inventor? It is not enough. A must go to Court contemplated in this section shall be available to any
and prove that he is the inventor. He must get a final government agency or any private third party;
judgment by the Court that he is the true and actual inventor
of that particular invention. Then, he can ask the Court to: After the product has been put in the market, you can buy it.
1. Order his substitution as patentee, or The patentee has no right to prevent the consumers.
2. Cancel the patent and award actual and other
damages in his favor. Take note that under this Section, if you are the patentee, you
own the exclusive rights to import the product. The exclusive
So you have to separate Section 67 from Section 68. Wag nyo distributors of these drug companies, they are the only ones
gawing chopsuey. The remedies under Section 67 is different. who have the exclusive right to import that drug. But under
the Cheaper Medicines Act, the right to import the drugs and

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4-Manresa | Ateneo de Davao University College of Law

medicines shall be available to any government agency or any agencies, shall issue the appropriate rules and regulations
private third party. necessary therein not later than one hundred twenty (120)
days after the enactment of this law;
So, with respect to drugs and medicines, the patentee has no
right to prevent anyone from importing. 72.5. Where the act consists of the preparation for individual
cases, in a pharmacy or by a medical professional, of a
ROMA DRUG VS. RTC OF GUAGUA (2009) medicine in accordance with a medical prescription or acts
Facts: A team composed of the NBI operatives and inspectors concerning the medicine so prepared; and
of the BFAD conducted a raid on Roma Drug, owned by
Rodriguez. The raiding team seized several imported 72.6 Where the invention is used in any ship, vessel, aircraft,
medicines, including Augmentin tablets, Orbenin capsules, or land vehicle of any other country entering the territory of
Amoxilcapsules and Ampiclox. The seized medicines, which the Philippines temporarily or accidentally: Provided, That
were manufactured by SmithKline, were imported directly such invention is used exclusively for the needs of the ship,
from abroad and not purchased through the local SmithKline, vessel, aircraft, or land vehicle and not used for the
the authorized Philippine distributor of these products. manufacturing of anything to be sold within the Philippines.

The NBI subsequently filed a complaint against Rodriguez for Take note of these limitations to the right of the patentee.
violation of Section 4 (in relation to Sections 3 and 5) of
Republic Act No. 8203, also known as the Special Law on
Section 73. Prior User. -
Counterfeit Drugs (SLCD), with the Office of the Provincial
Prosecutor in San Fernando, Pampanga. The section prohibits
73.1. Notwithstanding Section 72 hereof, any prior user, who,
the sale of counterfeit drugs, which under Section 3(b)(3),
in good faith was using the invention or has undertaken
includes "an unregistered imported drug product." The term
serious preparations to use the invention in his enterprise or
"unregistered" signifies the lack of registration with the
business, before the filing date or priority date of the
Bureau of Patent, Trademark and Technology Transfer of a
application on which a patent is granted, shall have the right
trademark, tradename or other identification mark of a drug
to continue the use thereof as envisaged in such preparations
in the name of a natural or juridical person, the process of
within the territory where the patent produces its effect.
which is governed under Part III of the Intellectual Property
Code.
73.2. The right of the prior user may only be transferred or
assigned together with his enterprise or business, or with that
Issue: WON Roma Drug be prosecuted pursuant to R.A. No.
part of his enterprise or business in which the use or
8203
preparations for use have been made.
Ruling: No. R.A. No. 9502 amended R.A. No. 8203. It may be
that Rep. Act No. 9502 did not expressly repeal any provision What if we have here a small inventor who invented his own
of the SLCD. However, it is clear that the SLCO’s classification gadget that can do whatever, can maybe cut hair on its own?
of "unregistered imported drugs" as "counterfeit drugs," and That’s his only. And then here comes an inventor who invents
of corresponding criminal penalties therefore are the same kind of gadget and had it patented. Then nahuli nya
irreconcilably in the imposition conflict with Rep. Act No. 9502 tapos sinabihan nya na stop doing that. Can he do so? No.
since the latter indubitably grants private third persons the
unqualified right to import or otherwise use such drugs. Any prior user, who in good faith was using the invention
Where a statute of later date, such as Rep. Act No. 9502, before the filing date or priority date of the application on
clearly reveals an intention on the part of the legislature to which a patent is granted, shall have the right to continue
abrogate a prior act on the subject that intention must be using the product.
given effect.
What about the government? Of course, pwede makialam
So, there is no more prohibition on importation. ang government.

72.2. Where the act is done privately and on a non- Section 74. Use of Invention by Government. —
commercial scale or for a non-commercial purpose: Provided,
That it does not significantly prejudice the economic interests 74.1. A Government agency or third person authorized by
of the owner of the patent; the Government may exploit the invention even without
agreement of the patent owner where:
72.3. Where the act consists of making or using exclusively for a) The public interest, in particular, national
experimental use of the invention for scientific purposes or security, nutrition, health or the development
educational purposes and such other activities directly related of other sectors, as determined by the
to such scientific or educational experimental use; appropriate agency of the government, so
requires; or
72.4. In the case of drugs and medicines, where the act b) A judicial or administrative body has
includes testing, using, making or selling the invention determined that the manner or exploitation, by
including any data related thereto, solely for purposes the owner of the patent or his licensee, is anti-
reasonably related to the development and submission of competitive; or
information and issuance of approvals by government c) In the case of drugs and medicines, there is a
regulatory agencies required under any law of the Philippines national emergency or other circumstance of
or of another country that regulates the manufacture, extreme urgency requiring the use of the
construction, use or sale of any product: Provided, That, in invention; or
order to protect the data submitted by the original patent d) In the case of drugs and medicines, there is
holder from unfair commercial use provided in Article 39.3 of public non-commercial use of the patent by the
the Agreement on Trade-Related Aspects of Intellectual patentee, without satisfactory reason; or
Property Rights (TRIPS Agreement), the Intellectual Property e) In the case of drugs and medicines, the demand
Office, in consultation with the appropriate government for the patented article in the Philippines is not
being met to an adequate extent and on

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reasonable terms, as determined by the

Secretary of the Department of Health.” When do you bring an action for infringement? It must be
brought within 4 years from the commission of the acts
Those are the instances when the government can interfere. complained of.

Now, Section 76 talks about infringement. What can be recovered from the infringer after court action?
1. Damages sustained thereby, and
2. Attorney’s fees and expenses in litigation
Section 76. Civil Action for Infringement. -

76.1. The making, using, offering for sale, selling, or importing 76.3. If the damages are inadequate or cannot be readily
a patented product or a product obtained directly or indirectly ascertained with reasonable certainty, the court may award
from a patented process, or the use of a patented process by way of damages a sum equivalent to reasonable royalty.
without the authorization of the patentee constitutes patent
infringement: Provided, That, this shall not apply to instances 76.4. The court may, according to the circumstances of the
covered by Sections 72.1 and 72.4 (Limitations of Patent case, award damages in a sum above the amount found as
Rights); Section 74 (Use of Invention by Government); Section actual damages sustained: Provided, That the award does not
93.6 (Compulsory Licensing); and Section 93-A (Procedures on exceed three (3) times the amount of such actual damages.
Issuance of a Special Compulsory License under the TRIPS
Agreement) of this Code. 76.5. The court may, in its discretion, order that the infringing
goods, materials and implements predominantly used in the
infringement be disposed of outside the channels of
What constitutes infringement? It is the making, using,
commerce or destroyed, without compensation.
offering for sale, selling or importing a patented product, or
the use of a patented process without authorization of the
76.6. Anyone who actively induces the infringement of a
patentee.
patent or provides the infringer with a component of a
patented product or of a product produced because of a
Who can file an action for infringement? Only a registered
patented process knowing it to be especially adopted for
patent holder.
infringing the patented invention and not suitable for
substantial non-infringing use shall be liable as a contributory
Remember that applicant na pinublish yung kanyang
infringer and shall be jointly and severally liable with the
application, he may have the cause of action already but the
infringer.
right of action will only arise if the patent is issued to him.

When do you know if there’s infringement of a patent? In Now, can a foreign national bring an action for
order to constitute infringement, there need only be infringement?
substantial identity. The two inventions need not be identical.
Substantial identity between the registered device and the Section 77. Infringement Action by a Foreign National. - Any
alleged infringing device. foreign national or juridical entity who meets the
requirements of Section 3 and not engaged in business in the
How do you determine if there is substantial identity? The Philippines, to which a patent has been granted or assigned
DOCTRINE OF EQUIVALENTS says that there is substantial under this Act, may bring an action for infringement of patent,
identity when between two devices, they perform whether or not it is licensed to do business in the Philippines
substantially the same function in substantially the same way under existing law.
to obtain the same result, even if they differ in form, shape or
dimension. Yes, a foreign national can bring an action as long as he meets
the requirements of Section 3.
The classic example here is a vacuum cleaner. Iba-iba ang
itsura ng vacuum cleaner! But they are all vacuum cleaners. You already know that under you Corpo. If he is not engaged
Ano ang kanilang function? Maghigop ng whatever it is. And in business, he does not have to be registered here to file. But
how is it done? Through suction, whatever. And what do they if he is engaged in business here, he must be registered here
aim to obtain? To clean up whatever mess is there. So even if before he can file.
they look different, they are similar. They’re all vacuum
cleaners. And take note, a foreign national can only file an action for
infringement here in the Philippines is he has a patent issued
Now, if there is a cleaner here which uses another technology by the IPO, not issued by another country. If he doesn’t have
na hindi vacuum, hindi suyop but something else, then it’s not a patent, there are other ways. But if he wants to cite the IPC
the same. for infringement, he must have a patent here.

76.2. Any patentee, or anyone possessing any right, title or Thus, the foreign national must:
interest in and to the patented invention, whose rights have 1. Meet the requirements under Section 3
been infringed, may bring a civil action before a court of 2. Not be doing business in the Philippines
competent jurisdiction, to recover from the infringer such 3. Have been granted or assigned a patent under RA
damages sustained thereby, plus attorney's fees and other 8293
expenses of litigation, and to secure an injunction for the
protection of his rights. What are the defenses available to the infringer?

Now, who has jurisdiction over infringement cases? This Section 81. Defenses in Action for Infringement. - In an action
time, it is the courts. The special commercial court. This is a for infringement, the defendant, in addition to other defenses
new court created by the Supreme Court. This is a RTC that is available to him, may show the invalidity of the patent, or any
appointed as a special commercial court that hears claim thereof, on any of the grounds on which a petition of
intellectual property cases and corporate cases. cancellation can be brought under Section 61 hereof.

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4-Manresa | Ateneo de Davao University College of Law

The grounds for cancellation may be used by the infringer as October 15, 2018
a defense.
SMITH KLINE BECKHAM CORP. v CA
The case here is: How do we know if the two inventions are substantially the
same? We apply the DOCTRINE OF EQUIVALENTS.
MAGUAN vs. COURT OF APPEALS (1986)
Facts: Maguan is a patent holder of a powder puff. Luchan Smith Kline has a certain patent for a drug that uses the
manufactured her own powder puff. Maguan said that she is compound Methyl 5 Propylthio-2-Benzimidazole Carbamate
infringing on her powder puffs and so she filed an (MPBC). This new compound is a main ingredient of a drug
infringement case. On the other hand, Luchan argued that that is produced by Smith Kline. This kind of drugs is used in
powder puffs already existed from the time of Cleopatra. animals to fight infections caused by gastrointestinal parasites
and lungworms in animals such as swine, sheep, cattle, goats,
Issue: WON the powder puffs are patentable horses, and even pet animals.

Ruling: No. It has been repeatedly held that an invention must Tryco Pharma Corporation (private respondent) is a domestic
possess the essential elements of novelty, originality and corporation that manufactures, distributes and sells
precedence and for the patentee to be entitled to protection, veterinary products including Impregon (the name of the
the invention must be new to the world. drug), a drug that has Albendazole for its active ingredient and
is claimed to be effective against gastro-intestinal
Private respondent contends that powder puffs Identical in roundworms, lungworms, tapeworms and fluke infestation in
appearance with that covered by petitioner's patents existed carabaos, cattle and goats.
and were publicly known and used as early as 1963 long
before petitioner was issued the patents in question. As Smith Kline is saying that its patent over MPBC (new
correctly observed by respondent Court of Appeals, "since compound) includes the substance Albendazole which is the
sufficient proofs have been introduced in evidence showing a main ingredient of Impregon of Tryco.
fair question of the invalidity of the patents issued for such
models, it is but right that the evidence be looked into, According to Tryco, nowhere in the patent issued to Smith
evaluated and determined on the merits so that the matter of Kline does the word Albendazole appear. That even if the
whether the patents issued were in fact valid or not may be patent were to include Albendazole, such substance is
resolved." unpatentable.

Take note that in an action for infringement filed before the According to Smith Kline, applying the doctrine of equivalents,
special commercial court, the court has the power to cancel even though they are different with the MPBC with the
the patent. In the case of Maguan, Luchan does not have to patented compound Albendazole, they perform substantially
go to the BLA to cancel the patent of Maguan. The Court can the same functions, in the same way to be taken in as a drug
cancel the patent, even though cancellation cases are filed and for the purpose of curing infections in animals. Therefore,
with the BLA. there is substantial identity between the two.

Section 82. Patent Found Invalid May be Cancelled. - In an ISSUE: Is Smith Kline correct?
action for infringement, if the court shall find the patent or
any claim to be invalid, it shall cancel the same, and the HELD: NO. While both compounds have the effect of
Director of Legal Affairs upon receipt of the final judgment of neutralizing parasites in animals, identity of result does not
cancellation by the court, shall record that fact in the register amount to infringement of patent unless Albendazole
of the Office and shall publish a notice to that effect in the IPO operates in substantially the same way or by substantially the
Gazette. same means as the patented compound, even though it
performs the same function and achieves the same result.
Infringement of patent is a civil case.
In other words, the principle or mode of operation must be
the same or substantially the same.
Can you turn it into a criminal case? No. But there is a criminal
act for patent. That is repeated infringement. If there is
It is not enough to say that those are taken internally but how
already a ruling by the special commercial court that you are
do they work inside the animal. That has to be proven. What
an infringer and you do it again. That is already a criminal case.
does it do? Does it attack the compound? Does it kill it, does
it make it dizzy? Suffocate or things like that.
Section 84. Criminal Action for Repetition of Infringement. -
If infringement is repeated by the infringer or by anyone in The doctrine of equivalents thus requires satisfaction of the
connivance with him after finality of the judgment of the court function-means-and-result test, the patentee having the
against the infringer, the offenders shall, without prejudice to burden to show that all three components of such
the institution of a civil action for damages, be criminally liable equivalency test are met. The burden of proof is on the
therefor and, upon conviction, shall suffer imprisonment for patentee. The one who is invoking infringment.
the period of not less than six (6) months but not more than
three (3) years and/or a fine of not less than One hundred
thousand pesos (P100,000) but not more than Three hundred
FT: The doctrine of equivalents provides that an
thousand pesos (P300,000), at the discretion of the court. The
infringement also takes place when a device appropriates a
criminal action herein provided shall prescribe in three (3)
prior invention by incorporating its innovative concept and,
years from date of the commission of the crime.
although with some modification and change, performs
substantially the same function in substantially the same
What is the prescriptive period for filing a criminal case way to achieve substantially the same result. Yet again, a
against the infringer? Three years from the date of the scrutiny of petitioners evidence fails to convince this Court
commission of the crime and the crime is repeated of the substantial sameness of petitioners patented
infringement. compound and Albendazole. While both compounds have

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4-Manresa | Ateneo de Davao University College of Law

the effect of neutralizing parasites in animals, identity of exercises quasi-judicial jurisdictions in the settlement of
result does not amount to infringement of patent unless disputes betweent parties to a TTA.
Albendazole operates in substantially the same way or by
substantially the same means as the patented compound, What are the rights of the licensor?
even though it performs the same function and achieves the
same result. In other words, the principle or mode of
Sec. 89. Rights of Licensor.- In the absence of any provision
operation must be the same or substantially the same.
to the contrary in the technology transfer arrangement, the
The doctrine of equivalents thus requires satisfaction of the grant of a license shall not prevent the licensor from
function-means-and-result test, the patentee having the granting further licenses to third person nor from exploiting
burden to show that all three components of such the subject matter of the technology transfer arrangement
equivalency test are met. himself.(Sec. 33-B, R. A. 165a)

As stated early on, petitioners evidence fails to explain how

What about the licensee?
Albendazole is in every essential detail identical to methyl 5
propylthio-2-benzimidazole carbamate. Apart from the fact
that Albendazole is an anthelmintic agent like methyl 5 Sec. 90. Rights of Licensee. - The licensee shall be entitled
propylthio-2-benzimidazole carbamate, nothing more is to exploit the subject matter of the technology transfer
asserted and accordingly substantiated regarding the arrangement during the whole term of the technology
method or means by which Albendazole weeds out parasites transfer arrangement. (Sec. 33-C (1), R. A. 165a)
in animals, thus giving no information on whether that
method is substantially the same as the manner by which
petitioners compound works. There are other provisions just read them. What are the
mandatory provisions in a voluntary licensing contract?
(Asked in 2nd year)
VOLUNTARY LICENSING
Sec. 88. Mandatory Provisions. - The following provisions
Technology Transfer Arrangements (TTA) refers to contracts shall be included in voluntary license contracts:
or agreements involving the transfer of systematic knowledge
for the manufacture of a product, the application of a process, 88.1. That the laws of the Philippines shall govern the
or rendering of a service including management contracts; interpretation of the same and in the event of litigation, the
and the transfer, assignment or licensing of all forms of venue shall be the proper court in the place where the
intellectual property rights, including licensing of computer licensee has its principal office;
software except computer software developed for mass 5.
market. (Sec. 4.2) 88.2. Continued access to improvements in techniques and
processes related to the technology shall be made available
So, if one is a patentee, he's normally the inventor but does during the period of the technology transfer arrangement;
he know to manufacture? Baka hindi. So he can enter into •
some kind of licensing agreement. 88.3. In the event the technology transfer arrangement shall
provide for arbitration, the Procedure of Arbitration of the
Take note of the definition of TTA. Arbitration Law of the Philippines or the Arbitration Rules of
the United Nations Commission on International Trade Law
Sec. 85. Voluntary License Contract. - To encourage the (UNCITRAL) or the Rules of Conciliation and Arbitration of
transfer and dissemination of technology, prevent or control the International Chamber of Commerce (ICC) shall apply
practices and conditions that may in particular cases and the venue of arbitration shall be the Philippines or any
constitute an abuse of intellectual property rights having an neutral country; and
adverse effect on competition and trade, all technology •
transfer arrangements shall comply with the provisions of 88.4. The Philippine taxes on all payments relating to the
this Chapter. (n) technology transfer arrangement shall be borne by the
licensor. (n)
All technology transfer arrangements shall comply with the
provisions of this Chapter. COMPULSORY LICENSING

Sec. 86. Jurisdiction to Settle Disputes on Royalties. - The From the word itself voluntary means it is the patentee who
Director of the Documentation, Information and Technology enters into a licensing agreement or TTA with the licensees.
Transfer Bureau shall exercise quasi-judicial jurisdiction in
the settlement of disputes between parties to a technology What if the patentee refuses to do so? Ayaw niyang magshare
transfer arrangement arising from technology transfer ng technology ng kanyang formula. Ayaw niya, ayaw niya ring
payments, including the fixing of appropriate amount or mag-mass produce. He just want protection and enjoy it for
rate of royalty. (n) himself. Does he have the right to do that? Of course! We
have such thing. But we have compulsory licensing and this
Normally when a patentee or an inventor enters into a TTA has been amended by The Cheaper Medicines Act.
with a manufacturer, he normally gets royalty as the inventor,
the patentee. Under RA 8293, who has jurisdiction in granting compulsory
licenses? Director of Legal Affairs.
Now, what if after the TTA is entered into, there is a
disagreement of dispute involving royalties. What office has But now under RA 9502, it is now the Director General of the
jurisdiction over such dispute? Director of Documentation, IPO.
Information and Technology Transfer Bureau (DDITTB). It
WHAT IS COMPULSORY LICENSING?

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4-Manresa | Ateneo de Davao University College of Law

It is not voluntary. The patentee does not voluntarily allow Remember, one does not have to wait for the grant of a
somebody else to exploit his patent. It is a grant of license to patent to mass-produce one's invention. Ideally speaking if
exploit a patented invention even without the agreement of you are applying for a patent, you must mass-produce na.
the patent owner. Iba-bypass yung patentee. This is normally You'll already get your protection upon publication. Four
done against the exclusive distributors na mga drug years from that or three years from the date of the patent
companies. Kasi Cheaper Medicines Act tayo. whichever period expires last. Kung may patent na siya he is
given three years to exploit his invention. Kung wala, pwede
So to whom may a compulsory license be granted? Any na mag-apply for compulsory licensing.
person who has shown his capability to exploit the invention
under any of the following circumstances: Sec. 94. Period for Filing a Petition for a Compulsory
License. –
Sec. 93. Grounds for Compulsory Licensing. - The Director
of Legal Affairs may grant a license to exploit a patented 94.1. A compulsory license may not be applied for on the
invention, even without the agreement of the patent owner, ground stated in Subsection 93.5 before the expiration of a
in favor of any person who has shown his capability to
period of four (4) years from the date of filing of the
exploit the invention, under any of the following
application or three (3) years from the date of the patent
circumstances:
whichever period expires last.
93.1. National emergency or other circumstances of •
extreme urgency; 94.2. A compulsory license which is applied for on any of the
grounds stated in Subsections 93.2, 93.3, and 93.4 and
93.2. Where the public interest, in particular, national Section 97 may be applied for at any time after the grant of
security, nutrition, health or the development of other vital the patent. (Sec. 34[1], R. A. No. 165)
sectors of the national economy as determined by the
appropriate agency of the Government, so requires; or But the other grounds, eg. national emergency, etc. anytime
93.3. Where a judicial or administrative body has after the grant of the patent.
determined that the manner of exploitation by the owner
of the patent or his licensee is anti-competitive; or If you would like to read on this, we also have a special
compulsory license. It is not going to be discussed anymore,
93.4. In case of public non-commercial use of the patent by you can read that and include that on what you know about
the patentee, without satisfactory reason; licensing.

93.5. If the patented invention is not being worked in the

Philippines on a commercial scale, although capable of SEC. 93-A. Procedures on Issuance of a Special Compulsory
being worked, without satisfactory reason: Provided, That License under the TRIPS Agreement.
the importation of the patented article shall constitute
working or using the patent. (Secs. 34, 34-A, and 34-B, R. A. 93-A.1. The Director General of the Intellectual Property
No. 165a) Office, upon the written recommendation of the Secretary of
the Department of Health, shall, upon filing of a petition,
grant a special compulsory license for the importation of
No. 6 - Where the demand for patented drugs and medicines patented drugs and medicines. The special compulsory
is not being met to an adequate extent and on reasonable license for the importation contemplated under this
terms, as determined by the Secretary of the Department of provision shall be an additional special alternative procedure
Health. to ensure access to quality affordable medicines and shall be
primarily for domestic consumption: Provided, That
Compulsory licensing is not granted to any person under any adequate remuneration shall be paid to the patent owner
situation or circumstance. There must be a situation under either by the exporting or importing country. The
Section 93. compulsory license shall also contain a provision directing
the grantee the license to exercise reasonable measures to
Let us say there is a drug for HIV and there is an exclusive prevent the re-exportation of the products imported under
distributor pero napakamahal then bigla lang nagkaroon ng this provision.
proliferation of HIV, naging national emergency, one can
apply with the Director General of the IPO. The grant of a special compulsory license under this
provision shall be an exception to Sections 100.4 and 100.6
What is the period for applying? It says here, a compulsory of Republic Act No. 8293 and shall be immediately executory.
license may not be applied for the ground of Section 93.5
before the expiration of the period of four years from the date No court, except the Supreme Court of the Philippines, shall
of the filing of the application or three years from the death issue any temporary restraining order or preliminary
of the patent whichever the period expires last. injunction or such other provisional remedies that will
prevent the grant of the special compulsory license.
What is Section 93.5? That the invention is not being worked-
on in the Philippines on a commercial scale. Pakonti-konti 93-A.2. A compulsory license shall also be available for the
lang, kumbaga nagsoft opening, konti lang ang pino-produce manufacture and export of drugs and medicines to any
pero kulang na kulang kailangang-kailangan ng market. country having insufficient or no manufacturing capacity in
the pharmaceutical sector to address public health
Can this be filed right a way? Let us say the patent was problems: Provided, That, a compulsory license has been
granted yesterday, pwede na bang mag-file ng compulsory granted by such country or such country has, by notification
licensing yung third party? No. He has to give the patentee a or otherwise, allowed importation into its jurisdiction of the
chance to exploit his invention. He must give the patentee at patented drugs and medicines from the Philippines in
least four years from the date of the filing of the application. compliance with the TRIPS Agreement.

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4-Manresa | Ateneo de Davao University College of Law

93-A.3. The right to grant a special compulsory license under The right to dispose is an act of alteration, that neither of the
this section shall not limit or prejudice the rights, obligations joint owners shall be entitled to grant licenses or to assign his
and flexibilities provided under the TRIPS Agreement and right, title or interest or part thereof without the consent of
the others, so you need unanimous consent for assignment
under Philippine laws, particularly Section 72.1 and Section
and transmission of rights if you are a co-owner. A co-
74 of the Intellectual Property Code, as amended under this
Act. It is also without prejudice to the extent to which drugs patentee. There must be proportional dividing of the
and medIcines produced under a compulsory license can be proceeds.
exported as allowed in the TRIPS Agreement and applicable
laws." UTILITY MODELS

CASE (Title not mentioned)

There was a certain tractor that was registered but it was not
ASSIGNMENT AND TRANSMISSION OF RIGHTS a registered patent, it was a registration for a utility model.

This is similar to voluntary licensing. When should an invention qualify for registration as a utility
model? There are two requisites:
Sec. 103. Transmission of Rights. - 1. New
2. Industrially applicable.
103.1 Patents or applications for patents and invention to
which they relate, shall be protected in the same way as the Sec. 109. Special Provisions Relating to Utility Models.-
rights of other property under the Civil Code.
• 109.1
103.2. Inventions and any right, title or interest in and to a) An invention qualifies for registration as a utility
patents and inventions covered thereby, may be assigned or model if it is new and industrially applicable.
transmitted by inheritance or bequest or may be the subject b) Section 21, "Patentable Inventions", shall apply
of a license contract. (Sec. 50, R. A. No. 165a) except the reference to inventive step as a
condition of protection.
As the owner of the invention, the patentee has the right to 109.2. Sections 43 to 49 shall not apply in the case of
enjoy, the right to dispose and the right to recover his applications for registration of a utility model.
property and included in the right to dispose is to assign and
transmit to another. The patentee can assign all his entire
109.3. A utility model registration shall expire, without any
right or only a portion. It is really up to him. possibility of renewal, at the end of the seventh year after
the date of the filing of the application.
Sec. 104. Assignment of Inventions. - An assignment may be
of the entire right, title or interest in and to the patent and 109.4. In proceedings under Sections 61 to 64, the utility
the invention covered thereby, or of an undivided share of model registration shall be canceled on the following
the entire patent and invention, in which event the parties grounds:
become joint owners thereof. An assignment may be limited a) That the claimed invention does not qualify for
to a specified territory. (Sec. 51, R. A. No. 165) registration as a utility model and does not
meet the requirements of registrability, in
particular having regard to Subsection 109.1
Take note of this.
and Sections 22, 23, 24 and 27;
b) That the description and the claims do not
Sec. 107. Rights of Joint Owners.- If two (2) or more persons comply with the prescribed requirements;
jointly own a patent and the invention covered thereby, c) That any drawing which is necessary for the
either by the issuance of the patent in their joint favor or by understanding of the invention has not been
reason of the assignment of an undivided share in the patent furnished;
and invention or by reason of the succession in title to such d) That the owner of the utility model registration
share, each of the joint owners shall be entitled to personally is not the inventor or his successor in title. (Secs.
make, use, sell, or import the invention for his own profit: 55, 56, and 57, R. A. No. 165a)
Provided, however, That neither of the joint owners shall be
entitled to grant licenses or to assign his right, title or interest For patent, there are three. For utility model, there is no need
or part thereof without the consent of the other owner or for an inventive step. That's why it is easier to register for a
owners, or without proportionally dividing the proceeds with utility model.
such other owner or owners. (Sec. 54, R. A. No. 165)
Patentable inventions shall apply except the reference to
Each owner has the right to exploit his invention to the fullest. inventive step as a condition of protection.
Hindi yong 1/3 owner siya 1/3 lang din, co-owner has the right
to enjoy the property held in common. What is the term of a patent? 20 years from the filing of the
application.
From CUTIE Notes:
What about utility models? 7 years lang.
If two or more persons jointly own a patent and the invention
covered thereby, either by:
Both patents and utility models cannot be renewed. Once
▪ The issuance of the patent in their joint favor
expired, they belong to the public domain.
▪ By reason of the assignment of an undivided share
in the patent and invention
What are the grounds for the cancellation? Let us say na-
▪ By reason of the succession in title to such share,
award na yong utility model registration. Similar to the
each of the joint owners shall be entitled to
grounds for the cancellation of a patent.
personally make, use, sell, or import the invention
for his own profit.

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4-Manresa | Ateneo de Davao University College of Law

Sec. 110. Conversion of Patent Applications or different enterprises which use the sign under the control
Applications for Utility Model Registration. – of the registered owner of the collective mark; (Sec. 40, R.
A. No. 166a)
110.1. At any time before the grant or refusal of a patent, •
an applicant for a patent may, upon payment of the 121.3. "Trade name" means the name or designation
prescribed fee, convert his application into an application identifying or distinguishing an enterprise; (Sec. 38, R. A.
for registration of a utility model, which shall be accorded No. 166a)
the filing date of the initial application. An application may •
be converted only once. 121.4. "Bureau" means the Bureau of Trademarks;
•
110.2. At any time before the grant or refusal of a utility 121.5. "Director" means the Director of Trademarks;
model registration, an applicant for a utility model
registration may, upon payment of the prescribed fee, 121.6. "Regulations" means the Rules of Practice in
convert his application into a patent application, which Trademarks and Service Marks formulated by the Director
shall be accorded the filing date of the initial application. of Trademarks and approved by the Director General; and
(Sec. 58, R. A. No. 165a)
121.7. "Examiner" means the trademark examiner. (Sec.
Mr. X goes to the Bureau of Patents and tries to apply for 38, R. A. No. 166a)
patent for his invention. Later, iniisip nya na baka hindi ma-
grant palitan ko nalang to utility model ang aking application, What is a mark? Mark - any visible sign capable of
pwede? distinguishing the goods (trademark) or services (service
mark) of an enterprise.
Pwede. He can do so at anytime before the grant or refusal. If
narefuse na hindi na pwedeng palitan kasi rejected na siya. If So, if you are taking about Jollibee, what is the trademark of
you want to change it to utility model, he has to do so before Jollibee? It is the bee. McDonalds? It is the letter “M”.
the refusal.
What is a service mark? Service mark – when you are talking
Can it be done the other way around? You start with a utility of service industry like superclean, janitorial services kung
model and you want to convert it into patent application. meron silang pangalan that is called service mark. DASIA,
yong security agency. Because they don't have goods they
YES, the same. Before the grant or refusal of a utility model provide services.
registration.
What is a trade name? Trade name - the name or designation
What would be your filing date if you switch from one to identifying or distinguishing an enterprise. Eg. Unilever,
another? The ORIGINAL filing date. One can keep his original Proctor n Gamble (Tide is a trademark, Proctor is the
filing date. tradename)

How many times can conversion be made? Only ONCE. When you talk about trademark, you don't only talk about the
name, you also talk about the logo, the packaging like sa
Now can you file two applications – one for patent and one McDonalds diba? Yong kanilang wrapper sa burger it has
for utility model, simultaneously? NO. This is absolutely certain color and prints. It is everything that distinguishes a
prohibited. product. Eg. boxes of Nike shoes meron siyang particular
packaging.
Sec. 111. Prohibition against Filing of Parallel
Applications. - An applicant may not file two (2)_ How can a mark be acquired? Let us say you open a sari-sari
applications for the same subject, one for utility model store and you put up a mark there eg. si Junar, if you put your
registration and the other for the grant of a patent face there, that is your trademark. Do you have the exclusive
whether simultaneously or consecutively. (Sec. 59, R. A. use of your face? Yes.
No. 165a)
What if it is something else? You have a logo that you
There is a case on compulsory licensing. invented. You put it there in your sari-sari store, trademark
mo yon! Can other people copy that? Yes. Pwedeng copyahin.
SMITH KLINE BECKHAM CORP. v CA AND DANLEX (2001) So in order to be protected, you can ask that your trademark
I will not discuss that because the Cheapers Medicine Act was be registered.
not yet applicable. Just read that for your information just in
case it will be asked in the bar. Where do you go to register your trademark? Bureau of
Trademarks.
TRADEMARK
Remember patents refer to inventions, trade marks refer to
logos and signs.
Sec. 121. Definitions. - As used in Part III, the following
terms have the following meanings:
So here are the most popular trademarks of the world.
121.1. "Mark" means any visible sign capable of
distinguishing the goods (trademark) or services (service
mark) of an enterprise and shall include a stamped or
marked container of goods; (Sec. 38, R. A. No. 166a)
•
121.2. "Collective mark" means any visible sign
designated as such in the application for registration and
capable of distinguishing the origin or any other common
The “ ® ” there means registered.
characteristic, including the quality of goods or services of

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4-Manresa | Ateneo de Davao University College of Law

geographical origin of the goods or services;

What is the objective of the law in protecting trademarks? It h) Consists exclusively of signs that are generic for
is to give their registered owners the full benefit accruing to the goods or services that they seek to identify;
them, the goodwill earned by them for the use of the i) Consists exclusively of signs or of indications
trademark. Trademark is an incorporeal property right which that have become customary or usual to
is entitled to be protected from any illegal use by any person designate the goods or services in everyday
without the authority of its owner. Kasi kung hindi yan language or in bona fide and established trade
protected yang “M”, “Nike”, anybody will just use that sasakay practice;
sa goodwill, eg. ng McDonalds. j) Consists exclusively of signs or of indications
that may serve in trade to designate the kind,
Let us talk about registration first. We are not talking about quality, quantity, intended purpose, value,
infringement here. If you want to have your trademark geographical origin, time or production of the
registered make sure it is not one of this under Section 123. goods or rendering of the services, or other
characteristics of the goods or services;
Sec. 123. Registrability. - k) Consists of shapes that may be necessitated by
technical factors or by the nature of the goods
123.1. A mark cannot be registered if it: themselves or factors that affect their intrinsic
a) Consists of immoral, deceptive or scandalous value;
matter, or matter which may disparage or l) Consists of color alone, unless defined by a
falsely suggest a connection with persons, living given form; or
or dead, institutions, beliefs, or national m) Is contrary to public order or morality.
symbols, or bring them into contempt or •
disrepute; 123.2. As regards signs or devices mentioned in
b) Consists of the flag or coat of arms or other paragraphs (j), (k), and (l), nothing shall prevent the
insignia of the Philippines or any of its political registration of any such sign or device which has become
subdivisions, or of any foreign nation, or any distinctive in relation to the goods for which registration is
simulation thereof; requested as a result of the use that have been made of it
c) Consists of a name, portrait or signature in commerce in the Philippines. The Office may accept as
identifying a particular living individual except prima facie evidence that the mark has become
by his written consent, or the name, signature, distinctive, as used in connection with the applicant’s
or portrait of a deceased President of the goods or services in commerce, proof of substantially
Philippines, during the life of his widow, if any, exclusive and continuous use thereof by the applicant in
except by written consent of the widow; commerce in the Philippines for five (5) years before the
d) Is identical with a registered mark belonging to date on which the claim of distinctiveness is made.
a different proprietor or a mark with an earlier •
filing or priority date, in respect of: 123.3. The nature of the goods to which the mark is
i. The same goods or services, or applied will not constitute an obstacle to registration. (Sec.
ii. Closely related goods or services, or 4, R. A. No. 166a)
iii. If it nearly resembles such a mark as
to be likely to deceive or cause “(a) Consists of immoral, deceptive or scandalous matter”
confusion; Like if you want to put up a sari-sari store or a mini grocery
e) Is identical with, or confusingly similar to, or gusto mong tawaging “Putang-ina Sari-sari Store”, can
constitutes a translation of a mark which is anybody stop you?
considered by the competent authority of the No. You can put it there if you want. Pero pwede mo bang
Philippines to be well-known internationally maiparegister yan? I don't think so.
and in the Philippines, whether or not it is
registered here, as being already the mark of a Use is different from registration. What we are talking about
person other than the applicant for registration, Section 123 is registration. What cannot be registered?
and used for identical or similar goods or
services: Provided, That in determining whether “(a) ….matter which may disparage or falsely suggest a
a mark is well-known, account shall be taken of connection with persons, living or dead, institutions, beliefs,
the knowledge of the relevant sector of the or national symbols, or bring them into contempt or
public, rather than of the public at large, disrepute”
including knowledge in the Philippines which The face of Junar, you can use that as his trademark, can
has been obtained as a result of the promotion somebody use your face? Yes. Can somebody else register
of the mark; your face? No. But you can.
f) Is identical with, or confusingly similar to, or
constitutes a translation of a mark considered One can register one's own face, one's own name but not
well-known in accordance with the preceding somebody else's.
paragraph, which is registered in the Philippines
with respect to goods or services which are not “(b) Consists of the flag or coat of arms or other insignia of
similar to those with respect to which the Philippines or any of its political subdivisions, or of any
registration is applied for: Provided, That use of foreign nation, or any simulation thereof”
the mark in relation to those goods or services
would indicate a connection between those Hindi pwede magregister ng trademark yong mukha ni Jose
goods or services, and the owner of the Rizal. Flag of the Philippines? Can you register it as trademark?
registered mark: Provided further, That the Can you register the flag of Japan, Korea? No.
interests of the owner of the registered mark
are likely to be damaged by such use; “(c) ...name, portrait or signature identifying a particular
g) Is likely to mislead the public, particularly as to living individual except by his written consent...”
the nature, quality, characteristics or Yong pirma ni Junar, pwede ba yang iregister? Siya pwede but

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4-Manresa | Ateneo de Davao University College of Law

somebody else hindi unless you agree. other kinds of goods.

“(c) ...or of a deceased President of the Philippines...during How do you know if the goods are similar? We have the NICE
the life of his widow, if any, except by written consent of the Classification. That is in France. NICE, a place in France.
widow”
124.3. One (1) application may relate to several goods
Si Marcos. Exception pala, pwede if wala na yong widow. and/or services, whether they belong to one (1) class or to
several classes of the Nice Classification
The most important provisions in Section 123 are (d), (e), and
(f). That is the favorite source of Bar questions when it comes If you read your cases there is classification 25 under the NICE
to trademarks. You have to stick it in your heads. We are Classification. Basically if you are under 25, more or less, you
talking about registrations. Alam nyo pagnagtatanong ako belong to the same category. Not all the time. Just remember
nito ang always sagot sa akin, infringement. Do not mixed paragraphs 4, 5, and 6 or d, e, and f. If you know this, you will
them up together. We are talking about registration. What not be confused if you are confronted with a problem on
cannot be registered. That is letter d, e, and f. registration.

What cannot be registered under Section 123 (d, e, f) “(h) Consists exclusively of signs that are generic for the
D E F goods or services that they seek to identify”
A registered An internationally An internationally ANG v TEODORO
mark in the well-known brand well-known brand Teodoro is a manufacturer of sandals and shoes and ang brand
Philippines (Whether it is registered in the niya ay “Ang Tibay”. Is this phrase capable of registration
registered in the Philippines when it comes to shoes or sandals? No. Because it is generic
Philippines) (descriptive) for the goods.
For identical For identical or For goods or
or similar similar goods or services not Eg. if you are selling orange juice, ang brand mo ay “Orange”,
goods or services necessarily hindi pwede “Orange orange Juice” or “Blueberry blueberry
services identical or pie” hindi pwede. You cannot use something generic for the
similar goods that they seek to identify.

You memorize this. “(j) Consists exclusively of signs or of indications that may
serve in trade to designate the kind, quality, quantity,
Paragraph 4 or Letter D - We have a registered trademark in intended purpose, value, geographical origin, time or
the Philippines. When somebody applies for a registration of production of the goods or rendering of the services, or other
a trademark it has to refer to a certain item. characteristics of the goods or services”
So yong Ang Tibay cannot be registered to describe shoes.
For eg., I want to register “Tide” for soap. Ang Tide hindi
naman registered for make-up or shampoo, para lang siya sa “(l) Consists of color alone, unless defined by a given form”
laundry. Ang Sunsilk ay registered for shampoo or conditioner Can you register color red? No. It has to be eg. Red Mobile,
pero hindi siya registered for soap. Wala diba? *Mam Blue Taxi, Gold Dust or something. Just take note of these.
illustrates on the board*
In relation to what we have discussed in Ang Tibay is the
Let say this (Drawing #1 Star inside a circle) is for shampoo and Doctrine of Secondary Meaning.
this is registered in the Philippines, so does paragraph 4 say?
can you register something like this (Drawing #2 )? It is the When it comes to patents, it is the DOCTRINE OF
same? No. But it is confusingly similar. So you cannot register EQUIVALENTS.
something that is confusingly similar to this and you are
registering also for shampoo. For trademarks, it is the DOCTRINE OF SECONDARY MEANING.

What if the Drawing #2, you register for slippers. Napakalayo DOCTRINE OF SECONDARY MEANING or DOCTRINE OF
na ng tsinelas sa shampoo. PWEDE. Hindi lang siya pwede for DISTINCTIVENESS
identical or similar goods. That is No. 4 . A doctrine wherein a word or phrase is orginally incapable of
exclusive appropriation with reference to an article in the
No. 5, Internationally well-known mark, let us presumed it is market, because it is geographical or otherwise descriptive
not registerd here kasi ang registered dito nasa No.6. Kasi ang but might nevertheless have been used for so long and so
No.5 is internationally well-known mark that is not registered exclusively by one producer with reference to this article that,
here. in that trade and to that group of the purchasing public, the
word or phrase has come to mean that the article was his
Let say, “COACH”, a US brand not registered here. It is product.
internally well-known brand not registered here, can one
register this “COATCH” for bags? No. You can register this for Let us go back to Ang Tibay. It is descriptive so it cannot be
electric fan. You cannot register for identical or similar goods. registered. So etong si Tedoro he started using “Ang Tibay” as
his brand for his sandals or shoes, it is incapable of
No. 6, eg. Nike, McDonalds, Apple are internationally well- registration? Yes because it is descriptive. But the SC said in
known mark and registered here in the Philippines. You this case that it can be registed under the Doctrine of
cannot register any of this for any kind of goods. Eg. Nike na Secondary Meaning because it was used for so long and so
pintura? Nike na refrigerator? Wala. You cannot. That is not exclusively by Teodoro that for the people around, yong mga
allowed because they are registered here. namimili...anong bibilhon nyo? Ay yong Ang Tibay! Alam na
nila when it comes to Ang Tibay that is the brand of Teodoro.
Any foreign brand will only get protection in respect to items In the secondary meaning it can now be registered.
that are attached to the registration if registered here. But if
you do not register the brand here, pwede siyang iregister for The DOCTRINE OF SECONDARY MEANING is related to

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4-Manresa | Ateneo de Davao University College of Law

registration not to infringement. Yong Equivalents ang related the Regulations, within one (1) year from the fifth
sa infringement. There is substantial identity between the anniversary of the date of the registration of the mark.
two, between the registered patented item and the infringing Otherwise, the mark shall be removed from the Register
item. That is another way of describing the Doctrine of by the Office. (Sec. 12, R. A. No. 166a)
Secondary Meaning.
But what is the condition for the registration to reach 10
ANG v TORIBIO TEODORO (1942) years? There must be filed a
Petitioner contends that the CA erred in holding that the 1. Declaration of Actual Use and
words "Ang Tibay" had acquired a secondary meaning. In 2. Evidence that that Trademark has been used for
view of the conclusion we have reached upon the first whatever it is as a sign or logo or show valid reasons
assignment of error, it is unnecessary to apply here the based on the existence of obstacles to such use if
doctrine of "secondary meaning" in trade-mark parlance. you were not able to use it, give valid reasons why.
This doctrine is to the effect that a word or phrase
originally incapable of exclusive appropriation with When should the declaration of actual use be filed? Within
reference to an article of the market, because one (1) year from the fifth anniversary of the date of the
geographically or otherwise descriptive, might registration. You look at the date of registration in your
nevertheless have been used so long and so exclusively by Trademark registration certificate. 5 years and 1 year.
one producer with reference to his article that, in that
trade and to that branch of the purchasing public, the word Kailangan if 6 years na yong registration mo nakapagfile ka
or phrase has come to mean that the article was his na ng declaration of actual use or DAU. Otherwise, the mark
product. We have said that the phrase "Ang Tibay," being shall be removed from the Register by the Office.
neither geographic nor descriptive, was originally capable
of exclusive appropriation as a trade-mark. But were it not Under RA 166, The Old Trademark Law, it is not the
so, the application of the doctrine of secondary meaning declaration of actual use that is required. But in order to
made by the CA could nevertheless be fully sustained register one's trademark, kailangan ng Proof of Prior Use. Use
because, in any event, by respondent's long and exclusive it first then you register it. Di ka pwede magparegister kung di
use of said phrase with reference to his products and his mo ginagamit ang trademark.
business, it has acquired a proprietary connotation.
But RA 8293, in your cases you have to read them.
We have a situation where there is a trademark application,
where it is filed? Bureau of Trademarks. Under RA 166, it is prior use but under RA 8293, hindi na
kailangan ang prior use if you want to register a trademark
When somebody wants to oppose the registration, where you just have to file a declaration of actual use.
does he go? Bureau of Legal Affairs.
146.1. A certificate of registration may be renewed for
Who may file an opposition? Any person who believes that
periods of ten (10) years at its expiration upon payment of
he would be damaged by the registration of a mark. Eg. Si
the prescribed fee and upon filing of a request xxx
Junar somebody wants to use his face as a logo, if feeling niya
madadamage siya, he can oppose the registration. You go to
146.2. Such request shall be in Filipino or English and may
the Bureau of Legal Affairs.
be made at any time within six (6) months before the
expiration of the period for which the registration was
Sec. 134. Opposition. - Any person who believes that he issued or renewed, or it may be made within six (6)
would be damaged by the registration of a mark may, months after such expiration on payment of the additional
upon payment of the required fee and within thirty (30) fee herein prescribed. xxx xxx
days after the publication referred to in Subsection 133.2,
file with the Office an opposition to the application. Such
Unlike patents, if you have registered your trademark, forever
opposition shall be in writing and verified by the oppositor
na yan as long as you file DAU and the annual fees walang
or by any person on his behalf who knows the facts, and
problema. You just have to renew. Magrenew ka lang every
shall specify the grounds on which it is based and include
10 years. Otherwise, si McDonalds and Nike wala na because
a statement of the facts relied upon. Copies of certificates
that is what identifies a brand and a product that is why it has
of registration of marks registered in other countries or
to go for a long time kailangan lang ng monitoring from the
other supporting documents mentioned in the opposition
IPO.
shall be filed therewith, together with the translation in
English, if not in the English language. For good cause
What are the rights of the owner of a registered trademark?
shown and upon payment of the required surcharge, the
time for filing an opposition may be extended by the
Sec. 147. Rights Conferred. -
Director of Legal Affairs, who shall notify the applicant of
such extension. The Regulations shall fix the maximum
147.1. The owner of a registered mark shall have the
period of time within which to file the opposition. (Sec. 8,
exclusive right to prevent all third parties not having the
R. A. No. 165a)
owner’s consent from using in the course of trade
identical or similar signs or containers for goods or
Let say the trademark has been registered and is granted.
services which are identical or similar to those in respect
How long? 10 years. Di masyadong strikto, hindi sinabi from
of which the trademark is registered where such use
what point. So, let us just assume from the date of
would result in a likelihood of confusion. In case of the use,
registration.
of an identical sign for identical goods or services, a
likelihood of confusion shall be presumed.
Sec. 145. Duration.- A certificate of registration shall
remain in force for ten (10) years: Provided, That the 147.2. The exclusive right of the owner of a well-known
registrant shall file a declaration of actual use and mark defined in Subsection 123.1(e) which is registered in
evidence to that effect, or shall show valid reasons based the Philippines, shall extend to goods and services which
on the existence of obstacles to such use, as prescribed by are not similar to those in respect of which the mark is

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4-Manresa | Ateneo de Davao University College of Law

registered: Provided, That use of that mark in relation to determine whether the registration of said mark may be
those goods or services would indicate a connection cancelled in accordance with this Act. The filing of a suit to
between those goods or services and the owner of the enforce the registered mark with the proper court or
registered mark: Provided, further, That the interests of agency shall exclude any other court or agency from
the owner of the registered mark are likely to be damaged assuming jurisdiction over a subsequently filed petition to
by such use. (n) cancel the same mark. On the other hand, the earlier filing
of petition to cancel the mark with the Bureau of Legal
Take note when it is trademarks, it is always connected to Affairs shall not constitute a prejudicial question that must
goods. Don't forget Section 123. be resolved before an action to enforce the rights to same
registered mark may be decided. (Sec. 17, R. A. No. 166a)
What if a trademark has already been registered successfully
and somebody wants to have it cancelled, where to go? In your declaration of actual use, you have to prove that you
Bureau of Legal Affairs. used it, so if you don't file DAU mabubuking na hindi ginamit.
If the mark is not used for an uninterrupted period of 3 years
Who can file? Any person who believes he will be damaged or longer, that is a ground for cancellation of the mark.
by the registration of the mark.
INFRINGEMENT
What is the prescriptive period for doing so? 5 years from the
date of registration. There is a 5-year prescriptive period if WHAT IS AN INFRINGEMENT?
your ground for cancellation is that the mark is not registrable ▪ It is the use by others of a reproduction or colorable
under Section 123. If hindi mo napacancel after 5 years, imitation of a registered trademark, tradename or
pasensiya. The registration can no longer be cancelled. service mark
▪ Without the consent of the registrant
But there are grounds for cancellation with no prescriptive ▪ With the purpose of causing to mislead or
period. The registered mark becomes the generic name for misleading the public that such goods or services
the goods or services or a portion thereof which it is are those of the registrant.
registered, abandoned.
Infringement means you are imitating. You're using the mark
Sec. 151. Cancellation. – of another for your own goods, whether it is an exact
duplication or a colorable imitation that results into confusion
151.1. A petition to cancel a registration of a mark under then that is infringement.
this Act may be filed with the Bureau of Legal Affairs by
any person who believes that he is or will be damaged by Take note, infringement can only be committed against
the registration of a mark under this Act as follows: registered trademark owners. Registered where? Here, in the
a) Within five (5) years from the date of the Philippines.
registration of the mark under this Act.
b) At any time, if the registered mark becomes the What constitutes infringement?
generic name for the goods or services, or a
portion thereof, for which it is registered, or has Sec. 155. Remedies; Infringement. - Any person who shall,
been abandoned, or its registration was without the consent of the owner of the registered mark:
obtained fraudulently or contrary to the
provisions of this Act, or if the registered mark 155.1. Use in commerce any reproduction, counterfeit,
is being used by, or with the permission of, the copy, or colorable imitation of a registered mark or the
registrant so as to misrepresent the source of same container or a dominant feature thereof in
the goods or services on or in connection with connection with the sale, offering for sale, distribution,
which the mark is used. If the registered mark advertising of any goods or services including other
becomes the generic name for less than all of preparatory steps necessary to carry out the sale of any
the goods or services for which it is registered, goods or services on or in connection with which such use
a petition to cancel the registration for only is likely to cause confusion, or to cause mistake, or to
those goods or services may be filed. A deceive; or
registered mark shall not be deemed to be the
generic name of goods or services solely 155.2. Reproduce, counterfeit, copy or colorably imitate a
because such mark is also used as a name of or registered mark or a dominant feature thereof and apply
to identify a unique product or service. The such reproduction, counterfeit, copy or colorable
primary significance of the registered mark to imitation to labels, signs, prints, packages, wrappers,
the relevant public rather than purchaser receptacles or advertisements intended to be used in
motivation shall be the test for determining commerce upon or in connection with the sale, offering
whether the registered mark has become the for sale, distribution, or advertising of goods or services on
generic name of goods or services on or in or in connection with which such use is likely to cause
connection with which it has been used. (n) confusion, or to cause mistake, or to deceive, shall be
c) At any time, if the registered owner of the mark liable in a civil action for infringement by the registrant for
without legitimate reason fails to use the mark the remedies hereinafter set forth: Provided, That the
within the Philippines, or to cause it to be used infringement takes place at the moment any of the acts
in the Philippines by virtue of a license during stated in Subsection
an uninterrupted period of three (3) years or
longer. 155.1 or this subsection are committed regardless of
whether there is actual sale of goods or services using the
151.2. Notwithstanding the foregoing provisions, the infringing material. (Sec. 22, R. A. No 166a)
court or the administrative agency vested with jurisdiction
to hear and adjudicate any action to enforce the rights to
a registered mark shall likewise exercise jurisdiction to

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From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

What is the test of infringement of trademark? Is the mark San Miguel bottle? Diba iba? The letterings and fonts pati
alleged to be infringed. Is it a colorable imitation of the drawings and mga words na nakalagay dito.
registered mark?
Read the case. Know why the SC ruled in favor of Asia
The essential element of infrigement is “COLORABLE Brewery. Take note the case is Asia Brewery v CA, natalo eto
IMITATION.” sa CA so Asia Brewey filed an appeal for certiorari citing grave
abuse of discretion on the part of the CA. Eg. Mistubishi, Aiwa,
COLORABLE IMITATION HAS BEEN DEFINED AS: etc.
1. Such a close ingenous imitation as to be calculated
to deceive ordinary purchasers, or ASIA BREWERY v CA (1993)
2. Such resemblance of the infringing mark to the Infringement is determined by the "test of dominancy" rather
original as to deceive an ordinary purchaser giving than by differences or variations in the details of one
such attention as a purchaser usually gives, and to trademark and of another.
cause him to purchase the one supposing it to be
the other. It has been consistently held that the question of
infringement of a trademark is to be determined by the test
Eg. Silverswan na may drawing na swan. Eto na si donya of dominancy. Similarity in size, form and color, while
inday, palit ug silverswan toyo sa grocery. Auntie dili man ko relevant, is not conclusive. If the competing trademark
kabalo magbasa unsaon nako pagkabalo na silverswan na? contains the main or essential or dominant features of
Basta naay swan. Unsa manang swan? Ay basta kanang naay another, and confusion and deception is likely to result,
langgam gud na taas ug liog. Pagdating niya sa grocery, ilang infringement takes place. Duplication or imitation is not
toyo ang may swan? Napakarami, ang napulot ni inday iba, necessary; nor it is necessary that the infringing label should
so naconfuse siya in other words. Therefore, the thing she suggest an effort to imitate. xxx he question at issue in cases
picked up is a colorable imitation of silverswan. Because an of infringement of trademarks is whether the use of the marks
ordinary purchaser was deceived to cause him to purchase involved would be likely to cause confusion or mistakes in the
the one supposing it to be the other. mind of the public or deceive purchasers.

When it comes to colorable imitation (sa patent it is I just want to mention this, when it comes to colorable
substantial identity, for trademarks is colorable imitation), the imitation you do not only look at what a person can see, it also
tests are the Holistic Test and the Dominancy Test. have to consider what a person hears. Maraming mga brands
na confusingly similar sounding.
From Cutie Notes:
Examples of confusingly similar sounds in a matter of
Tests to determine whether or not colorable imitation trademark
exists. REGISTERED UNREGISTRABLE
1. HOLLISTIC TEST – Mandates that the entirety of Alaska Alacta
the marks in question must be considered in Eden Sonams/ Lionpas
determining confusingly similarity. Salonpas
2. DOMINANCY TEST – infringement takes place: Jntzen Jas-sea
a. if the competing trademark contains (tights and leotards)
main or essential features of another, Cutex Cuticlean
and (nail polish)
b. confusion and deception is likely to Kotex Fimetex
result. (sanitary napkins)
Zuso Hoohoo
The tests to determine whether or not colorable imitation Yucea U-C-A
exists. How to differentiate? Better memorize the 7-up Lemon-up
distinctions. You read the cases. Find out how the court
Pycnogenol Pco-genols
applied these two tests.
Even though they really look different, when you hear pareho.
The important thing to know is this – duplication is not
You also have to consider what you hear when you look at the
necessary. The two marks do not have to be exactly the same
Holistic test. I got these from the case of Pro Source Int'l v
nor is it necessary that infringing label should suggest an
Horphag Research.
effort to imitate. That is what the SC said in the case of Asia
Brewery. The most popular case in infringement and unfair
PRO SOURCE INTERNATIONAL v HORPHAG RESEARCH (2009)
competition. Why? Because San Miguel Corporation accused
It must be recalled that respondent filed a complaint for
Asia Brewery of infringing on its trademark. The look of the
trademark infringement against petitioner for the latters use
two are confusingly similar daw.
of the mark PCO-GENOLS which the former claimed to be
confusingly similar to its trademark PYCNOGENOL. Petitioners
use of the questioned mark started in 1996 and ended in June
2000.The instant case should thus be decided in light of the
provisions of Republic Act (R.A.) No. 166 for the acts
committed until December 31, 1997, and R.A. No. 8293 for
those committed from January 1, 1998 until June 19, 2000.
A trademark is any distinctive word, name, symbol, emblem,
sign, or device, or any combination thereof, adopted and used
Of course, it is not the same. But if you're inday? The SC said by a manufacturer or merchant on his goods to identify and
that there is no colorable imitation. What the SC applied here distinguish them from those manufactured, sold, or dealt by
is the Dominancy test. What are the dominant features of the others. Inarguably, a trademark deserves protection.

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4-Manresa | Ateneo de Davao University College of Law

In determining similarity and likelihood of confusion, predominantly used in the infringement be disposed of
jurisprudence has developed two tests: the Dominancy Test outside the channels of commerce or destroyed, without
and the Holistic or Totality Test. The Dominancy Test focuses compensation.
on the similarity of the prevalent features of the competing •
trademarks that might cause confusion and deception, thus 76.6. Anyone who actively induces the infringement of a
constituting infringement. If the competing trademark patent or provides the infringer with a component of a
contains the main, essential and dominant features of patented product or of a product produced because of a
another, and confusion or deception is likely to result, patented process knowing it to be especially adopted for
infringement takes place. Duplication or imitation is not infringing the patented invention and not suitable for
necessary; nor is it necessary that the infringing label should substantial non-infringing use shall be liable as a
suggest an effort to imitate. The question is whether the use contributory infringer and shall be jointly and severally
of the marks involved is likely to cause confusion or mistake in liable with the infringer. (Sec. 42, R. A. No. 165a)
the mind of the public or to deceive purchasers. Courts will
consider more the aural and visual impressions created by the Take note: Any suit for infringement, the owner of the
marks in the public mind, giving little weight to factors like registered mark shall not be entitled to recover profits or
prices, quality, sales outlets, and market segments. damages unless the acts have been committed with
knowledge that such imitation is likely to cause confusion but
In contrast, the Holistic Test entails a consideration of the knowledge is presumed if the registrant gives notice that his
entirety of the marks as applied to the products, including the mark is registered by display with the mark or words
labels and packaging, in determining confusing “registered mark” or the letter “ ® ” It is the responsibility of
similarity.[27] The discerning eye of the observer must focus the registrant to put the ® there. To tell the whole world,
not only on the predominant words but also on the other register eto. Pero yong Apple wala silang pake, hindi nila
features appearing on both labels in order that the observer nilagyan ng ®. Apple is so confident that their mark is
may draw his conclusion whether one is confusingly similar to protected.
the other.
Does a foreign corporation have a right to sue in trademark
Does the owner of a trademark have a right to prevent or a servicemark in an enforcement action? Yes.
others from manufacturing, producing or selling articles on
which it is attached? No. The right of a trademark owners to
Sec. 77. Infringement Action by a Foreign National. - Any
prevent the use of others of his registered trademark or a
foreign national or juridical entity who meets the
confusingly similar mark on similar goods manufactured, sold
requirements of Section 3 and not engaged in business in
or produced by others.
the Philippines, to which a patent has been granted or
assigned under this Act, may bring an action for
Is fraud essential in infringement of trademark? NO. The
infringement of patent, whether or not it is licensed to do
mere use of the silimar mark likely to mislead the public is
business in the Philippines under existing law. (Sec. 41-A,
sufficient to constitute infringment. What is important?
R. A. No. 165a)
Registration. The trademark is registered.
What can be filed? If a foreign corporation has a registered
BAR Q: What if the registered owners sue the infringer and
mark here then he can sue for infringement pero pag wala
the infringer is held liable what can he be held liable for?
siyang registered mark dito pwede siyang mag-sue for
Damages and impounding.
cancellation of registration or opposition kung meron siyang
registered nark abroad that is internationally well-known. Not
Sec. 76. Civil Action for Infringement. –
only for similar goods, kung gusto niya na kahit anong goods,
paregister siya dito. Pero unfair competition as you know does
76.1. The making, using, offering for sale, selling, or
not need registration, that is also an option that is available.
importing a patented product or a product obtained
directly or indirectly from a patented process, or the use
TRADE NAME
of a patented process without the authorization of the
patentee constitutes patent infringement.
When can a name or a designation not be used as a trade
•
name?
76.2. Any patentee, or anyone possessing any right, title or
interest in and to the patented invention, whose rights
Sec. 165. Trade Names or Business Names. –
have been infringed, may bring a civil action before a court
of competent jurisdiction, to recover from the infringer
165.1. A name or designation may not be used as a trade
such damages sustained thereby, plus attorney’s fees and
name if by its nature or the use to which such name or
other expenses of litigation, and to secure an injunction
designation may be put, it is contrary to public order or
for the protection of his rights.
•
morals and if, in particular, it is liable to deceive trade
circles or the public as to the nature of the enterprise
76.3. If the damages are inadequate or cannot be readily
identified by that name.
ascertained with reasonable certainty, the court may
•
award by way of damages a sum equivalent to reasonable
165.2.
royalty.
a) Notwithstanding any laws or regulations
•
providing for any obligation to register trade
76.4. The court may, according to the circumstances of the
names, such names shall be protected, even
case, award damages in a sum above the amount found as
prior to or without registration, against any
actual damages sustained: Provided, That the award does
not exceed three (3) times the amount of such actual unlawful act committed by third parties.
b) In particular, any subsequent use of the trade
damages.
name by a third party, whether as a trade name
•
or a mark or collective mark, or any such use of
76.5. The court may, in its discretion, order that the
a similar trade name or mark, likely to mislead
infringing goods, materials and implements
the public, shall be deemed unlawful.

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4-Manresa | Ateneo de Davao University College of Law

• •
165.3. The remedies provided for in Sections 153 to 156 167.4. The registration of a collective mark, or an
and Sections 166 and 167 shall apply mutatis mutandis. application therefor shall not be the subject of a license
• contract. (Sec. 40, R. A. No. 166a)
165.4. Any change in the ownership of a trade name shall
be made with the transfer of the enterprise or part thereof What is a collective mark? Any visible signs designated as
identified by that name. The provisions of Subsections such in the application for registration and capable of
149.2 to 149.4 shall apply mutatis mutandis. distinguishing the origin or any other common characteristics
including the quality of goods or services of different
Where is the trade name registered? Not with the IPO. enterprises which used design under the control of the
▪ If it is a corporation, it is registered with the registered owner of the collective mark.
Securities and Exchange Commission (SEC)
▪ If it is a single proprietorship, Department of Trade Eg. A is an environmentalist gusto niya puro organic products
and Industry (DTI) ang kanyang ma-manufacture. He has friends, B, C, D, and E.
Meron din silang organic products pero iba-iba. Kay A mga
“(a) Notwithstanding any laws or regulations providing for pagkain, kay B mga face cream, kay C for the hair kay D
any obligation to register trade names, such names shall be whatever, iba-iba. Sabi nila, let's get a collective mark so that
protected, even prior to or without registration (in the IPO), our goods will be identified as organic. Ikaw A, you apply for
against any unlawful act committed by third parties.” the collective mark. Who is the registered owner? Only A. But
Trade names are automatically protected. on this application, he shall designate the mark as a collective
mark and he must attach a copy of the agreement between A,
Eg. San Miguel Corporation is a trade name, nobody can B, C, D, and E that they will only put under this trademark yung
register as San Miguel Corporation as one's trade name or kanilang mga organic products covering the use of the
business name. Nobody can use San Miguel as a trademark. collective mark.
Nobody can register. Anyone who uses San Miguel as
trademark is liable for infringement because a trade name is WHEN WILL A COLLECTIVE MARK BE CANCELLED?
protected. (1) if the person requesting the cancellation proves
that only the registered owner uses the mark
What are the unlawful acts when it comes to trade name?
Nakakuha na si A ng collective mark and all of them used it.
“(b) In particular, any subsequent use of the trade name by a There is a ground for cancellation if only the registered owner
third party, whether as a trade name or a mark or collective uses the mark si A lang pala, eh dapat pala nag-apply nalang
mark, or any such use of a similar trade name or mark, likely siya ng ordinary trademark.
to mislead the public, shall be deemed unlawful.”
(2) or that he uses or permits its use in contravention
“165.4. Any change in the ownership of a trade name shall of the agreements referred to
be made with the transfer of the enterprise or part thereof
identified by that name. The provisions of Subsections 149.2 Pinagamit niya kay F and G pero hindi naman organic yong
to 149.4 shall apply mutatis mutandis.” kanilang products.
If you change the name from Equitable to BDO, that means
there is a transfer of ownership of the entire bank. (3) he uses or permits its use in a manner liable to
deceive trade circles or the public as to the origin
COLLECTIVE MARKS or any other common characteristics of the goods
or services concerned
Sec. 167. Collective Marks. –
Take note that a registration of a collective mark or
167.1. Subject to Subsections 167.2 and 167.3, Sections application thereof shall not be a subject of license contract.
122 to 164 and 166 shall apply to collective marks, except In other words, sila lang. Only that group. An agreement is
that references therein to "mark" shall be read as submitted nakalagay kung sino who are the ones allowed to
"collective mark." use the collective mark.
•
167.2 UNFAIR COMPETITION
a) An application for registration of a collective
mark shall designate the mark as a collective Sec. 168. Unfair Competition, Rights, Regulation and
mark and shall be accompanied by a copy of the Remedies. –
agreement, if any, governing the use of the
collective mark. 168.1. A person who has identified in the mind of the
b) The registered owner of a collective mark shall public the goods he manufactures or deals in, his business
notify the Director of any changes made in or services from those of others, whether or not a
respect of the agreement referred to in registered mark is employed, has a property right in the
paragraph (a). goodwill of the said goods, business or services so
• identified, which will be protected in the same manner as
167.3. In addition to the grounds provided in Section 149, other property rights.
the Court shall cancel the registration of a collective mark •
if the person requesting the cancellation proves that only 168.2. Any person who shall employ deception or any
the registered owner uses the mark, or that he uses or other means contrary to good faith by which he shall pass
permits its use in contravention of the agreements off the goods manufactured by him or in which he deals,
referred to in Subsection 166.2 or that he uses or permits or his business, or services for those of the one having
its use in a manner liable to deceive trade circles or the established such goodwill, or who shall commit any acts
public as to the origin or any other common characteristics calculated to produce said result, shall be guilty of unfair
of the goods or services concerned. competition, and shall be subject to an action therefor.

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4-Manresa | Ateneo de Davao University College of Law

• In the Philippines we are not allowed to bad mouthed other

168.3. In particular, and without in any way limiting the products. False Statements. So what do you do? How do you
scope of protection against unfair competition, the know the statement is false? That is also a form of unfair
following shall be deemed guilty of unfair competition: competition. Where in an advertisement or commercial, you
a) Any person, who is selling his goods and gives compare or criticize your competing product. Any act contrary
them the general appearance of goods of to good faith, calculated to discredit the goods of another.
another manufacturer or dealer, either as to the
goods themselves or in the wrapping of the What is the test of unfair competition? Whether certain
packages in which they are contained, or the goods have been clothed with an appearance likely to deceive
devices or words thereon, or in any other the ordinary purchaser exercising ordinary due care.
feature of their appearance, which would be
likely to influence purchasers to believe that the Is fraud essential in an unfair competition? Yes. There must
goods offered are those of a manufacturer or be fraudulent intent to pass-off one's goods as those of
dealer, other than the actual manufacturer or another.
dealer, or who otherwise clothes the goods with
such appearance as shall deceive the public and Where do you file an action for unfair competition,
defraud another of his legitimate trade, or any infringement of trademark? Special Commercial Court.
subsequent vendor of such goods or any agent
of any vendor engaged in selling such goods Lahat ng infringement nasa Special Commercial Court. Even
with a like purpose; unfair competetion.
b) Any person who by any artifice, or device, or
who employs any other means calculated to What are the remedies for unfair competition? Same with
induce the false belief that such person is infringment.
offering the services of another who has
identified such services in the mind of the Pareho lang yan, the only difference is in infringement, there
public; or is a registered trademark. So etong mga foreign corporations
c) Any person who shall make any false statement na do not have registration here, it can sue for unfair
in the course of trade or who shall commit any competition.
other act contrary to good faith of a nature
calculated to discredit the goods, business or Those are the distinctions.
services of another.
• When it comes to patents, you already know that the first
168.4. The remedies provided by Sections 156, 157 and action is a civil action. Pwede lang ang criminal if there is a
161 shall apply mutatis mutandis. (Sec. 29, R. A. No. 166a) repeated infringements of patents. But when it comes to
trade marks and unfair competition, bahala na ang plaintiff or
What is an UNFAIR COMPETITION? the complainant. Pwede siya magfile ng civil case or criminal
It is an employment of deception or any other means contrary case.
to good faith by which he shall pass off the goods
manufactured by him or in which he deals, or his business, or So criminal cases automatic for infringement of trademarks,
services for those of the one having established such goodwill. unfair competition, false descriptions or representation.

Ito gawain ng mga pinoy, Hilig sumakay sa iba. To give you an There are a lot of cases that you should read on trade marks.
example, there is this popular restaurant in Tagaytay – Actually this is the intellectual property right with the most
Antonios diba? Yan yong orignal na Antonios. Pero meron ding cases.
Antonios dito and it is not the Antonios of Tagaytay but people
kinda think na branch eto ng Antonios ng Tagaytay. Is the *Kwento ni Mam
Antonios here trying to pass-off as one as related to the Etong Shangri-la is a hotel chain. Edsa Shangri-la, Makati and
Antonios in Tagaytay. If it is, it is riding in the good will of that BGC. It was started by Qua family in Singapore. So they started
Antonios in Tagaytay. If that is, then it is unfair competition. in Hongkong. Yong HK Shangri-la matagal na yan. Yong
pinakauna na Edsa Shagri-la is 1980. There was this Chinese
Who is protected against unfair competition? A person who guy who applied for registration of the trade mark of “Shangri-
has identified in the mind of the public the goods he la” with the logo. He was able to get registration here in the
manufactures or deals in, his business or services from those Philippines and ginamit niya sa kanyang Chinese restaurant.
of others, whether or not a registered mark is employed, has When Shangri-la started building the Edsa Shangri-la, malay
a property right in the goodwill of the said goods, business or ba nong Shangri-la na may nakaregister na dito, nag-apply ng
services so identified, which will be protected in the same registration ang Shangri-la and inoppose nitong Chinese guy
manner as other property rights. saying that he is already the registered owner of the Shangri-
la logo. Tumuloy parin itong Shangri-la and it built a hotel and
This is normally committed against someone who has an filed a case for the cancellation of a trade mark ng Chinese
established good will yong may pangalan na like McDonalds. guy. To make the long story short, nabuking siya (ang Chinese
A lot of small burger companies yong nagbe-benta benta dyan guy) na ginaya niya yong Shangri-la hotel na logo and pina-
sa tabi-tabi, yan sumasakay yan sa McDonalds, they use cancel yong kanyang logo.
something na related sa McDonalds.

Kahit na hindi registered like yong Penongs, it used to be not

registered before bago lang yan na register. So kung may
sumasakay dyan, that is ufair competition because meron ng
established good will.
Nagamit pa ring yong “Shangri-la” kasi it is incapable of
Who is deemed guilty of unfair competition? Section 168.3. registration as a term, but the logo and “S” that belongs to the
Shangri-la group.

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4-Manresa | Ateneo de Davao University College of Law

There are two cases on the Shangri-la there, you read no. 177.7. Other communication to the public of the work. (Sec.
5, P.D. No. 49a)
What you have to take note is this: Is there lites pendentia if
there is an infringement case filed by the Chinese guy against Again, what are protected? Literary and Artistic and Scholarly
the Shangri-la group and Shangri-la group filed a cancellation Works. They are protected from the moment of their creation.
of registration case with the Bureau of Legal Affairs, merong The copyright, the right to copy. The rights given under Article 177
lites pendentia? No. There is none. are automatically the owner’s right or the creator’s right. There is
no need to register to own the copyright.
As to unfair competition, I just want to emphasize this Pepsi
cola case wherein naghoard ang Pepsi cola ng Coca-cola So, what are these literary, artistic and scholarly works?
bottles inside the Pepsi warehouse. Now Pepsi was accused
of unfair competition. The act of hoarding. According to the SECTION 172. Literary and Artistic Works. ‑
SC, No. if you want to look at an act of unfair competition, you
172.1. Literary and artistic works, hereinafter referred to as
look at Section 168. 3. Hoarding of bottles is not an unfair
“works”, are original intellectual creations in the literary and
competition. Then what is that? Hindi ba theft? Kasi ang mga
artistic domain protected from the moment of their creation
boteng iyan property yan ng Coca-cola, kasi diba pag bumili
and shall include in particular:
ka ng coke, magbigay ka ng deposit. Those are considered a) Books, pamphlets, articles and other writings;
properties of the manufacturer. Pero ang finale kasi na kaso b) Periodicals and newspapers;
is unfair competion. c) Lectures, sermons, addresses, dissertations
prepared for oral delivery, whether or not reduced
in writing or other material form;
d) Letters;
PART IV - The Law on Copyright e) Dramatic or dramatico-musical compositions;
choreographic works or entertainment in dumb
WHAT IS COPYRIGHT? shows;
It is an intangible corporeal right to certain literary, scholarly and f) Musical compositions, with or without words;
artistic productions granted by the statute to the author or g) Works of drawing, painting, architecture,
creator of the work, giving him, his heirs and assigns copyright or sculpture, engraving, lithography or other works of
economic rights which shall consist of the exclusive right to carry art; models or designs for works of art;
out, authorize or prevent the acts listed in Section 177. h) Original ornamental designs or models for articles
of manufacture, whether or not registrable as an
When it comes to Copyright, there are 2 kinds of rights: industrial design, and other works of applied art;
a. Economic rights or Copyrigh i) Illustrations, maps, plans, sketches, charts and
b. Moral Rights three-dimensional works relative to geography,
topography, architecture or science;
What is being discussed here are the economic rights. j) Drawings or plastic works of a scientific or
technical character;
COPYRIGHT OF COURSE PERTAINS TO LITERARY – novels, stories, k) Photographic works including works produced by
essays, thesis, dissertations, movies, musicals, songs, paintings, a process analogous to photography; lantern
sculptures. slides;
l) Audiovisual works and cinematographic works and
We already know that the creator owns his creation. If an author works produced by a process analogous to
writes a novel, he owns the novel and he has the copyright which cinematography or any process for making audio-
is automatic. visual recordings;
m) Pictorial illustrations and advertisements;
What are the economic rights? What can the creator do? n) Computer programs; and
o) Other literary, scholarly, scientific and artistic
SECTION 177. Copyright or Economic Rights. ‑ Subject to the works.
provisions of Chapter VIII, copyright or economic rights shall
consist of the exclusive right to carry out, authorize or prevent 172.2. Works are protected by the sole fact of their creation,
the following acts: irrespective of their mode or form of expression, as well as of
their content, quality and purpose.
177.1. Reproduction of the work or substantial portion of the
work; This is the enumeration.

177.2. Dramatization, translation, adaptation, abridgment, Take note, COMPUTER PROGRAMS cannot be patented but they
arrangement or other transformation of the work; can be copyrighted. Take note.

177.3. The first public distribution of the original and each So, Section 172 is the provision that says “Works are protected
copy of the work by sale or other forms of transfer of by the sole fact of their creation, irrespective of their mode or
ownership; form of expression, as well as of their content, quality and
purpose.” These are original works.
177.4. Rental of the original or a copy of an audiovisual or
cinematographic work, a work embodied in a sound But we also have what we call as DERIVATIVE WORKS.
recording, a computer program, a compilation of data and
other materials or a musical work in graphic form, irrespective CHAPTER III
of the ownership of the original or the copy which is the Derivative Works
subject of the rental; (n)
SECTION 173. Derivative Works. ‑
177.5. Public display of the original or a copy of the work;
173.1. The following derivative works shall also be protected
177.6. Public performance of the work; and by copyright:

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4-Manresa | Ateneo de Davao University College of Law

a) Dramatizations, translations, adaptations, 176.2. The author of speeches, lectures, sermons, addresses,
abridgments, arrangements, and other alterations and dissertations mentioned in the preceding paragraphs
of literary or artistic works; and shall have the exclusive right of making a collection of his
b) Collections of literary, scholarly or artistic works, works. (n)
and compilations of data and other materials
which are original by reason of the selection or 176.3. Notwithstanding the foregoing provisions, the
coordination or arrangement of their contents. Government is not precluded from receiving and holding
(Sec. 2, (P) and (Q), P.D. No. 49) copyrights transferred to it by assignment, bequest or
otherwise; nor shall publication or republication by the
For letter (a),let us say a song is composed by A. Diba ang hilig Government in a public document of any work in which
ng Pilipino magconvert nang song into a telenovela? Pangako copyright is subsisting be taken to cause any abridgment or
sayo – ginawang telenovela. The composer of Pangakosayo has a annulment of the copyright or to authorize any use or
copyright of the song. It was dramatized, presumably yung appropriation of such work without the consent of the
nagdramatize nito nananghid doon sa composer. The one who copyright owner. (Sec. 9, third par., P.D. No. 49)
dramatized it, now has a derivative work, he owns the copyright
of the dramatization. Take note of the enumerations. Basahin ninyo lang masyadong
mahaba to eh.
For letter (b),If you go to Central Bookstore, there is a book there
that is by Midas Marquez, he compiled the Constitutional law Any official text of a legislative, administrative or legal nature – so
decisions of former Chied Justice Puno. That is copyrightable. That these are Laws, they are not under a copyright. Anybody can
is a derivative work – copyrightable by reason of the compilation, reproduce the law or distribute it. Yung mga promulgated rules
coordination and arrangement. ng mga government offices, ng NLRC, it is not copyrightable.

How are derivative works protected? Take note that the copyright is distinct from the material object.

173.2. The works referred to in paragraphs (a) and (b) of SECTION 181. Copyright and Material Object. ‑ The copyright
Subsection 173.1 shall be protected as new works: Provided, is distinct from the property in the material object subject to
however, That such new work shall not affect the force of any it. Consequently, the transfer or assignment of the copyright
subsisting copyright upon the original works employed or any shall not itself constitute a transfer of the material object. Nor
part thereof, or be construed to imply any right to such use of shall a transfer or assignment of the sole copy or of one or
the original works, or to secure or extend copyright in such several copies of the work imply transfer or assignment of the
original works. (Sec. 8, P.D. 49; Art. 10, TRIPS) copyright.

They shall be protected as new works, but such new work shall We have a painting. To whom does the painting belong, kunyare
not affect the force of any subsisting copyright. So ibayung it is a portrait? Eh di doonsa nag papaint, the material object
copyright ng original creator, ibadin yung copyright ng creator of belongs to the one who commissioned the work.
the derivative work.
But who owns the copyright? Does the transfer, assignment of
And it shall not be construed to imply any right to such use of the the copyright automatically constitute a transfer of the material
original works, or to secure or extend copyright in such original object? No. They are separate and distinct from each other.
works. Dapatmagpaalamsiya. Just because he dramatized it, may
copyright siya, it doesn’t mean he was authorized to do so. What shall not constitute infringement?

What are not protected by Copyright? CHAPTER VIII

Limitations on Copyright
CHAPTER IV
Works Not Protected SECTION 184. Limitations on Copyright. ‑

SECTION 175. Unprotected Subject Matter. ‑ 184.1. Notwithstanding the provisions of Chapter V, the
Notwithstanding the provisions of Sections 172 and 173, no following acts shall not constitute infringement of copyright:
protection shall extend, under this law, to any idea, a) The recitation or performance of a work, once it
procedure, system, method or operation, concept, principle, has been lawfully made accessible to the public, if
discovery or mere data as such, even if they are expressed, done privately and free of charge or if made strictly
explained, illustrated or embodied in a work; news of the day for a charitable or religious institution or society;
and other miscellaneous facts having the character of mere (Sec. 10(1), P.D. No. 49)
items of press information; or any official text of a legislative, b) The making of quotations from a published work if
administrative or legal nature, as well as any official they are compatible with fair use and only to the
translation thereof. (n) extent justified for the purpose, including
quotations from newspaper articles and
SECTION 176. Works of the Government. ‑ periodicals in the form of press summaries:
Provided, That the source and the name of the
176.1. No copyright shall subsist in any work of the author, if appearing on the work, are mentioned;
Government of the Philippines. However, prior approval of (Sec. 11, third par., P.D. No. 49)
the government agency or office wherein the work is created c) The reproduction or communication to the public
shall be necessary for exploitation of such work for profit. by mass media of articles on current political,
Such agency or office may, among other things, impose as a social, economic, scientific or religious topic,
condition the payment of royalties. No prior approval or lectures, addresses and other works of the same
conditions shall be required for the use for any purpose of nature, which are delivered in public if such use is
statutes, rules and regulations, and speeches, lectures, for information purposes and has not been
sermons, addresses, and dissertations, pronounced, read or expressly reserved: Provided, That the source is
rendered in courts of justice, before administrative agencies, clearly indicated; (Sec. 11, P.D. No. 49)
in deliberative assemblies and in meetings of public character. d) The reproduction and communication to the
(Sec. 9, first par., P.D. No. 49) public of literary, scientific or artistic works as part
of reports of current events by means of
photography, cinematography or broadcasting to

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

the extent necessary for the purpose; (Sec. 12, P.D. Ito yung FAIR USE OF A COPYRIGHTED WORK.
No. 49)
e) The inclusion of a work in a publication, broadcast, SECTION 185. Fair Use of a Copyrighted Work. ‑
or other communication to the public, sound
recording or film, if such inclusion is made by way 185.1. The fair use of a copyrighted work for criticism,
of illustration for teaching purposes and is comment, news reporting, teaching including multiple copies
compatible with fair use: Provided, That the source for classroom use, scholarship, research, and similar purposes
and the name of the author, if appearing in the is not an infringement of copyright. Decompilation, which is
work, are mentioned; understood here to be the reproduction of the code and
f) The recording made in schools, universities, or translation of the forms of the computer program to achieve
educational institutions of a work included in a the inter-operability of an independently created computer
broadcast for the use of such schools, universities program with other programs may also constitute fair use. In
or educational institutions: Provided, That such determining whether the use made of a work in any particular
recording must be deleted within a reasonable case is fair use, the factors to be considered shall include:
period after they were first broadcast: Provided,
further, That such recording may not be made a) The purpose and character of the use, including
from audiovisual works which are part of the whether such use is of a commercial nature or is
general cinema repertoire of feature films except for non-profit educational purposes;
for brief excerpts of the work;
g) The making of ephemeral recordings by a b) The nature of the copyrighted work;
broadcasting organization by means of its own
facilities and for use in its own broadcast; c) The amount and substantiality of the portion used
h) The use made of a work by or under the direction in relation to the copyrighted work as a whole; and
or control of the Government, by the National
Library or by educational, scientific or professional d) The effect of the use upon the potential market for
institutions where such use is in the public interest or value of the copyrighted work.
and is compatible with fair use;
i) The public performance or the communication to If you want to print a quote, or you want to quote something
the public of a work, in a place where no admission from a published work, how do you avoid being sued for
fee is charged in respect of such public infringement? Make sure that it is because of fair use.
performance or communication, by a club or
institution for charitable or educational purpose What is fair use? You criticize, you comment for classroom use,
only, whose aim is not profit making, subject to lectures, if you want to publish an article. The important thing is
such other limitations as may be provided in the if you want to quote from a published work, you have to make
Regulations; (n) sure you identify the author, identify the writer.
j) Public display of the original or a copy of the work
not made by means of a film, slide, television Ang problema doon kay Manny Pangilinan, when he made the
image or otherwise on screen or by means of any speech sa Ateneo graduation ceremony, kung anu- ano yung
other device or process: Provided, That either the pingdadadakdak niya, hindi niya alam na hindi pala kanya.
work has been published, or, that the original or Syempre may speech writer yun noh, nanghiram lang yung
the copy displayed has been sold, given away or speech writer from somebody else. There is no problem if you
otherwise transferred to another person by the want to quote somebody, such as by saying “As Shakespeare
author or his successor in title; and wrote blah blah blah.” If you quote somebody and pretend that it
k) Any use made of a work for the purpose of any is your own, ayan, that is not fair use.
judicial proceedings or for the giving of
professional advice by a legal practitioner. Let us go to Section 191.

Remember it is the right of the creator to publicly distribute his SECTION 191. Registration and Deposit with National Library
work. Pero once it has been lawfully made accessible to the and the Supreme Court Library. ‑ After the first public
public, like yung mga kanta, pwede nang kantahin no? Alangan dissemination of performance by authority of the copyright
naman hindi. owner of a work falling under Subsections 172.1, 172.2 and
172.3 of this Act, there shall, for the purpose of completing
So, this (provision) is very long. the records of the National Library and the Supreme Court
Library, within three (3) weeks, be registered and deposited
“The making of quotations from a published work if they are with it, by personal delivery or by registered mail, two (2)
compatible with fair use.” This always comes out in the bar. If you complete copies or reproductions of the work in such form as
quote, if you make quotations from a novel or thesis, is this the directors of said libraries may prescribe. A certificate of
infringement of copyright? No, if it is compatible with fair use. deposit shall be issued for which the prescribed fee shall be
Just read them. collected and the copyright owner shall be exempt from
making additional deposit of the works with the National
There is this last one added by RA 10372. Library and the Supreme Court Library under other laws. If,
within three (3) weeks after receipt by the copyright owner of
The reproduction or distribution of published articles or a written demand from the directors for such deposit, the
materials in a specialized format exclusively for the use of the required copies or reproductions are not delivered and the
blind, visually – and reading – impaired persons: Provided, fee is not paid, the copyright owner shall be liable to pay a fine
that such copies and distribution shall be made on a nonprofit equivalent to the required fee per month of delay and to pay
basis and shall indicate the copyright owner and the date of to the National Library and the Supreme Court Library the
the original publication. amount of the retail price of the best edition of the work. Only
the above mentioned classes of work shall be accepted for
This has something to do with Braille books - the reproduction or deposit by the National Library and the Supreme Court
distribution of published articles or materials in a specialized Library. (Sec. 26, P.D. No. 49a)
format exclusively for the use of the blind. So, any author whose
book is republished in braille cannot scream infringement of the There is no need to register, but Section 191 says that at anytime
copyright. Even if the owner is not informed, pwede siyang during the subsistence of the copyright or any exclusive right,
ireproduce in braille form. may, for the purpose of completing the records of the National

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 PROPERTY Review| 1st Semester S.Y. 2018-2019
From the Lectures of Atty. Melissa Romana P. Suarez
4-Manresa | Ateneo de Davao University College of Law

Library and Supreme Court library, register and deposit with them editing, arranging or adaptation of such work, for publication,
by personal delivery or registered mail, 2 copies of the books or broadcast, use in a motion picture, dramatization, or
work. Provided, that only works in the field of law shall be mechanical or electrical reproduction in accordance with the
deposited in the Supreme Court Library. reasonable and customary standards or requirements of the
medium in which the work is to be used, shall not be deemed
And take note, such registration and deposit is not a condition for to contravene the author's rights secured by this chapter. Nor
copyright protection. shall complete destruction of a work unconditionally
transferred by the author be deemed to violate such rights.
What is the purpose of this? To complete the records. Because (Sec. 38, P. D. No. 49)
the national library, presumably should have all the books by
Filipino authors. And the Supreme court is presume to have all the Sec. 198. Term of Moral Rights. -
law books.
198.1. The rights of an author under this chapter shall last
So, what is the duration of protection, for copy right, economic during the lifetime of the author and for fifty (50) years after
right, for original and derivative works? It is 50 years. Ang his death and shall not be assignable or subject to license. The
copyright ang pinakamahaba. So si Shakespeare, because he’s person or persons to be charged with the posthumous
been dead for like centuries, wala ng copyright. His works can be enforcement of these rights shall be named in writing to be
published. filed with the National Library. In default of such person or
persons, such enforcement shall devolve upon either the
Wala dito yung Moral rights, pero let me just tell you what moral author's heirs, and in default of the heirs, the Director of the
rights are. National Library.

Chapter X . - MORAL RIGHTS 198.2. For purposes of this Section, "Person" shall mean any
individual, partnership, corporation, association, or society.
Sec. 193. Scope of Moral Rights. - The author of a work shall, The Director of the National Library may prescribe reasonable
independently of the economic rights in Section 177 or the fees to be charged for his services in the application of
grant of an assignment or license with respect to such right, provisions of this Section. (Sec. 39, P. D. No. 49)
have the right:
Sec. 199. Enforcement Remedies. - Violation of any of the
193.1. To require that the authorship of the works be rights conferred by this Chapter shall entitle those charged
attributed to him, in particular, the right that his name, with their enforcement to the same rights and remedies
as far as practicable, be indicated in a prominent way on available to a copyright owner. In addition, damages which
the copies, and in connection with the public use of his may be availed of under the Civil Code may also be recovered.
work; Any damage recovered after the creator's death shall be held
in trust for and remitted to his heirs, and in default of the
193.2. To make any alterations of his work prior to, or to heirs, shall belong to the government. (Sec. 40, P. D. No. 49)
withhold it from publication;
(REFER TO IP RULES OF PROCEDURE, it was only read by MRS)
193.3. To object to any distortion, mutilation or other
modification of, or other derogatory action in relation to,
his work which would be prejudicial to his honor or
reputation; and

193.4. To restrain the use of his name with respect to any

work not of his own creation or in a distorted version of “Come to me, all you who are weary and
his work. (Sec. 34, P. D. No. 49)
burdened, and I will give you rest.
Sec. 194. Breach of Contract. - An author cannot be
compelled to perform his contract to create a work or for the Take my yoke upon you and learn from me, for
publication of his work already in existence. However, he may
be held liable for damages for breach of such contract. (Sec.
I am gentle and humble in heart, and you will
35, P. D. No. 49)
find rest for your souls.”
Sec. 195. Waiver of Moral Rights. - An author may waive his
rights mentioned in Section 193 by a written instrument, but Matthew 11:28-29
no such waiver shall be valid where its effects is to permit
another:

195.1. To use the name of the author, or the title of his

work, or otherwise to make use of his reputation with
respect to any version or adaptation of his work which,
because of alterations therein, would substantially tend
to injure the literary or artistic reputation of another
author; or

195.2. To use the name of the author with respect to a

work he did not create. (Sec. 36, P. D. No. 49)

Sec. 196. Contribution to Collective Work. - When an author

contributes to a collective work, his right to have his
contribution attributed to him is deemed waived unless he
expressly reserves it. (Sec. 37. P. D. No. 49)

Sec. 197. Editing, Arranging and Adaptation of Work. - In the

absence of a contrary stipulation at the time an author
licenses or permits another to use his work, the necessary

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