Co-ownership, Partition, Possession

Civil Law Review Lecture Series

Lecture No. 9 

PART I

ATTY. EDUARDO T. REYES, III

(For Fourth Year Section-A CIVIL LAW REVIEW

 and PROPERTY Second Year,

University of San Agustin School of Law,

General Luna Street, Iloilo City,

School Year 2016-2017 Ist Semester)

CO-OWNERSHIP; PARTITION

1.      Two stages in Partition proceedings

“The first phase of a partition and/ or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, and a partition is proper (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property. This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist or partition is legally prohibited. It may end, on the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. X x x

The second phase commences when it appears that “the parties are unable to agree upon the partition” directed by the court. In that event[,] partition shall be done for the parties by the court with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the [c]ourt after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share in the rents and profits of the real estate in question. X x x”[1]

2.     State of Co-ownership NOT favored by law

“On a final note, partition is a right much favoured, because it not only secures peace, but also promotes industry and enterprise. The rule of civil law and common law is that no one should be compelled to hold property in common with another grew out of a purpose to prevent strife and disagreement, to facilitate transmission of titles and avoid the inconvenience of joint holding x x x”.[2]

3.     Prescription does not run in favor of, and against a co-owner; Exception

“Prescription may nevertheless run against a co-owner if there is adverse, open, continuous and exclusive possession of the co-owned property by the co-owner. In order that a co-owner’s possession may be deemed adverse to the cestui que trust or other co-owners, the following requisites must concur: (1) that he has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust or other co-owners; (2) that such positive acts of repudiation have been made known to the cestui que trust or other co-owners; and (3) that the evidence thereon must be clear and convincing.

          The issuance of the certificate of title would constitute an open and clear repudiation of any trust. In such a case, an action to demand partition among co-owners prescribes in 10 years, the point of reference being the date of the issuance of title over the property. But this rule applies only when the plaintiff is not in possession of the property, since if a person claiming to be the owner thereof is in actual possession of the property, the right to demand partition does not prescribe.[3]  

TITLE V

POSSESSION

CHAPTER 1

Possession and the Kinds Thereof

Article 523. Possession is the holding of a thing or the enjoyment of a right. (430a)

Article 524. Possession may be exercised in one's own name or in that of another. (413a)

Article 525. The possession of things or rights may be had in one of two concepts: either in the concept of owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person. (432)

Article 526. He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it.

He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing.

Mistake upon a doubtful or difficult question of law may be the basis of good faith. (433a)

Article 527. Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. (434)

Article 528. Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully. (435a)

Article 529. It is presumed that possession continues to be enjoyed in the same character in which it was acquired, until the contrary is proved. (436)

Article 530. Only things and rights which are susceptible of being appropriated may be the object of possession. (437)

CHAPTER 2
Acquisition of Possession

Article 531. Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right. (438a)

Comments:

1)     “Possession for purposes of forcible entry cases are deemed to include those by symbolic delivery.”[4]

2)    But, what is the DEGREE OF FORCE that would constitute as “force” in “forcible entry”? Said the SC in a 2016 case, “This case would have to fall under the concept of forcible entry as it has been long settled that in forcible entry cases, no force is really necessary. The act of going on the property and excluding the lawful possessor therefrom necessarily implies the exertion of force over property, and that is all that is necessary.[5]”

3)    Relevant concepts on Tradition or Delivery.

4)   Tradition or Delivery- Pursuant to Art. 1497 NCC, “When the thing sold is placed in the control and possession of the vendee”.

5)    Arts. 1497 to 1501. Actual v. Constructive delivery.

6)   The “mere execution of the deed of conveyance in a public instrument is equivalent to the delivery of the property. (Sabio v. International Corporate Bank. 364 SCRA 365 [2001]; Also, Ignacio Wng v. Carpio, G.R. No. 50264, October 21, 1991

7)    Exceptions: 1. “When there is a stipulation in the instrument to the contrary. 2. Doctrine in Addison v. Felix (38 Phil. 404 (1918). “it is the duty of the seller to deliver the thing sold, and that symbolic delivery by the execution of public instrument is equivalent to actual delivery only when the thing sold is subject to the control of the seller, so that ‘at the moment of sale, its material delivery could have been made’. This doctrine was reiterated in Power Commercial and Industrial Corp. v. CA, 274 SCRA 597, (1997)

8)   Exception to the exception. If the sale had been made under the express agreement of imposing upon the buyer the obligation of recovering possession from third party possessors.

9)   This discussion should be co-related with discussion on MODE and TITLE and PRESCRIPTION as also amplified in this lecture series

Article 532. Possession may be acquired by the same person who is to enjoy it, by his legal representative, by his agent, or by any person without any power whatever: but in the last case, the possession shall not be considered as acquired until the person in whose name the act of possession was executed has ratified the same, without prejudice to the juridical consequences of negotiorum gestio in a proper case. (439a)

Article 533. The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted.

One who validly renounces an inheritance is deemed never to have possessed the same. (440)

Article 534. On who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he was aware of the flaws affecting it; but the effects of possession in good faith shall not benefit him except from the date of death of the decedent. (442)

Article 535. Minors and incapacitated persons may acquire the possession of things; but they need the assistance of their legal representatives in order to exercise the rights which from the possession arise in their favor. (443)

Article 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing. (441a)

Article 537. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession. (444)

Article 538. Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of co-possession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessors, the one longer in possession; if the dates of the possession are the same, the one who presents a title; and if all these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings. (445)

CHAPTER 3
Effects of Possession

Article 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court.

A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. (446a)

Comments:

1)     “As a rule, injunction cannot substitute for the other actions to recover possession. This is because in the meantime, the possessor has in his favor, the presumption of rightful possession, at least, till the case is finally decided (See Devesa v. Arbes, 13 Phil, 273; see also Rustia v. Franco, 41 Phil. 280). The exception of course is a very clear case of usurpation.”[6]

BUT, the Civil Code allows in the meantime, the “writ of preliminary litigations between the owner and the usurper, and the former is frequently deprived of his possession even when he has an immediate right thereto. (Report of the Code Commission, p. 98).

2)    It should be emphasized that Article 539 is confined to “forcible entry”. However, in an accion publiciana case[7], the Supreme Court upheld the grant of preliminary mandatory injunction by an RTC in Antique to restore the plaintiff in possession. Thus,

“Under Article 539 of the New Civil Code, a lawful possessor is entitled to be respected in his possession and any disturbance of possession is a ground for the issuance of a writ of preliminary mandatory injunction to restore the possession. Thus, petitioners claim that the issuance of a writ of preliminary mandatory injunction is improper because the instant case is allegedly one for accion publiciana deserves no consideration. This Court has already ruled in Torre, et al. v. Hon. J. Querubin, et al. that prior to the promulgation of the New Civil Code, it was deemed improper to issue a writ of preliminary injunction where the party to be enjoined had already taken complete material possession of the property involved. However, with the enactment of Article 539, the plaintiff is now allowed to avail of a writ of preliminary mandatory injunction to restore him in his possession during the pendency of his action to recover possession.

It is likewise established that a writ of mandatory injunction is granted upon a showing that (a) the invasion of the right is material and substantial; (b) the right of complainant is clear and unmistakable; and (c) there is an urgent and permanent necessity for the writ to prevent serious damage.”

Article 540. Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion. (447)

Article 541. A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it. (448a)

Article 542. The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded. (449)

Article 543. Each one of the participants of a thing possessed in common shall be deemed to have exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period during which the co-possession lasted. Interruption in the possession of the whole or a part of a thing possessed in common shall be to the prejudice of all the possessors. However, in case of civil interruption, the Rules of Court shall apply. (450a)

Article 544. A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.

Natural and industrial fruits are considered received from the time they are gathered or severed.

Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion. (451)

Article 545. If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession.

The charges shall be divided on the same basis by the two possessors.

The owner of the thing may, should he so desire, give the possessor in good faith the right to finish the cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and the net proceeds; the possessor in good faith who for any reason whatever should refuse to accept this concession, shall lose the right to be indemnified in any other manner. (452a)

Article 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor.

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof. (453a)

Article 547. If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the option under paragraph 2 of the preceding article. (n) ARTICLE 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended. (454)

Article 549. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received, and shall have a right only to the expenses mentioned in paragraph 1 of article 546 and in article 443. The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith, but he may remove the objects for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession. (445a)

Article 550. The costs of litigation over the property shall be borne by every possessor. (n)

Article 551. Improvements caused by nature or time shall always inure to the benefit of the person who has succeeded in recovering possession. (456)

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)

Article 553. One who recovers possession shall not be obliged to pay for improvements which have ceased to exist at the time he takes possession of the thing. (458)

Article 554. A present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence of proof to the contrary. (459)

Article 555. A possessor may lose his possession:

(1) By the abandonment of the thing;

(2) By an assignment made to another either by onerous or gratuitous title;

(3) By the destruction or total loss of the thing, or because it goes out of commerce;

(4) By the possession of another, subject to the provisions of article 537, if the new possession has lasted longer than one year. But the real right of possession is not lost till after the lapse of ten years. (460a)

Article 556. The possession of movables is not deemed lost so long as they remain under the control of the possessor, even though for the time being he may not know their whereabouts. (461)

Article 557. The possession of immovables and of real rights is not deemed lost, or transferred for purposes of prescription to the prejudice of third persons, except in accordance with the provisions of the Mortgage Law and the Land Registration laws. (462a)

Article 558. Acts relating to possession, executed or agreed to by one who possesses a thing belonging to another as a mere holder to enjoy or keep it, in any character, do not bind or prejudice the owner, unless he gave said holder express authority to do such acts, or ratifies them subsequently. (463)

Article 559. The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same.

If the possessor of a movable lost or which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor. (464a)

Article 560. Wild animals are possessed only while they are under one's control; domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor. (465)

Article 561. One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have enjoyed it without interruption. (466)

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[1] Lacbayan v. Samoy, Jr., G.R. No. 165427, March 21, 2011

[2] Elpidio Magno etc. v. Lorenzo Magno, G.R. No. 206451, August 17, 2016

[3] Heirs of Feliciano Yambao, namely etc. v. Heirs of Hermogenes Yambao et al., G.R. No. 194260, April 13, 2016

[4] Anacleto C. Mangasar v. Dionisio Ugay, G.R. No. 204926, December 7, 2014

[5] Balibago Faith Baptist Church, Inc. and Philippine Baptist S.B.C., Inc. v. Faith in Christ Jesus Baptist Church, Inc. and Reynaldo Galvan, G.R. No. 191527, August 22, 2016

[6] Paras, Civil Code of the Philippines Annotated, Fourteenth Edition 1999 Book II

[7] Semirara Coal Corporation v. HGL Development, G.R. No. 166854, December 6, 2006