Co-ownership,
Partition, Possession
Civil Law Review
Lecture Series
PROPERTY Part 2.1
ATTY. EDUARDO T.
REYES, III
(For Fourth Year
Section-A CIVIL LAW REVIEW
University of San
Agustin School of Law,
General Luna
Street, Iloilo City,
School Year
2017-2018 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
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]
“G.R.
No. 204926 December 3, 2014
ANACLETO
C. MANGASER, represented by his Attorney-in-fact EUSTAQUIO DUGENIA, Petitioner,
vs.
DIONISIO UGAY, Respondent.
vs.
DIONISIO UGAY, Respondent.
“As a rule, the word "possession" in forcible entry suits
indeed refers to nothing more than prior physical possession or possession de
facto, not possession de Jure or legal possession in the sense contemplated in
civil law. Title is not the issue, and the absence of it "is not a ground
for the courts to withhold relief from the parties in an ejectment case."30
The
Court, however, has consistently ruled in a number of cases31 that while prior physical possession is
an indispensable requirement in forcible entry cases, the dearth of merit in
respondent's position is evident from the principle that possession can be
acquired not only by material occupation, but also by the fact that a thing is
subject to the action of one's will or by the proper acts and legal formalities
established for acquiring such right. The case of Quizon v. Juan,32 which surprisingly was relied on by the
CA, also stressed this doctrine.
Possession
can be acquired by juridical acts. These are acts to which the law gives the
force of acts of possession. Examples of these are donations, succession,
execution and registration of public instruments, inscription of possessory
information titles and the like.33 The reason for this exceptional rule is
that possession in the eyes of the law does not mean that a man has to have his
feet on every square meter of ground before it can be said that he is in
possession.34 It is sufficient that petitioner was
able to subject the property to the action of his will.35 Here, respondent failed to show that he
falls under any of these circumstances. He could not
even say that the subject property was leased to him except that he promised
that he would vacate it if petitioner would be able to show the boundaries of
the titled lot.
In the
case of Nunez v. SLTEAS Phoenix Solutions, inc., 36 the subject parcel was acquired by the
respondent by virtue of the June 4, 1999 Deed of Assignment executed in its
favor by Spouses Ong Tiko and Emerenciana Sylianteng. The petitioner in the
said case argued that, aside from the admission in the complaint that the
subject parcel was left idle and unguarded, the respondent's claim of prior
possession was clearly negated by the fact that he had been in occupancy
thereof since 1999. The Court disagreed with the petitioner and said: Although
it did not immediately put the same to active use, respondent appears to have
additionally caused the property to be registered in its name as of February
27, 2002 and to have paid the real property taxes due thereon alongside the
sundry expenses incidental thereto. Viewed in the light of the foregoing
juridical acts, it consequently did not matter that, by the time respondent
conducted its ocular inspection in October 2003, petitioner hml already been
occupying the land since 1999.
[Emphasis
and underscoring supplied]
Hence,
in that case, the Court ruled that such juridical acts were sufficient to
establish the respondent's prior possession of the subject property.
The
case of Habagat Grill v. DMC-Urban Property Developer, Inc.,37 also involves an action for forcible
entry. On June 11, 1981, David M. Consunji, Inc. acquired a residential lot
situated in Matin a, Davao City, which was covered by TCT No. T-82338. On June
13, 1981, it transferred the said lot to respondent DMC. Alleging that the
petitioner forcibly entered the property in December 1993, the respondent filed
on March 28, 1994 a complaint for forcible entry. One of the issues raised
therein was whether respondent DMC had prior possession of the subject
property, to which the Court answered in the affirmative. It ruled that:
Prior
possession of the lot by respondent's predecessor was sufficiently proven by
evidence of the execution and registration of public instruments and by the
fact that the lot was subject to its will from then until December 1, 1993,
when petitioner unlawfully entered the premises and deprived the former of
possession thereof. [Emphasis and underscoring supplied]
In the
case at bench, the Court finds that pet1t1oner acquired possession of the
subject property by juridical act, specifically, through the issuance of a free
patent under Commonwealth Act No. 141 and its subsequent registration with the
Register of Deeds on March 18, 1987.38
Before
the Court continues any further, it must be determined first whether the issue
of ownership is material and relevant in resolving the issue of possession. The
Rules of Court in fact expressly allow this: Section 16, Rule 70 of the Rules
of Court provides that the issue of ownership shall be resolved in deciding the
issue of possession if the question of possession is intertwined with the issue
of ownership. But this provision is only an exception and is allowed only in
this limited instance - to determine the issue of possession and only if the
question of possession cannot be resolved without deciding the issue of
ownership.39
This
Court is of the strong view that the issue of ownership should be provisionally
determined in this case. First, the juridical act from which the right of
ownership of petitioner arise would be the registration of the free patent and
the issuance of OCT No. RP-174(13789). Apparently, the Torrens title suggests
ownership over the land. Second, respondent also asserts ownership over the
land based on his prior, actual, continuous, public, notorious, exclusive and
peaceful possession in the concept of an owner of the property in dispute.40 Because there are conflicting claims of
ownership, then it is proper to provisionally determine the issue of ownership
to settle the issue of possession de facto.
22) 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]”- G.R. No. 191527, August 22,
2016, BALIBAGO FAITH BAPTIST CHURCH, INC. AND PHILIPPINE BAPTIST S.B.C., INC., Petitioners, v. FAITH IN CHRIST JESUS BAPTIST CHURCH,
INC. AND REYNALDO GALVAN, Respondent.
Relevant concepts on Tradition
or Delivery.
Tradition or Delivery- Pursuant to Art. 1497
NCC, “When the thing sold is placed in
the control and possession of the vendee”.
Arts. 1497 to
1501. Actual v. Constructive delivery.
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 Wong v. Carpio, G.R. No. 50264, October 21, 1991
Exceptions: 1. “When there is a
stipulation in the instrument to the contrary.
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)
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.
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)
Comment:
Bar Question 2016
Joven and Juliana are the
owners of a 30-hectare plantation in Cotabato, covered by a title. One day, a
group of armed men forcibly entered their house and, at gun point, forced them
to sign a Deed of Absolute Sale in favor of Romeo. Romeo got the title from
them and they were ejected from the house and threatened not to come back or
else they will be killed. The spouses went to Manila and resided there for more
than 35 years. They never went back to Cotabato for fear of their lives. Word
came to them that peace and order have been restored in their former place of
residence and they decided to reclaim their land for the benefit of their
grandchildren. Joven and Juliana filed a suit for reconveyance of their
property. This was opposed by the grandson of Romeo to whom the title was
eventually transferred, on the ground of laches and prescription. Decide the
case and rule on the defenses of laches and prescription. Explain your answer.
(5%)
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
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 injunction 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)
[3] Heirs of Feliciano Yambao, namely etc. v.
Heirs of Hermogenes Yambao et al., G.R. No. 194260, April 13, 2016
[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
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