CLASSIFICATION OF PROPERTY: REAL AND PERSONAL

1. A building is always an immovable property. But the building referred to by law is one permanently attached to

the soil.

2. Trees are generally immovable by incorporation (or by reason of adherence to soil). But even if not adhering to

the soil, they remain immovable if they will “form an integral part of an immovable.”

3. Growing fruits are personal property for purposes of; (i)sale; (ii)attachment; and (iii)mortgage.

4. The parties cannot, by agreement, change its character to personal property. But estoppel will prevent one of

them from questioning the validity of the agreement treating a building as personal property.

5. The machineries, etc. In paragraph 5, Article 415, the ornaments in paragraph 4 and the animal-houses in

paragraph 6 – are immovable by destination. They do not require attachment to an immovable to become an

immovable. If they are attached in a fixed manner to an immovable, they become immovable by incorporation

under paragraph 3 of article 415; or if attached permanently to the land, they become immovable under

paragraph 1 (constructions of all kinds adhering to the soil).

6. Article 415 only mentions about “real right over an immovable” (paragraph 10) as real property. Hence, all other

rights are personal property. But rights arising from contracts for public works are also real property.

7. Electricity and interest in business are personal property, which can be the subject matter of theft (en banc case

of Laurel vs. Abrogar (2009)).

8. The classification of property as consumable or non-consumable applies only to movable or personal property.

CLASSIFICATION OF PROPERTY: POINT OF VIEW OF OWNERSHIP

9. Properties of the state are either public dominion or patrimonial. Only the latter can be validly alienated.

10. For a property to be of public dominion, mere intention to devote it to some public use or public service will be

sufficient. There is no need that the same be actually use for the purpose to which it was devoted.

11. To convert a property of public dominion to patrimonial, 2 requisites must be complied: (i)the property must

have been abandoned or no longer used for the purpose to which it has been devoted; and (ii)there must be an

affirmative act coming either from the executive or the legislative.

12. Said affirmative act need not be a law. But to convert alienable and disposable lands of the public domain into

patrimonial , a law or a presidential proclamation (in cases where the President is duly authorized by law) must

expressly declare that “such lands are no longer intended for public service or for the development of the

national wealth” or expressly declaring their conversion into patrimonial. (Heirs of Malabanan v. Republic

(2009)).

13. The case of Heirs of Malabanan seems to suggest that patrimonial properties may be acquired thru acquisitive

prescription, citing Article 1113 of the civil code. But such statement is merely obiter. The direct ruling is the

case of Alonzo v. Cebu Country Club (2004), where it was ruled that possession of patrimonial property, whether

spanning centuries or decades, cannot ipso facto ripen into ownership.

14. Generally, patrimonial properties cannot be acquired thru acquisitive prescription. Exception: when the state,

thru a law, allows such acquisition.

15. Briefly, characteristics of public dominion:

i. Cannot be alienated;

ii. Generally, outside the commerce of man;

iii. Not susceptible to private appropriation and cannot absolutely be acquired thru acquisitive prescription;

iv. Cannot be subjected to levy, attachment or execution;

v. Cannot be burdened by voluntary easement.

16. Properties of provinces, cities and municipalities are classified by the character of use to which they are

intended. If intended for public or governmental use, then classified as public dominion. If intended for some

private, commercial or proprietary purposes, then patrimonial. (Province of Zamboanga del Norte v. City of

Zamboanga (1968)).

OWNERSHIP

17. The doctrine of self-help allows a property owner or any lawful possessor to resort to reasonable force if: (i)

there is unlawful physical invasion or usurpation of the property and (ii) the purpose is only to repel such

unlawful physical invasion or usurpation.

18. If the dispossession was already complete, force is no longer authorized. If the purpose is recovery of

possession, the law requires even the property owner to resort to the proper judicial processes, which may

either be replevin, accion reindictal, accion publiciana or acion reivindicatoria.

19. In accion reivindicatoria, 2 things must be provided by the plaintiff: (i) the identity of the property; (ii) his title to

it. He must rely on the strength of his own title in order to win.

20. Interference is authorized under the doctrine of state of necessity if:

i. There is a situation of grave peril, either an actual or imminent danger;

ii. Interference is necessary to avert the danger;

iii. That the damage to be caused to the interferer is much greater compared to the damage that will be

suffered by the property owner; and

iv. Danger is not attributable to any act of the interferer.

21. In state of necessity, those benefited are required to indemnify the property owner for the damage suffered by

the latter. But in state of necessity, the danger must not come from the property subject to interference. So, if

the danger comes from the property itself, there is no need to indemnify the property owner. This is a valid self-

defense.

22. The owner of the land is also the owner of the space and the subsoil. Hence, the surface and the subsurface can

only have a single owner and the rights thereto are indivisible.

23. A hidden treasure is: (i) any unknown deposit of money, jewelry or other precious objects; and (ii) the lawful

ownership of which does not appear. If the finder is not the owner of the ground where the treasure was found,

he will be entitled to ½ of the treasure if 2 requisites are complied: (1) he is not a trespasser; and (2) the finding

of the treasure is by chance.

ACCESSION

24. Two kinds: (1) accession over the fruits (discreta) and (2) accession over the attachment or incorporation,

whether natural or artificial (continua).

25. Fruits naturally falling upon a private estate not belonging to the owner of the tree shall now belong to the

owner of the private estate. If the estate is public property, ownership of the fruit is retained by the owner of

the tree.

26. Partus sequitur ventrem: when two animals, a male and a female, belong to different owners and they mated, in

the absence of agreement, the offspring shall pertain to the owner of the female.

27. Article 443 applies only to accession discrete. Here, the recipient of the fruits was not the same person who

incurred the expenses in Production, Gathering and Preservation (PGP) of the fruits. Article 443 applies –

i. Where the fruits have already been gathered, severed or harvested;

ii. Whether the one who planted/harvested was in good or bad faith;

iii. Whether the expenses are more than the value of the fruits.

28. Industrial accession has 3 forms: (1) building; (2) planting – refers to trees; and (3) sowing – refers to crops.

29. In article 447, the landowner is also the builder, planter and sower but he made use of materials belonging to

another. If the materials can be separated without injury or even if there is injury but the materials can be

restored to their original form without incurring substantial expenses, there is no accession. In the absence of

accession, the respective owners retain ownership over their respective properties. Hence, good faith and bad

faith is immaterial.

30. But if there is accession because the things are now inseparable without injury, then the good faith or bad faith

of the landowner and the owner of the materials will now produce legal effects.

31. In Article 448, the builder, planter or sower does not own the land but he owns the materials. So, if the builder,

etc. is also the landowner, there is no problem. He is a builder-owner. As a consequence:

i. If the landowner was the builder and he loses ownership of the land, Article 448 will not apply.

Exception: if he loses the land because of non-payment of real estate taxes but there is a house on it. He

is entitle to the benefits of a builder in good faith with respect to the house (Pecson v. CA (1995));

ii. If the builder is the co-owner. Exception: when co-ownership is terminated and house built by an

erstwhile co-owner has encroached on the portion allotted to another. Article 448 can be invoked (Ignao

v. IAC (1991));

iii. Article 448 is inapplicable in cases involving contracts of sale with right of repurchase – it is inapplicable

when the owner of the land is the builder, sower or planter. In pacto de recto sale, however, the vendor

cannot avail himself the right of repurchase without returning to the vendee the price of the sale, and in

addition, the necessary and useful expenses made on the thing sold. (Narvaes v. Alciso (2009));

iv. But Article 448 does not apply only to the actual builder. The rights granted therein may also be invoked

by the latter’s successor-in-interest (Technogas Philippines Manufacturing Corp. v. CA (1997)).

32. A lessee who introduced improvements on the leased premises and a usufructuary who introduced

improvements on the property subject matter of the usufruct are neither builders in good faith nor builders in

bad faith, because there are special provisions governing their situations.

33. If both the landowner and builder/planter acted in good faith, the landowner can compel the builder/planter to

buy the land if its price is not considerably more than the value of the building or trees. This is a case of force

sale.

34. If both the landowner and builder/planter acted in good faith, and the price of the land is considerably more

than the value of the building or trees, the land owner can compel the builder/planter to lease the land. This is a

case of force lease.

35. If the builder, planter or sower is not the owner of the land and the materials, the solution depends on the good

faith or bad faith of the owner of the materials:

a. If the OM acted in bad faith, he loses his materials in favour of the landowner. If the BPS acted

in good faith, he is entitled to the payment of his labor; otherwise, he is not.

b. If the OM acted in good faith, the BPS is primarily liable to pay him the value of his materials, the

rights and obligations of BPS and LO will be determined by applying Articles 448-454. The LO is

subsidiarily liable to the OM and such liability attaches if: (i) the BPS is insolvent; (ii) the LO

chooses to appropriate the materials. If the LO pays the materials, the BPS is entitled to

payment of his labor if he acted in good faith; otherwise, he is not.

36. If the lessee had introduced a useful improvement in good faith, the option belongs to the owner appropriate

the improvements by paying ½ of its value. If such option is not exercised, the lessee acquires the right to

remove the improvement even if the removal will cause damage to the property.

37. If the lessee introduced ornaments, the owner may appropriate them by paying their value at the time of the

extinguishment of lease. If such option was not exercised, the lessee may remove the ornaments if the removal

will not damage the principal thing.

38. If the usufructuary had introduced an improvement, he can always remove the improvement if the removal will

not cause any injury to the property. This right can be exercised even against the will of the owner/lessor. In lieu

of removal, the usufructuary may offset his liability for damages caused to the property with the value of

improvement.

39. In the case of a possessor in good faith who introduced a useful improvement, the owner may appropriate the

improvement by paying either the actual expense or only the increase in value which the thing may have

acquired by reason of such improvement, at the option of the owner. Pending payment, the possessor is

entitled to a right of retention. If such option was not exercised, the possessor may remove the improvement

but only if the removal can be done without damage to the principal thing.

40. In the case of a possessor in bad faith who introduced a useful improvement, he does not have any right, either

to a refund or to remove the improvement.

41. In the case of a possessor who introduced an ornamental improvement, whether in good faith or in bad faith, he

is not entitled to a refund of the expenses but he may remove if: (i) the owner does not want to appropriate and

(ii) the removal will not cause damage to the principal. The owner can appropriate by paying possessor in good

faith the actual expense and the possessor in bad faith the value which the improvement may have at the time

the owner enters into possession.

42. In alluvium, the process must take place in the banks of rivers, creeks or streams or lakeshore for the additional

soil deposit to become private property. If it takes place on seashore, the additional soil deposit remains to be

property of public dominion.

43. In alluvium, while the riparian automatically acquires ownership once there is an additional soil deposit, the

latter does not enjoy protection unless placed under the operation of the Torrens system. Ownership is different

from registration.

44. In avulsion, accession will happen only after the lapse of 2 years, in case of avulsion of land or, 6 months, in case

of avulsion of trees. In avulsion of land, physical removal is required within the 2 year period while a mere lying

of a claim within 6 months is necessary in avulsion of trees.

45. In change of course of the waters of the river, it is necessary that it must be caused by nature. However, if the

cause of the change of course of the waters of the river is the State, the owner of the estate where the new

riverbed is now passing will also acquire ownership over the abandoned bed, in proportion to the area that he

lost.

46. In change of course of the waters of the river, the owner of the land adjoining the abandoned bed can compel

the owner of the estate where the new river bed is now passing to sell him the abandoned bed. If such option is

exercised, that is the only time that there will be accession. The principal is the land owner of the estate

adjoining the abandoned bed and the accessory is the abandoned bed.

47. In formation of islands, if an island is formed on the sea, lake or navigable or floatable rivers, the island thus

formed becomes patrimonial property of the state. If an island is formed on a non-navigable or non-floatable

river, the island becomes a private property.

48. In commixtion or confusion, there is accession only if the things are mixed or confused in bad faith by one of the

parties in which case, the latter shall lose his property and he will also be liable for damages. If the mixture or

confusion is caused by the will of both parties, or the will of one acting in good faith, or by fortuitous event,

there is no accession – but a case of co-ownership.

49. In adjunction, if the attachment was effect in good faith, the owner of the principal acquires ownership of the

accessory by paying its value. If the accessory is much more precious, its owner can demand separation even if

there is injury. If the attachment was effected in bad faith by the owner of the accessory, the latter loses his

property. If the attachment was effected in bad faith by the owner of the principal, the owner of the accessory

can demand either payment of the value of the accessory or its separation, even if there will be injury, plus

damages in either case.

QUIETING OF TITLE

50. Plaintiff has either legal or equitable title. But he need not be in possession. If he is in possession, the action for

quieting of title is imprescriptible.

CO-OWNERSHIP

51. Will of one co-owner is sufficient for the purpose of maintaining an action for recovery of possession, whether

the action is replevin, accion interdictal, accion publiciana or accion reivindicatoria. But the action must be for

the benefit of all. If the action is for the benefit only of the plaintiff because he had repudiated the co-

ownership, the other co-owners become indispensable parties.

52. Such action can also be filed even against another co-owner, but the only purpose of such action is to obtain

recognition of the co-ownership. Hence, the defendant cannot be ordered to vacate and the court cannot order

partition.

53. Will of one co-owner is sufficient for the purpose of repairing the co-owned property in order to preserve it. The

one who incurred the expenses can demand the shares of others. But the other co-owners may choose not to

contribute by renouncing so much of the interest in the co-ownership as may be equivalent to his share of the

expenses.

54. In case of an act of administration or incurring expenses to improve or embellish the thing, the vote of the

majority is required. Majority in co-ownership means consent/approval of those representing the controlling

interest.

55. In case of an act of alteration, unanimous consent is required.

56. A co-owner, has absolute control over his ideal share. He can alienate, encumber or lease it without the consent

of the others. But upon the sale of the ideal share of one in favour of a non-co-owner, the other may exercise

the right of legal redemption.

57. Requisites for the exercise of the right of legal redemption:

i. At the time of the sale and redemption, the co-ownership still exists

ii. The ideal share has been sold to a non-co-owner

iii. Right is exercised within 30 days from notice of the sale. Actual notice is sufficient in order for the 30-

day period to run

iv. Buyer is reimbursed the price of the sale

58. If a co-owner has sold a specific portion of the co-owned property without the consent of the others, the sale is

valid but treated merely as a sale of the ideal share of the selling co-owner and will thus become one of the co-

owners.

59. If the co-owner has sold the entire property without the consent of the others, the sale is valid but treated

merely as a sale of the ideal share of the selling co-owner and will thus become one of the co-owners.

60. If the co-ownerships is still being recognized by the co-owner possessor, the rule is that he will not acquire

exclusive ownership over the property because prescription will not lie in his favour. But if the co-ownership has

been effectively repudiated, the prescription will now commence to run in his favour.

61. Requisites of effective repudiation:

i. Performance of a clear act of repudiation

ii. Such act of repudiation has been made known to the others

iii. The evidence thereon must clear and convincing

62. The prescriptive period is either acquisitive: 8 years, for movable; 30 years for immovable; OR extinctive, which

is 10 years, because an action for reconveyance based on implied or constructive trust prescribes within such

period.

63. If the co-ownership is still being recognized by the co-owner possessor, an action for partition by the others is

imprescriptible. But if the co-ownership has been effectively recognized, the action for partition that may be

filed by others is in reality an action for reconveyance of property based on implied and constructive trust –

which prescribes within a period of 10 years.

64. The co-owners can validly agree not to partition the property for a period not exceeding 10 years. The donor or

testator can validly prohibit partition for a period not exceeding 20 years.

65. Redemption is not a mode of terminating the co-ownership. If the redemption is done during the period of

redemption, the co-ownership is preserved. Hence, the right of the redeeming co-owner is simply to demand for

the shares of the others in the expenses. But if the redemption is outside the period of redemption, it is in

reality a repurchase, in which case, the co-ownership has already been terminated. Hence, the buyer acquires

exclusive ownership.

POSSESSION

66. Possession in another’s name is the possession by a mere agent, or one acting on behalf of a principal – who is

the owner of the right. Possession in one’s own name is done by the owner of the right. Hence, possession can

be exercised personally or thru an agent.

67. Possession in the concept of a holder is where the possessor acknowledges a superior right of another which he

believes to be ownership, whether the belief is right or wrong. Possession in the concept of an owner is where

the possessor claims to be the owner and does not recognize any superior right of another, whether he is in

good faith or in bad faith.

68. A possessor in good faith is one who believes himself to be the owner because he has a title or a mode of

acquisition in his favour but the same is invalid because of a flaw or defect in it, except that he is not aware of

the existence of such flaw or defect. A possessor in bad faith is one who is aware that he is not the owner.

69. If the property is recovered by the owner from the possessor in good faith, the latter is entitled to keep the

fruits that he already received during the time that he was in good faith. If the possessor was in bad faith, he is

obliged to return not only the fruits actually received by him but also those which could have been received by

him but also those which could have been received by the owner had the latter been in possession.

70. If the property is recovered by the owner from the possessor in good faith and there are pending fruits, both

shall be entitled to the net harvest, In proportion to their respective length of possession. They will also share in

the expenses of cultivation, in the same proportion. But the owner may choose not to share in the expenses of

cultivation by allowing the possessor to proceed with the harvest. If the possessor refuses such concession, he

loses the right to be indemnified in whatever form.

71. If the property is recovered by the owner from the possessor in bad faith and there are pending fruits, the

possessor loses the fruits in favour of the owner without the right to be indemnified.

72. Whether the possessor was in good faith or in bad faith, he is entitled to a refund of the necessary expenses

incurred by him. However, only the possessor in good faith is entitled to a right of retention pending actual

reimbursement.

73. Under the doctrine of irrevindicability of movables, the possession of movables acquired in good faith is already

equivalent to title. But this doctrine presupposes that the previous possessor had voluntarily parted with the

possession. Hence, the doctrine does not apply in case of: (i) lost movable; or (ii) unlawful deprivation of

possession.

74. In case of lost movable, the previous possessor can always recover except if the finder has followed the

procedures, e. g. deposited the movable in the office of the mayor and the owner fails to get it after 6 months

from the publication. If such procedure has not been followed, the owner always recover the movable from the

present possessor. But if the present possessor has acquired it at a public sale in good faith, the owner can only

recover it by returning the price paid for by the buyer.

75. In case of unlawful deprivation, the previous possessor can always recover its possession but if the present

possessor has acquired it at a public sale in good faith, the previous possessor can only recover it by returning

the price paid for by the buyer.

76. In case of wild animals, the same is considered under one’s possession only when it is under one’s control.

77. In case of domesticated animals, the possessor can recover possession within 20 days from the occupation by

another person.

78. In case of domesticated animals, the same is treated as personal property. Thus, the rules on lost movable and

unlawful deprivation shall apply.

USUFRUCT

79. The usufruct is unusual or improper when the subject matter is either: (i) a consumable; or (ii) non-consumable

but subject to deterioration thru its use.

80. During the existence of the usufruct, the right that remains with the naked owner is the right to dispose because

the naked ownership or title is with him.

81. The repair is ordinary if 2 requisites are satisfied: (i) required by the wear and tear due to normal use of the

thing; and (ii) indispensable for preservation. If both requisites are not present, the repair is extraordinary.

82. If the repair is ordinary, it is obligation of the usufructuary and the expenses are for his account. He can be

compelled by the naked owner to undertake such repair.

83. While an extraordinary repair is for the account of the naked owner, he may not be compelled to undertake it,

even when the same is indispensable for preservation. If such repair is indispensable for preservation, the

usufructuary may make them. But to be entitled for a refund limited to the increase in value which the thing

may have acquired by reason of such repair, he must have previously notified the naked owner of the need of

such repair. The refund can be demanded only upon the termination of the usufruct and pending payment

thereof, the usufructuary is entitled to the right of retention.

84. Annual charges and taxes due on the fruits are for the account of the usufructuary. Taxes due on the capital are

for the account of the naked owner. But real estate taxes directly burden the capital, hence, for the account of

the naked owner.

85. If taxes due on the capital, which are for the account of the owner, are advanced by the usufructuary, the latter

is entitled to reimbursement upon the termination of the usufruct, with right to retain the property until he is

reimbursed.

EASEMENT

86. The encumbrance is always imposed upon an immovable property belonging to another. Hence, it is impossible

to have an easement over one’s property. Therefore, an acknowledgement of the easement is an admission that

the property belongs to another.

87. Whether the easement is real or personal, there is always a servient estate. But a dominant estate exists only is

real easement.

88. Only a continuous and at the same time apparent easement may be acquired by prescription within 10 years. All

other easements can be acquired only by title. An easement of right of way is always a discontinuous easement;

hence, the same may not be acquired by prescription. For legal purposes, an easement of aqueduct is

considered as continuous and apparent.

89. If the easement is both continuous and apparent, which can, therefore, be acquired thru prescription, the 10-

year commences to run –

a. On the day on which the owner of the dominant estate commences to exercise it upon the

servient estate, if the easement is positive; or

b. On the day on which the owner of the dominant estate forbade, by an instrument

acknowledged before a notary public, the owner of the servient estate from executing an act on

his property which would be lawful without easement, if the easement is negative.

90. Easement may be extinguished by reason of non-use for a period of 10 years. If the easement is discontinuous,

the easement is extinguished if the act is not executed within a period of 10 years. If the easement is

continuous, the 10-year period is counted on the day on which an act contrary to easement is exercised.

91. The opening of adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary

easements (Unisource Commercial Development Corp. v. Chung, 2009). But such extinguishment is not

automatic – the owner of the servient estate must demand for it by returning the indemnity (Art. 655, NCC).

92. The registration of the dominant estate under the Torrens system without annotation of the voluntary

easement in its favour does not extinguish the easement (Unisource Commercial Development Corp. v. Chung,

2009). But the registration of the servient estate as free, that is, without the annotation of the voluntary

easement, extinguishes the easement (Purruganan v. Paredes, 1976).

93. Requisites for compulsory right of way:

i. Dominant estate is isolated and has no adequate outlet to a public highway

ii. Isolation is not due to any act of the owner of dominant estate

iii. Payment of proper indemnity

iv. The right of way is at the point least prejudicial to the servient estate.

DONATION

94. Donation is a mode of acquiring and transmitting ownership, hence, it does not require delivery. Upon the

perfection of the donation, ownership is immediately transferred to the done even without delivery. As a

consequence, double donation is a legal impossibility. And since donation is a mode, it is necessary that the

donation must involve present properties only and not future properties.

95. Donation inter vivos takes effect during the lifetime of the donor while donation mortis cause takes only upon

death and by reason of death of the donor. Inter vivos donation is generally irrevocable while mortis causa

donation is essentially revocable at will. Hence, if the donor reserves upon himself the right to dispose of the

donated property and such right can be exercised absolutely, the donation is mortis causa.

96. When the donors expressly state that a Donation Mortis Causa is irrevocable, the fact that they also reserved

the “right, ownership, possession, and administration of the property” and made the donation is inter vivos. The

court has consistently held that such reservation (reddendum) in the context of an irrevocable donation simply

means that the donors parted with their naked title, maintaining only beneficial ownership of the donated

property while they lived (Del Rosariov. Ferrer, 630 SCRA 683, Sep. 20, 2010).

97. If the donation is pure (simple) or remuneratory, it is governed by the law on ordinary donations. If it is onerous,

it is governed by the law on contracts. Hence, the formalities required in Articles 748 and 749 apply only to pure

and remuneratory donations, while onerous donations are governed by Article 1356 as to formalities. The effect

of an impossible condition stated in Article 727 applies only to pure and remuneratory; while the effect of an

impossible condition stated in Article 1183 applies to an onerous donation.

98. The requirement of notification and notation in Article 749, if the acceptance is made in a separate public

instrument, is applied strictly in the absence of evidence showing that the donor was aware of the acceptance,

the absence of notification and notation is not fatal.

99. An action for reduction or revocation of an inofficious donation prescribes in 10 years, counted from the date of

death of the donor.

100. The donor does not, as a rule, warrant the things donated except: (i) when there is bad faith on the part; or (ii)

when the donation is onerous.

101. In donation propter nuptias, the Family Code allows donation of future properties between the future spouses

but the same is governed by the law on testamentary succession and the formalities of wills.