CIVIL LAW
2019 GOLDEN NOTES
FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
MANILA
The UST GOLDEN NOTES is the annual student-edited bar review
material of the University of Santo Tomas, Faculty of Civil Law.
Communications regarding the Notes should be addressed to the
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UST Bar Operations
Faculty of Civil Law
University of Santo Tomas
España, Manila 1008
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Academics Committee
Faculty of Civil Law
University of Santo Tomas
España, Manila 1008
All rights reserved by the Academics Committee of the Faculty of Civil Law of the
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2019 Edition.
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No. ____________
Printed in the Philippines July 2019.
ACADEMIC YEAR 2019-2020
CIVIL LAW STUDENT COUNCIL
LYODYCHIE Q. CAMARAO
MARIA FRANCES FAYE R. GUTIERREZ
KRYSTAL GAYLE R. DIGAY
PRESIDENT
INTERNAL VICE PRESIDENT
SECRETARY
TEAM: BAR-OPS
NICOLE MARIE A. CORTES
MARYLOU RENZI M. OLOTEO
CHRISTINE JOYCE P. ANDRES
KRIZA NIÑA B. MALALUAN
ELOUISA ANN DC. CARREON
CIARI T. MENDOZA
ELISHA ELAINE D. BAYOT
JOSEPHINE GRACE W. ANG
PATRICIA MAE D. GUILLERMO
RAFAEL JEROME M. MENDOZA
KHYNA MATHEA N. CANLAS
MARSHAN DEINN S. GUALBERTO
KIER JOHN V. UY
GLENN MATTHEW C. MANLAPID
VAN ANGELO K. RESPICIO
JAMES ROSS L. TAN
LOUELL JUDE B. QUE
MON FRANCIS A. TOLENTINO
CLARA LOUISSE J. YUMANG
JOCHRIS DANIEL Z. GUADES
JERREMIAH KRIZIAH B. BATALLER
CHAIRPERSON
VICE-CHAIRPERSON
SECRETARY
ASST. SECRETARY
HEAD, PUBLIC RELATIONS OFFICER
ASST. HEAD, PUBLIC RELATIONS OFFICER
HEAD, FINANCE COMMITTEE
HEAD, HOTEL ACCOMODATIONS COMMITTEE
ASST. HEAD, HOTEL ACCOMODATIONS COMMITTEE
ASST. HEAD, HOTEL ACCOMODATIONS COMMITTEE
ASST. HEAD, HOTEL ACCOMODATIONS, COMMITTEE
ASST. HEAD, HOTEL ACCOMODATIONS, COMMITTEE
LOGISTICS COMMITTEE
LOGISTICS COMMITTEE
LOGISTICS COMMITTEE
LOGISTICS COMMITTEE
LOGISTICS COMMITTEE
SENIOR MEMBER
SENIOR MEMBER
SENIOR MEMBER
SENIOR MEMBER
ATTY. AL CONRAD B. ESPALDON
ADVISER
ACADEMICS COMMITTEE
EDREA JEAN V. RAMIREZ
AYA DOMINIQUE S. CAPARAS
ARIANNA LAINE T. SARMIENTO
BELLE COLLEEN T. DE LEON
PAMELA NICOLE S. MANALO
RUTH MAE G. SANVICTORES
LAURISSE MARIE T. PERIANES
CIARI T. MENDOZA
SECRETARY GENERAL
ASST. SECRETARY GENERAL
EXECUTIVE COMMITTEE
EXECUTIVE COMMITTEE
EXECUTIVE COMMITTE
EXECUTIVE COMMITTEE
LAYOUT ARTIST
COVER DESIGN ARTIST
CIVIL LAW COMMITTEE
KATRINA VIANCA N. DECAPIA
CIVIL LAW COMMITTEE HEAD
LORENZ DALE S. TIBUS
KRYSTAL GALE DIGAY
JONATHAN SANTOS
ALYSSA ABIGAEL GOMEZ
SELYNA ROÑO
ASST. HEAD, CREDIT/PROPERTY
ASST. HEAD, OBLIGATIONS AND CONTRACTS
ASST. HEAD, SUCCESSION
ASST. HEAD, TORTS
ASST. HEAD, PERSONS AND FAMILY
MEMBERS
JOSHUA UROLAZA
PATRICIA ANN RECTO
DALE APAREJADO
DANICE GAN
KAMILLE IMSON
KEL MAGTIRA
CALOY DUNGAO
PATRICK RYUZAKI
BEATRICE FANGON
SHERLEEN ANNE DAMIAN
PAULINE BODO
CHERIE BUZON
ATTY. TERRENCE DOMINGO
ATTY. KENNETH JAMES CARLO HIZON
ATTY. KING JAMES CARLO HIZON
Advisers
FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS
ACADEMIC OFFICIALS
ATTY. NILO T. DIVINA
REV. FR. ISIDRO C. ABAÑO, O.P.
DEAN
REGENT
ATTY. ARTHUR B. CAPILI
FACULTY SECRETARY
ATTY. ELGIN MICHAEL C. PEREZ
LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC
JUDGE PHILIP A. AGUINALDO
SWDB COORDINATOR
LENY G. GADANIA, R.G.C.
GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS AND INSPIRATION
JUSTICE OSWALDO AGCAOILI
DEAN AUGUSTO K. ALIGADA
JUDGE PHILIP A. AGUINALDO
ATTY. RUBEN F. BALANE
ATTY. VINCENT Z. BOLIVAR
ATTY. ENRIQUE DELA V. CRUZ, JR.
ATTY. AMADO PAOLO C. DIMAYUGA
ATTY. RAFAELITO M. GARAYBLAS
ATTY. RENE B. GOROSPE
ATTY. IRVIN JOSEPH M. FABELLA
ATTY. ALDEN FRANCIS C. GONZALES
JUDGE GEORGINA D. HIDALGO
ATTY. JESUSA LAPUZ-GAUDIANO
ATTY. ANICIA C. MARQUEZ
DEAN MARIA LIZA A. LOPEZ-ROSARIO
ASSOC. DEAN VIVIANA M. PAGUIRIGAN
ATTY. BENIGNO G. PAR, JR.
ATTY. TEOFILO R. RAGADIO
JUDGE MYRA B. QUIAMBAO
ATTY. CARLA E. SANTAMARIA-SEÑA
ATTY. MAURICIO C. ULEP
ATTY. RIGOR PASCUAL
ATTY. KATLYN ANNE AGUILAR-BILGERA
For being our guideposts in understanding the intricate sphere of Civil Law.
-Academics Committee 2019
TABLE OF CONTENTS
*Based on 2019 Bar syllabus
PART I – GENERAL PRINCIPLES
I.
II.
Effect and Application of Laws (Civil Code) .......................................................................................................... 1
Conflict of Laws (Private International Law)............................................................................................... 10
Human Relations (Arts. 19-22, Civil Code).......................................................................................................... 26
PART II - PERSONS AND FAMILY RELATIONS
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
Persons and Personality (Civil Code) .................................................................................................................... 30
Marriage (Family Code)................................................................................................................................................ 33
Legal Separation (Family Code) ............................................................................................................................... 61
Rights and Obligations Between Husband and Wife (Family Code)........................................................ 69
Property Relations of the Spouses (Family Code) ........................................................................................... 69
The Family (Family Code) ........................................................................................................................................... 88
1. The family as an institution ........................................................................................................................... 88
2. The family home ................................................................................................................................................ 89
Paternity and Filiation (Family Code) ................................................................................................................... 92
Adoption ........................................................................................................................................................................... 102
A. Domestic Adoption Act of 1998 (R.A. No. 8552) .......................................................................................... 102
1. Who can adopt................................................................................................................................................. 102
2. Who can be adopted ...................................................................................................................................... 104
3. Instances when adoption may be rescinded ......................................................................................... 105
4. Effects of rescission ....................................................................................................................................... 105
B. Inter-Country Adoption Act of 1995 (R.A. No. 8043) ................................................................................. 106
1. When allowed .................................................................................................................................................. 106
2. Who can adopt................................................................................................................................................. 106
3. Who can be adopted ...................................................................................................................................... 107
C. Distinction between domestic adoption and inter-country adoption .................................................. 108
Support (Family Code) ............................................................................................................................................... 112
Parental Authority (Family Code) ........................................................................................................................ 116
Child Abuse Law (R.A. No. 7610), specifically Sec. 10 (c). .................................................................... 120
Emancipation (Arts. 234 and 236, Family Code, as amended by R.A. No. 6809 which lowered the
age of majority) ............................................................................................................................................................. 123
Retroactivity of the Family Code (Art. 256) ..................................................................................................... 123
Funerals (Arts. 305-310, Civil Code) ................................................................................................................... 124
Use of Surnames ............................................................................................................................................................ 125
Absence ............................................................................................................................................................................. 129
A. Art. 41, Family Code............................................................................................................................................... 133
B. Art. 381-389, Civil Code........................................................................................................................................ 133
C. Art. 390-392, Civil Code (Presumption of Death) ........................................................................................ 133
PART III - PROPERTY
I.
II.
III.
IV.
V.
VI.
VII.
Characteristics ............................................................................................................................................................... 134
Classification .................................................................................................................................................................. 134
Ownership ....................................................................................................................................................................... 143
Accession .......................................................................................................................................................................... 156
Quieting of Title or Interest in and Removal or Prevention of Cloud over Title or Interest in Real
Property ............................................................................................................................................................................ 178
Co-ownership ................................................................................................................................................................. 181
Possession........................................................................................................................................................................ 192
VIII.
IX.
X.
XI.
XII.
Usufruct ............................................................................................................................................................................. 211
Easements ......................................................................................................................................................................... 223
Nuisance ............................................................................................................................................................................ 240
Modes of Acquiring Ownership .............................................................................................................................. 243
Donations.......................................................................................................................................................................... 245
PRESCRIPTION
I.
II.
III.
IV.
Definition .......................................................................................................................................................................... 254
Acquisitive and Extinctive Prescription ................................................................................................. 257
Instances when prescription is not allowed .................................................................................................... 261
Prescription or limitation of actions ................................................................................................................... 262
PART IV - SUCCESSION
I.
II.
III.
IV.
General Provisions ....................................................................................................................................................... 264
Testamentary Succession/Wills ............................................................................................................................ 267
Legal or Intestate Succession .................................................................................................................................. 307
Provisions Common to Testate and Intestate Succession.......................................................................... 314
PART V - OBLIGATIONS AND CONTRACTS
I.
II.
III.
IV.
V.
Definition, Elements .................................................................................................................................................... 320
Sources of Obligation .................................................................................................................................................. 322
Nature and Effects of Obligations .......................................................................................................................... 326
Kinds of Obligations..................................................................................................................................................... 340
A. Pure and Conditional.............................................................................................................................................. 340
B. Obligations with a Period ..................................................................................................................................... 345
C. Alternative Obligations.......................................................................................................................................... 346
D. Joint and Solidary Obligations............................................................................................................................. 349
E. Divisible and Indivisible Obligations ................................................................................................................ 354
F. Obligations with a Penal Clause ......................................................................................................................... 355
Extinguishment of Obligations ............................................................................................................................... 357
A. Payment or Performance...................................................................................................................................... 357
B. Loss of the Thing Due............................................................................................................................................. 366
C. Condonation or remission of debt ..................................................................................................................... 368
D. Confusion or merger of rights of creditor and debtor ................................................................................ 369
E. Compensation........................................................................................................................................................... 370
F. Novation ..................................................................................................................................................................... 375
CONTRACTS
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
Essential Requisites ..................................................................................................................................................... 386
Objects, Cause and Form of Contracts ................................................................................................................. 394
Kinds of Contracts......................................................................................................................................................... 398
Reformation of Instruments .................................................................................................................................... 399
Interpretation of Contracts ...................................................................................................................................... 400
Rescissible Contracts................................................................................................................................................... 404
Voidable Contracts ....................................................................................................................................................... 408
Unenforceable Contracts ........................................................................................................................................... 411
Void and Inexistent Contracts ................................................................................................................................. 413
Natural Obligations....................................................................................................................................................................... 417
Estoppel.............................................................................................................................................................................................. 418
PART VI - TRUST
I.
II.
Definition ......................................................................................................................................................................... 421
Kinds of Trust................................................................................................................................................................. 422
A. Express Trust ........................................................................................................................................................... 422
B. Implied Trust ........................................................................................................................................................... 423
PART VII - SALES
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
Nature and Form of Contract .................................................................................................................................. 427
Capacity to Buy or Sell ................................................................................................................................................ 433
Obligations of the Vendor......................................................................................................................................... 438
Obligations of the Vendee ........................................................................................................................................ 439
Effects of the Contract when the Thing Sold has been lost ....................................................................... 451
Breach of Contract ....................................................................................................................................................... 452
A. Recto Law: sale of movables on installment (Articles 1484-1486, Civil Code) ................................. 452
B. Maceda Law: sale of immovable on installment (RA 6552) ..................................................................... 454
Extinguishment of Sale .............................................................................................................................................. 465
Assignment of Credits ................................................................................................................................................ 470
PART VIII - LEASE
I.
II.
III.
General Provisions ...................................................................................................................................................... 479
A. Lease of Things ........................................................................................................................................................ 479
B. Lease of Work and Services................................................................................................................................. 481
Lease of Rural and Urban Lands ............................................................................................................................ 483
Rights and Obligations of Lessor and Lessee .................................................................................................. 487
PART IX - PARTNERSHIP
I.
II.
III.
IV.
V.
VI.
Contract of Partnership ............................................................................................................................................. 496
Rights and Obligations of Partnership ............................................................................................................... 510
Rights and Obligations of Partners Among Themselves ............................................................................ 510
Obligations of Partnership/Partners to Third Persons ............................................................................. 515
Dissolution and Winding Up ................................................................................................................................... 518
Limited Partnership .................................................................................................................................................... 523
PART X - AGENCY
I.
II.
III.
IV.
V.
Definition ......................................................................................................................................................................... 528
Nature, Form and Kinds of Agency ....................................................................................................................... 528
Obligations of the Agent ............................................................................................................................................ 534
Obligations of the Principal ..................................................................................................................................... 540
Modes of Extinguishment ......................................................................................................................................... 542
PART XI - CREDIT TRANSACTIONS
I.
II.
III.
IV.
Loan .................................................................................................................................................................................... 546
Pledge, Mortgage and Antichresis, Chattel Mortgage (include Act 1508) ......................................... 552
Deposit............................................................................................................................................................................... 595
Guaranty and Suretyship .......................................................................................................................................... 603
PART XII - LAND TITLES AND DEEDS
I.
II.
III.
IV.
Torrens System (General Principles) .................................................................................................................. 609
Original Registration ................................................................................................................................................... 611
Subsequent Registration ........................................................................................................................................... 650
A. Voluntary Dealings ................................................................................................................................................. 650
B. Involuntary Dealings .............................................................................................................................................. 655
Non-registrable Properties ...................................................................................................................................... 658
PART XIII - TORTS AND DAMAGES
Book I - Torts/Quasi-Delicts
I.
II.
III.
IV.
V.
Definitions, Elements .................................................................................................................................................. 661
The Tortfeasor................................................................................................................................................................ 664
Legal Injury ...................................................................................................................................................................... 675
Classification of Torts ................................................................................................................................................. 675
A. Negligent Torts......................................................................................................................................................... 675
B. Intentional Torts...................................................................................................................................................... 675
C. Strict Liability ........................................................................................................................................................... 676
The Concepts and Doctrines of Res Ipsa Loquitur, Last Clear Chance, Proximate Cuase, Damnum
Absque Injuria, Presumption of Negligence, Vicarious Liability ............................................................. 681
Book II - Damages
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
General Provisions ....................................................................................................................................................... 684
Actual and Compensatory Damages ..................................................................................................................... 687
Moral Damages............................................................................................................................................................... 692
Nominal Damages ......................................................................................................................................................... 694
Temperate or Moderate Damages ........................................................................................................................ 695
Liquidated Damages .................................................................................................................................................... 696
Exemplary or Corrective Damages ....................................................................................................................... 697
Damages in Case of Death ......................................................................................................................................... 697
DISCLAIMER
THE RISK OF USE OF THIS BAR
REVIEW MATERIAL SHALL BE
BORNE BY THE USER
GENERAL PRINCIPLES
approval, or on any other date without its
previous publication.
GENERAL PRINCIPLES
Publication requirement
EFFECT AND APPLICATION OF LAWS
Publication is indispensable in every case, but the
legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or
extended (Umali v. Estanislao, G.R. No. 104037,
May 29, 1992; Tañada v. Tuvera, G.R. No. L-63915,
December 29, 1986).
Law
It is a rule of conduct formulated and made
obligatory by legitimate power of the state (Diaz,
2013).
Publication must be in full or it is no publication at
all since its purpose is to inform the public of the
contents of the law. The mere mention of the
number of the presidential decree, the title of such
decree, its whereabouts, the supposed date of
effectivity, and in a mere supplement of the
Official Gazette cannot satisfy the publication
requirement. This is not even substantial
compliance (Tañada v. Tuvera, G.R. No. L-63915,
December 29, 1986).
Effectivity of laws
Laws shall take effect after fifteen days following
the completion of their publication either in the
Official Gazette, or in a newspaper of general
circulation in the Philippines, unless it is
otherwise provided [New Civil Code (NCC), Art. 2,
as amended by EO 200)].
Effectivity: It depends on whether or not it has
provided a specific date for its effectivity:
Indispensability of publication
GR: All laws are required to be published in full.
1. If date is specified– Upon the lapse of the said
period following its complete publication and
not before.
2. If no date is specified– 15-day period, which
may either be on the 15th or on the 16th day
depending on the language used by the
Congress in fixing the effectivity date of the
statute (Rabuya, 2009).
NOTE: The reason for this rule is that the basic
constitutional requirement of due process must be
satisfied. (Rabuya, 2009). Without such notice and
publication, there would be no basis for the
application of the maxim ignoratia legis non
excusat (Rabuya, 2009).
XPNs to the Publication Requirement: O-R-L-I
a. 15th day - If the law declares that it shall
become effective “15 days after its
publication”
b. 16th day - If the law declares that it shall
be effective “after 15 days following its
publication”
1.
2.
3.
3. If the law provides for immediate effectivity
or upon approval – It is effective immediately
after its complete publication and not after
signing by the President.
4. If the law is voluminous– Reckoning shall
begin from the release of the last of the series.
4.
Municipal Ordinances (governed by the Local
Government Code);
Rules and regulations which are internal in
nature;
Letters of Instruction issued by administrative
supervisors on internal rules and guidelines;
Interpretative regulations regulating only the
personnel of administrative agency.
XPNs to the XPNs: D-E-P
Administrative rules and regulations that require
publication:
“Unless it is otherwise provided” provision on
effectivity of laws
1.
The clause "unless it is otherwise provided"
refers to the date of effectivity and not to the
requirement of publication itself. The requirement
of publication may not be omitted in any event.
This clause does not mean that the legislator may
make the law effective immediately upon
2.
3.
1
The purpose of which is to implement or
enforce existing laws pursuant to a valid
Delegation;
Penal in nature;
It diminishes Existing rights of certain
individuals.
CIVIL LAW
NOTE: Circulars issued by the monetary board are
required to be published if they are meant not to
merely “fill in details” of the Central Bank Act. As
a rule, circulars which prescribe a penalty for
violations should be published before coming into
effect.
However, circulars which are mere
statements of general policies as to how the law
should be construed do not need publication in
the Official Gazette for their publication.
prohibit any under pain of penalty. It does not
regulate the conduct of persons or the public, in
general. It need not be published (Honasan, II v.
The Panel of Investigating Prosecutors of the DOJ,
G.R. No. 159747, June 15, 2004).
Q: The Sangguniang Bayan of Hagonoy,
Bulacan enacted an ordinance which increased
the stall rentals of the market vendors in
Hagonoy. Art. 3 of the said ordinance provided
that it shall take effect upon approval. The
ordinance was posted from November 4 to 25,
1996. In the last week of November 1997,
petitioners were personally given copies and
were informed that it shall be enforced in
January 1998. The petitioners contended that
the subject ordinance was not published as
required by law. Did the ordinance comply
with the rule of publication?
Where to publish
1.
2.
Official Gazette; or
Newspaper of general circulation in the
Philippines
Newspaper of general circulation
For a newspaper to be considered of general
circulation:
1. It must be published within the court’s
jurisdiction;
2. It must be published at regular intervals
for disseminating local news and general
information;
3. It has a bona fide subscription list of
paying subscribers; and
4. It is not devoted to the interest or
published for the entertainment of a
particular class, profession, trade, calling,
race or religious denomination (Alvarez v.
People, G.R. No. 192591, June 29, 2011).
A: YES. An ordinance which increased the stall
rentals of the market vendors has complied with
the publication requirement when the same was
posted in 3 conspicuous places (Sec. 188, Local
Government Code; Hagonoy v. Municipality, G.R. No.
137621, February 6, 2002).
NOTE: Within ten (10) days after their approval,
certified true copies of all provincial, city, and
municipal tax ordinances or revenue measures
shall be published in full for three (3) consecutive
days in a newspaper of local circulation: Provided,
however, That in provinces, cities and
municipalities where there are no newspapers of
local circulation, the same may be posted in at
least two (2) conspicuous and publicly accessible
places (Sec. 188, Local Government Code).
Q: Honasan questions the authority and
jurisdiction of the DOJ panel of prosecutors to
conduct a preliminary investigation and to
eventually file charges against him, claiming
that since he is a senator with a salary grade of
31, it is the Office of the Ombudsman, not the
DOJ, which has authority and jurisdiction to
conduct the preliminary investigation. DOJ
claims that it has concurrent jurisdiction,
invoking an OMB-DOJ Joint Circular which
outlines the authority and responsibilities
among prosecutors of the DOJ and the Office of
the Ombudsman in the conduct of preliminary
investigations. Honasan counters that said
circular is ineffective as it was never
published. Is OMB-DOJ Circular No. 95-001
ineffective because it was not published?
Exceptions to the publication requirement
1.
2.
3.
A: NO. OMB-DOJ Circular No. 95-001 is merely an
internal circular between the two offices which
outlines the authority and responsibilities among
prosecutors of the DOJ and of the Office of the
Ombudsman in the conduct of preliminary
investigations. It does not contain any penal
provision nor prescribe a mandatory act or
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
An interpretative regulation;
A regulation that is merely internal in nature;
and
A letter of instruction issued by an
administrative agency concerning rules or
guidelines to be followed by subordinates in
the performance of their duties (Association of
Southern Tagalog Electric Cooperatives, Inc. v.
Energy Regulatory Board, G.R. No. 192117,
September 18, 2012).
Q: Judge Ferdinand Villanueva was appointed
as a presiding judge of MTC, Compostela-New
Bataan. The following year, Judge Villanueva
applied as Presiding Judge in several Regional
Trial Courts. The Judicial and Bar Council
(JBC) then informed him that he was not
included in the list. The JBC’s decision upheld
2
GENERAL PRINCIPLES
its long-standing policy of opening the chance
for promotion to second-level courts to those
judges who have served in their current
positions for at least five years. Judge
Villanueva then directly went to Court to assail
the said policy on the ground it is
unconstitutional; it violates the procedural
due process for lack of publication. Did the JBC
violate the procedural due process for not
publishing the questioned policy?
internet. Did the publication of the assailed
Rules of Procedure through the Senate’s
website satisfy the due process requirement of
law?
A: NO. R.A 8792 – Electronic Act of 2000
considers an electronic data message or an
electronic document as a functional equivalent of
a written document only for evidentiary purposes.
It does not make the internet a medium for
publishing laws, rules or regulations (Garcillano v.
The House of Representatives Committee on Public
Information, Public Order and Safety, National
Defense
and
Security,
Information
and
Communications Technology and Suffrage and
Electoral Reforms, G.R. No. 170338, December 23,
2008).
A: YES. The petition was dismissed but the SC
directed the JBC to comply with the publication
requirement of the assailed policy. According to
SC, it is but a natural consequence that potential
applicants be informed of the requirements to the
judicial positions so that they would be able to
prepare for and comply with them (Villanueva v.
Judicial and Bar Council, G.R. No. 211833, April 07,
2015).
IGNORANCE OF THE LAW
Presumption of knowledge of laws
Examples of administrative issuances which
were not given force and effect for lack of
publication
1.
2.
3.
4.
5.
GR: Everyone is conclusively presumed to know
the law. Hence, ignorance of the law excuses no
one from compliance therewith (NCC, Art. 3).
Rules and regulations issued by the Joint
Ministry of Health-Ministry of Labor and
Employment
Accreditation
Committee
regarding the accreditation of hospitals,
media clinics and laboratories.
Letter of Instruction No. 416 ordering the
suspension of payments due and payable by
distressed copper mining companies.
Memorandum Circulars issued by the POEA
regulating the recruitment of domestic
helpers to Hongkong.
Administrative Order No. SOSPEC 89-08-01
issued by Philippine International Trading
Corporation regulating applications for
importation from the People’s Republic of
China.
Corporate Compensation Circular No. 10
issued by the Department of Budget and
Management discontinuing the payment of
other allowances and fringe benefits to
government officials and employees (Ulep,
2006).
This conclusive presumption presupposes that the
law has been published. Without such notice and
publication, there would be no basis for the
application of the maxim ignoratia legis non
excusat (Rabuya, 2009).
XPNs:
a.
b.
c.
Q: “A” alleges violation of his right to due
process considering that he is summoned to
attend the Senate hearings without being
apprised not only of his rights therein through
the publication of the Senate Rules of
Procedure Governing Inquiries in Aid of
Legislation. Senate invoked the provisions of
R.A. No. 8792, otherwise known as the
Electronic Commerce Act of 2000, to support
their claim of valid publication through the
Mistake upon a doubtful or difficult question
of law may be the basis of good faith [NCC, Art.
526 (3)].
Payment by reason of a mistake in the
construction or application of a doubtful or
difficult question of law may come within the
scope of the preceding article (NCC, Art. 2155).
In order that fraud may make a contract
voidable, it should be serious and should not
have been employed by both contracting
parties. Incidental fraud only obliges the
person employing it to pay damages (NCC, Art.
1344).
NOTE: The possession of the antichretic credit as
possession in good faith since a difficult question
of law was involved – antichresis. In this case, the
parties were not very knowledgeable of the law
(Kasilag v. Rodriguez, G.R. No. 46623, December 7,
1939).
Laws covered
3
CIVIL LAW
The laws referred to under Art. 3 of the NCC are
those of the Philippine Laws and it applies to all
kinds of domestic laws, whether civil or penal,
substantive or remedial. However, the article is
limited to mandatory and prohibitory laws. It does
not include those which are merely permissive
(Rabuya, 2006).
Q: Eduardo was married to Ruby. He then met
Tina and proposed marriage, assuring her that
he was single. They got married and lived
together. Tina, upon learning that Eduardo
had been previously married, charged
Eduardo for bigamy for which he was
convicted. Eduardo testified that he declared
he was “single” because he believed in good
faith that his first wife was already dead,
having not heard from her for 20 years, and
that he did not know that he had to go to court
to seek for the nullification of his first
marriage before marrying Tina. Is Eduardo
liable for the crime of bigamy?
Non-applicability to foreign laws
Ignorance of a foreign law is a mistake of fact.
There is no presumption of knowledge of foreign
laws. It must be alleged and proved as a matter of
fact; otherwise, the doctrine of processual
presumption will apply.
A: YES. Eduardo is presumed to have acted with
malice or evil intent when he married
Tina. Mistake of fact or good faith of the accused is
a valid defense in a prosecution for a felony by
dolo; such defense negates malice or criminal
intent. However, ignorance of the law is not an
excuse because everyone is presumed to know the
law. Eduardo has the burden to prove that when
he married Tina, he has a well-grounded belief
that his first wife was already dead. He should
have adduced in evidence a decision of a
competent court declaring the presumptive death
of his first wife as required by Art. 349 of the RPC,
in relation to Art. 41 of the FC. Such judicial
declaration constitutes proof that Eduardo acted
in good faith, and would negate criminal intent on
his part when he married the private
complainant (Manuel v. People, G.R. No. 165842,
November 29, 2005).
Doctrine of Processual Presumption
In international law, the party who wants to have
a foreign law applied to a dispute or case has the
burden of proving the foreign law. The foreign law
is treated as a question of fact to be properly
pleaded and proved as the judge or labor arbiter
cannot take judicial notice of a foreign law. He is
presumed to know only domestic or forum law
(ATCI Overseas Corporation, et al. v. Echin, G.R. No.
178551, October 11, 2010; See case of Del Socorro v.
Brinkman G.R. No. 193707 December 10, 2014).
Mistake of fact v. Mistake of law
BASIS
Want of
knowledg
e pertains
to
Nature of
Mistake
Defense
MISTAKE OF
FACT
Want of
knowledge of
some fact or
facts
constituting or
relating to the
subject matter
on hand.
MISTAKE OF
LAW
Want of
knowledge or
acquaintance
with the laws of
the land insofar
as they apply to
the act, relation,
duty, or matter
under
consideration.
When some
facts which
really exist are
unknown or
some fact is
supposed to
exist which
really does not
exist.
Occurs when a
person having
full knowledge of
the facts come to
an erroneous
conclusion as to
its legal effects.
Good faith is an
excuse.
Not excusable,
even if in good
faith.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Q: Complainants who were connected with the
Daily Informer (a widely circulated newspaper
in Western Visayas) were charged before the
MTC by Judge Pamonag of the crime of libel.
Respondent judge conducted a preliminary
investigation and thereafter issued warrants
for the arrest of the complainants.
Complainants filed an administrative case
against the judge for gross ignorance of the
law. They contended that the judge neither has
authority
to
conduct
a
preliminary
investigation nor to issue warrants for their
arrest. The judge said that it was his first libel
case and that he issued the warrants in good
faith. Is the respondent guilty of gross
ignorance of the law?
A: YES. Judges are expected more than just
cursory acquaintance with statutes and
procedural rules. They must know the law and
apply them properly in good faith. The provisions
of Art. 360 of the RPC on the persons authorized
to conduct preliminary investigation in libel cases
4
GENERAL PRINCIPLES
is so elementary. Not to know it constitutes gross
ignorance of the law (Miaque v. Judge Pamonag,
A.M. No. MTJ-02-1412, March 28, 2003).
1.
2.
3.
4.
5.
Q: Cheong Boo, a native of China died intestate
in Zamboanga. He left a property worth
P100,000. The estate of the deceased was
claimed on one hand by Gee, who alleged that
he was a legitimate child by a marriage
contracted by Boo with Tan Dit in China in
1895. The estate was claimed, on the other
hand, by Mora Adong who alleged that she had
been lawfully married to Boo in 1896. Gee
introduced in evidence a document in Chinese
stating the marriage ceremony that took place
in Amoy, China. Is the document presented by
Gee sufficient enough to prove the Chinese
marriage of Cheong Boo and Tan Dit?
Tax laws;
Interpretative statutes;
Laws creating New substantive rights;
Curative statutes;
Remedial/procedural;
NOTE: Statutes regulating the procedure of
the courts will be construed as applicable to
actions pending and undetermined at the time
of their passage. Procedural laws are
retrospective in that sense and to that extent
(Mun. Gov’t of Coron v. Carino, G.R. No. 65894,
September 24, 1987).
6.
7.
8.
A: NO. The Supreme Court held that the document
is not sufficient to prove the Chinese marriage
between Cheong Boo and Tan Dit. Gee only
presented a document in Chinese stating the
alleged marriage ceremony but there is no
competent testimony as to what the laws of China
in the Province of Amoy concerning marriage
were in 1895. Therefore, there is lacking proof so
clear, strong and unequivocal as to produce a
moral conviction of the existence of the alleged
prior Chinese marriage.
Emergency laws;
When Expressly provided;
Penal laws favorable to the accused
provided, the accused is not a habitual
delinquent.
XPNs to the XPNs:
If the application of the retroactive law:
1. Impairs obligation of contracts;
2. Is in the nature of ex post facto law or a
bill of attainder,
3. Divests vested rights; or
4. Is constitutionally forbidden (Black’s Law
Dictionary, 2009).
NOTE: In case of doubt, laws apply prospectively.
Ignorance of a foreign law is not ignorance of the
law but of fact because such foreign law must be
first alleged and proved as a matter of fact, there
being no judicial notice of said foreign law. The
Chinese marriage was not adequately proved
(Estate of Boo v. Gee, G.R. No. 18081, March 3,
1922).
Non-retroactivity of laws vis-à-vis judicial
decisions
Judicial decisions have no retroactive effect. When
a doctrine of the Supreme Court is overruled and a
different view is adopted, the new doctrine should
be applied prospectively and should not apply to
parties who had relied on the old doctrine and
acted on the faith thereon (Rabuya, 2009).
RETROACTIVITY OF LAWS
Laws shall have no retroactive effect, unless the
contrary is provided (NCC, Art. 4).
Lex prospicit, non respicit
Retroactive law
The maxim means, “the law looks forward not
backward”. The retroactive application of a law
usually divests rights that have already become
vested or impairs the obligations of contract and
hence, is unconstitutional (Chavez v. PEA, G.R. No.
133250, May 6, 2003)
A legislative act that looks backward or
contemplates the past, affecting acts or facts that
existed before the act come into effect (Black’s
Law Dictionary, 2009).
Retroactive effect of laws
Retroactivity clause of the Family Code (2005,
2010 BAR)
GR: Laws shall have no retroactive effect (lex
prospicit, non respicit).
The Family Code shall have retroactive effect
insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code
or other laws (FC, Art. 256).
XPNs: (T-I-N-C-R-E-E-P)
5
CIVIL LAW
MANDATORY AND PROHIBITORY LAWS
Mandatory law
the intentional doing of an act inconsistent with
claiming it (Cruz & Co., Inc. v. HR Construction
Corp., G.R. No. 187521, March 14, 2012).
A law or a provision in a statute is said to be
mandatory when disobedience to it, or want of
exact compliance with it, will make the act done
under the statute absolutely void (Black’s Law
Dictionary, 2009).
NOTE: Waivers can be express or implied,
however, it cannot be presumed. It must be clearly
and convincingly shown, either by express
stipulation or acts admitting no other reasonable
explanation.
Prohibitory law
Right
A law or a provision in a statute is said to be
prohibitory when it forbids a certain action
(Black’s Law Dictionary, 2009).
It is a legally enforceable claim of one person
against another, that the other shall do a given act,
or shall not do a given act (Pineda, 2009).
Permissive law
Kinds of rights
A law or a provision in a statute is said to be
permissive or directory when it allows certain
acts but does not command them (Black’s Law
Dictionary, 2009).
1.
2.
Violation of Mandatory or Prohibitory Laws
GR: Acts executed against the provisions of
mandatory or prohibitory laws shall be void (NCC,
Art. 5).
3.
XPNs: When the law:
1.
2.
3.
4.
Itself authorizes its validity (e.g. lotto,
sweepstakes);
Makes the act valid but punishes the
violator (e.g. Marriage solemnized by a
person not authorized to do so);
Makes the act merely voidable;
Declares the nullity of an act but
recognizes its effects as legally existing
(e.g. Child born after the annulment of
marriage is considered legitimate).
a.
b.
c.
Rights of personality or human rights;
Family rights; and
Patrimonial rights:
i. Real rights;
ii. Personal rights (Rabuya, 2009).
Unwaivable rights
WAIVER OF RIGHTS
1. Right to live and right to future
support.
2. Right to personality and family rights.
3. Right to future inheritance.
Waiver
It is a voluntary and intentional relinquishment or
abandonment of a known existing legal right,
advantage, benefit, claim or privilege, which
except for such waiver the party would have
enjoyed.
NOTE: This is especially so if the waiver is
intended to prejudice creditors. Hence, if an
heir repudiates the inheritance to the
prejudice of his own creditors, the latter may
petition the court to authorize them to accept
it in the name of the heir (NCC, Art. 1052;
Albano, 2013).
The voluntary abandonment or surrender, by a
capable person, of a right known by him to exist,
with the intent that such right shall be
surrendered and such person forever deprived of
its benefit; or such conduct as warrants an
inference of the relinquishment of such right; or
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Natural Rights – Those which grow out
of the nature of man and depend upon
personality (e.g. right to life, liberty,
privacy, and good reputation);
Political Rights – Consist in the power to
participate, directly or indirectly, in the
establishment or administration of
government (e.g. right of suffrage, right to
hold public office, right of petition); and
Civil Rights– Those that pertain to a
person by virtue of his citizenship in a
state or community (e.g. property rights,
marriage, equal protection of laws,
freedom of contract, trial by jury) (Pineda,
2009).
NOTE: If a candidate for mayor agrees to split
his term of office with the vice-mayor to
6
GENERAL PRINCIPLES
prevent the latter from running against him,
the contract is void by reason of public policy
(Albano, 2013).
It is the abrogation of an existing law by a
legislative act (Black’s Law Dictionary, 2009).
Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be
excused by disuse, or custom or practice to the
contrary (Art. 7, 1st par.).
Waiver of rights
GR: Rights may be waived.
XPNs:
1. If waiver is:
a. Contrary to law, public order, public
policy, morals or good customs;
b. Prejudicial to a third person with a
right recognized by law. (e.g. If A owes
B P10M, B can‘t waive the loan if B
owes C and B has no other assets).
2. If the right is:
a. A natural right, such as right to life;
b. Inchoate, such as future inheritance.
Ways of repealing laws
A person may waive any matter which affects his
property, and any alienable right or privilege of
which he is the owner or which belongs to him or
to which he is legally entitled, whether secured by
contract, conferred with statute, or guaranteed by
constitution, provided such rights and privileges
rest in the individual, are intended for his sole
benefit, do not infringe on the rights of others, and
further provided the waiver of the right or
privilege is not forbidden by law, and does not
contravene public policy (Cruz & Co., Inc. v. HR
Construction Corp., G.R. No. 187521, March 14,
2012).
1.
2.
1.
2.
Express - If the law expressly provides for
such;
Implied - If the provisions of the
subsequent law are incompatible or
inconsistent with those of the previous
law, provided, it is impossible to reconcile
the two laws.
Requisites of an implied repeal
The laws cover the same subject matter; and
The latter is repugnant to the earlier (Rabuya,
2009).
NOTE: Implied repeals are NOT to be favored
because they rest only on the presumption that
because the old and the new laws are
incompatible with each other, there is an intention
to repeal the old (Rabuya, 2009).
Instances of implied repeal
1.
Requisites of a valid waiver
1.
2.
3.
4.
5.
Waiving party must actually have the
right he is renouncing;
He must have full capacity to make the
waiver;
Waiver must be clear and unequivocal;
Waiver must not be contrary to law,
public order, public morals, etc;
When formalities are required, they must
be complied with.
2.
Q: A student was granted a scholarship but
agreed not to transfer to another school unless
he would refund all the benefits he derived out
of his scholarship. Is the stipulation valid?
Why?
When the provisions in the two
acts on the same subject matter
are irreconcilably contradictory,
in which case, the later act, to the
extent of the conflict, constitutes
an implied repeal of earlier one;
and
When the later act covers the
whole subject of the earlier one
and is clearly intended as a
substitute; thus it will operate to
repeal the earlier law (Carmelita
Lledo v. Atty. Cesar V. Lledo, A.M.
No. P-95-1167, February 9, 2010).
Revival of repealed law
BASIS
A: NO. It is void because it is contrary to public
policy and morals (Cui v. Arellano University, G.R.
L-15127, May 30, 1961).
Manner of
Repeal
REPEAL OF LAWS
7
EXPRESS
REPEAL
If the 1st law is
expressly
repealed by
the 2nd law and
the 2nd law is
repealed by
the 3rd law.
IMPLIED
REPEAL
If the 1st law is
repealed by
implication
by the 2nd law
and the 2nd law
is repealed by
the 3rd law.
CIVIL LAW
Effect of
Repeal
The 1st law is
NOT revived
unless
expressly
provided so.
should be deemed settled and closed to further
argument.
The 1st law is
revived unless
otherwise
provided.
However, when in the light of changing conditions,
a rule has ceased to be beneficial to the society,
courts may depart from it.
Conflict between general and special laws
Obiter Dictum
If the general law was enacted prior to the special
law, the latter is considered the exception to the
general law. If the general law was enacted after
the special law, the special law remains.
An opinion expressed by a court upon some
question of law which is not necessary to the
decision of the case before it. Such are not binding
as precedent (Rabuya, 2009).
XPNs:
1.
2.
3.
DUTY TO RENDER JUDGMENT
There is an express declaration.
There is a clear, necessary and irreconcilable
conflict.
The subsequent general law covers the
whole subject and is clearly intended to
replace the special law on the matter
(Rabuya, 2009).
Rendering of judgment by reason of silence of
law
No judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency
of the laws (NCC, Art. 9). (2003 BAR)
However, in criminal prosecutions, the judge must
dismiss the case if a person is accused of a nonexistent crime following the maxin “nullum
crimen, nulla poena sine lege” (Rabuya, 2009).
Self-lapsing laws
Laws that provide for their limited application
(e.g. House Rental Law, Annual Appropriations
Act, Import Control Law).
NOTE: This duty, however, is not a license for
courts to engage in judicial legislation. The duty of
the courts is to apply or interpret the law, not to
make or amend it.
JUDICIAL DECISIONS
Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the
legal system of the Philippines (NCC, Art. 8). (1994
BAR)
Guidelines on rendition of decisions under Art.
9
1.
Judicial decisions are evidence of what the laws
mean.
The judicial decisions form part of the law of the
land as of the date of the enactment of said law.
The Supreme Court’s interpretation merely
establishes the contemporaneous legislative
intent that the construed law purports to carry
into effect. However, the decisions referred to in
Art. 8 of the NCC are only those enunciated by the
SC (Rabuya, 2009).
2.
3.
4.
5.
PRESUMPTION AND APPLICABILITY OF
CUSTOM
When a doctrine is overruled and a different view
is adopted, the new doctrine should be applied
prospectively and should not prejudice parties
who relied on the old doctrine.
Presumption in case
interpretation of laws
of
doubt
in
the
In case of doubt in the interpretation or
application of laws, it is presumed that the
lawmaking body intended right and justice to
prevail (NCC, Art. 10). (2003 BAR)
Doctrine of Stare Decisis
It is adherence to judicial precedents. Once a
question of law has been examined and decided, it
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
When there is no law exactly applicable to
the point in controversy, the custom of
the place shall be applied and in default
thereof, the general principles of law;
Decisions of foreign courts;
Opinions of known authors and
professors;
Applicable rules of statutory construction;
Principles formulated in analogous cases.
8
GENERAL PRINCIPLES
In case of silence, obscurity or insufficiency of
the law with respect to a particular
controversy
Computation of period
1.
If the law is silent, or is obscure or insufficient
with respect to a particular controversy, the judge
shall apply the custom of the place, and in default
thereof, the general principles of law and justice.
NOTE: In the said case, the Supreme Court
declared that the provision of Section 31,
Chapter VII, Book I of the Administrative Code
of 1987, being a more recent law, governs
the computation of legal periods with respect
to counting “a year.”
Customs
Customs are rules of conduct, legally binding and
obligatory, formed by repetition of acts uniformly
observed as a social rule.
A Calendar Month is “a month designated in
the calendar without regard to the number of
days it may contain.” It is the “period of time
running from the beginning of a certain
numbered day of the next month, and if there
is not sufficient number of days in the next
month, then up to and including the last day of
that month.”
Necessity of proving customs
GR: A custom must be proved as a fact, according
to the rules of evidence (NCC,Art. 12).
XPN: Courts may take judicial notice of a custom if
there is already a decision rendered by the same
court recognizing the custom.
Illustration: One calendar month from
December 31, 2007 will be from January 1,
2008 to January 31, 2008; one calendar
month from January 31, 2008 will be from
February 1, 2008 until February 29, 2008.
Hence, twelve calendar months from
December 31, 2007 is December 31, 2008;
while twelve calendar months from January
31, 2008 to January 31, 2009 (Rabuya, 2009).
Requisites before such custom could be
considered a source of right
1.
2.
3.
4.
5.
6.
Year – 12 calendar months (CIR v.
Primetown Property Group, Inc., G.R. No.
162155, August 28, 2007).
Plurality of acts;
Uniformity of acts;
General practice by the great mass of the
people of the country or community;
Continued practice for a long period of
time;
General conviction that the practice is the
proper rule of conduct;
Conformity with law, morals or public
policy (Tolentino, 1987).
2.
3.
4.
5.
Application of customs in civil cases
In civil cases, customs may be applied by the
courts in cases where the applicable law is:
a. Silent
b. Obscure
c. Insufficient
6.
Month – 30 days, unless designated by
their name, in which case, they shall be
computed according to the number of
days which they respectively have;
Day– 24 hours;
Night time – from sunset to sunrise;
Week – 7 successive days regardless of
which day it would start;
Calendar week – Sunday to Saturday.
NOTE: In the computation of period, the
first day shall be excluded, and the last
day included.
NOTE: Provided said customs are not contrary to
law, public morals, etc.
If the last day falls on a Sunday or a legal
holiday
Non-applicability of customs in criminal cases
If the act to be performed within the period is:
In criminal cases, customs cannot be applied
because of the maxim nullum crimen nulla poena
sine lege (There is neither crime nor punishment,
without a law).
1. Prescribed or allowed by:
a. The Rules of Court;
b. An order of the court; or
c. Any other applicable statute.
LEGAL PERIODS
The last day will automatically be the next
working day.
9
CIVIL LAW
2.
From a contractual relationship – The
act will still become due despite the fact
that the last day falls on a Sunday or a
legal holiday.
Private International Law v. Public
International law
Two views:
CONFLICT OF LAWS
1.
Monist school - Both subjects are
essentially the same, because they
manifest a single concept of law,
ultimately addressed to the same
individual
2.
Dualist School - This school of thought
differentiates private and public
international law in the following
manner:
GENERAL PRINCIPLES
Private international law
It is a part of municipal law of a state which
directs its courts and administrative agencies
when confronted with a legal problem involving
foreign element, whether or not they should apply
the foreign law.
Private international Public International
law
law
As to nature
Municipal in character
International
in
character
As to persons involved
Private individuals
Sovereign states and
other
entities
possessed
of
international
personality
As to transactions involved
Private
transactions Transactions generally
with private individuals affect public interest; or
of interest only to
sovereign states
As to remedies and sanctions
Resort to municipal Remedies
may
be
tribunals
peaceful or forcible
Conflict of laws
It is the inconsistency or difference between the
laws of different states or countries, arising in the
case of persons who have acquired rights,
incurred obligations, injuries or damages, or made
contracts, within the territory of two or more
jurisdictions. (Black’s Law Dictionary, Fifth
Edition)
Functions of private international law
Functions of private international law
1.
2.
3.
Prescribes conditions under which a
court or agency is competent to entertain
proceedings with foreign elements’
Specifies the circumstances in which
foreign judgment will be recognized as
valid and binding in the forum;
Determines the particular system of law
for each class of cases to ascertain the
rights of the parties (Paras, 1990)
Sources of Philippine conflict rules
1. Family code
Articles 10, 21, 26, 35, 36, 37, 38, 80, 96, 184,
and 187
2. Civil code
Articles 14, 15, 16, 17, 815, 816, 818, 819,
829, 1039, 1319, and 1753
3. Penal code
Article 2
4. Corporation code
Section 133 – Doing business without a
license
5. Constitution
Article IV and Article 5, Section 1
6. Rules of court
Rule 14 and 39, Section 48, Rule 131, Section
3 (n), 132, Section 35.
Elements of Conflict of laws
1.
Legal problem or case involving foreign
element;
Foreign element – a factual situation cutting
across territorial lines, affected by diverse
laws of two or more states.
2.
Primary function is to determine whether
the law or judgments of other state/s will
govern and if so the extent if its
recognition or application in the forum
(Coquia, 2000).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Territoriality Principle
10
GENERAL PRINCIPLES
Penal laws and those of public security and safety
shall be obligatory upon all who live or sojourn in
the Philippines, subject to the principles of
international law and treaty stipulations (NCC,
Article 14).
It refers to the refusal to assume jurisdiction
because it would prove inconvenient for the
forum.
Grounds for dismissal of the case on the basis
of forum non conveniens
Nationality principle
1.
Laws relating to family rights and duties or to the
status, condition, and legal capacity of persons are
binding upon citizens of the Philippines, even
though living abroad (NCC, Article 15).
2.
3.
Lex rei sitae
4.
5.
Real property as well as personal property is
subject to the law of the country where it is
situated (NCC, Article 16).
Lex Loci Celebrationis
6.
The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the
laws of the country in which they are executed
(NCC, Article 17).
7.
When can internal or domestic law be applied
JURISDICTION
1.
JURISDICTION AND CHOICE OF LAW
2.
JURISDICTION
3.
GR: It is the right of a State to exercise authority
over persons and things within its boundaries.
1.
If the court is faced with a case involving a foreign
element, it should first determine:
3.
4.
Law of the forum expressly so provides in
its conflicts rule;
Proper foreign law has not been properly
pleaded and proved;
Case involves any of the exceptions to the
application of the foreign law.
Instances:
Rules to follow when the court is confronted
with a case involving a foreign element
1.
2.
Evidence and witnesses may not be
readily available in the forum;
Court dockets of the forum are already
clogged that would hamper the speedy
administration of justice;
The matter can be better tried and
decided in another forum;
To curb the evils of forum shopping;
The forum has no particular interest in
the case, as when the parties are not
citizens of the forum or are residents
elsewhere;
Inadequacy of the local judicial machinery
in effectuating the right sought to be
enforced;
Difficulty in ascertaining the foreign law
applicable.
Whether it has jurisdiction over the case
If it has no jurisdiction, it should be
dismissed on that ground;
If it has jurisdiction, the court will
determine whether it should assume
jurisdiction, or it should dismiss the case
on the ground of forum non-convenience;
Once the court has determined it has
jurisdiction over the case, it will next
determine whether to apply the internal
law of the forum or apply the proper
foreign law.
2.
Forum Non Conveniens
When the foreign law, judgment or
contract is:
a. Contrary to sound and established
policy of the forum
b. Contrary to almost universally
conceded principles of morality
(contra bonus mores)
c. Involves procedural matters
d. Purely fiscal or administrative
matters
e. Involves real or personal property
situated in the forum
When the application of the foreign law,
judgment or contract:
a. May work undeniable justice to the
citizens/residents of the forum
b. May work against vital interests &
national security of the state of the
forum
Doctrine of Processual Presumption of law
11
CIVIL LAW
When the proper foreign law has not been
properly proved, the court of the forum may
presume that said foreign law is the same as the
law of the forum that said court can now apply. It
applies when the foreign law is not alleged or if
alleged, it is not proved.
Comity - It is the recognition which one state
allows within its territory to the legislative,
executive, or judicial acts of another state,
having due regard both to international duty
and convenience and to the rights of its own
citizens or of other persons who are under the
protection of its laws (Agpalo. 2004).
Where a foreign law is not pleaded or, even if
pleaded, is not proved, the court of the forum may
presume that the foreign law applicable to the
case is the same as the local or domestic law.
Kinds:
a. Comity based on reciprocity
b. Comity based on the persuasiveness of
the foreign judgment
Foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to
take judicial notice of them. Like any other fact,
they must be alleged and proved.
2. Theory of Vested Rights - Courts enforce not
the foreign law or foreign judgment but the
rights vested under such law or judgment.
Thus, rights acquired in one country must be
recognized and legally protected in other
countries. The forum will not apply the
foreign law but will simply recognize the right
vested by said law.
A Philippine court may take judicial notice of a
foreign law, as when the laws are already within
its actual knowledge, such as when they are well
and generally known or they have been actually
ruled upon in other cases before it and none of the
parties concerned claim otherwise (PCIB v. Escolin,
G.R Nos. L-27860 & 27896, September 30, 1975)
3. Theory of Local Law - This involves the
appropriation of a foreign rule by the State of
the forum and transforming it into a domestic
rule. A foreign law is applied because our own
law, by applying a similar rule, requires us to
do so, as if the foreign law as become part of
our internal or domestic law.
CHOICE OF LAW
CHOICE OF LAW
Questions that Choice-of-applicable law seeks
to answer
Important questions that
problems seeks to answer
4. Theory of Harmony of Law - Identical or
similar problems should be given identical
and similar solutions, thus resulting in
harmony of laws. The application of the same
or similar solution prevents the bad practice
of forum shopping.
choice-of-law
1.
What legal system should control a given
situation where some of the significant
facts occurred in two or more states; and
2. To what extent should the chosen
system regulate the situation. (Saudi
Arabian Airlines v. CA, G.R. No. 122191,
October 8, 1998)
5. Theory of Justice - Choice of law should be
determined by considerations of justice and
social expediency and should not be the result
of mechanical application of the rule or
principle of selection.
NOTE: Foreign law has no extraterritorial effect
and any exception to this right must be traced to
the consent of the nation.
CHARACTERIZATION
Theories on why the foreign law may be given
effect
These are a provision found in our own law which
governs a factual situation possessed of a foreign
element. It is usually expressed in the form of an
abstract proposition that a given legal question is
governed by the law of a particular country
(which may be an internal law or the proper
foreign law), to be ascertained in the manner
indicated in the provision (Sempio-diy, 2004).
CONFLICT RULES
1. Theory of Comity - The application of foreign
legal systems in cases involving foreign
element is proper, otherwise, the nonapplication would constitute a disregard of
foreign sovereignty or lack of comity towards
other States.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Kinds of conflict rules
12
GENERAL PRINCIPLES
1.
One-sided rule – indicates when the
Philippine law will apply,
useful because it is undoubtedly always connected
to the contract in a significant way.
e.g., Article 15 and Art. 818 of the Civil Code
only apply to Filipinos
In this case, the laws of Iraq bear substantial
connection to the transaction, since one of the
parties is the Iraqi Government and the place of
performance is in Iraq. Hence, the issue of
whether respondent VPECI defaulted in its
obligations may be determined by the laws of Iraq.
However, since that foreign law was not properly
pleaded or proved, the presumption of identity or
similarity, otherwise known as the processual
presumption, comes into play. Where foreign law
is not pleaded or, even if pleaded, is not proved,
the presumption is that foreign law is the same as
ours (Philippine Export and Foreign Loan
Guarantee Corporation v. V.P. Eusebio Construction,
Inc. Et Al, G.R. No. 140047, July 13, 2004).
2.
All-sided rule – indicates whether to
apply the local law or the proper foreign
law.
Characterization (Doctrine of Qualification or
Classification)
It is the process of deciding whether or not the
facts relate to the kind of question specified in a
conflits rule (Saudi Arabian Airlines v. CA, G.R. No.
122191, October 8, 1998).
Steps in characterization
1.
2.
3.
4.
5.
6.
7.
Q: A, a foreign corporation, won a collection
case in Japan against B, a domestic corporation
doing business in Japan. A filed a suit for
enforcement of the judgment in the RTC of
Manila. B assails the judgment on the ground
that the Japanese court did not validly acquire
jurisdiction over B’s person since B was served
with summons in the Philippines and not in
Japan. Is B correct?
The determination of facts involved;
The characterization of factual situation;
The determination of conflicts rule which
is to be applied
The characterization of the point of
contact where the connecting factor;
The characterization of the problem as
procedural or substantive;
The pleading and proving of the proper
foreign law and
The application of the proper foreign law
to the problem (Paras, 1990).
A: NO. It is settled that matters of remedy and
procedure such as those relating to the service of
process upon a defendant are governed by the lex
fori or the internal law of the forum. In this case, it
is the procedural law of Japan where the judgment
was rendered that determines the validity of the
extraterritorial service of process on B. As to what
this law is a question of fact, not of law. It may not
be taken judicial notice of and must be pleaded
and proved like any other fact. B did not present
evidence as to what that Japanese procedural law
is and to show that under it, the assailed
extraterritorial service is invalid. Accordingly, the
presumption of validity and regularity of the
service of summons and the decision thereafter
rendered by the Japanese court must stand.
(Northwest Orient Airlines, Inc. v. Court of Appeals
and C.F. Sharp & Company Inc., G.R. No. 112573,
February 9, 1995)
Q: A (Iraqi government) granted B (Domestic
corp.) a service contract for the construction of
build-ing in Iraq. The bond was guaranteed by
C (Domestic corp.). When it was ascertained
that B will not be able to finish the project in
the scheduled agreement, C paid the bond for
failure of B to complete such building. When C
was claiming reimbursement, B refused to pay.
Thus a case was filed. Should Philippines law
govern in determining B's default?
A: YES. It must be noted that the service contract
between SOB and VPECI contains no express
choice of the law that would govern it. In the
United States and Europe, the two rules that now
seem to have emerged as "kings of the hill" are (1)
the parties may choose the governing law; and (2)
in the absence of such a choice, the applicable law
is that of the State that "has the most significant
relationship to the transaction and the parties."
Another authority proposed that all matters
relating to the time, place, and manner of
performance and valid excuses for nonperformance are determined by the law of the
place of performance or lex loci solutionis, which is
DOMICILE AND CITIZENSHIP
CITIZENSHIP
Personal law
The law which attaches to a person wherever he
may go and generally governs his status, capacity,
13
CIVIL LAW
condition, family relations, and the consequences
of his actuations (Sempio-Diy, 2004).
arrival, Asher Cheng filed a bond of P1,000 to
undertake that Lau would depart the
Philippines on or before the expiration of her
authorized period of stay or within the period
as in the discretion of the Commission of
Immigration might properly allow. After
repeated extensions, Lau was allowed to stay
in the country until February 13, 1962. On
January 25, 1962, she contracted a marriage
with Moy Ya Lim Yao, a Filipino citizen. Does
Lau, as an alien woman, may be deemed a
citizen of the Philippines by virtue of her
marriage to a Filipino citizen?
Theories of personal law
1.
The Nationality Theory or Personal
Theory – the status and capacity of a
person is determined by the law of his
nationality or national law (Sempio-Diy,
2004).
NOTE: The Philippines follows the Nationality
Theory.
2.
Domiciliary Theory or Territorial Theory
– the status and capacity of a person is
determined by the law of his domicile
(Ibid.).
3.
Situs or eclectic theory – the particular
place or situs of an event or transaction is
generally the controlling law (Ibid.).
A: YES. An alien woman may be deemed a citizen
of the Philippines by virtue of her marriage to a
Filipino citizen only if she possesses all the
qualifications and none of the disqualifications
specified in the law, because these are the explicit
requisites provided by law for an alien to be
naturalized. Section 15 of the Revised
Naturalization Law (Commonwealth Act No. 473)
provides that “Any woman who is now or may
hereafter be married to a citizen of the
Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the
Philippines.” Section 15 was obviously to accord
to an alien woman, by reason of her marriage to a
Filipino, a privilege not similarly granted to other
aliens (Moy Ya Lim Yao “Alias” Edilberto Aguinaldo
Lim And Lau Yuen Yeung v. Commissioner of
Immigration, G.R. No. L-21289 October 4, 1971).
Problems in applying the nationality principle
in dual or multiple citizenship
It arises from the concurrent application of jus soli
and jus sanguinis at birth or from a refusal of
certain States to accept a full application of the
doctrine of expatriation, from marriage, or from a
formal and voluntary act.
1.
2.
In matters of status, a person is usually
considered by the forum as exclusively its
own national. His additional foreign
nationality is disregarded.
In case litigation arises in a third country,
the law most consistently applied is that
of the country of which the person is not
only a national but where he also has his
domicile or habitual residence, or in the
absence thereof, his residence.
Q: Ernesto S. Mercado and Eduardo Manzano
were candidates for vice mayor of the City of
Makati. Manzano won the elections, however
his proclamation was suspended because a
certain Ernesto Mamaril filed a petition for the
disqualification and alleged that Manzano was
not a citizen of the Philippines but of the US.
COMELEC 2nd Division granted the petition
and cancelled the certificate of candidacy on
the grounds that dual citizens are disqualified
from running any elective position under
Sec.40 of the LGC. But, COMELEC en banc
reversed the said decision. It found that
Manzano acquired US citizenship by operation
of the US Constitution. He was also a natural
born Filipino Citizen by operation of 1935
Constitution, as his father and mother were
Filipinos at the time of his birth. At the age of 6
his parents brought him in the country and
registered his as an alien, but this however did
not result in the loss of Phil. Citizenship, as he
did not renounce Phil. Citizenship and did not
take oath of allegiance to the US. A the age of
Majority, Manzano registered himself as a
voter and voted in the elections of 1992, 1995
Theory of effective nationality
A third state shall recognize exclusively in its
territory either the nationality of the country of
which one is habitually and principally a resident,
or the nationality of the country with which in the
circumstances one appears to be in act most
closely connected (Hague Convention on Conflict
Nationality Lawes, Art. 5).
Q: On February 8, 1961, Lau Yuen Yeung
applied for a passport visa to enter the
Philippines as a non-immigrant. She stated
that she desired to take a pleasure trip to visit
her great grand uncle. On the date of her
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
14
GENERAL PRINCIPLES
and 1998, which effectively renounce the US
Citizenship under American Law. Is Dual
citizenship a ground for disqualification?
natural-born Filipino upon his reacquisition of
Philippine citizenship?
A: YES. Cruz can still be considered a natural-born
Filipino upon his reacquisition of Philippine
citizenship.
He may have lost his Filipino
citizenship when he rendered service in the
Armed Forces of the United States. However, he
subsequently reacquired Philippine citizenship
under R.A. No. 2630, Section 1, which
provides: ”Any person who had lost his Philippine
citizenship by rendering service to, or accepting
commission in, the Armed Forces of the United
States, or after separation from the Armed Forces
of the United States, acquired United States
citizenship, may reacquire Philippine citizenship
by taking an oath of allegiance to the Republic of
the Philippines and registering the same with
Local Civil Registry in the place where he resides
or last resided in the Philippines. The said oath of
allegiance shall contain a renunciation of any
other citizenship”. Cruz upon taking the required
oath of allegiance to the Republic and having
registered the same in the Civil Registry of
Mangatarem, Pangasinan in accordance with the
aforecited provision, is deemed to have recovered
his original status as a natural-born citizen, a
status which he acquired at birth as the son of a
Filipino father. It bears stressing that the act of
repatriation allows him to recover, or return to,
his original status before he lost his Philippine
citizenship (Bengson v. HRET and Cruz, G.R. No.
142840. May 7, 2001).
A: NO. Dual citizenship is different from dual
allegiance. The phrase “dual citizenship” in RA
7160 must be understood as referring to “dual
allegiance”, and persons with dual citizenship do
not fall under this disqualification. Dual
Citizenship is involuntary, it arises out of
circumstances like birth or marriage, while dual
allegiance is a result of a person’s volition. It is a
situation wherein a person simultaneously owes,
by some positive act, loyalty to 2 or more states.
Also, Manzano upon filing his certificate for
candidacy have elected Phil, Citizenship thus
terminating his dual citizenship. He made these
statements: “I am a Filipino citizen…. Natural
born. I am not a permanent resident of, or
immigrant to, a foreign country. I am eligible for
the office I seek to be elected…I will support the
Constitution of the Philippines and will maintain
true faith and allegiance thereto…”, thus the filing
sufficed to renounce his American citizenship
(Mercado v. Manzano & COMELEC, G.R. No. 135083
May 26, 1999).
Q: Teodoro Cruz was born in San Clemente,
Tarlac, of Filipino parents making him a
natural-born citizen of the Philippines.
However, respondent Cruz was enlisted in the
United States Marine Corps and, without the
consent of the Republic of the Philippines, took
an oath of allegiance to the United States. As a
consequence, he lost his Filipino Citizenship by
his naturalization as a U.S. citizen in
connection with his service in the U.S. Marine
Corps. Thereafter, respondent Cruz reacquired
his Philippine citizenship through repatriation
under Republic Act No. 2630. He ran for and
was elected as the Representative of the
Second District of Pangasinan in the 1998
elections. He won over Antonio Bengson III,
who was then running for reelection.
Subsequently, Bengson filed a case with House
of Representatives Electoral Tribunal (HRET)
claiming that respondent Cruz was not
qualified to become a member of the House of
Representatives since he is not a natural-born
citizen as required under Article VI, Section 6
of the Constitution. The HRET dismissed the
petition for quo warranto and declared
respondent Cruz was duly elected as a
Representative. The HRET also denied
Bengson’s motion for reconsideration. Is Cruz,
a natural-born Filipino who became an
American citizen, can still be considered a
Q: What are the effects of marriages of: 1) a
citizen to an alien; and 2) an alien to a citizen
on their spouses and children?
A: The following are the effects:
1. Filipino citizens who marry aliens retain their
citizenship, unless by their act or omission, they
are deemed, under the law, to have renounced it.
(1987 Constitution, Art. IV, Sec. 4)
2. Sec. 15 of the Revised Naturalization Law
provides that a foreign woman who marries a
Filipino citizen becomes a Filipino citizen
provided she possesses all the qualifications and
none of the disqualifications for naturalization.
Sec. 15 was obviously to accord to an alien
woman, by reason of her marriage to a Filipino, a
privilege not similarly granted to other aliens. On
the other hand, a foreign man who marries a
Filipino citizen does not acquire Philippine
citizenship. But under Sec. 3 of the same law, in
such a case, the residence requirement for
naturalization will be reduced from 10 to 5 years.
15
CIVIL LAW
Under Sec. 1(2), Art. IV of the Constitution, the
children of an alien and a Filipino citizen are
citizens of the Philippines. (Moy Ya Lim Yao “Alias”
Edilberto Aguinaldo Lim and Lau Yuen Yeung v.
Commissioner of Immigration, G.R. No. L-21289,
October 4, 1971)
one’s home – hat is, there should be
“animus manendi” (intent to remain) or :
“animus non-revertendi” (intent not to
return to the original abode).
Legal classifications of domicile
DOMICILE
1.
It is the place with which a person has a settled
connection for certain legal purposes, either
because his home is there or because that is the
place assigned to him by law.
2.
Domiciliary
Domicilii
or
Territorial
Theory/Lex
Domicile of origin – the domicile of a
person’s parents at the time of birth.
Constructive domicile – domicile
established by law after birth in case of
persons under legal disability, regardless
of their intention or voluntary act.
Rules in determining the domicile of a person
A minor follows the domicile of his parents
(Imelda Romualdez-Marcos v. Comelec, G.R. No.
119976, September 18, 1995).
The individual’s private rights, condition, status,
and capacity are determined by the law of his
domicile.
It is adopted mostly by common law countries
with population consisting
of
different
nationalities. Their unity may be achieved by
adopting the law of their domicile.
If the child is
legitimate
Basic Fundamental principles of domicile
1.
2.
3.
4.
5.
6.
No person shall be without a domicile.
A person cannot have two simultaneous
domiciles.
Every natural person, as long as he is
free and sui juris, may change his
domicile at his pleasure.
A domicile once acquired is retained
unless a new one is gained.
The presumption is in favor of
continuance of domicile, the burden of
proof is on the one who alleges that
change of domicile has taken place.
To acquire a fresh domicile, residence
and intention must concur; to retain an
existing domicile, either residence there
or intention to remain must be present;
to abandon a domicile, residence in a
new place and intention to abandon the
old place must concur (Gallego v. Verra,
G.R. No. L-48641, November 24, 1941).
3.
4.
If the child is
illegitimate
His domicile of origin is
that of the mother at the
time of his birth.
If the child is
legitimated
The domicile of his
father at the time of his
birth controls.
MINORS
1. If legitimate, the domicile of both
parents.
In case of disagreement, that of the
father, unless there is a judicial order to
the contrary.
Capacity;
Actual physical presence in the place
chosen
Freedom of choice
Provable intent that it should be one’s
fixed and permanent place of abode –
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
If parents are separated,
the domicile of the
custodial parent.
RULES DETERMINING
ONE’S CONSTRUCTIVE DOMICILE
Essential requisites needed in order to acquire
a domicile of choice
1.
2.
His domicile of origin is
that of his parents at the
time of his birth.
2.
If illegitimate, the domicile of the
mother.
3.
In case of absence or death of either
parent, the domicile of the present
parent.
Even in case of remarriage of the
surviving parent, still his/her domicile
determines the constructive domicile of
16
GENERAL PRINCIPLES
the minor child.
4.
prior
to
incarceration.
If the child is adopted, the domicile of
choice of the adopter is the child’s
constructive domicile.
Soldiers
INSANES, IDIOTS, IMBECILES
The law assigns their domicile to them:
1.
If they are below the age of majority, the
rules on minors apply to them.
2.
If they are of age and have guardians, they
follow the domicile of choice of their
guardians.
3.
If they are of age and have no guardians,
their constructive domicile is their
domicile of choice before they became
insane.
Public officials or
employees abroad
(diplomats, etc.)
If the marriage is
voidable
If the marriage is void
Their domicile is their
domicile before their
enlistment.
Their domicile is the
one they had before
they were assigned
elsewhere, unless they
voluntarily adopt their
place of employment as
their
permanent
residence.
Q: Does leasing a condominium unit shows an
intention to establish not just a residence but a
domicile of choice?
A: NO. While a lease contract may be indicative of
the petitioner’s intention to reside in a place, it
does not engender the kind of permanency
required to prove abandonment of one’s original
domicile.
MARRIED WOMEN
1. The
constructive
domicile of the wife
is the domicile of
both spouses, unless
the law allows the
wife to have a
separate domicile for
valid and compelling
reasons.
If the marriage is valid
his
To successfully effect a change of domicile,
petitioner must prove an actual removal or an
actual change of domicile; a bona fide intention of
abandoning the former place of residence and
establishing a new one and definite acts which
correspond with the purpose. In the absence of
clear and positive proof, the domicile of origin
should be deemed to continue (Agapito Aquino V.
COMELEC, Move Makati, Mateo Bedon and Juanito
Icaro, G.R. No. 120265, September 18, 1995).
2. If there is legal
separation between
the spouses, the wife
can have her own
domicile of choice.
Q: On January 26, 2010, Enrico Echiverri filed a
petition to exclude Luis Asistio from the
permanent list of voters of Caloocan City.
Echiverri alleged that Asistio is not a resident
of Caloocan City, specifically not of 123
Interior P. Zamora St., Barangay 15, Caloocan
City, the address stated in his Certificate of
Candidacy for Mayor in 2010 elections.
According to him, he found out that the
Asistio’s address is non-existent. In defense,
Asistio alleged that he is a resident of No. 116,
P. Zamaro St., Caloocan City, and a registered
voter of Precinct No. 1811A because he
mistakenly relied on the address stated in the
contract of lease with Angelina dela Torre
Tengco. Should Asistio be excluded from the
permanent list of voters of Caloocan city for
failure to comply with the residency required
by law?
3. If
there
is
a
separation de facto,
the wife can also
have a separate
domicile.
Apply the same rules
when the marriage is
valid. However, after
annulment, the wife
can freely select her
own
domicile
of
choice.
The wife can have a
domicile
separate
from the husband.
OTHER PERSONS
His domicile is the one
Convict or prisoner
he had possessed
17
CIVIL LAW
A: NO. The residency requirement of a voter is at
least one year residence in the Philippines and at
least six months in the place where the person
intends to vote. Residence, as used in the law prescribing the qualifications for suffrage and for
elective office, is doctrinally settled to mean
domicile, importing not only an intention to reside
in a fixed place but also personal presence in that
place, coupled with conduct indicative of such
intention inferable from a person’s acts, activities,
and utterances. Domicile denotes a fixed
permanent residence where, when absent for
business or pleasure, or for like reasons, one
intends to return. In the consideration of
circumstances obtaining in each particular case,
three rules must be borne in mind, namely: (1)
that a person must have a residence or domicile
somewhere; (2) once established, it remains until
a new one is acquired; and (3) that a person can
have but one residence or domicile at a time.
where they were solemnized and valid there as
such, is also valid in the Philippines.
XPN: If the marriage is void under Philippine law,
then marriage is void even if it is valid in the
country where the marriage was solemnized, viz:
1.
2.
3.
4.
5.
Asistio has always been a resident of Caloocan city
for more than 72 years. Asistio served in public
office of Caloocan City in 1992, 1995, 1998, 2004
and 2007. In all of these occasions, Asistio cast his
vote in the same city. Taking these circumstances,
it cannot be denied that Asistio has qualified, and
continues to qualify, as a voter of Caloocan city.
There is no showing that he has established, or
that he had consciously and voluntarily
abandoned his residence in Caloocan City. Thus,
he should remain in the list of permanent voters of
Caloocan city (Luis Asistio v. Hon. Thelma Canlas
Trinidad-Pe Aguirre, G.R. No. 191124, April 27,
2010).
6.
7.
Effect of laws, judgments promulgated or
conventions agreed upon in a foreign country
on Philippine prohibitive laws
GR: Prohibitive laws concerning persons, their
acts, or property and laws which have for their
object public order, public policy or good customs
are not rendered ineffective by laws, judgments
promulgated or conventions agreed upon in
foreign country.
FAMILY LAW AND PERSONAL CAPACITY
XPN: Art. 26 par. 2 of the Family Code (FC), on
mixed marriages where the foreigner obtained a
divorce decree abroad and was thereby
capacitated to remarry.
Applicable Civil Code provisions
1.
2.
Laws relating to family rights and duties,
or to the status, condiition, and legal
capacity of persons are binding upon
citizens of the Philippines, even though
living abroad (NCC, Art. 15)
All marriages solemnized outside the
Philippines in accordance with the laws
in force in the country where they were
solemnized, and valid there as such, shall
also be valid in this country, except those
prohibited under Articles 35(1), (4), (5)
and (6), 36, 37, and 38 (FC, Art. 26).
Even though divorce is not recognized in the
Philippines as a mode of terminating marriage,
still the marriage is terminated by virtue of a
judgment of divorce and issuance of a divorce
decree by a foreign court.
Requirements for the application of par. 2 of
Art. 26 of the Family Code
1.
2.
GR: Under Article 26 of the Family Code, All
marriages solemnized outside the Philippines in
accordance with the laws in force in the country
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Those contracted by any party below 18
years of age even with the consent of
parents or guardians; [FC, Art. 35 (1)]
Those
bigamous
or
polygamous
marriages not falling under Art. 41, FC;
[FC, Art. 35 (4)]
Those contracted through mistake of one
contracting party as to the identity of the
other; [FC, Art. 35 (5)]
Those subsequent marriages that are
void under Art. 53, FC; [FC, Art. 35 (6)]
Marriage contracted by any party who, at
the time of the celebration, was
psychologically incapacitated to comply
with the essential marital obligations of
marriage; (FC, Art. 36)
Incestuous marriage; (FC, Art. 37) and
Void ab initio marriages or reasons of
public policy. (FC, Art. 38)
18
It must be a case of mixed marriage (one party
is Filipino and the other is an alien);
The divorce must be obtained by the alien
spouse and not by the Filipino spouse; and
GENERAL PRINCIPLES
3.
The divorce obtained by the alien spouse
must capacitate him or her to remarry
(Rabuya, 2009).
3.
Law that governs the validity of marriage in
case of mixed marriages
Marriage between a
Filipino and foreigner
ABROAD
Marriage between a
Filipino and a
foreigner in the
PHILIPPINES
Alien woman who
marries a Filipino
husband
If the marriage is valid
under the law of one of
the spouses while void
under the law of the
other, the validity of the
marriage should be
upheld,
unless
the
marriage is universally
incestuous or highly
immoral (the same rule
as to foreigners who get
married abroad).
The national law of the
Filipino – Philippine
law should be followed
–
otherwise
the
country’s public policy
would be violated
Ipso facto becomes a
Filipino citizen if she
does not suffer under
any disqualification for
naturalization
as
a
Filipino citizen.
Personal
relations:
National law of the
husband shall govern
(GR).
law of the last common nationality of the
spouses would govern.
If the spouses retain their different
nationalities after the marriage –
National law of both spouses should
govern.
CONTRACTS
The extrinsic or formal validity – is governed by
lex loci celebrationis or lex loci contractus (NCC,
Art. 17).
Lex loci contractus
It means “the law of the contract;” the law that
governs the intrinsic validity of a contract.
It may be determined either through;
1.
2.
Lex voluntatis or the law specifically
stipulate by the parties in their contract;
or
Lex intentionis or the law intended by the
parties in the absence of an express
stipulation.
Law that governs the validity of contracts
Extrinsic
validity
Capacit
y of
parties
Intrinsic
validity
Lex situs
Lex
situs
Lex situs
Lex situs
Lex
situs
Lex situs
Lease of
property:
does not
create real
rights
Lex loci
celebration
is
Persona
l law of
the
parties
Lex
voluntati
s or
lex loci
intention
is
Pledge,
chattel
mortgage,
real estate
mortgage,
antichresis
Lex situs
Lex
situs
Lex situs
Contract
Barter, sale,
donation
Law that governs the personal relations of the
spouses
Lease of
property:
creates real
rights
GR: The personal relations of the spouses are
governed by the national law of the husband.
Effects of change of nationalities of the spouses
– governing law (NCC, Art. 15).
XPN: Change of nationalities of the spouses —
governing law. (NCC, Art. 15)
Effects:
1.
2.
If the spouses have the same
nationality but they acquire a new
nationality by their common act – their
new national law will govern their
personal relations.
If the husband alone changes his
nationality after the marriage – The
19
CIVIL LAW
Contract of
loan:
mutuum
Contract of
loan:
commodatu
m
Lease of
service,
agency,
guaranty,
suretyship
NOTE:
Agency to
alienate or
encumber
real property
is governed
by lex situs
Lex loci
celebration
is
Lex situs
Persona
l law of
the
parties
Lex
situs
Lex loci
voluntati
s or
lex loci
intention
is
improper discrimination, carrier
is liable for damages beyond
those limited by Warsaw
Convention.
NOTE: If contracts involve encumbrances of
property, real or personal, apply lex situs. If
personal contracts, law on contracts will apply.
Lex situs
SUCCESSION
Applicable Civil Code provisions
1.
Lex loci
celebration
is
Persona
l law of
parties
Lex loci
voluntati
s or
lex loci
intention
is
Lex loci
celebration
is
Persona
l law of
the
parties
Lex loci
voluntati
s
However,
intestate
and
testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
the national law of their person whose
succession is under consideration, whatever
may be the nature of the property and
regardless of the country wherein said
property may be found (NCC, Art. 16).
NOTE: Capacity to succeed is governed by the
national law of the decedent. (NCC, Art. 1039)
2.
Liability for loss, destruction,
deterioration of goods in transit:
law of destination of goods (NCC,
Art. 1753).
Contract of
transportati
on or
carriage
(render
services)
If COGSA applies, limitation on
liability applies, unless the
shipper declares value of goods
and inserts such declaration in
the bill of lading.
The will of an alien who is abroad
produces effect in the Philippines if made
with the formalities prescribed by the law
of the place in which he resides, or
according to the formalities observed in
his country, or in conformity with those
which this Code prescribes (NCC, Art.
816).
NOTE: Proof that the will conforms to the
laws mentioned is imperative. (Salud Teodoro
Vda. De Perez v. Hon. Tolete, G.R. No. 76714,
June 2, 1994)
Contract for air transportation
(Warsaw Convention)
3.
1. The liability of the airline in
case of death, injury to
passengers, or loss or damage
to cargo is governed by Warsaw
Convention.
2. If there was malice, gross
negligence, or bad faith, or
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Real property as well as personal
property is subject to the law of the
country where it is stipulated.
20
A will made in the Philippines by a citizen
or subject of another country, which is
executed in accordance with the law of
the country of which he is a citizen or
subject, and which might be proved and
allowed by the law of his own country,
shall have the same effect as if executed
according to the laws of the Philippines
(NCC, Art. 817)
GENERAL PRINCIPLES
NOTE: Probate is an adjudication that the last
will and testament of a person was executed
with all the formalities required by law. It
does not pass upon the validity of the
provisions of the will. The disallowance of a
will being essentially procedural in character,
the law of the forum will govern the
procedural matters. However, the court will
look into the law of the foreign state where
the suit was made as to whether the extrinsic
requirements in the execution of the will have
been complied with.
A procedure whereby a jural matter presented is
referred by the conflict of laws rules of the forum
to a foreign state, the conflict of laws rules of
which in turn refers the matter back to the law of
the forum (remission) or a third state
(transmission) (Coquia, 2000). Thus, it is clear that
renvoi can arise only from conlict rules and not
from internal rules.
Cases:
Q: What will the Court do, if it is confronted
with a case with a “Renvoi” Problem?
NOTE: The will of an alien who is abroad produces
effect in the Philippines if made within the
formalities prescribed by the law of the place in
which he resides, or according to the formalities
observed in his country, or in conformity with
those which this Code prescribes. Proof that the
will conforms to the laws mentioned is imperative
(Salud Teodoro Vda. De Perez v. Hon. Tolete, G.R.
No. 76714, June 2, 1994).
4.
A:
Joint wills executed by Filipinos in a
foreign country shall not be valid in the
Philippines, even though authorized by
the laws of the country where they may
have been executed. (NCC, Art. 819)
Q: How can a will executed abroad be made
effective in the Philippines?
1.
Reject the renvoi – If the conflict rules of
the forum refer later the case to the law of
another state, it is deemed to mean only
the internal law of that state. Thus, the
court will apply the foreign law (Paras,
1990)
2.
Accept the renvoi – If the conflict rules of
the forum refer the case to the law of
another state, it is deemed to include the
totality of the foreign law (internal law
and conflict of law rules). Thus the court
will recognize the referral back and apply
the local law (Ibid.).
3.
Follow the Theory of Desisment – also
referred to as Mutual Disclaimer of
Jurisdiction Theory. The forum court
upon reference to another state’s law sees
that such law is limited in application to
its own nationals domiciled in its territory
and has no provision for application to
nationals domiciled outside of the
territory. Hence the local court will apply
the local law.
A: A will made in a foreign country may be
probated in the Philippines after sufficient proof
is presented showing that the will was duly
executed in the manner required by law and that
the testator had capacity at the same time he
executed the will.
Evidence necessary for the allowance of wills
which have been probated outside the
Philippines
1.
2.
3.
4.
5.
NOTE: This has the same result as the
acceptance of the renvoi doctrine but the
process used by the forum court is to desist
applying the foreign law (Ibid.).
Due execution of the will in accordance
with the foreign laws;
The testator has his domicile in the
foreign country and not in the
Philippines;
The will has bee admitted to probate in
such country;
The fact that the foreign tribunal is a
probate court; and
The laws of a foreign country on
procedure and allowance of wills (Suntay
v. Suntay, G.R. No. 132524, December 29,
1998).
4.
Make use of the Foreign Court Theory –
Forum acourt assumes the same position
that the foreign court would take if the
case is litigated in the foreign state.
Double renvoi
It is that which occurs when the local court, in
adopting the foreign court theory, discovers that
the foreign court accepts the renvoi (Sempio-diy,
2004)
RENVOI
21
CIVIL LAW
Transmission
the lower court. Both parties failed to adduce
proof as to the law of Texas.
It is the process of applying the law of a foreign
state through the law of a second foreign state.
Not the same as renvoi, Renvoi involves two laws
while transmission involves three laws (Paras,
1990).
Further, the Supreme Court held that for what the
Texas law is on the matter, is a question of fact to
be resolved by the evidence that would be
presented in the probate court.
Renvoi v. Transmission
Renvoi
Deals with 2 countries
Transmission
Deals with 3 or more
countries
Deals with “referring
back”
Deals with “referring
across”
or
“transmitting”
The Supreme Court, however, emphasized that
Texas law at the time of Linnie’s death is the law
applicable. As to whether the law of Texas refers
the matter back to Philippine laws must be proven
by evidence presented before the court (Philippine
Commercial and Industrial Bank v. Hon. Venicio
Escolin, G.R. Nos. L-27860 and L-27896 March 29,
1974).
Q: On November 8, 2001 Ruperta C. Palaganas
(Ruperta), a Filipino who became a naturalized
United States (U.S.) citizen, died single and
childless. In the last will and testament she
executed in California, she designated her
brother, Sergio C. Palaganas (Sergio), as the
executor of her will for she had left properties
in the Philippines and in the U.S. Respondent
Ernesto C. Palaganas (Ernesto), another
brother of Ruperta, filed with the RTC a
petition for the probate of Ruperta’s will and
for his appointment as special administrator of
her estate. However, petitioners Manuel
Miguel Palaganas (Manuel) and Benjamin
Gregorio Palaganas (Benjamin), nephews of
Ruperta, opposed the petition on the ground
that Ruperta’s will should not be probated in
the Philippines but in the U.S. where she
executed it. The RTC issued an order: (a)
admitting to probate Ruperta’s last will; (b)
appointing re-spondent Ernesto as special
administrator at the request of Sergio, the U.S.
based executor desig-nated in the will; and (c)
issuing the Letters of Special Administration to
Ernesto. CA affirmed.
Q: Linnie Hodges, an American citizen from
Texas, made a will in 1952. In 1957, she died
while domiciled in Iloilo, Philippines. In her
will, she left her entire estate in favor of her
husband, Charles Hodges. Also, that should her
husband later die, the entire estate shall be
turned over to her brother and sister. A certain
Avelina Magno, a trusted employee of the
Hodges, was appointed as the estate’s
administratrix.
When Charles died in 1962, his lawyer, Atty.
Gellada filed a motion before the probate court
(Linnie’s estate) that Magno be temporarily
appointed as the administratrix of Charles’
estate. According to Atty. Gellada, Charles left a
will but the same cannot be presently
presented. The court granted the motion.
When Charles’ will was later found, a petition
for probate was filed for the said will. Magno
opposed the said petition contending that
Charles should turn over the properties to
Linnie’s brother and sister as provided in
Linnie’s will. The probate court dismissed the
opposition.
Can a will executed by a foreigner abroad may
be probated in the Philippines although it has
not been previously probated and allowed in
the country where it was executed?
Thereafter, the Philippine Commercial and
Industrial
Bank
was
appointed
as
administrator of Charles’ estate. However,
Magno refused to turn over the properties.
A: YES. The law does not prohibit the probate of
wills executed by foreigners abroad although the
same have not as yet been probated and allowed
in the countries of their execution.
According to Magno, Linnie wanted was a
citizen of Texas, USA at the time of her death.
Thus, successional rights as to linnie’s estate
should governed by the law of Texas.
A foreign will can be given legal effects in our
jurisdiction. The Civil Code states that the will of
an alien who is abroad produces effect in the
Philippines if made in accordance with the
formalities prescribed by the law of the place
What law should be applied in the case at bar?
A: The Supreme Court remanded the case back to
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
22
GENERAL PRINCIPLES
where he resides, or according to the formalities
observed in his country (Palaganas v. Palaganas,
G.R. No. 169144, January 26, 2011).
where it was committed. Allowing a Filipino
convicted abroad to serve sentence in the
Philippines will be tantamount to recognizing and
enforcing a foreign judgment which is penal in
nature.
REVOCATION OF WILLS
Rules if a person dies testate
1.
2.
3.
Protective Theory
If revocation takes place in the Philippines,
whether the testator is domiciled in the
Philippines or in some other country, it is
valid if in accordance with Philippine laws.
If revocation takes place outside the
Philippinesm by a testator domiciled in the
Philippines, it is valid when it is in
accordance with the laws of the
Philippines.
Revocation done outside the Philippines,
by a testator who does not have his
domicile in this country, is valid when it is
done according to the:
a.
b.
Any state whose national interests are adversely
affected by the crime may protect itself by
prosecuting and punishing the offender. The
Philippines adheres to this theory to a limited
extent. States claim extraterritorial criminal
jurisdiction to punish crimes committed abroad
which are prejudicial to their national security or
vital interests, even where the offenses are
perpetrated by non-nationals. Jurisdiction is
vested in the state whose national interests are
injured or national security compromised.
Universality Principle
Law of the place where the will was
made; or
Law of the place where the testator
had his domicile at the time of
revocation.
A state has extraterritorial jurisdiction over all
crimes regardless of where they are committed or
who committed them, whether nationals or
nonnationals. This is, however, generally
forbidden under international law. Jurisdiction is
vested with the state which has custody of
offender who committed universal crimes such as
piracy, genocide, etc.
Rule if a person dies intestate
Follow lex nationali or the law of the nationality of
the decedent.
Bigamy is punishable only when committed in
the Philippines
Our penal laws apply to all crimes committed
within Philippine territory. Consequently, crimes
committed outside the territory of the Philippines
are not within the jurisdiction of Philippine
authorities to prosecute, subject only to certain
exceptions. Because of this principle, a criminal
case for bigamy cannot be filed against a Filipino
who contracted a second or bigamous marriages
abroad.
CRIMES
Territoriality Principle
Penal laws and those of public security and safety
shall be obligatory upon all who live or sojourn in
the Philippines, subject to the principles of
international law and treaty stipulations. (NCC,
Article 14)
TORTS
Extra-territoriality
Penal statutes may find application even outside
the territorial jurisdiction of an enacting state
pursuant to treaty obligations and general
principles of international law. An example of
extra-territoriality is Art. 2 of the RPC.
GR: Lex loci delicti comissior the law of the place
where the tort was committed will govern.
Reason: The state where the social disturbance
occurred has the primary duty to redress the
wrong and determine the effects of the injury; to
compensate the victim for the damage or injury
suffered.
Q: May a Filipino convicted of a crime abroad
serve his sentence in the Philippines?
A: NO. Under the territoriality principle, a crime is
punishable only in the territorial jurisdiction
Obligation Theory
23
CIVIL LAW
The tortuous act gives rise to an obligation, which
is transitory and follows the person committing
the tortuous act and may be enforced wherever he
may be found (Coquia, 2000).
1.
2.
3.
Philippine conflict rules on tort problems
If the tort law of the Philippines embodies a social
or economic policy, then the law of the forum on
torts shall be applied.
4.
If the Philippines has no concern or interest in the
application of the internal law, and the other State
have an interest, apply the law of such State.
5.
NOTE: The state where an injury has occurred has
interest in compensating the injured party, while
the state where the tortfeasor acted has an
interest in regulating the conduct of persons
found in its territory.
6.
7.
8.
RECOGNITION AND ENFORCEMENT OF
FOREIGN JUDGMENT
Recognition of foreign
judgment
The defendant or the
respondent
is
presenting the foreign
judgment merely as a
defense, on the basis of
res judicata.
Invokes merely as
sense of justice.
Needs no proceeding or
action but implies that
the same has already
been filed against the
defendant
who
is
invoking the foreign
judgment.
Recognition is a passive
effect
of
foreign
judgment.
9.
Enforcement of
foreign judgment
The
plaintiff
or
petitioner wants the
court to positively carry
out and make effective
the foreign judgment.
Effects of a judgment or final order of a foreign
tribunal or court in case the judgment is being
sought in Philippine Courts
1.
Implies an act of
sovereignty
Requires a separate
action
brought
precisely to make the
foreign
judgment
effective
2.
In a judgment or final order upon a
specific thing, the judgment or final order
is conclusive upon the title to the thing;
and
In a judgment or final order against a
person, the judgment or final order is
presumptive evidence of a right as
between the parties and their successors
in interest by a subsequent title.
NOTE: In either case, the judgment or final order
may be repelled by evidence of want of
jurisdiction, want of notice to a party, collusion,
fraud or clear mistake of law or fact (ROC, Rule 39,
Sec. 48).
Enforcement is an
active recognition and
implementation of the
foreign judgment from
the
local
court,
rendering the foreign
judgment and seeking
its enforecement by the
sheriff on accordance
with the Rules of Court.
Q: The Special Sixth Division of the Court of
Appeals refused to recognize the Entry of
Appearance of Quasha Law Office as the new
counsel of Legend International Resorts,
Limited (LIRL). It said that the appointment of
LIRL’s joint and several liquidators were made
pursuant to an Order of the Hong Kong Court.
Since it was a foreign judgment, Philippine
Courts could not take judicial notice thereof as
the final orders of foreign tribunals could only
Requisites for recognition or enforcement of a
foreign judgment
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
The defendant has been given reasonable
notice and opportunity to be heard;
There is adequate proof of foreign judgment;
The foreign judgment must have disposed of
the controversy on the merits and must be res
judicata, i.e., judgment on the merits is final,
issued by a foreign court having jurisdiction
over the subject matter and parties, and there
was identity of parties, subject matter, and the
cause of action
It must not be barred by prescription both in
the state where it was promulgated and the
where it is sought to be enforced;
State where the foreign judgment was
obtained allows recognition or enforcement of
Philippine judgments;
If the foreign judgments is for a sum of money,
it must be fixed;
Foreign judgment must not be contrary to the
public policy or good morals of the country
where it is to be enforced;
Judgment must not have been obtained by
fraud, collusion, mistake of fact or law; and
It must be a judgment in civil or commercial
matters, including questions of status, not on
a criminal, revenue, or administrative matter.
24
GENERAL PRINCIPLES
be enforced in the Philippines after
appropriate proceedings. The CA concluded
that it was only Picazo Law Office is the only
counsel entitled to represent and file
pleadings for and on behalf of petitioner LIRL.
Quasha Law Office and LIRL then filed a special
civil action for Certiorari under Rule 65
seeking to reverse and set aside on the ground
of grave abuse of discretion amounting to lack
or excess of jurisdiction the Special Sixth
Division of the CA. Did the special CA Division
gravely abuse its discretion in considering the
Orders of the Hong Kong Court appointing
liquidators for LIRL involved enforcement and
recognition of a foreign judgment?
Philippine law until there has been a judicial
recognition of the Canadian divorce by a
competent judicial court in view of NSO
Circular No. 4, series of 1982. Consequently, he
filed a petition for judicial recognition of
foreign divorce and/or declaration of
dissolution of marriage with the RTC. RTC
denied the same and concluded that Gerbert
was not the proper party to institute the action
for judicial recognition of the foreign divorce
decree as he is a naturalized Canadian citizen.
It ruled that only the Filipino spouse can avail
of the remedy, under the second paragraph of
Article 26 of the Family Code.
Q: Does the second paragraph of Article 26 of
the Family Code extend to aliens the right to
petition for the recognition of a foreign
divorce decree?
A. No. It has already been settled in the aforesaid
two Decisions that the Orders of the Hong Kong
Court appointing liquidators for petitioner LIRL
did not involve the enforcement of a foreign
judgment. The act of terminating the legal services
of private respondent Picazo Law Office and engaging in its place petitioner Quasha Law Office
was a mere exercise of petitioner LIRLs
prerogative, through its appointed liquidators,
which was an internal affair that required no prior
recognition in a separate action. There was no
enforcement of a foreign judgment when one of
the appointed liquidators terminated the legal
services of private respondent Picazo Law Office
and engaged in its stead petitioner Quasha Law
Office to be the duly authorized counsel of
petitioner LIRL. What is involved is the
prerogative of petitioner LIRL, through its duly
authorized representative -- which, in this case, is
its appointed liquidators -- to terminate and
engage the services of a counsel, which is an
internal affair that requires no prior recognition in
a separate action (Quasha Ancheta Pea et al v. the
Special Sixth Division of the Court of Appeals, GR
No. 182013, December 4, 2009).
A: YES. While the general rule is that the alien
spouse can claim no right under the second
paragraph of Article 26 of the Family Code as the
substantive right it establishes is in favor of the
Filipino spouse, the foreign divorce decree is
presumptive evidence of a right that clothes the
party with legal interest to petition for its
recognition in this jurisdiction. Divorce obtained
by an alien abroad may be recognized in the
Philippines, provided the divorce is valid
according to his or her national law. The foreign
divorce decree itself, after its authenticity and
conformity with the alien’s national law have been
duly proven according to our rules of evidence,
serves as a presumptive evidence of right in favor
of Gerbert, pursuant to Section 48, Rule 39 of the
Rules of Court which provides for the effect of
foreign judgments.
Ruling with regard to the annotation of decree
on marriage certificate:
Q: Gerbert, a naturalized Canadian citizen,
married Daisylyn, a Filipino, but subsequently
left for Canada due to work and other
professional commitments. When he returned
to the Philippines, he discovered that Daisylyn
was already romantically involved with
another man. Hurt and disappointed, Gerbert
returned to Canada and filed a petition for
divorce which was eventually granted. Two
years later, he has fallen in love with another
Filipina and wished to marry her. He went
then to the civil registry to register the divorce
decree of his marriage certificate with
Daisylyn. However, despite the registration, an
official of NSO informed Gerbert that the
former marriage still subsists under the
But while the law requires the entry of the divorce
decree in the civil registry, the law and the submission of the decree by themselves do not ipso
facto authorize the decree’s registration. The law
should be read in relation with the requirement of
a judicial recognition of the foreign judgment
before it can be given res judicata effect. In the
context of the present case, no judicial order as yet
exists recognizing the foreign divorce decree.
Thus, the Pasig City Civil Registry Office acted
totally out of turn and without authority of law
when it annotated the Canadian divorce decree on
Gerbert and Daisylyn’s marriage certificate, on the
strength alone of the foreign decree presented by
Gerbert. For being contrary to law, the
registration of the foreign divorce decree without
25
CIVIL LAW
the requisite judicial recognition is patently void
and cannot produce any legal effect (Corpuz v. Sto.
Tomas and the Solicitor General, G.R. No. 186571,
August 11, 2010).
Article 19, 20 and 21 in the enforcement and
sanctions of abuse of right
While Art. 19 lays down the rule of conduct for
the government of human relations, it does not
provide a remedy (Rabuya, 2006).
HUMAN RELATIONS
Generally, an action for damages under either Art.
20 or Art. 21 of the NCC would be proper. Art. 21
deals with acts contra bonus mores or contrary to
good morals and presupposes loss or injury,
material or otherwise, which one may suffer as a
result of such violation. Under Arts. 19 and 21, the
act must be intentional (Rabuya, 2006).
Abuse of right (2006 BAR)
A right, though by itself legal because recognized
or granted by law as such, may become the source
of some illegality. When a right is exercised in a
manner which does not conform to the norms
enshrined in Art. 19 and results in damage to
another, a legal wrong is thereby committed for
which the wrongdoer must be held responsible.
Article 20 speaks of the general sanction for all
other provisions of law which do not especially
provide for their own sanction. Article 21 on the
other hand, speaks of act which is legal but is
contrary to morals, good custom, public order or
public policy and is done with intent to injure.
This principle is based upon the famous maxim
summum jus summa injuria (the abuse of a right
is the greatest possible wrong) (Arlegui v. CA,
G.R. No. 126437, March 6, 2002).
Sanction for abuse of right under Article 20 of
the NCC
Rationale: The exercise of a right ends when
the right disappears, and it disappears when it
is abused, especially to the prejudice of others.
It cannot be said that a person exercises a right
when he unnecessarily prejudices another or
offends morals or good customs. (Pineda, 2009)
Generally, laws provide for their own sanctions
and methods of enforcement thereof. Article 20
applies only in cases where the law does not
provide for its own sanctions.
Elements of abuse of right (L-B-P-A)
1.
2.
3.
4.
Every person who, contrary to law, wilfully or
negligently causes damage to another shall
indemnify the latter for the same (NCC, Art. 20).
The said article provides for a general sanction –
indemnification for damages (Pineda, 2009).
(1996, 2006, 2009 Bar)
There is a Legal right or duty;
Such duty is exercised in Bad faith;
It is for the sole intent of Prejudicing or
injuring another;
The Absence of good faith is essential to
abuse of right (Rabuya, 2009).
In view of the general sanction provided for under
Art. 20, a person however does not have an
absolute right to be indemnified, it is essential that
some right of his be impaired. Without such, he is
not entitled to indemnification (Pineda, 2009).
Principle of Damnum Absque Injuria
It means damage without injury. One who
merely exercises one’s rights does no actionable
injury and cannot be held liable for damages
(Amonoy v. Guitierrez, G.R. No. 140420, February
15, 2001).
Contra Bonus Mores (1996, 1998, 2006, 2009
Bar)
Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals,
good customs or public policy shall compensate
the latter for the damage (NCC, Art. 21). It fills
countless gaps in the statutes, which leave so
many victims of moral wrongs helpless, even
though they suffered material and moral damages
(Tolentino, 1987).
Injury is the illegal invasion of a legal right;
damage is the loss, hurt, or harm which results
from the injury; and damages are the recompense
or compensation awarded for the damage suffered
(Panteleon v. American Express, G.R. No. 174269,
August 25, 2010).Pantaleon
There can be damage without injury in those
instances in which the loss or harm was not the
result of a violation of a legal duty. In such cases,
the consequences must be borne by the injured
person alone (Ibid.)
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Elements of an action under Art. 21
1.
26
There is an act which is legal;
GENERAL PRINCIPLES
2.
3.
Such act is contrary to morals, good
customs, public order or policy;
It is done with intent to injure.
reneged on his promise (Buñag, Jr. v.
CA, G.R. No. 101749, July 10, 1992).
A breach of promise to marry per se is not an
actionable wrong. But where a man's promise to
marry is the proximate cause of the acceptance of
his love by a woman and his representation to
fulfill that promise thereafter becomes the
proximate cause of the giving of herself unto him
in a sexual congress, proof that the promise was
only a deceptive device to inveigle her to obtain
her consent to the sexual act, could justify the
award of damages pursuant to Art. 21 not because
of such promise to marry but because of the fraud
and deceit behind it and the wilful injury to her
honor and reputation which followed thereafter. It
is essential, however, that such injury should have
been committed in a manner contrary to morals,
good customs or public policy (Gashem Shookat
Baksh v. CA, G.R. No. 97336, February 19, 1993).
Civil liability for moral negligence
There is no civil liability for moral negligence. A
person is required to act with prudence towards
others, but not with charity; the law imposes
diligence and not altruism. Hence, the failure to
make sacrifices or egoism does not constitute a
source of liability (Tolentino, 1987).
Illustration: A person who fails to render
assistance to a drowning person or to the victim of
an accident, cannot be held liable for damages (3
Colin & Capitant 826).
While a person can be absolved from criminal
liability because his negligence was not proven
beyond reasonable doubt, he can still be held
civilly liable if his negligence was established by
preponderance of evidence. The failure of the
evidence to prove negligence with moral certainty
does not negate (and is in fact compatible with) a
ruling that there was preponderant evidence of
such negligence. And that is sufficient to hold him
civilly liable (Dominguez v. People, G.R. No. 167546,
July 17, 2009).
Q: Soledad a high school teacher used to go
around together with Francisco who was
almost ten (10) years younger than her.
Eventually, intimacy developed between them
after Soledad became an underwriter in Cebu.
One evening, they had sexual intercourse in
Francisco’s cabin on board M/V Escaño, to
which he was then attached as apprentice
pilot. After a few months, Soledad advised
Francisco that she was pregnant, whereupon
he promised to marry her. Later their child
was born. However, subsequently, Francisco
married another woman. Soledad filed a
complaint for moral damages for alleged
breach of promise to marry. May moral
damages be recovered for breach of promise
to marry?
Breach of promise to marry
GR: A breach of promise to marry per se is not an
actionable wrong.
There is no provision in the NCC authorizing an
action for breach of promise to marry.
XPN: When the act constitutes one where
damages pursuant to Art. 21 of the NCC may be
recovered and is not a mere breach of promise to
marry, such as:
1.
2.
3.
A: NO. It is the clear and manifest intent of our
law-making body not to sanction actions for
breach of promise to marry. Francisco is not
morally guilty of seduction, not only because he is
approximately 10 years younger than the
complainant — who around 36 years of age, and
as highly enlightened as a former high school
teacher and a life insurance agent are supposed to
be — when she became intimate with him, than a
mere apprentice pilot, but, also, because, the Court
of First Instance found that, complainant
“surrendered herself” to Francisco because,
“overwhelmed by her love” for him, she “wanted
to bind” “by having a fruit of their engagement
even before they had the benefit of clergy
(Hermosisima v. CA, G.R. No. L- 14628, September
30, 1960).
Where the woman is a victim of moral
seduction (Gashem Shookat Baksh v. CA,
G.R. No. 97336, February 19, 1993).
Where one formally sets a wedding,
and go through and spend for all the
preparations and publicity, only to
walk out of it when the matrimony was
about to be solemnized (Wassmer v.
Velez, G.R. No. L-20089, December 26,
1964).
Where the woman is a victim of
abduction and rape, and thereafter the
accused promised to marry her to
avoid criminal liability but later
27
CIVIL LAW
NOTE: To constitute seduction there must be
some sufficient promise or inducement and the
woman must yield because of the promise or
other inducement. If she consents merely from
carnal lust and the intercourse is from mutual
desire, there is no seduction.
and effective promotion of its business. (Locsin v.
Mekeni Food Corporation, G.R. No. 192105, 09
December 201) (Del Castillo, J.).
Accion In Rem Verso
It is an action for recovery of what has been paid
or delivered without just cause or legal ground. If
a person acquires or comes into possession of
something at the expense of another without just
or legal ground through an act or of performance
by another or any other means has the obligation
to return the same (NCC, Art. 22).
Prohibition against Unjust Enrichment
No one shall unjustly enrich himself at the
expense of another (Pacific Merchandising Corp. v.
Consolacion Insurance and Surety Co., Inc., G.R. No.
L-30204, October 29, 1976).
NOTE: The article applies only if:
1. Someone acquires or comes into possession of
“something” which means delivery or
acquisition of things”; and
2. Acquisition is undue and at the expense of
another, which means without any just or
legal ground.
Accion in rem verso is considered merely an
auxiliary action, available only when there is no
other remedy on contract, quasi-contract, crime,
and quasi-delict. Hence, if there is an obtainable
action under any other institution of positive law,
that action must be resorted to, and the principle
of accion in rem verso will not lie. (Shinryo
Philippines Company v. RRN Incorp. G.R. No.
172525, October 20, 2010)
Q: Mekeni Food Corp. offered its employee
Locsin a car plan. One-half of the cost of the
vehicle is to be paid by Mekeni and the other
half is to be deducted from Locsin’s salary. The
car was an absolute necessity in Mekeni’s
business operations. Locsin paid for his 50%
share through monthly salary deductions.
Subsequently, Locsin resigned. By then, a total
of ₱112,500 had been deducted from his
monthly salary and applied as part of his share
in the car plan. The vehicle remained in the
ownership and possession of Mekeni, and so
Locsin sought reimbursement of
his
amortization payments on the vehicle and
posits that if the amount is not reimbursed,
unjust enrichment would result, as the vehicle
remained in the possession and ownership of
Mekeni. Should the amortization payments be
refunded in favor of Locsin?
Requisites (E-L-W-A)
1.
2.
3.
4.
Accion in rem verso v. Solutio Debiti
In accion in rem verso, it is not necessary that
there should have been mistake in the payment
unlike in solutio indebiti where mistake is an
essential element (Rabuya, 2006).
Accion in rem verso v. Unjust Enrichment
A: YES, the amortization payments must be
refunded in favor of Locsin. In the absence of
specific terms and conditions governing a car plan
agreement between the employer and employee,
the employer may not retain the installment
payments made by the employee on the car plan
and treat them as rents for the use of the service
vehicle, in the event that the employee ceases his
employment and is unable to complete the
installment payments on the vehicle. The
underlying reason is that the service vehicle was
precisely used in the employer's business; any
personal benefit obtained by the employee from
its use is merely incidental. Mekeni may not enrich
itself by charging Locsin for the use of its vehicle
which is otherwise absolutely necessary to the full
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
The defendant has been Enriched;
The plaintiff has suffered a Loss;
The enrichment of the defendant is
Without just or legal ground; and
The plaintiff has no other Action based on
contract, quasi-contract, crime or quasidelict.
An accion in rem verso is merely an auxiliary
action available only when there is no other
remedy on contract, quasi-contract, crime, and
quasi-delict while unjust enrichment, wherein one
is unjustly enriched at the expense of or from the
efforts or obligations of others, may be availed of
as a prerequisite for the enforcement of the
doctrine of restitution. (Shinryo Philippines
Company v. RRN Incorp. G.R. No. 172525, October
20 2010)
Liability without fault or negligence
Even when an act or event causing damage to
another’s property was not due to the fault or
28
GENERAL PRINCIPLES
negligence of the defendant, the latter shall be
liable for indemnity if through the act or event he
was benefited (NCC, Art. 23).
criminal action and not its dismissal by reason of a
prejudicial question. (Rabuya, 2006)
PREJUDICIAL QUESTION UNDER ART. 36 OF
THE NEW CIVIL CODE
Prejudicial questions, which must be decided
before any criminal prosecution may be instituted
or may proceed, shall be governed by the Rules of
Court which the Supreme Court shall promulgate
and which shall not be in conflict with the
provisions of this Code. (Article 36, NCC).
Concept of a prejudicial question
It is a question of a purely civil character but
connected in such a manner to the crime on which
the criminal case is based that it is determinative
of the guilt or innocence of the accused. (De Leon
vs. Mabanag, 70 Phil. 202)
It is one based on a fact distinct and separate from
the crime but so intimately connected with it that
it determines the guilt or innocence of the
accused, and for it to suspend the criminal action,
it must appear not only that said case involves
facts intimately related to those upon which the
criminal prosecution would be based but also that
in the resolution of the issue or issues raised in
the civil case, the guilt or innocence of the accused
would necessary be determined. (Rabuya, 2006)
Elements
1.
2.
The previously instituted civil action involves
an issue similarly or intimately related to the
issue raised in the subsequent criminal action;
and
The resolution of such issue determines
whether or not the criminal action may
proceed.
NOTE: It is the issue in the civil action that is
prejudicial to the continuation of the criminal
action, and not vice-versa. (Rabuya, 2006)
Suspension of Proceedings
A petition for suspension of the criminal action
based upon the pendency of a prejudicial question
in a civil action may be filed in the office of the
prosecutor or the court conducting the
preliminary investigation. When the criminal
action has been filed in court for trial, the petition
to suspend shall be filed in the same criminal
action at any time before the prosecution rests.
The rule authorizes only the suspension of the
29
CIVIL LAW
PERSONS AND FAMILY RELATIONS
Status
PERSONS AND PERSONALITY UNDER THE
CIVIL CODE
The status of a person is the legal condition or class to
which one belongs in a society (1 Viso 32, 2 Sanchez
Roman 110).
A person is every physical or moral, real or
juridical and legal being susceptible of rights and
obligations or being the subject of legal relations
(Rabuya, 2006).
Civil personality
It is merely the external manifestation of either juridical
capacity or capacity to act. Consequently, it may be
defined as the aptitude of being the subject of rights and
obligations (2 Sanchez Roman 114-147).
Persons v. Things
A person is the subject of legal relations, while a
thing is the object of legal relations.
RESTRICTIONS ON CAPACITY TO ACT
Personality is the aptitube to be the subject,
active or passive, or juridical relations. One is a
person, while one has personality (Rabuya, 2006).
Restrictions on capacity to act (M-I-D-I-P-C)
(NCC, Art. 38)
1.
Kinds of persons
1. Natural – human beings and have physical
existence
2. Juridical - artificial persons and product of
legal fiction
2.
3.
Juridical capacity v. Capacity to act
Definition
Acquisition
Loss
In relation
to the
other
Limitation
JURIDICAL
CAPACITY
CAPACITY TO
ACT
Fitness to be
the subject
of
legal
relations
(Art. 37).
Powerto do acts
withlegaleffect
(Art. 37).
Inherent
(co-exists
with the
natural
person).
Only
through
death.
Can exist
without
capacity to
act.
None.
Through the
fulfillment
of specific
legal
activities.
Through death and
other causes.
NOTE: Only deaf-mutes who do not know how to write
are declared by law incapable of giving consent.
4.
Imbecility – State of a person who while
advanced in age has the mental capacity
comparable to that of a child between two and
seven years of age;
5.
Prodigality – A spendthrift or squanderer;
NOTE: Prodigality per se doesn’t automatically modify or
restrict a person’s capacity to act. There must be a
declaration thereof and be placed under guardianship
under the Rules on Special Proceeding.
6.
Cannot exist w/o
juridical capacity.
Civil Interdiction – An accessory penalty imposed
upon an accused who is sentenced to a principal
penalty not lower than reclusion temporal.
NOTE: The following are the effects of civil
interdiction:
Art. 38 (restriction)
Art. 39
(modification/
limitation),
among others.
1.
2.
3.
4.
NOTE: A person is presumed to have capacity to act
(Standard Oil Co. v. Arenas, et al., G.R. No. L-5921,
December 15, 1908).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Minority - State of a person who is under the age
of legal majority which is eighteen years of age;
Insanity – State of a person whose mental
faculties are diseased;
Deaf-mute – Lacking sense of hearing and the
inability to speak;
Deprivation of parental or marital authority;
Deprivation of the right to be the guardian of the
person and property of a ward;
Deprivation of his property by act inter vivos; and
Deprivation of the right to manage one's
properties (Revised Penal Code, Art. 34).
They do not exempt the incapacitated person from
certain obligations.
30
PERSONS AND FAMILY RELATIONS
Circumstances that modify or limit capacity to act
(FC, Art. 39)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
2.
Insanity;
Prodigality;
Age;
Imbecility;
Deaf-Mute;
Family Relations;
Alienage;
Trusteeship;
Penalty;
Insolvency; and
Absence
hours after its complete delivery from the
maternal womb.
At least 7 months – If born alive, it shall be considered
born even if it dies within 24 hours after
complete delivery.
Complete delivery
It means the cutting of the umbilical cord from the
mother’s womb.
Provisional personality of a conceived child
A conceived child, although as yet unborn, has a limited and
provisional personality. Its personality is provisional
because it depends upon the child being born alive later
under certain conditions.
The enumeration in Articles 38 and 39 is not exclusive.
There are others spread throughout the code (e.g., a lawyer
cannot buy property in litigation). [NCC, Art. 1491 (5)]
Rights of the conceived child
Since a conceived child has a provisional personality even
while inside the mother’s womb, it is entitled to the
following rights: (S-A-D)
BIRTH
Determination of personality
Right to Support
To be Acknowledged
To receive Donations (Rabuya, 2009)
The Civil Code provides that birth determines personality,
but the conceived child shall be considered born for all
purposes that are favorable to it, provided it is born later
with the conditions specified in Art. 41 (NCC, Art. 40).
(1999, 2003, 2008 BAR)
a.
b.
c.
This provision has been superseded by Art. 5 of P.D. No.
603 (The Child and Youth Welfare Code), which declares
that the civil personality of the child shall commence
from the time of his conception, for all purposes
favorable to him, subject to the requirements of Art. 41.
Civil personality ceases depending upon the
classification of persons
DEATH
1.
2.
Acquisition of personality through birth
Natural persons – by death
Juridical persons – by termination of existence
Effect of death on civil personality
Death extinguishes civil personality. However, the rights
and obligations of the deceased are not necessarily
extinguished by his death (Pineda, 2009).
GR: Actual/Permanent Personality– Personality begins at
birth, not at conception.
XPN: Presumptive/Temporary – The law considers the
conceived child as born (Conceptus pro nato habetur)
Rules to apply in case there is doubt as to who died
first
The provisional personality of a conceived child
(conceptus pro nato habetur) under Article 40, expressly
limits
such provisional personality by imposing the
condition that the child should be subsequently born
alive: "Provided it be born later with the condition
specified in the following article" (Geluz v. CA, G.R. No. L16439, 20 July 1961).
It depends on whether the parties are called to
succeed each other.
“Born later in accordance with law” (1995, 1999, 2008
BAR)
If successional rights are involved– Art. 43 of the NCC:
Survivorship Rule, and
Rule 131, Sec. 3(kk):
Presumption of simultaneous deaths between
persons called to succeed each other, apply.
If no successional rights are involved – Rule 131,
Sec. 3 (jj) of the Rules of Court applies
(Presumption ofsurvivorship).
A foetus with an intra-uterine life of:
1.
Less than 7 months – Must survive for at least 24
NOTE: Both are to be applied only in the absence of
facts.
1.
2.
31
CIVIL LAW
COMPARISON OF ART. 43 AND RULE 131 OF
THE RULES OF COURT
1.
2.
3.
Q: Jaime, who is 65, and his son,Willy, whois 25, died
in aplane crash. There is no proof as to who died first.
Jaime’s only surviving heir is his wife, Julia, who is also
Willy’s mother. Willy’s surviving heirs are his mother,
Julia, and his wife, Wilma. In the settlement of Jaime’s
estate, can Wilma successfully claim that her late
husband, Willy, had a hereditary share since he was much
younger than his father and therefore, should be
presumed to have survived longer?
PRESUMPTION OF SURVIVORSHIP UNDER THE
RULES OF COURT
Requisites
1.
2.
3.
4.
A: NO, Wilma cannot successfully claim that Willy had a
hereditary share in his father’s estate.
Two persons “who are called to succeed each other” are
presumed to have died at the same time, in the absence
of proof as to which of them died first (NCC, Art. 43).
This presumption of simultaneous death applies in
cases involving the question of succession as between
the two who died, who in this case, are mutual heirs,
being father and son.
Age/Sex of decedents at
the time of death
Decedent A
Decedent B
Under 15
Under 15
Above 60
Above 60
Under 15
Above 60
Above
15 Above
15
BUT under BUT under
60
60
A: YES, Wilma can invoke the presumption of
survivorship and claim that one-half of the proceeds
should belong to Willy’s estate, under Rule 131, Sec.3 (jj),
par. 5, Rules of Court, as the dispute does not involve
succession.
Under 15 OR
over 60
Under this presumption, the person between the ages
of 15 and 60 is deemed to have survived one whose
age was over 60 at the time of their deaths. The estate of
Willy endowed with juridical personality stands in
place and stead of Willy, as beneficiary.
15
Older
Younger
Under 15 (younger)
Different sexes –
male
Same sex – older
Between 15 and 60
Where there are facts, known or knowable, from which
a rational conclusion can be made, the presumption
does not step in, and the rule of preponderance of
evidence controls. It is the "particular circumstances
from which survivorship can be inferred" that are
required to be certain as tested by the rules of evidence
(Joaquin v. Navarro, G.R. No. L-5426, May 29, 1953).
If there is doubt as to who died first between 2 or more
persons who are called to succeed each other, as to
which of them died first:
Burden of Proof: Whoever alleges the death of one
prior to the other has the burden of proving such
claim.
Absent such proof: Presumption is they died at the
same time. There shall be no transmission of
successional rights [Sec. 3(kk), Rule 131, Rules of
Court]. (1998, 1999, 2000, 2008, 2009 Bar)
Q: At the age of 18, Marian found out that she was
pregnant.
She insured her own life and named her
unborn child as her sole beneficiary. When she was
already due to give birth, she and her boyfriend
Pietro, the father of her unborn child, were kidnapped
in a resort in Bataan. The military gave chase and
after one week, they were found in abandoned hut in
Cavite. Marian and Pietro were hacked with bolos.
Conditions in the application of the survivorship rule
It applies when the following conditions are present:
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Between
and 60
Who is presumed
to have survived
NOTE: The statutory rules in the determination of
sequence of death do not absolutely apply in a case
where indirect and/or inferential evidence
surrounding the circumstances of the deaths exists.
SURVIVORSHIP RULE UNDER THE NEW CIVIL CODE
2.
There are two or more persons;
They perish in the same calamity;
It is not shown who died first; and
There are no particular circumstances from
which it can be inferred that one died ahead
of the other.
The presumption under the survivorship rule under
the Rules of Court is that the survivorship shall be
determined from the probabilities resulting from the
strength and age of the sexes according to the
following rules:
Q: Suppose, Jaime had a life insurance policy with his
wife Julia, and his son, Willy, as the beneficiaries. Can
Wilma successfully claim that one-half of the proceeds
should belong to Willy’s estate? (1998 BAR)
1.
The parties are heirs to one another;
There is no proof as to who died first; and
There is doubt as to who died first.
32
PERSONS AND FAMILY RELATIONS
Marian and the baby she delivered were both found
dead, with the baby’s umbilical cord already cut.
Pietro survived.
a.
b.
c.
A:
a)
b)
c)
NATURE OF MARRIAGE
Marriage as an inviolable social institution
Can Marian’s babybe the beneficiary of the insurance
taken on the life of the mother?
Between Marian and the baby, who is
presumed to have died ahead?
Will Prieto, as surviving biological father of the
baby, be entitled to claim the proceeds of the life
insurance on the life of Marian? (2008 Bar)
Under the Constitution, “marriage, as an inviolable
social institution, is the foundation of the family and shall be
protected by the State” (1987 Constitution, Art. XV, Sec.
2).
Marriage is an institution in which the community is
deeply interested. The State has surrounded it with
safeguards to maintain its purity, continuity and
permanence. The security and stability of the State are
largely dependent on it. It is in the interest and duty of
each member of the community to prevent the bringing
about of a condition that would shake its foundation and
lead to its destruction. The incidents of the status are
governed by law, not by will of the parties (Beso v.
Daguman, A.M. No. MTJ-99-1211, January 28, 2000).
YES. An unborn child may be designated as the
beneficiary in the insurance policy of the mother.
An unborn child shall be considered a person for
purposes favorable to it provided it is born later in
accordance with the NCC. There is no doubt that the
designation of the unborn child as a beneficiary
is favorable to the child.
If the baby was not alive when completely delivered
from the mother’s womb, it was not born as a person,
then the question of whom between two persons
survived will not be an issue. The baby had an
intra- uterine life of more than 7 months, thus, it
would be considered born if it was alive at the time of
its complete delivery from the mother’s womb. We
can gather from the facts that the baby was
completely delivered. But whether or not it was
alive has to be proven by evidence.
Since the baby did not acquire any right under the
insurance contract, there is nothing for Prieto to
inherit. Prieto is not married to Marian neither was he
named as the beneficiary of the insurance.
Marriage as a status
As a status, the principle in contracts that the parties may, by
mutual agreement, put an end to it, cannot certainly apply,
for the consequences of the marriage as a rule are fixed by
law (Paras, 2016).
Marriage v. Ordinary Contract
BASIS
Nature
Domicile of juridical persons
1.
2.
Governing
Law
Right of
the parties
to stipulate
The place fixed by the law creating or recognizing
the juridical person;
In the absence thereof, the place where their
legal representation is established or where they
exercise their principal functions.
MARRIAGE UNDER FAMILY CODE
A special contract of permanent union between a
man and and a woman entered into in accordance
with law for the establishment of conjugal and
family life. It is the foundation of the family and an
inviolable social institution whose nature,
consequences, and incidents are goverened by law
and not subject to stipulation, except that
marriage settelement may fix the property
relations during the marriage within the limits
provided by the Family Code (Family Code, Art. 1).
Capacity to
contract
Gender
requirement
33
MARRIAGE
a.
Special
contract
b. Sui generis
c. Social
institution
Law on marraige
GR: Not
subject to
stipulation
XPN:
Property
relations in
marriage
settlement s.
Legal
capacity is
required.
Contracting
parties
must only
be
two
persons of
ORDINARY
CONTRACT
Merely a
contract
Law on
contracts
The parties are
free to stipulate
subject to certain
limitation.
Minors may
contract through
their parents or
guardians or in
some instances, by
themselves.
Contracting
parties
may be
two
or
more
CIVIL LAW
Dissolution
by
agreement
opposite
sexes.
Dissolved
only by
death or
annulment,
never by
mutual
agreement.
marriage already celebrated cannot be changed by a
subsequent amendment to the law (Sta. Maria, 2010).
persons
regardless of sex.
Can
be
dissolved
through
express
provision
of the law,
through
expiration
of the term
for which
the
contract
was
entered
into, or by
mutual
agreement
by the
parties
concerned.
ESSENTIAL REQUISITES OF VALID MARRIAGE
(1996, 2009 Bar)
1.
2.
Legal capacity of the contracting parties who
must be a male and a female;
Consent freely given in the presence of the
solemnizing officer (FC, Art. 2).
Legal capacity of the parties to marry
1.
Age – at least 18 years of age
The attainment of the required minimum age for
marriage should be reckoned, not on the date of
filing of the application for issuance of a marriage
license, but on the date of the marriage. Pursuant to
Article 6 of the Family Code, parties may contract
marriage on the date of the solemnization of the
marriage, i.e., when they appear personally before
the solemnizing officer and declare in the presence of
not less than two witnesses of legal age that they
take each other as husband and wife (Rabuya, 2009).
Evidence of Marriage
2.
The best documentary evidence of a marriage is the
marriage contract. However, the failure to present it is not,
however, proof that no marriage took place, as other
evidence may be presented to prove marriage
(Balogbog v. CA, G.R No. 83598, March 7, 1997).
Sex – between a male and a female
Two females are incapable of entering into marriage.
There is no constitutional protection of the rights of
marriage between two persons of the same sex
(Jones v. Hallahan, 501 S.W.2d 588, November 9,
1973).
The following may be presented as proof of marriage:
(a) testimony of a witness to the matrimony, (b) the
couple’s public and open cohabitation as husband and wife
after the alleged wedlock, (c) the birth and baptismal
certificate of children born during such wedlock, and
(d) the mention of such nuptial in subsequent
documents (Sarmiento v. CA, G.R. No. 96740, March 25,
1999).
3.
Lack of legal impediment to marry
The legal impediments which may affect legal
capacity are those mentioned in Articles 37 and 38 of
the Family Code. Thus, the contracting parties are
not legally capacitated to marry each other.
Other requirements needed for the validity of
such marriage depending upon the age of the
contracting party
STATUS OF MARRIAGES
I. Valid
II. Void
III. Voidable
AGE
I.
VALID MARRIAGES
18 to 21 years old
The requisites for a valid marriage are provided
by law.
22 to 25 years old
The principle that the validity of a marriage is
determined by the law effective at the time of the
celebration of the marriage is further highlighted by
the fact that, as a general rule, the nature of the
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
ADDITIONAL
REQUIREMENTS
Parental consent and
Marriage counseling
Parental advice and
Marriage counseling
Absence of the additional requirement of parental
advice
34
PERSONS AND FAMILY RELATIONS
It does not make the marriage void or voidable, it only
affects the release of the marriage license to be
postponed until (3) three months from the complete
publication of the application (FC, Art. 15).
2.
XPNs: Valid even in the absence of formal requisite:
FORMAL REQUISITES OF VALID MARRIAGE
(C-A-L)
(1996, 2009 Bar)
1.
2.
3.
Marriage Ceremony
Authority of the solemnizing officer
Valid marriage License, except in a marriage of
exceptional character (FC, Art. 3).
a.
b.
Marriages exempt from license requirement
Either or both parties believed in good faith that the
solemnizing officer had the proper authority [FC,
Art. 35 (2)].
3.
Defect in any of the essential requisites – Voidable (FC,
Art. 4).
Irregularity in any of the formal requisites - Valid, but
the party responsible for such irregularity shall be
civilly, criminally or administratively liable (FC, Art.
4).
4.
EFFECT OF ABSENCE OF REQUISITES
Effect in the status of marriage (1995, 1996, 1999,
2008 Bar)
1. MARRIAGE CEREMONY
Status of Marriage in case of:
1.
2.
That which takes place with the:
Absence of any of the essential requisites - Void
ab initio (FC, Art. 4).
Absence of any of the formal requisites – Void ab
initio(FC, Art. 4).
1.
3.
4.
Marriages exempt from license requirement
Either or both parties believed in good faith that
the solemnizing officer had the proper authority
[FC, Art. 35 (2)].
2.
3.
Defect in any of the essential requisites –
Voidable (FC, Art. 4).
Irregularity in any of the formal requisites Valid, but the party responsible for such
irregularity shall be civilly, criminally or
administratively liable (FC, Art. 4).
Marriage Ceremony
Authority of the solemnizing officer
Valid marriage License, except in a marriage of
exceptional character (FC, Art. 3).
Common-law marriages are not recognized in the
Philippines
A common-law marriage, otherwise referred to as a live-in
relationship, is one where the man and the woman just live
together as husband and wife without getting married
(Paras, 2016). This form of marriage is not recognized
in the Philippines.
EFFECT OF ABSENCE OF REQUISITES
Effect in the status of marriage (1995, 1996, 1999,
2008Bar)
Validity of marriage by proxy
Status of Marriage in case of:
1.
Their personal declaration that they shall take each
other as husband and wife; and
In the presence of not less than 2 witnesses of legal
age.
No particular form of ceremony or religious rite for
solemnization of the marriage is required by law (FC,
Art. 6).
The declaration of consent need not be vocally
expressed. It can be shown by other manifestations or signs
of approval and consent. It is the agreement itself, and not the
form in which it is couched, which constitutes the contract
(Sta. Maria, 2010).
FORMAL REQUISITES OF A VALID MARRIAGE
(C-A-L)
(1996, 2009 Bar)
1.
2.
3.
Personal appearance of the contracting parties
before the solemnizing officer;
NOTE: There is no marriage ceremony if what transpired
was a mere private act of signing a marriage contract by the
contracting parties, without the presence of the
solemnizing officer (Morigo v. People, G.R. No. 145226,
February 6, 2004).
XPNs: Valid even in the absence of formal requisite:
a.
b.
initio (FC, Art. 4).
Absence of any of the formal requisites – Void ab
initio(FC, Art. 4).
It depends on the place of celebration of the
marriage:
Absence of any of the essential requisites - Void ab
35
CIVIL LAW
1.
If performed in the Philippines – No, it is not
allowed, hencethemarriage isvoid.
NOTE: From the time of the effectivity of the Family Code
(August 3, 1988) up to the time of the effectivity of the
Local Government Code (January 1, 1992), mayors do
not have the authority to solemnize marriage.
Philippine laws prohibit marriages by proxy. Since the
marriage is performed in the Philippines, Philippine laws
shall apply following the principle of lex loci
celebrationis.
2.
a.
“If valid where celebrated, it is also valid here.” This is
the doctrine of “lex loci celebrationis”, the law of the
place of celebration (Paras, 2016).
2.
If performed abroad – Whether it is allowed or
not depends upon the law of the place where the
marriage was celebrated (lex loci celebrationis).
Marriages in articulo mortis:
Ship captain or airplane chief – provided
themarriageis performed:
i.
During
voyage, even
during
stopovers
ii. Between passengers or crew members
(FC, Art. 31).
Such authority may be exercised not only while the
ship is at sea or the plane is in flight but also during
stop-overs at ports of call (Rabuya, 2018).
As to marriages between Filipinos - all marriages
solemnized outside the Philippines, in accordance with
the laws enforced in said country where they are
solemnized, and valid there as such, shall also be valid
here in the country, except those prohibited under Art.
35 (1), (2), (4), (5), (6), 36, 37 and 38 (FC,Art. 26).
b.
2. SOLEMNIZING AUTHORITY
Military commander of a unit who is a
commissioned officer – provided the marriage is
performed (FC, Art. 32):
i.
In absence of chaplain;
ii. Within zone of military operation;
iii. Between members of the armed forces
or civilians.
Persons authorized to solemnize marriage (1994
1995, 1999 BAR)
Duty of the solemnizing officer in a marriage in
articulo mortis
The following are the persons authorized to
solemnize
marriage
depending
upon
the
circumstances:
The solemnizing officer in a marriage in articulo mortis
after solemnizing such marriage shall state in an affidavit
executed before the local civil registrar or any other person
legally authorized to administer oaths, that the marriage
was performed in articulo mortis and that he took the
necessary steps to ascertain the ages and
relationship of the contracting parties and the
absence of a legal impediment to the marriage (FC, Art.
29).
1.
Under ordinary circumstances (FC, Art. 7):
a. Incumbent judiciary member – Provided,
It is within the court’s jurisdiction.
NOTE: Where a judge solemnized a marriage outside
his court’s jurisdiction, this is a mere irregularity in the
formal requisite, which while it may not affect the
validity of the marriage, may subject the officiating
official to administrative liability (Rabuya, 2009)
b.
Effectofsolemnizingofficer’sfailuretoexecutean
affidavit
It willhave no effect asto thevalidityofthemarriage. The
marriage will still be valid.
Priest , rabbi, imam or minister of any
church/religious sect duly authorized - by his
church or religious sect and registered with
the civil registrar general, acting within the
limits of the written authority granted him by
his church or religious sect –
The local civil registrar is given the original of the affidavit
which takes the place of a marriage license (Paras, 2016).
Such affidavit is not an essential or formal requisite of
marriage, the same with a Marriage Contract. The
signing of the marriage contract and the affidavit is only
required for the purpose of evidencing the act, not a
requisite of marriage. It is the obligation of the
solemnizing officer. It does not affect the validity of
marriage (De Loria v. Felix, G.R. No. L-9005, June 20,
1958).
Provided at least one of the parties belongs
to such church or religious sect.
c.
d.
Consul general, consul or vice-consul –
Provided both parties are Filipinos and
marriage takes place abroad in the country
where the consul holds office (FC, Art. 10).
Mayors (LGC, Arts. 444 and 445) –
including “Acting Mayor”
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Authorized venues of marriage
36
PERSONS AND FAMILY RELATIONS
GR: Must be solemnized publicly within the
jurisdiction of the authority of the solemnizing officer:
knowledge of any impediment to the union of the two
shall make it known to the local civil registrar.
a.
b.
c.
The requirement and issuance of marriage license is the
State’s demonstration of its involvement and participation
in every marriage (Rabuya, 2018).
Chambers of the judge or in open court;
Church, chapel or temple; or,
Office of the consul-general, consul or vice-consul
(FC, Art. 8).
What is required is the marriage license, not the
marriage certificate. The latter is not an essential or
formal requisite; thus an oral solemnization is valid. In
fact, a marriage may be proved by oral evidence (Paras,
2016).
XPNs:
1.
2.
Marriage at the point of death;
Marriage in remote places;
Marriage at a house or place designated by both of the
parties with the written request to the solemnizing
officer to that effect. (FC, Art. 8)
Validity of marriage license
The license shall be valid in any part of the Philippines for a
period of 120 days from the date of issue, and shall be
deemed automatically cancelled at the expiration of said
period if the contracting parties have not made use of it (FC,
Art. 20).
NOTE: This provision is only directory, not mandatory. The
requirement that the marriage be solemnized in a
particular venue or a public place is not an essential
requisite for the validity of the marriage.
If the parties contracted marriage after the lapse of 120
days from the issuance of the marriage license, such
marriage shall be considered void for lack of marriage
license.
A marriage solemnized by a judge outside of his
jurisdiction is valid
Under Art. 3 of the FC, one of the formal requisites of
marriage is the "authority of the solemnizing officer."
Under Art. 7, marriage may be solemnized by, among
others, "any incumbent member of the judiciary within the
court's jurisdiction." Art. 8, which is a directory
provision, refers only to the venue of the marriage
ceremony and does not alter or qualify the authority of the
solemnizing officer as provided in the preceding
provision. If there is defect in such requirement, the same
would not make the marriage void, but it merely subjects
the officer to criminal, civil, or administrative
responsibility (Navarro v. Domagtoy, A.M. No. MTJ-961088, July 19, 1996).
NOTE: In case of a marriage solemnized by a mayor
outside of his territorial jurisdiction, LGC is silent on the
matter, hence the abovementioned case may be applied by
analogy
Effect of lack of parental advice
In case a party who is required by law to obtain parental
advice or undergo marriage counselling fails to do so, the
issuance of marriage license is suspended for 3 months
from the completion of publication of the application
(FC, Art. 15).
Status of marriages celebrated during the suspension
of the issuance of marriage license
The status of the marriage if the parties get married within
the said 3-month period depends:
Exception to the rule requiring authority of the
solemnizing officer
The exception to the rule requiring authority of the
solemnizing officer is when a marriage is contracted with
either or both parties believing in good faith that the
solemnizing officer had the authority to do so [FC, Art. 35
(2)].
3.
1.
If the parties did not obtain a marriage license –
the marriage shall be void for lack of marriage
license.
2.
If the parties were able to obtain a marriage
license – the marriage shall be valid without
prejudice to the actions that may be taken against
the guilty party.
Persons authorized to issue the marriage license
The marriage license is issued by the local civil registrar of
the city or municipality where either contracting party
habitually resides (FC, Art. 9).
MARRIAGE LICENSE
A marriage license is required in order to notify the
public that two persons are about to be united in
matrimony and that anyone who is aware or has
Obtaining a marriage license in a place other than where
either party habitually resides is a mere irregularity.
37
CIVIL LAW
Requirement in the application for marriage license
Each of the contracting parties is required to file
separately a sworn application for the issuance of
marriage license, specifying the following:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
2.
Full name of the contracting party;
Place of birth;
Age and date of birth;
Civil status;
If previously married, how, when and where
the previous marriage was dissolved or
annulled;
Present residence and citizenship;
Degree of relationship of the contracting
parties;
Full name, residence and citizenship of the
father;
Full name, residence and citizenship of the mother;
and
Full name, residence and citizenship of the guardian
or person having charge, in case the contracting
party has neither father nor mother and is under the
age of twenty-one years (FC, Art. 11).
3.
4.
5.
Marriages between parties Cohabiting for at least 5
years and without legal impediment to marry
each other (FC, Art. 34);
Marriages solemnized Outside the Philippines
where no marriage license is required by the
country where it was solemnized.
Requisites for the 5-year cohabitation as an
exception to the marriage license requirement
(2002, 2008 BAR)
Additional requirement for foreign national applicants
The requisites are:
1. Living together as husband and wife at least 5 years
before the marriage.
When either or both of the contracting parties are citizens
of a foreign country, it shall be necessary for them to
submit a certificate of legal capacity to contract marriage,
issued by their respective diplomatic or consular officials.
The 5 year period must be characterized by:
a. Exclusivity – the partners must live together
exclusively, with no other partners, during the
whole 5-yearperiod.
b. Continuity– such cohabitation was unbroken.
Stateless persons or refugees from other country shall, in lieu
of the certificate of legal capacity herein required, submit
an affidavit stating the circumstances showing such
capacity to contract marriage (FC, Art. 21).
NOTE: The period is counted from the date of
celebration of marriage. It should be the years
immediately before the day of the marriage.
Marriage without the required certificate of legal
capacity to marry is valid
The status of the marriage celebrated on the basis of a
license issued without the required Certificate of Legal
Capacity is valid as this is merely an irregularity in
complying with a formal requirement of the law in
procuring a marriage license, which will not affect the
validity of the marriage (Garcia v. Recio, G.R. No. 138322,
October 2, 2001).
2.
No legal impediment to marry each other During the
period of cohabitation.
NOTE: The five-year period of cohabitation must have
been a period of legal union had it not been for the absence
of marriage.
EXCEPTIONS TO MARRIAGE LICENSE
REQUIREMENT
3.
4.
Marriages exempt from the license requirement
(MARCO)
5.
Marriages among Muslims or members of ethnic
cultural communities – Provided they are
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Marriages in Remote places (FC, Art. 28)
Remote Place - no means of transportation to enable
the party to personally appear before the local civil
registrar (Rabuya, 2018).
FOREIGN NATIONAL
1.
solemnized in accordance with their customs, rites or
practices (FC, Art. 33);
Marriages in Articulo mortis
a. In case either or both of the contracting
parties are at the point of death (FC, Art.
27);
b. Solemnized by a ship captain or airplane
pilot
(FC, Art. 31); and
c. Within zones of military operation (FC,
Art. 32).
38
Fact of absence of legal impediment must be
Present at the time of the marriage.
Parties must execute an Affidavit that they are
living together as husband and wife for 5 years and
that they do not have any impediment to marry.
Solemnizing officer must execute a Sworn statement
that he had ascertained the qualifications of the
parties and found no legal impediment to their
PERSONS AND FAMILY RELATIONS
marriage (Manzano v. Sanchez, A.M. No. MTJ-001329, March 8, 2001).
took her back and arranged for her marriage to
Brad. Although Faye lived with Brad after the
marriage, Roderick continued to regularly visit
Faye while Brad was away at work. During their
marriage, Faye gave birth to a baby girl, Laica. When
Faye was 25 years old, Brad discovered her continued
liaison with Roderick and in one of their heated
arguments, Faye shot Brad to death. She lost no time in
marrying her true love Roderick, without a marriage
license, claiming that they have been continuously
cohabiting for more than 5 years. Was the marriage of
Roderick and Faye valid? (2008 Bar)
Q: Pepito was married to Teodulfa. Teodulfa was
shot by him resulting in her death. After 1 year and
8 months, he married Norma without any marriage
license. In lieu thereof, they executed an affidavit
stating that they had lived together as husband and
wife for at least five years and were thus exempt
from securing a marriage license.
a.
b.
A:
a)
What is the status of their marriage?
Would your answer be the same if Pepito was
separated in fact from Teodulfa?
A: NO, the marriage is void because there was no
marriage license. Their marriage was not exempt from the
requisite of a marriage license because Roderick and Faye
have not been cohabiting for at least 5 continuous
years before the celebration of their marriage. Their
lovers’ trysts and brief visitations did not amount to
“cohabitation”.
The marriage is void for lack of marriage
license. To be exempt from the license
requirement under the 5-year cohabitation rule,
the cohabitation should be in the nature of a
perfect union that is valid under the law but
rendered imperfect only by the absence of the
marriage contract and is characterized by
continuity, that is, unbroken, and exclusivity,
meaning no third party was involved at anytime
within the 5 years. It should be a period of legal
union had it not been for the absence of the
marriage.
MARRIAGE CERTIFICATE
Marriage license v. Marriage certificate
BASIS
Nature
In this case, Pepito and Norma are not exempt from the
marriage license requirement because at the time of
Pepito and Norma's marriage, it cannot be said that they
have lived with each other as husband and wife for at
least five years prior to their wedding day because from
the time Pepito's first marriage was dissolved to the
time of his marriage with Norma, only about twenty
months had elapsed.
b)
Requisite of
Marriage
MARRIAGE
LICENSE
Authorization
by the state to
celebrate
marriage.
Formal
requisite of
marriage.
MARRIAGE
CERTIFICATE
Best evidence of
the existence of
marriage.
Neither
essential nor
formal requisite
of marriage.
Q: Guillermo and Josefa lived together as
husband and wife, but there is doubt as to whether
they got married, since no record of the marriage existed
in the civil registry but their relatives and friends
maintained that the two in fact married each other and
lived as husband and wife for more than half a
century. Is Guillermo married to Josefa?
YES, the marriage is still void. Even if they were
separated in fact, and thereafter both Pepito and
Norma had started living with each other that has
already lasted for five years, the fact remains that
Pepito had a subsistingmarriage at the time when he
started cohabiting with Norma. It is immaterial that
when they lived with each other, Pepito had
already been separated in fact from his lawful
spouse. The subsistence of the marriage even where
there was actual severance of the filial
companionship between the spouses cannot make
any cohabitation by either spouse with any third
party as being one as "husband and wife" (Niñal v.
Bayadog, G.R. No. 133778, March 14, 2000).
A: They are presumed to be married. In this jurisdiction,
every intendment of the law leans toward legitimizing
matrimony. Persons dwelling together apparently in
marriage are presumed to be in fact married. This is the
usual order of things in society and, if the parties are not
what they hold themselves out to be, they would be
living in constant violation of the common rules of law
and propriety. Semper praesumitur pro matrimonio –
always presume marriage (Vda.De la Rosa v. Heirs of Vda.
De Damian, G.R. No. 103028, October 10, 1997).
Q: Roderick and Faye were high school
sweethearts. When Roderick was 18 and Faye, 16
years old, they started living together as husband
and wife without the benefit of marriage. When
Faye reached 18 years of age, her parents forcibly
Although a marriage contract is considered a primary
evidence of marriage, its absence is not always proof that
39
CIVIL LAW
no marriagetook place (Vda.De la Rosa v. Heirs of Vda. De
Damian, G.R. No. 103028, October 10, 1997).
1.
2.
EFFECT OF MARRIAGE CELEBRATED ABROAD
AND FOREIGN DIVORCE
Requirements for the application of par. 2 of Art. 26 of the
Family Code
Rules governing the validity of marriage (2002,
2004, 2006, 2009, 2010 Bar)
1.
1.
As to its extrinsic validity – Lex loci
celebrationis
2.
NOTE: Locus regit actum (the act is governed by the law
of the place where it is done) - is adhered to here in the
Philippines as regards the extrinsic validity of marriage.
2.
a.
If the person involved is a stateless person, domiciliary rule
applies, otherwise, lex nationalii applies.
b.
The 1st paragraph of Article 26 of the Family Code
(FC)on the validity of foreign marriages applies,
however, only to Filipinos. Foreign marriages of
foreigners or of a Filipino and a foreigner are governed
by the Rules on Conflict of Laws (Sempio-Diy, 1995).
A:
a.
Marriages between Filipinos solemnized abroad in
accordance with the law in force in said country
XPNs: It shall be void, even if it is valid in the foreign
country where the marriage was celebrated, if any of the
following circumstances are present:
4.
5.
6.
7.
b.
Lack of legal capacity even with parental
consent (e.g. party is below 18);
Incestuous;
Contracted through Mistake of one party as to
the identity of the other;
Contracted following the annulment or
declaration of nullity of a previous marriage
but Before partition, etc.;
Bigamous or polygamous except as provided
in Art. 41 FC on terminable bigamous
marriages;
Void due to Psychological incapacity;
Void for reasons of Public policy.
YES, the Filipino spouse may remarry. Divorce
validly obtained abroad by the alien spouse
capacitating him/her to remarry will likewise allow
the Filipino spouse to remarry (FC, Art. 26, 2nd par.).
It depends. What is material in this case is the
citizenship of the spouse who obtained a divorce
decree abroad at the time the decree was obtained and
not their citizenship at the time the marriage was
celebrated. If the Filipino spouse was naturalized as a
citizen of a foreign country before he/she obtains a
divorce decree and was thereafter capacitated to
remarry, the Filipino spouse will be capacitated to
remarry (Republic v. Orbecido, G.R. No. 154380,
October 5, 2005).
Q: A Filipina was married to an American who
obtained a divorce decree in the U.S. When the
Filipina came back to the Philippines and started
her business, the American followed suit and
wanted to enforce his rights over the Filipina to
the extent of claiming his rights to administer the
properties of the woman, contending that they
Requirements to prove a foreign marriage
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
May the Filipino spouse remarry despite the fact
thatdivorceisnotvalidinthePhilippines?
Will your answer be the same if it was a valid
marriage between Filipinos?
NOTE:Under the nationality principle embodied in Art. 16
of the NCC, only Philippine nationals are covered by the
policy against absolute divorces, the same being
considered contrary to our concept of public policy and
morality. Nevertheless, aliens may obtain divorces abroad
which may be recognized in the Philippines, provided they
are valid according to their national law (Van Dorn v.
Romillo, Jr., G.R. No. L- 68470, October 8, 1985).
GR: Marriages between Filipinos solemnized outside
the Philippines in accordance with the law of the
foreign country where it is celebrated, if valid there,
shall be valid here as such.
2.
3.
It must be a case of mixed marriage (one party
is Filipino and the other is an alien);
The divorce must be obtained by the alien
spouse and not by the Filipino spouse; and
The divorce obtained by the alien spouse must
capacitate him or her to remarry (Rabuya,
2018).
Q: Suppose in a valid mixed marriage the foreign
spouse obtained a divorce decree abroad and was
capacitated toremarry.
As to its intrinsic validity – Personal law
NOTE: Personal law may either be the national law or
the law of the place where the person is domiciled.
1.
The existence of the pertinent provision of the
foreign marriage law.
The celebration or performance of the marriage
in accordance of said law.
40
PERSONS AND FAMILY RELATIONS
are still married. He also claimed hereditary
rights. Is he correct? Why?
petition for declaration of nullity of marriage. After all,
petitioner may have the personality to file the petition
but the divorce decree obtained was a limited divorce or
a mensa et thoro or the foreign law may restrict
remarriage even after the divorce decree becomes
absolute (Garcia v. Recio, G.R. No. 138322, October 2,
2002).
A: NO, the divorce in the U.S. released the Filipina from the
marriage. Thus, pursuant to American law, he is no longer
the husband of the Filipina. He would therefore have no
standing to sue the Filipina (Van Dorn v. Romillo, Jr., G.R.
No. L-68470, October 8, 1985).
Q: Luzviminda was married to Ryoji Morisono in
Quezon City on December 8, 2009. Thereafter, they
lived together in Japan for 1 year and 3 months but
were not blessed with a child. During their married
life, they would quarrel mainly due to Ryoji’s
philandering ways, in addition to the fact that he
was much older than Luzviminda. As such, the two
of them submitted a “Divorce by Agreement” before
the City Hall of Mizuho-ku in Nagoya, Japan, which
was approved and duly recorded. In view of this,
Luzviminda filed a petition for recognition of
foreign divorce decree obtained by her and Ryoji
before the RTC so that she could cancel the surname
of her husband and be able to marry again.
Burden of proof in recognition of foreign divorce
Burden of proof lies with "the party who alleges the
existence of a fact or thing necessary in the prosecution
or defense of an action." Since the divorce was a defense
raised by respondent, the burden of proving the
pertinent foreign law validating it falls squarely upon
him. Courts cannot take judicial notice of foreign laws.
The power of judicial notice must be exercised with
caution, and every reasonable doubt upon the subject
should be resolved in the negative (Garcia v. Recio, G.R.
No. 138322, October 2, 2001).
The naturalization of one of the parties, as well as the
divorce decree obtained by him or her, must be proven
as a fact under our rules on evidence. The foreign law
under which the divorce was obtained must likewise be
proven as our courts cannot take judicial notice of
foreign laws and judgments; hence, like any other facts,
both the divorce decree and the national law of the alien
must be alleged and proven according to our law on
evidence (Garcia v. Recio, G.R. No. 138322, October 2,
2002).
The RTC denied Luzviminda’s petition, holding that
while a divorce decree held that while a divorce
obtained abroad by an alien spouse may be
recognized in the Philippines – provided that such
decree is valid according to the national law of the
alien – the same does not find application when it
was the Filipino spouse, i.e., petitioner, who
procured the same. Invoking the nationality
principle provided under Article 15 of the Civil
Code, in relation to Article 26 (2) of the Family Code,
the RTC opined that since petitioner is a Filipino
citizen whose national laws do not allow divorce,
the foreign divorce decree she herself obtained in
Japan is not binding in the Philippines. Did the RTC
correctly deny Luzviminda’s petition for recognition
of divorce decree she procured?
However, if the Filipino spouse remained to be a citizen
of the Philippines when he/she obtained a divorce
decree abroad, such decree will not be recognized in the
Philippines even if that spouse is subsequently
naturalized as a citizen of a foreign country because at
the time the spouse obtained the divorce decree, he/she
was still a citizen of the Philippines and being
naturalized afterwards does not cure this defect
(Republic v. Iyoy, G.R. No. 152577, September 21, 2005).
A: No. It had been ruled in Republic vs. Manalo that
foreign divorce decrees obtained to nullify marriages
between a Filipino and an alien citizen may already be
recognized in this jurisdiction, regardless of who
between the spouses initiated the divorce; provided, of
course, that the party petitioning for the recognition of
such foreign divorce decree – presumably the Filipino
citizen – must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing
it. a plain reading of the RTC ruling shows that the
denial of Luzviminda's petition to have her foreign
divorce decree recognized in this jurisdiction was
anchored on the sole ground that she admittedly
initiated the divorce proceedings which she, as a
Filipino citizen, was not allowed to do. In light of the
doctrine laid down in Manalo, such ground relied upon
by the RTC had been rendered nugatory. However, the
Court cannot just order the grant of Luzviminda's
Q: If a foreigner who was divorced seeks to obtain a
marriage license in the Philippines, what should he
do?
A: The applicant for marriage license has to prove his
legal capacity. If the marriage was dissolved by reason
of divorce, he has to file a sworn statement as to how
the marriage was dissolved (FC, Art. 11) and furnish the
local civil registrar with the judgment (FC, Art. 13) and
must register the same with the local civil registrar to
bind third persons (FC, Art. 52).
NOTE: Without the divorce decree and foreign law as
part of the evidence, the Court cannot rule on the issue
of whether petitioner has the personality to file the
41
CIVIL LAW
petition for recognition of the foreign divorce decree, as
Luzviminda has yet to prove the fact of her. "Divorce by
Agreement" obtained in Nagoya City, Japan and its
conformity with prevailing Japanese laws on divorce.
Notably, the RTC did not rule on such issues. Since these
are questions which require an examination of various
factual matters, a remand to the court a quo is
warranted. (Morisono v. Morisono, G.R. No. 226013, July
2, 2018)
Marriage between Filipinos who are of the same sex
is VOID
For a marriage to be valid, it must be between persons
of opposite sexes.
Although gay marriages are definitely not covered
within the purview of Article 2 of the Family Code, the
emerging issue of transsexuals and intersexual gender
identities have called the attention of the Supreme
Court in the cases of Silverio v. Republic (G.R. No.
174689, October 22, 2007) and Republic v. Cagandahan
(G.R. No. 166676, September 125, 2008), respectively
(Sta. Maria, 2010).
II. VOID MARRIAGES
Marriages that are void ab initio(1993, 2004, 2005,
2006 BAR)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Q: Sidley and Sol were married with one (1)
daughter, Solenn. Sedfrey and Sonia were another
couple with one son, Sonny. Sol and Sedfrey both
perished in the same plane accident. Sidley and
Sonia met when the families of those who died sued
the airlines and went through grief-counseling
sessions. Years later, Sidney and Sonia got married.
At that time, Solenn was four (4) years old and
Sonny was five (5) years old. These two (2) were
then brought up in the same household. Fifteen (15)
years later, Solenn and Sonny developed romantic
feelings towards each other, and eventually eloped.
On their own and against their parents’ wishes, they
procured a marriage license and got married in
church.
a. Is the marriage of Solenn and Sonny valid,
voidable or void?
b. If the marriage is defective, can the marriage be
ratified by the free cohabitation of the spouses?
(2018 Bar)
Solemnized without License, except those
marriages that are exempt from the license
requirement;
Absence of any of the essential or formal
requisites of marriage;
Solemnized by any person not legally Authorized
to perform marriages unless such marriages were
contracted with either or both parties believing in
good faith that the solemnizing officer had the
legal authority to do so;
Contracted through Mistake of one of the
contracting parties as to the identity of the other;
Bigamous or polygamous marriages not falling
under Article 41 of the Family Code or those
allowed under special laws such as the Muslim
Code;
Marriages contracted by any party below 18 years
of age even with the consent of parents or
guardians;
Marriages contracted by any party, who at the
time of the celebration of the marriage, was
Psychologically incapacitated, even if such
incapacity becomes manifest only after its
solemnization (FC, Art. 36);
Incestuous Marriages (FC, Art. 37);
Marriages declared void because they are contrary
to Public policy (FC, Art. 38);
Subsequent marriages which are void under Art.
53;
Marriages in jest;
“Marriages in jest is a pretended one, legal in form
but entered as a joke, with no real intentions of
entering into the actual marriage status, and with
a clear understanding that the parties would not
be bound (Republic of the Philippines v. Albios, G.R.
No. 198780, October 16, 2013); and
Common-law marriages.
A:
a. The marriage is voidable. Under Article 14 of the
Family Code, if a party to the marriage is between
the ages of eighteen and twenty-one; the consent of
their father, mother, surviving parent or guardian,
or persons having legal charge of them, in the order
mentioned, is an additional requirement. In the
absence of such parental consent, the consent given
by the party between the ages of eighteen and
twenty-one is considered defective. Also, under
Article 4 of the Family Code, a defect in the essential
requisites of marriage renders the marriage
voidable. In this case, Solenn and Sonny are
nineteen and twenty years old respectively during
the time of the celebration of their marriage. Thus,
the absence of parental consent renders the
marriage of Solenn and Sonny voidable.
b. Yes. Although voidable marriage, their marriage
could be ratified by free cohabitation. Under Article
45(1) of the Family Code, such marriage may be
ratified by the cohabitation of the contracting
parties (after attaining the age of twenty-one) as
1. ABSENCE OF ANY ESSENTIAL OR FORMAL
REQUISITES OF MARRIAGE
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
42
PERSONS AND FAMILY RELATIONS
husband and wife.
If the national law of the foreigner recognizes 17 year old
persons to be capacitated to marry, then their
marriage is valid, otherwise it is void.
Q: In case of a change in sex, can the person who has
undergone said change be allowed to marry another
of the same sex as he/she originally had? (2014
BAR)
Effect of lack of authority of solemnizing officer
GR: The marriage is void ab initio.
A: It depends upon the cause for the change in sex.
1.
XPNs:
1. Express- If either or both parties believed in good
faith that the solemnizing officer had the legal
authority to do so (FC, Art. 35).
2. Implied - Article 10 in relation to Article 26 of the
Family Code. If the marriage between a foreigner and
a Filipino citizen abroad solemnized by a
Philippine consul assigned in that country is
recognized as valid in the host country, such
marriage shall be considered as valid in the
Philippines (Sta. Maria, 2010).
If the change is artificial – No, he/she cannot.
The sex or gender at the time of birth shall be taken into
account. He is still, in the eyes of the law, a man although
because of the artificial intervention, he now has the
physiological characteristics of a woman (Silverio v.
Republic, G.R. No. 174689, October 22, 2007).
2.
If the change is natural – He/she can. Ex.
Hermaphrodite, Congenital Adrenal Hyperplasia
Q: Jennifer was registered as a female in her
Certificate of Live Birth. In her early years, she
suffered from clitoral hypertrophy and was found
out that her ovarian structures had minimized. She
also alleged that she has no breasts or
menstruation. She was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) a condition
where persons thus afflicted possess secondary
male characteristics because of too much secretion
of androgen. She then alleged that for all interests
and appearances as well as in mind and emotion,
she has become a male person. What is Jennifer’s
gender or sex?
Q: Judge Palaypayon solemnized marriages even
without the requisite of marriage license. Thus,
some couples were able to get married by the
simple expedient of paying the marriage fees. As a
consequence, their marriage contracts did not
reflect any marriage license number. In addition,
the judge did not sign their marriage contracts and
did not indicate the date of the solemnization, the
reason being that he allegedly had to wait for the
marriage license to be submitted by the parties.
Such marriage contracts were not filed with the
Local Civil Registry. Are such marriages valid?
A: NO. A valid marriage license is necessary for the
validity of marriage, except in the cases provided for
therein. The absence of any of the essential or formal
requisites shall generally render the marriage void
ab initio(Cosca v. Palaypayon, A.M. No. MTJ92-721, September 30, 1994).
A: MALE. Where the person is biologically or naturally
intersex the determining factor in his gender
classification would be what the individual, having
reached the age of majority, with good reason thinks
of his/her sex. Jennifer here thinks of himself as a male
and considering that his body produces high levels of
androgen, there is preponderant biological support for
considering him as being male. Sexual development in
cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that
the gender of such persons is fixed (Republic v. Jennifer
Cagandahan, G.R. No. 166676, September 12, 2008).
Mistake to render the marriage void
For marriage to be rendered void, the mistake in
identity must be with reference to the actual physical
identity of other party, not merely a mistake in the
name, personal qualifications, character, social
standing,etc (Rabuya, 2018).
Marriage where one or both of the parties are below
18 years of age is VOID
2.
Such marriage is void for lack of legal capacity even if the
parents consented to such marriage (Sempio-Dy, 1995).
PSYCHOLOGICAL INCAPACITY
Psychological incapacity is “no less than a mental
(not physical) incapacity that causes a party to be
truly (cognitive) of the basic marital covenants that
concomitantly must be assumed and discharged by
the parties to the marriage which include their
mutual obligations to live together, observe love,
respect, fidelity, and to render help and support”
Validity of the marriage if it is a mixed marriage
where the Filipino is 18 years old but the foreigner
is below 17 years of age
43
CIVIL LAW
(Republic of the Philippines v. Iyoy, G.R. No. 152577,
September 21, 2005).
factual milieu and the appellate court must, as much as
possible, avoid substituting its own judgment for that of the
trial court.
Psychological incapacity does not refer to mental
incapacity tantamount to insanity. (Paras, 2016)
Clearly, the ground is restricted to psychological
incapacity to “comply with the essential marital
obligations” (Sta. Maria, 2010).
By the very nature of Article 36 of the Family Code,
courts, despite having the primary task and burden of
decision- making, must not discount but, instead, must
consider as decisive evidence the expert opinion on the
psychological and mental temperaments of the parties
(Kalaw v. Fernandez, G.R. No. 166357, January 15, 2015).
In such case, the spouse declared to be psychologically
incapacitated cannot be held liable to pay moral
damages to the other spouse based on Articles 2217 and
21 of the NCC, which connotes (willfulness) of the acts
complained of, if the same acts constitutive of the
psychological incapacity were to be made the basis for the
award of moral damages. It is contradictory to
characterize acts as a product of psychological
incapacity, and hence beyond the control of the party
because of an innate inability, while at the same time
considering the same set of acts as willful (Rabuya,
2018).
Requisites of Psychological Incapacity (1996, 1997, 2002,
2006 Bar)
3.
4.
5.
Constitutional provision on marriage vis-à-vis
validity of declarations of nullity of marriage based on
psychological incapacity
Proof of Psychological Incapacity
Q: Does a petition or declaration of nullity of
marriage based on Art. 36 of the FC destroy the
constitutional mandate to protect the sanctity of
marriage and promoting such marriage as a
foundation of the family?
The root cause of psychological incapacity must be:
a.
Medically or clinically identified;
b. Alleged in the complaint;
c.
Sufficiently proven by experts; and
d. Clearly explained in the decision.
A: NO. In dissolving marital bonds, the Court is not
demolishing the foundation of families, but it is actually
protecting the sanctity of marriage, because it refuses to
allow a person afflicted with a psychological disorder, who
cannot comply with or assume the essential marital
obligations, from remaining in that sacred bond. Article 36,
in classifying marriages contracted by a psychologically
incapacitated person as a nullity, should be deemed as
an implement of this constitutional protection of marriage.
Given the avowed State interest in promoting marriage as
the foundation of the family, which in turn serves as the
foundation of the nation, there is a corresponding interest
for the State to defend against marriages ill-equipped to
promote family life. (Kalaw v. Fernandez, G.R. No.
166357, January 14, 2015)
NOTE: Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
The physician’s examination is not required in
establishing psychological incapacity as ground for
declaration of nullity
If the totality of evidence presented is enough to
sustain a finding of psychological incapacity,
physician’s examination of the person concerned
need not be resorted to (Marcos v. Marcos, G.R. No.
136490, October 19, 2000; Glenn Viñas v. Mary Grace
Parel-Viñas, G.R. No. 208790, January 21, 2015).
Guidelines set by the Court to aid it in its disposition
of cases involving psychological incapacity
Determination of psychological incapacity is left solely
with the courts on a case- to-case basis
In the landmark case of Republic of the Philippines
v. Court of Appeals and Molina, the Supreme Court
enumerated the following guidelines in invoking and
proving psychological incapacity under Article 36 of
the Family Code:
Every court should approach the issue of nullity “not on the
basis of a priori assumptions, predilections or
generalizations, but according to its own facts” in
recognition of the verity that no case would be on “all
fours” with the next one in the field of psychological
incapacity as a ground for the nullity of marriage; hence,
every “trial judge must take pains in examining the
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Juridical antecedence s– Must be rooted in the
history of the party antedating the marriage,
although overt manifestations may arise only
after such marriage.
Gravity – grave enough to bring about the
disability of the party to assume the essential
marital obligations.
Permanence or Incurability – must be
incurable or, if curable, the cure should be
beyond the means of the parties involved.
1.
44
Burden of proof to show the nullity of the
marriage belongs to the plaintiff;
PERSONS AND FAMILY RELATIONS
2.
3.
4.
5.
6.
7.
8.
The root cause of the psychological incapacity
must be: (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven
by experts and (d) clearly explained in the
decision;
The incapacity must be proven to be existing at
“the time of the celebration” of the marriage;
Such incapacity must also be shown to be
medically or clinically permanent or incurable;
Such illness must be grave enough to bring
about the disability of the party to assume the
essential obligations of marriage;
The essential marital obligations must be those
embraced by Arts. 68 up to 71 of the FC as
regards the husband and wife, as well as Arts.
220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied
marital obligation(s) must also be stated in the
petition, proven by evidence and included in the
text of the decision;
Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in
the Philippines, while not controlling or decisive,
should be given great respect by our courts;
The trial court must order the prosecuting
attorney or fiscal and the Solicitor General to
appear as counsel for the state.
Siayngco, G.R. No. 158896, October 27, 2004).
NOTE: Mere sexual infidelity or perversion, emotional
immaturity and irresponsibility and the like, do not by
themselves warrant a finding of psychological incapacity as
the same may only be due to a person's refusal or
unwillingness to assume the essential obligations of
marriage. (Castillo v. Republic of the Philippines, G.R.
No. 214064, February 6, 2017)
It must be shown that these acts are manifestations of
a disordered personality which would make respondent
completely unable to discharge the essential
obligations of a marital state, not merely youth,
immaturity or sexual promiscuity (Dedel v. CA, G.R. No.
151867, January 29, 2004).
2.
3.
4.
No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the petition
(Republic of the Philippines v. Court of Appeals and Molina,
G.R. No. 108763, February 13, 1997; Danilo A. Aurelio v. Vide
Ma. Corazon P. Aurelio, G.R. No. 175367, June 6, 2011).
5.
Q: A and B were married. They have four (4)
children. A, the husband, had an affair with C, who gave
birth to a child. After 12 years of marriage, B left the
conjugal home and her 4 children with A. Now, A started
living with C. Nine years since the de facto separation
from B, A filed a petition for declaration of nullity of
marriage based on Article 36 of the Family Code. A
psychologist and a canon law expert testified that B,
were indeed psychologically incapacitated alleging that
she may reflect a narcissistic personality disorder with
her sexual infidelity, habitual mahjong playing, and her
frequent night-out with friends. They based their
diagnosis onan interview with the family relative of B and
statements made by their own son. Is the marriage
of A and B void on the ground of psychological
incapacity?
NOTE: In Republic v. Quintero-Hamano, the SC held that
these guidelines may not be relaxed just because the
spouse alleged to be psychologically incapacitated happens
to be a foreign national. The norms used for determining
psychological incapacity should apply to any person
regardless of nationality because the rules were formulated
on the basis of studies of human behavior in general
(Rabuya, 2018)
In Marcos v. Marcos, the SC held categorically that
psychological incapacity “may be established by the totality
of evidence presented” and that “there is no requirement
that the respondent should be examined by a physician or a
psychologist as a condition sine qua non for such
declaration” (Marcos v. Marcos, G.R. No. 136490, October 19,
2000).
A: YES. The Court held that B was indeed
psychologically incapacitated as they relaxed the
previously set forth guidelines with regard to this case.
Article 36 of the Family Code must not be so strictly and too
literally read and applied given the intendment of the
drafter to adopt its enacted version of “less
specificity” obviously to enable “some resiliency in its
application.” Expert opinion considered as decisive
Instances where allegations of psychological incapacity
were not sustained
1.
Disagreements regarding money matters (Tongol
v. Tongol, G.R. No. 157610, October 19, 2007)
Mere abandonment. To constitute psychological
incapacity, it must be shown that the unfaithfulness
and abandonment are manifestations of a
disordered personality that completely prevented
the erring spouse from discharging the essential
marital obligations (Republic of the Philippines v.
Cesar Enselan, G.R. No. 170022, January 9, 2013).
Sexual infidelity (Republic v. Dagdag, G.R No.
109975, February 9, 2001)
Living an adulterous life when specific evidence was
shown that promiscuity as a trait already existing at
the inception of marriage (Baccay v. Baccay, G.R. No.
173138, December 1, 2010)
Mere showing of irreconcilable differences and
conflicting personalities (Carating- Siayngco v.
45
CIVIL LAW
evidence as to psychological and emotional
temperaments. The long-term effects of the
respondent’s obsessive mahjong playing surely
impacted her family life particularly on her very young
children. Her willfully exposing her children to the
culture of gambling on every occasion of her mahjong
sessions was a very grave and serious act of
subordinating their needs for parenting to the
gratification of her own personal and escapist desires. The
respondent revealed her wanton disregard for her
children’s moral and mental development. This
disregard violated her duty as a parent to safeguard and
protect her children (Kalaw v. Fernandez, G.R. No.
166357, January 14, 2015)
He had no stable job and merely worked in the
gambling cockpits as "kristo" and "bangkero sa
hantak." When he decided to join and train with
the army, Natividad left their conjugal home and
sold their house without his consent. Thereafter,
Natividad moved to Dipolog City where she lived
with a certain Engineer Terez (Terez), and bore
him a child named Julie Ann Terez. After
cohabiting with Terez, Natividad contracted a
second marriage on January 11, 1991 with
another man named Antonio Mondarez and has
lived since then with the latter in Cagayan de Oro
City. From the time Natividad abandoned them in
1972, Rodolfo was left to take care of Ma. Reynilda
and Ma. Rizza and he exerted earnest efforts to
save their marriage which, however, proved
futile because of Natividad’s psychological
incapacity that appeared to be incurable. For her
part, Natividad failed to file her answer, as well as
appear during trial, despite service of summons.
Nonetheless, she informed the court that she
submitted herself for psychiatric examination to
Dr. Cheryl T. Zalsos (Dr. Zalsos) in response to
Rodolfo’s claims. Rodolfo also underwent the
same examination.
Q: Was the Molina doctrine abandoned by the recent
ruling in the abovementioned case of Kalaw vs.
Fernandez(G.R.No.166357,January14,2015)?
A: NO. The Court in this case merely recognized the
unintended consequences of strictly applying the
standards set in Molina. The resiliency with which the
concept (of psychological incapacity) should be applied and
the case-to-case basis by which the provision should
be interpreted, as so intended by its framers, had,
somehow, been rendered ineffectual by the
imposition of a set of strict standards in Molina. In
hindsight, it may have been inappropriate for the Court to
impose a rigid set of rules, as the one in Molina, in
resolving all cases of psychological incapacity. The
unintended consequences of Molina has taken its toll on
people who have to live with deviant behavior, moral
insanity and sociopathic personality anomaly, which, like
termites, consume little by little the very foundation
of their families, our basic social institutions. Far from
what was intended by the Court, Molina has become a straitjacket, forcing all sizes to fit into and be bound by it.
In her two-page psychiatric evaluation report, Dr.
Zalsos stated that both Rodolfo and Natividad
were psychologically incapacitated to comply
with the essential marital obligations, finding
that both parties suffered from "utter emotional
immaturity [which] is unusual and unacceptable
behavior considered [as] deviant from persons
who abide by established norms of conduct." As
for Natividad, Dr. Zalsos also observed that she
lacked the willful cooperation of being a wife and
a mother to her two daughters. On February 10,
1999, the Office of the Solicitor General (OSG),
representing petitioner Republic of the
Philippines (Republic), filed an opposition to the
complaint, contending that the acts committed by
Natividad did not demonstrate psychological
incapacity as contemplated by law, but are mere
grounds for legal separation under the Family
Code. Should the marriage be dissolved?
In the abovementioned case, the Supreme Court is
not suggesting the abandonment of Molina. It simply
declares that there is a need to emphasize other
perspectives as well which should govern the
disposition of petitions for declaration of nullity
under Article 36.
Q: Rodolfo and Natividad were married. On
December 28, 1998, Rodolfo filed a verified
complaint for declaration of nullity of marriage
before the RTC alleging that Natividad was
psychologically incapacitated to comply with her
essential marital obligations. In support of his
complaint, Rodolfo testified, among others, that
he first met Natividad when they were students at
the Barangay High School of Sindangan, and he
was forced to marry her barely three (3) months
into their courtship in light of her accidental
pregnancy. At the time of their marriage, he was
21 years old, while Natividad was 18 years of age.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
A: NO. "Psychological incapacity," as a ground to nullify
a marriage under Article 36 of the Family Code, should
refer to no less than a mental – not merely physical –
incapacity that causes a party to be truly incognitive of
the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage
which, as so expressed in Article 68of the Family Code,
among others, include their mutual obligations to live
together, observe love, respect and fidelity and render
help and support. The RTC, as affirmed by the CA,
heavily relied on the psychiatric evaluation report of Dr.
Zalsos which does not, however, explain in reasonable
46
PERSONS AND FAMILY RELATIONS
detail how Natividad’s condition could be characterized
as grave, deeply-rooted, and incurable within the
parameters of psychological incapacity jurisprudence.
Aside from failing to disclose the types of psychological
tests which she administered on Natividad, Dr. Zalsos
failed to identify in her report the root cause of
Natividad's condition and to show that it existed at the
time of the parties' marriage. Neither was the gravity or
seriousness of Natividad's behavior in relation to her
failure to perform the essential marital obligations
sufficiently described in Dr. Zalsos's report. To hark
back to what has been earlier discussed, psychological
incapacity refers only to the most serious cases of
personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and
significance to the marriage. In the final analysis, the
Court does not perceive a disorder of this nature to exist
in the present case. Thus, for these reasons, coupled too
with the recognition that marriage is an inviolable social
institution and the foundation of the family, the instant
petition is hereby granted. (Republic v. Gracia, G.R. No.
171557, February 12, 2014)
often having violent fights and jealous fits. Reghis
could not forgive Olivia for dragging him into
marriage and resented her condescending attitude
towards him. They became even more estranged
when Reghis secured a job as a medical
representative and became engrossed in his career
and focused on supporting his parents and siblings.
As a result, he spent little time with his family,
causing Olivia to complain that Reghis failed to be a
real husband to her. In 1986, the couple parted
ways. Reghis then filed a petition for declaration of
nullity of marriage citing his psychological
incapacity to comply with his essential marital
obligations. The clinical psychologist submitted a
report and testified that Reghis suffered from
Obsessive Compulsive Personality Disorder (OCPD).
This gave him a strong obsession for whatever
endeavour he chooses, such as his work, to the
exclusion of other responsibilities and duties such
as those pertaining to his roles as father and
husband. Dr. Basilio surmised that Reghis’ OCPD was
the root of the couple’s disagreements and that the
same is incurable. The Office of the Solicitor General
(OSG), representing the Republic, opposed the
petition. Should the marriage be declared null and
void?
Q: Rachel worked as a domestic helper in Hong Kong
to provide for the needs of Jose, the love of her life.
Eventually, the couple got married and settled in a
house they acquired. The married life ran smoothly
up until Rachel filed a petition for declaration of
nullity of marriage. Her petition anchored on the
ground that Jose was psychologically incapacitated
to fulfill his essential marital obligations. She
alleged that Jose was a violent man who used to
physically abuse her. She added that Jose was a
drunkard and always had sexual relations with
different women aside from Rachel. On his part, Jose
simply denied all the allegations in the petition. Is
Jose psychologically incapacitated?
A: No. The requirements for psychological incapacity do
not concur. Reghis’ testimony shows that he was able to
comply with his marital obligations which, therefore,
negates the existence of a grave and serious
psychological incapacity on his part. Reghis admitted
that he and Olivia lived together as husband and wife
under one roof for fourteen (14) years and both of them
contributed in purchasing their own house. Reghis also
fulfilled his duty to support and take care of his family.
Moreover, the OCPD which Reghis allegedly suffered
from was not shown to have juridical antecedence. No
specific behavior or habits during his adolescent years
were shown which would explain his behavior during
his marriage with Olivia. Dr. Basilio simply concluded
that Reghis’ disorder is incurable but failed to explain
how she came to such conclusion. Based on the
appreciation of the RTC, Dr. Basilio did not discuss the
concept of OCPD, its classification, cause, symptoms,
and cure, and failed to show how and to what extent the
respondent exhibited this disorder in order to create a
necessary inference that Reghis’ condition had no
definite treatment or is incurable.
A: No. For psychological incapacity to exist, it should
refer to no less than a mental and not merely physical
incapacity that causes a party to be truly incognitive of
the basic marital covenants as provided for under
Article 68 of the Family Code. In other words, it must be
a malady that is so grave and permanent as to deprive
one of awareness of the duties and responsibilities of
the matrimonial bond one is about to assume. Also,
following the case of Republic vs Molina, the totality of
evidence must show that psychological incapacity exists
and its gravity, juridical antecedence, and incurability
must be duly established. Here, there is no sufficient
evidence to prove that psychological incapacity exists.
Absent sufficient evidence, Courts are compelled to
uphold the indissolubility of the marital tie. (Del Rosario
v. Del Rosario, G.R. No. 222541, February 15, 2017)
Article 36 of the Family Code must not be confused with
a divorce law that cuts the marital bond at the time the
grounds for divorce manifest themselves; rather, it must
be limited to cases where there is a downright
incapacity or inability to assume and fulfill the basic
marital obligations, not a mere refusal, neglect or
difficulty, much less, ill will, on the part of the errant
Q: Reghis and Olivia were married and were blessed
with two (2) children. However, the couple
experienced a turbulent and tumultuous marriage,
47
CIVIL LAW
spouse. (Republic v. Romero II, G.R. No. 209180, February
26, 2016)
During trial, Gina presented the findings of
Professor Emma Astudillo-Sanchez (Prof. Sanchez),
the psychologist who conducted a psychological
examination of the parties. She concluded that Gina
and Marjune's personality disorders "affected their
behaviors even before they contracted marriage
and, in the presence of situational factors, became
more evident during the time they were together
during the marriage. Is upholding the annulment
based on the expert opinion of the psychologist
sufficient proof of the presence of psychological
incapacity?
Q: Would the state of being of unsound mind or the
concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism be considered indicia of
psychological incapacity, if existing at the inception of
marriage? (2002 Bar)
A: The state of being of unsound mind, the
concealment of drug addiction, habitual alcoholism,
lesbianism or homosexuality may be indicia of
psychological incapacity, depending on the degree of
severity of the disorder. However, the concealment of drug
addiction, habitual alcoholism, lesbianism or
homosexuality is a ground of annulment of marriage
(Santos v. CA, G.R. No. 112019, January 4, 1995).
A: NO, the said report failed to show that these traits
existed prior to Gina's marriage and that her alleged
personality disorder is incurable or that the cure is
beyond her means. There was simply no discernible
explanation on the juridical antecedence or incurability
of Gina's supposed condition. More significantly, the
relation of such condition to Gina's inability to perform
her essential marital obligations was not sufficiently
shown. To reiterate, the psychological condition ought
to pertain to personality disorders that are grave and
serious such that the party would be incapable of
carrying out the ordinary duties required in a marriage.
Unfortunately, the Case Analysis Report fails to
demonstrate this crucial point. In determining the
existence of psychological incapacity, a clear and
understandable causation between the party's condition
and the party's inability to perform the essential marital
covenants must be shown A psychological report that is
essentially comprised of mere platitudes, however
speckled with technical jargon, would not cut the
marriage ties. (Republic v. Tecag, G.R. No. 229272,
November 19, 2018)
Q: Art. 36 of the FC provides that a marriage
contracted by any party who, at the time of the
celebration, was psychologically incapacitated to
comply with the essential marital obligations of
marriage, shall be void. Choose the spouse listed
below who is psychologically incapacitated.
a.
b.
c.
d.
e.
Nagger
Gay or Lesbian
Congenital sexual pervert
Gambler
Alcoholic (2006 Bar)
A: B and C. They may serve as indicia of psychological
incapacity, depending on the degree and severity of the
disorder (Santos v. CA, G.R. No. 112019, January 4, 1995).
If the condition of homosexuality, lesbianism or sexual
perversion, existing at the inception of the marriage, is
of such a degree as to prevent any form of sexual intimacy,
any of them may qualify as a ground for psychological
incapacity. The law provides that the husband and wife are
obliged to live together, observe mutual love, respect and
fidelity (FC, Art. 68).
More than just showing the manifestations of
incapacity, the petitioner must show that the
respondent is incapacitated to comply with the
essential marital obligations of marriage and that it is also
essential that he must be shown to be incapable of doing so
due to some psychological, not physical illness
(Republic v. Quintero- Hamano, G.R. No. 149498, May 20,
2004).
3.
a.
b.
Between ascendants and descendants of any degree;
Between brothers and sisters whether of the full or
half-blood (FC, Art. 37).
NOTE: Regardless of whether the relationship between the
parties is legitimate or illegitimate.
Void marriages by reason of public policy (1999, 2007,
2008 Bar)
Marriages between:
Q: After living together as husband and wife for two
(2) years, Gina and Marjune formalized their
marital union through civil rites. As months passed,
the communication between Gina and Marjune
became less frequent until it ceased altogether.
Thus, Gina filed a petition to declare her marriage
with Marjune null and void on the basis of the
latter's psychological incapacity.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
INCESTUOUS MARRIAGES
1.
2.
3.
Collateral blood relatives (legitimate
Illegitimate) up to the 4th civildegree;
Step-parents & step-children;
Parents-in-law &children-in-law;
or
NOTE: The prohibition under Nos. 2 and 3 applies even
after the termination of the marriage which is the very
48
PERSONS AND FAMILY RELATIONS
source of the relationship by affinity, regardless of the
cause of such termination.
4.
5.
6.
7.
8.
9.
bigamous marriage therefore involves a situation where
the first marriage is not void but completely valid or at
least annullable (Sta. Maria, 2010).
Adopting parent & the adopted child;
Surviving spouse of the adopting parent & the adopted
child;
Surviving spouse of the adopted child & the adopter;
Adopted child & legitimate child of the adopter;
Adopted children of the same adopter;
Parties where one, with the intention to marry the
other, kills the latter’s spouse, or his/her spouse (FC,
Art. 38).
If the first marriage is void and a party to that first
marriage subsequently remarries without obtaining a
judicial declaration of nullity of the first marriage, the
subsequent marriage is likewise void. It is void not
because it is bigamous but because it failed to comply
with the requirements under Article 40 in relation to
Articles 52 and 53 of the Family Code (Valdes v. RTC, G.R.
No. 122749, July 31, 1996).
NOTE: The list is EXCLUSIVE. If not falling within this
enumeration, the marriage shall be valid. Such as
marriages between:
i.
ii.
iii.
iv.
Q: Arnold, a Filipino, and Britney, an American, both
residents of California, decided to get married in their
local parish. Two years after their marriage, Britney
obtained a divorce in California. While in Boracay,
Arnold met Jenny, a Filipina, who was vacationing
there. Arnold fell in love with her. After a brief
courtship and complying with all the requirements,
they got married in Hong Kong to avoid publicity, it
being Arnold’s second marriage. Is his marriage with
Jenny valid? (2006 BAR)
Adopted and Illegitimate child of the adopter;
Step brother and step sister;
Brother-in-law and sister-in-law;
Parties who have been guilty of adultery or
concubinage.
Q: Amor gave birth to Thelma when she was 15 years
old. Thereafter, Amor met David and they got married
when she was 20 years old. David has a son, Julian, with
his ex-girlfriend Sandra. Can Julian and Thelma get
married? (2007 BAR)
A: YES. The marriage will not fall under Art. 35(4) of the
Family Code on bigamous marriages provided that
Britney obtained an absolute divorce, capacitating her
to remarry under her national law. Consequently, the
marriage between Arnold and Jenny may be valid as
long as it was solemnized and valid in accordance with
the laws of Hong Kong.
A: The marriage between stepbrother and stepsister is void.
However, under the FC, the marriage may be valid.
4.
Q: May a person contract a valid subsequent
marriage before a first marriage is declared void ab
initio by a competent court?
SUBSEQUENT MARRIAGE
Q: If a person contracts a subsequent marriage during
the subsistence of a prior marriage, what is the status
of the subsequent marriage? (1992, 2005, 2008 Bar)
A:
GR: Void for being bigamous or polygamous, even if
celebrated abroad and valid there as such.
A: NO. A judicial declaration of nullity is required before
a valid subsequent marriage can be contracted; or else,
what transpires is a bigamous marriage, reprehensible
and immoral (FC, Art. 40; In re: Salvador v. Serafico, A.M.
2008-20-SC, March 15, 2010).
XPN: Valid if it is a terminable bigamous marriage.
NOTE: Before one can contract a second marriage on the
ground of nullity of the first marriage, there must first be a
final judgment declaring the first marriage void (FC, Art.
40). If a party fails to secure a judicial declaration of nullity
of the first marriage, he or she runs the risk of being
charged with bigamy as the marital bond or vinculum in
the first nuptial subsists (Mercado v. Tan, G.R. No. 137110,
August, 2000; Te v. CA, G.R. No. 126746, November 29, 2009).
Bigamous Marriage
Bigamy - When a person contracts a second or
subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of
judgment rendered in the proper proceedings (RPC, Art.
349).
Special cases when subsequent marriage is
allowed
NOTE: The same applies to polygamy.
1.
A subsequent void bigamous marriage contemplates a
situation where such subsequent marriage was
contracted at the time when the first marriage, which is
valid in all respects, was still subsisting. A void
49
Marriage between a Filipino and a foreigner and
procurement by the alien spouse of a valid
divorce decree abroad, capacitating him/her to
remarry.
CIVIL LAW
2.
Terminable bigamous marriages (FC, Art. 41)
enhances the welfare of the community (Eduardo Manuel v.
People, G.R. No. 165842, November 29, 2005).
Requisites for validity of subsequent marriage under
Art. 41 under the Family Code (B-A-D)
Finality of judicial declaration of presumptive death
Before the celebration of the subsequent marriage:
1.
2.
GR: The order of the trial court granting the petition for
judicial declaration of presumptive death under Article 41
of the Family Code is immediately final and executory by
the express provision of Article 247 of the Family Code
(Republic of the Philippines v. Bermudez-Lorino, G.R. No.
160258, January 19, 2005).
The Absent spouse had been absent for 4 consecutive
years (ordinary absence) or 2 consecutive years
(extra-ordinary absence);
The present spouse has a well-founded Belief that the
absent spouse is already dead;
XPN: Under Article 41 of the Family Code, the losing party
in a summary proceeding for the declaration of
presumptive death may file a petition for certiorari with
the CA on the ground that, in rendering judgment thereon,
the trial court committed grave abuse of discretion
amounting to lack of jurisdiction. From the decision of the
CA, the aggrieved party may elevate the matter to this
Court via a petition for review on certiorari under Rule 45
of the Rules of Court (Republic of the Philippines v. Yolanda
Cadacio Granada, G.R. No.187512, June 13, 2012).
NOTE: The Court in Cantor, pointed out the term, “wellfounded belief” has no exact definition under the law. In
fact, the Court notes such belief depends on the
circumstances of each particular case. Such belief must
result from diligent efforts to locate the absent spouse.
Such diligence entails an active effort on the part of the
present spouse to locate the missing one. The mere absence
of a spouse, devoid of any attempt by the present spouse to
locate the former, will not suffice. (Republic v. Catubag, G.R.
No. 210580, April 18,2018)
3.
The declaration of presumptive death is without prejudice
to the effect of reappearance of the absent spouse (Sta.
Maria, 2010). The declared presumption will still only be
prima facie, and can be overthrown by evidence (People v.
Archilla, G.R. No. L-15632, February 28, 1961).
There is judicial Declaration of presumptive death in a
summary proceeding in accordance with Article 253
of the Family Code.
NOTE: If both spouses of subsequent marriage acted in bad
faith, such marriage is void ab initio.
Effect if both parties in the subsequent marriage under
Article 41 acted in bad faith
Requisites for issuance of judicial declaration of
presumptive death
1.
2.
3.
4.
1.
2.
That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of
death under the circumstances laid down in Article
391 of the New Civil Code;
That the present spouse wishes to remarry;
That the present spouse has well-founded belief that
the absentee is dead;
That the present spouse files a summary proceeding
for the declaration of presumptive death of the
absentee (Republic of the Philippines v. Nolasco, G.R. No.
94053, March 17, 1993).
3.
4.
Termination of Subsequent Bigamous Marriage
The recording of the affidavit of reappearance of the absent
spouse in the civil registry of the residence of the parties to
the subsequent marriage shall automatically terminate the
terminable bigamous marriage (subsequent marriage)
unless there is a judgment annulling the previous marriage
or declaring it void ab initio (FC, Art. 42).
The requirement for a judgment of the presumptive
death of the absent spouse is for the benefit of the
spouse present because she could be charged and
convicted of bigamy if the defense of good faith based on
mere testimony is found incredible. It is also for the
protection of the State. The law regulating civil marriages
are necessary to serve the interest, safety, good order,
comfort or general welfare of the community and the
parties can waive nothing essential to the validity of the
proceedings. A civil marriage anchors an ordered society
by encouraging stable relationships over transient ones; it
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
The subsequent marriage is void ab initio.
All donations propter nuptias made by one in favour
of the other are revoked by operation of law.
All testamentary dispositions made by one in favour of
the other are revoked by operation of law.
The parties shall be liable for the crime of bigamy
(Rabuya, 2009).
In Art. 42, no judicial proceeding to annul a subsequent
marriage contracted under Art. 41 is necessary. Also, the
termination of the subsequent marriage by affidavit
provided for in Art. 42 does not preclude the filing of an
action in court to prove the reappearance of the absentee
and obtain a declaration of dissolution or termination of
the subsequent marriage (SSS v. Jarque Vda. De Bailon, G.R.
No. 165545, March 24, 2006).
50
PERSONS AND FAMILY RELATIONS
Q: Gregorio married Janet. When he was employed
overseas, he was informed that Janet left. Five years
later, he filed an action for her to be declared
presumptively dead without alleging that he wishes to
remarry. Will his action prosper?
Celerina does not admit to have been absent. She also seeks
not merely the termination of the subsequent marriage but
also the nullification of its effects. A subsequent marriage
contracted in bad faith, even if it was contracted after a
court declaration of presumptive death, lacks the
requirement of a well- founded belief that the spouse is
already dead; the first marriage will not be considered as
validly terminated. Hence, Celerina’s choice to file an action
for annulment of judgment is the proper remedy as
annulment of judgment is the remedy when the RTC’s
judgment, order, or resolution has become final, and the
remedies of new trial, appeal, petition for relief (or other
appropriate remedies) are no longer available through no
fault of the petitioner (Celerina J. Santos v. Ricardo T. Santos,
G.R. No. 187061, October 8, 2014).
A: NO. A petition to declare an absent spouse
presumptively dead may not be granted in the absence of
any allegation that the spouse present will remarry
(Republic v. Nolasco, G.R. No. 94053, March 17, 1993).
Q: What is the effect if the parties to the subsequent
marriage obtains knowledge that the spouse absent
has reappeared?
A: NONE. If the absentee reappears, but no step is taken to
terminate the subsequent marriage, either by affidavit or
by court action, such absentee's mere reappearance, even if
made known to the spouses in the subsequent marriage,
will not terminate such marriage (SSS v. Jarque Vda. De
Bailon, G.R. No. 165545, March 24, 2006).
Any interested party of the parties, including the parents,
their children, the present spouse, or the subsequent
spouse of the present spouse, may file the sworn statement
of reappearance of the spouse who was absent (Sta. Maria,
2010).
Q: Nilda was married to Dante on November 29, 1975.
On December 2, 1975, Dante, a member of the Armed
Forces of the Philippines, left Nilda, and went to Jolo,
Sulu where he was assigned. Since then, Nilda heard no
news from Dante and has tried everything to locate him
by making inquiries with his parents, relatives, and
neighbors as to his whereabouts, but unfortunately,
they also did not know where to find him. Thus, on
April 14, 2009, she filed before the RTC a petition to
declare Dante as presumptively dead for the purpose of
remarriage, alleging that after the lapse of thirty-three
(33) years without any kind of communication from
him, she firmly believes that he is already dead. Both
RTC and CA ruled in favor of Nilda. Is the ruling of the
courts correct?
Q: RTC declared Celerina presumptively dead after her
husband, Ricardo, had filed a petition for declaration of
absence or presumptive death for the purpose of
remarriage on June 15, 2007. Subsequently, Ricardo
remarried.
A: No. Before a judicial declaration of presumptive death
can be obtained, it must be shown that the prior spouse had
been absent for four consecutive years and the present
spouse had a well-founded belief that the prior spouse was
already dead.
Celerina claimed that she learned about Ricardo’s
petition only sometime in October 2008 when she
could no longer avail the remedies of new trial, appeal,
petition for relief, or other appropriate remedies.
Thereafter, on November 17, 2008, she filed a petition
for annulment of judgment before the CA on the
grounds of extrinsic fraud and lack of jurisdiction. She
argued that she was deprived her day in court when
Ricardo, despite his knowledge of her true residence,
misrepresented to the court that she was a resident of
Tarlac City when, in fact, she never resided there. As a
result of Ricardo’s misrepresentation, she was
deprived of any notice of and opportunity to oppose
the petition declaring her presumptively dead. The CA
dismissed Celerina’s petition for annulment of
judgment for being a wrong mode of remedy and ruled
that the proper remedy was to file a sworn statement
before the civil registry, declaring her reappearance in
accordance with Article 42 of the Family Code. Was the
CA correct?
The "well-founded belief in the absentee's death requires
the present spouse to prove that his/her belief was the
result of diligent and reasonable efforts to locate the absent
spouse and that based on these efforts and inquiries,
he/she believes that under the circumstances, the absent
spouse is already dead. It necessitates exertion of active
effort, not a passive one. As such, the mere absence of the
spouse for such periods prescribed under the law, lack of
any news that such absentee spouse is still alive, failure to
communicate, or general presumption of absence under the
Civil Code would not suffice.
In this case, Nilda testified that after Dante's disappearance,
she tried to locate him by making inquiries with his
parents, relatives, and neighbors as to his whereabouts, but
unfortunately, they also did not know where to find him.
Other than making said inquiries, however, Nilda made no
further efforts to find her husband. She could have called or
proceeded to the AFP headquarters to request information
about her husband, but failed to do so. She did not even
A: NO. Mere filing of an affidavit of reappearance would not
suffice for the purpose of terminating the subsequent
marriage and also of nullifying the effects of the declaration
of presumptive death and the subsequent marriage.
51
CIVIL LAW
seek the help of the authorities or the AFP itself in finding
him (Republic v. Tampus, G.R. No. 214243, March 16, 2016).
JUDICIAL DECLARATION OF NULLITY OF
MARRIAGE
Q: When are non-bigamous subsequent marriages
void?
Necessity of Judicial Declaration of Nullity of Marriage
The absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void (FC, Art.
40).
A: The subsequent marriage of a person whose prior
marriage has been annulled but contracted said subsequent
marriage without compliance with Art. 52 (of the) FC, shall
be VOID.
There has yet to be a judgment declaring it void, for it is
solely on the basis of that final judgment that a party can
remarry (Albano, 2013).
Before he contracts a subsequent marriage, he must first
comply with the requirement provided for in Art. 52, viz:
The recording in the civil registries and registries of
properties of the following:
1.
2.
3.
4.
Remarriage is not the sole purpose of declaration of nullity
of a marriage, as it can be declared void for other purposes.
In Valdes v. RTC, it was said that the law aims to do away
with
any continuing uncertainty on the status of the second
marriage (G.R. No. 122749, Valdez v. Gomez- Valdez, July 31,
1996; Albano, 2013).
Judgment of annulment;
Partition;
Distribution of properties, and,
Delivery of presumptive legitimes.
Q: Ana Rivera had a husband, a Filipino citizen like her,
who was among the passengers on board a commercial
jet plane which crashed in the Atlantic Ocean ten (10)
years earlier and had never been heard of ever since.
Believing that her husband had died, Ana married
Adolf Cruz Staedler, a divorced German national born
of a German father and a Filipino mother residing in
Stuttgart. To avoid being required to submit the
required certificate of capacity to marry from the
German Embassy in Manila, Adolf stated in the
application for marriage license stating that Adolf was
a Filipino, the couple got married in a ceremony
officiated by the Parish Priest of Calamba, Laguna in a
beach in Nasugbu, Batangas, as the local parish priest
refused to solemnize marriage except in his church. Is
the marriage valid? (2008 Bar)
Prescriptive Period
The time for filing an action or defense for the declaration
of absolute nullity of marriage, whether in a direct or
collateral manner, does not prescribe (FC, Art. 39) (2002,
2006 Bar).
Any of the parties in a void marriage can file an action for
the declaration of nullity of marriage even though such
party is the wrongdoer.
Effect of death of a party in a petition for declaration of
nullity of marriages
1.
A: If the missing husband was in fact dead at the time the
second marriage was celebrated, the second marriage was
valid. Actual death of a spouse dissolves the marriage ipso
facto whether or not the surviving spouse had knowledge
of such fact. A declaration of presumptive death even if
obtained will not make the marriage voidable because
presumptive death will not prevail over the fact of death.
If the missing husband was in fact alive when the second
marriage was celebrated, the second marriage was void ab
initio because of a prior subsisting marriage. Had Ana
obtained a declaration of presumptive death, the second
marriage would have been voidable.
2.
Petition for the declaration of nullity of marriage by
the heirs of a deceased person after his death
The heirs cannot file for declaration of nullity of marriage.
The advent of the Rule on Declaration of Absolute Nullity of
Void Marriages marks the beginning of the end of the right
of the heirs of the deceased spouse to bring a nullity of
marriage case against the surviving spouse. The heirs can
still protect their successional right, for, compulsory or
intestate heirs can still question the validity of the marriage
of the spouses, not in a proceeding for declaration of nullity
but upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in the
regular courts.
In both cases, the fact that the German misrepresented his
citizenship to avoid having to present his Certificate of
Legal Capacity, or the holding of the ceremony outside the
church or beyond the territorial jurisdiction of the
solemnizing officer, are all irregularities which do not affect
the validity of the marriage.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Before the entry of judgment – The court shall order
the case closed and terminated without prejudice to
the settlement of estate in proper proceedings.
After the entry of judgment – The decision shall be
binding upon the parties and their successors-ininterest in the settlement of the estate.
52
PERSONS AND FAMILY RELATIONS
However, with respect to nullity of marriage cases
commenced before the effectivity of A.M. No. 02-11-10 and
marriages celebrated during the effectivity of the NCC, the
doctrine laid down in Niñal v. Bayadog still applies; that the
children have the personality to file the petition to declare
the nullity of marriage of their deceased father to their
stepmother as it affects their successional rights (De Dios
Carlos v. Sandoval, G.R. No. 179922, December 16, 2008).
NOTE: Art. 40 is applicable to remarriages entered into
after the effectivity of the FC on August 3, 1988 regardless
of the date of the first marriage. Besides, under Art. 256 of
the FC, said Article is given “retroactive effect” insofar as it
does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws” (Atienza v.
Brillantes, A.M. No. MTJ-92-706, March 29, 1995).
Q: While his first marriage is subsisting, Veronico
married Leticia, which marriage was later declared
void on the ground of psychological incapacity. When
Veronico got married for the third time, Leticia filed a
case for bigamy against him. For his defense, Veronico
claims that effects of the nullity of his marriage with
Leticia retroacts to the date when it was contracted,
hence, he is not guilty of bigamy for want of an
essential element – the existence of a valid previous
marriage. Rule on Veronico’s argument.
Q: If the court denies a petition for declaration of
nullity of marriage based on psychological incapacity,
may a party to the said case file another petition for
declaration of its nullity based on the absence of
marriage license?
A: NO. A petition to declare the marriage void due to
absence of marriage license, filed after the court denied a
petition to declare the marriage void due to psychological
incapacity is barred by res judicata. There is only one cause
of action which is the declaration of nullity of the marriage.
Hence, when the second case was filed based on another
ground, there was a splitting of a cause of action which is
prohibited (Mallion v. Alcantara, G.R. No. 141528, October
31, 2006).
Q: Is the declaration of nullity of marriage applied
prospectively?
A: Veronico’s argument has no merit. Art. 349 of the RPC
penalizes the mere act of contracting a second or
subsequent marriage during the subsistence of a previous
valid marriage. Here, as soon as the second marriage to
Leticia was celebrated, the crime of bigamy had already
been consummated as the second marriage was contracted
during the subsistence of the valid first marriage (Tenebro
v. CA, G.R. No. 150758, February 18, 2004).
A: NO, it retroacts to the date of the celebration of the
marriage.
EFFECTS OF JUDICIAL DECLARATION OF NULLITY OF
MARRIAGE
Although the judicial declaration of nullity of a marriage on
the ground of psychological incapacity retroacts to the date
of the celebration of the marriage insofar as the vinculum
between the parties is concerned, it must be noted that the
marriage is not without legal consequences or effects. One
such consequence or effect is the incurring of criminal
liability for bigamy. To hold otherwise would be to render
nugatory the State’s penal laws on bigamy as it would allow
individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages (Tenebro v.
CA, G.R. No. 150758, February 18, 2004).
1. Status of the Children(1990, 2010 Bar)
GR: (Children conceived and born outside a valid marriage
or inside a void marriage are Illegitimate.)
XPNs:
i. Legitimate if the marriage is void:
1. On the ground of psychological incapacity of
either or both parties;
2. Due to the non-compliance with the
requirements set forth under Article 52 of the
Family Code
Q: Is a decree of nullity of the first marriage required
before a subsequent marriage can be entered into
validly?
A: GR: Under the Art. 40 of the FC, the absolute nullity of a
previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring
such previous marriage void.
ii. Legitimate if the children were conceived or born
before the judgment of annulment or absolute nullity
of the marriage under Article 36 has become final and
executory (FC, Art. 54, 1st sentence).
iii. Legitimate if the children were conceived or born of
the subsequent marriage under Article 53 (FC, Art. 54,
2nd sentence).
XPN: If the second marriage, however, took place prior to
the effectivity of the FC, there is no need for judicial
declaration of nullity of the first marriage pursuant to the
prevailing jurisprudence at that time (Rabuya, 2006).
2. Property Relations
GR: Either Article 147 or 148 (Co- Ownership) of the
Family Code will apply.
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CIVIL LAW
XPN: If the subsequent marriage is void due to noncompliance with Article 40 of the Family Code, the property
relations of the void subsequent marriage will either be
absolute community or conjugal partnership of gains.
6.
GR: Since the children are considered as illegitimate,
the parental authority and the custody of the children
will be exercised by their mother. The illegitimate father
even if he admits paternity, will only have visitation
rights.
3. Donations Propter Nuptias
GR: Donations propter nuptias are revocable at the
instance of the donor.
XPN: If the marriage is declared void by the reason of
psychological incapacity of either or both of the parties, the
parental authority and the custody will be exercised by the
parent designated by the court.
XPNs:
a.
If the donation propter nuptias is embodied in a
marriage settlement, the donation is void under Article
86 par. 1 of the Family Code;
b. If the subsequent marriage is judiciallydeclared
void by reason of Article 40 of the Family Code, the
donation remains valid;
Effects of Decree of Annulment
1.
XPNto the XPN: If the donee spouse contracted the marriage
in bad faith, all donations are revoked by operation by
law.
2.
3.
c.
When both parties to a subsequent marriage
contracted in bad faith under Article 44 of the Family
Code, all donations propter nuptias are revoked
by operation by law.
4.
4. Designation as Beneficiary in Insurance Policy
5.
If the subsequent marriage is judicially declared
to void by reason of Article 40 of the Family Code,
the innocent spouse may revoke such
designation if the beneficiary spouse acted in
bad faith, even if such designation be stipulated as
irrevocable Right to inherit
a. Intestate Succession: The parties cannot
inherit from each other by way of intestate
succession since they are no longer
considered as spouses;
b. Testate Succession:
5.
6.
Termination of the marital bond, as if it had never
been entered into, but the effects thereof are not
totally wiped out;
Children conceived or born before the judgment of
annulment has become final and executory are
considered legitimate;
Absolute community property regime or the
conjugal partnership property regime is
terminated or dissolved and the same shall be
liquidated in accordance with the provisions of
Arts. 102 and 129;
The innocent spouse may revoke the designation
of the other spouse who acted in bad faith as
beneficiary in the insurance policy whether or not
the designation is revocable;
The spouse who contracted the marriage in bad
faith shall be disqualified to inherit from the
innocent spouse by testate and intestate
succession;
Donation propter nuptias.
GR: It shall remain valid.
XPN:If the donee spouse acted in bad faith, the donor
may revoke the donation.
GR: Any Testamentary provision by one in favor of
the other shall remain valid.
XPNs:
Liquidation of Property if either spouse contracted
the marriage in bad faith
His or her share of the net profits of the community
property or conjugal partnership property shall be
forfeited in favor of the common children or if there be
none, the children of the guilty spouse by previous
marriage or in default thereof, the innocent spouse.
If the subsequent marriage is rendered void by
non-compliance with Article40 oftheFamily Code, the
spouse who contracted the subsequent marriage
in bad faith is disqualified to inherit from the
innocent spouse.
2. If the marriage is void by reason of the bad faith of
both parties under Article 41 of the Family Code, all
testamentary dispositions made by one in favor of the
otherarerevoked by operation of law.
1.
The final judgment of nullity or annulment shall
provide thefollowing:
1.
NOTE: The parties are not disqualified to institute each
other as voluntary heir in their respective wills to be
executed after the judicial declaration of nullity
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Parental Authority and Custody of Children
2.
3.
54
Liquidation, partition and distribution of the
properties of the spouses;
Custody and support of the common children; and
Delivery of their presumptive legitimes.
PERSONS AND FAMILY RELATIONS
Unless such matters had already been adjudicated in
previous judicial proceedings, in which case, the final
judgment of nullity or annulment need not provide for
those which have already been adjudicated.
NOTE: Where there was a failure to record in the
civil registry and registry of property the judgment
of annulment or absolute nullity of the marriage, the
partition and distribution of the property of the
spouses, and the delivery of the children’s
presumptive legitimes, it shall not affect third
persons (FC, Art. 52).
Forms of presumptive legitime
a. Cash
b. Property
c. Sound security
Remarriage after declaration of nullity or
annulment
A person must comply with the requirements of
Art.52 of the FC before he can remarry, viz, the
Recording and registration of: (JPDD):
1.
2.
3.
4.
Judgement of Annulment
Partition
Distribution of properties; and
Delivery of presumptive legitime
55
CIVIL LAW
Void v. Voidable Marriages
VOID MARRIAGES
Status of marriage
Petition filed
Who may file
Void ab initio
Valid until annulled
Declaration of Nullity of Marriage
Annulment of Marriage
GR:Solely by the husband or wife.
GR: Offended Spouse
XPNs: Any real party in interest, only in XPNs:
the following cases:
1. Parents or guardians in cases of
1. Nullity
of
marriage
cases
insanity
commenced before the effectivity 2. Parents or guardians before the
of A.M. No. 02-11-10 - March 15,
party reaches 21 years old on the
2003.
ground of Lack of Parental
2. Marriages celebrated during the
Authority
effectivity of the Civil Code (De
Dios Carlos v. Sandoval, G.R. No.
179922, December 16, 2008).
3. A party to the previous marriage
may seek the nullity of the
subsequent marriage on the
ground that the subsequent
marriage is bigamous (Estrellita
Juliano-Llave v. Republic of the
Philippines G.R. No. 169766 March
20, 2011).
No prescriptive period
GR: Within 5 years from discovery of the
ground
Prescriptive period
How may be impugned
Children
Property
VOIDABLE MARRIAGES
Either directly or collaterally
XPNs:
1. Lifetime of spouse in cases of
2. Insanity
3. Before the party reaches 21 in cases
4. where parents or guardians may
file Annulment
Judicial declaration is necessary
GR: Illegitimate;
Legitimate
XPNs: Those conceived or born of
marriages declared void under:
1. Art. 36 (Psychological incapacity) of
the Family Code, or
2. Art. 52 in relation to Art. 53 of the
3. Family Code
GR: Property relations are governed by GR: Governed by rules on absolute
rules on co-ownership
community
XPN: If the marriage is declaredvoid by XPN: Unless another system is agreed
reason of non-compliance with Article upon in marriage settlement
40 of the FC, the absolute community or
the conjugal partnership, as the case
may be, shall be dissolved and liquidated
(FC, Art. 43 (2), in relation to Art. 50).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
56
PERSONS AND FAMILY RELATIONS
GR: There is no necessity to obtain a Necessary
judicial declaration
Judicial Declaration
XPN: For purposes of remarriage, Judicial
declaration of nullity is required.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such fraud as
will give ground for action for the annulment of marriage
(FC, Art. 46, last par.).
VOIDABLE MARRIAGES
A voidable marriage is considered valid and produces
all its civil effects until it is set aside by final judgment of
a competent court in an action for annulment (Rabuya,
2018). Simply, a voidable marriage is valid until it is
annulled (Paras, 2016).
Circumstances constituting FRAUD under Art. 45(3)
(1996, 1997, 2002, 2003, 2006 Bar)
Determination of the unsoundness of mind as a ground
forannulment
1.
It is essential that the mental incapacity must relate
specifically to the contract of marriage and the test is
whether the party at the time of the marriage was
capable of understanding the nature and consequences
of the marriage (Rabuya, 2018).
2.
Fraud as a ground for annulment
4.
3.
Fraud, as distinguished from fraud as a ground for
annulment of contracts, refers to the non-disclosure or
concealment of some facts deemed material to the
marital relations (Rabuya, 2009).
Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moralturpitude;
Concealment by the wife of the fact that at the time of
marriage, she was pregnant by a man other than her
husband;
Concealment of sexually transmitted disease,
regardless of nature, existing at the time of marriage;
or
Concealment of drug addiction, habitual
alcoholism, homosexuality and lesbianism (FC, Art.
46).
NOTE: Where there has been no misrepresentation or
fraud, that is, when the husband at the time of the marriage
knew that the wife was pregnant, the marriage cannot
be annulled (Buccat v. Buccat, G.R. No. 47101, April 25,
1941)
Voidable marriages and its ratification
GROUND (1999, 2003,
2006,
2007,
2009 Bar)
RATIFICATION
WHO MAY FILE
WHEN TO FILE
Contracting party who failed By
the contracting party Within 5 years after attaining
Marriage of a party 18 years to obtain parental consent:
the age of 21
of age or over but below 21 Through free cohabitation Parent, guardian, or person At any time before such party
solemnized without the after attainingtheageof21. having legal charge of the has reached the age of 21
consent of the parents,
contracting party
guardian or person having NOTE: The parents cannot
substitute parental authority ratify the marriage. The effect
over the party, in that order of prescription on their part
is that they are barred from
contesting it but the marriage
is not yet cleansed of its
defect.
Either party was of
unsound mind
Insane spouse: Through free GR: Sane spouse who had no At any time before the death
cohabitation
after coming knowledge of the other’s of either party
to reason.
insanity
57
CIVIL LAW
XPN: Any relative, guardian During a lucid interval or after
or person having legal charge regaining sanity
of the insane; or
Insane spouse during a lucid
interval or after regaining
sanity
Consentofeither party was
obtainedbyfraud
Injured party: Through free Injured party
cohabitation
with
full
knowledge of the facts
constituting the fraud
Vices of consent such as force, Injured party: Through free Injured party
intimidation or undue
cohabitation after the vices
influence
have ceased or disappeared.
Within 5 years after the
discovery of fraud
Within 5 years from the time
the force, intimidation or
undue influence disappeared
or ceased
Impotence (impotencia
May not be ratified but action Only the potent spouse can file Within 5 years after the
copulandi) and afflicted with may
be
barred
by the action (,) and he or she
celebration of marriage
STD found to be serious and prescription only, which is 5 must not havebeen awareof
appears to be incurable
years after the marriage.
the other’s impotency at the
time of the marriage.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
58
PERSONS AND FAMILY RELATIONS
Q: Aurora prayed for the annulment of her marriage with
Fernando on the ground of fraud in obtaining her
consent after having learned that several months
prior to their marriage, Fernando had pre- marital
relationship with a close relative of his. According to
her, the "non-divulgement to her of such pre-marital
secret" constituted fraud in obtaining her consent
w/in the contemplation of Art. 46 of the FC. Is the
concealment by the husband of a pre-marital
relationship with another woman a ground for
annulment of marriage?
from the occurrence
of the cause.
c. Drug
addiction
arises during the
marriage and not at
the time of marriage.
Q: If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the
marriage, would these constitute grounds for a
declarationofnullity orforlegalseparation,orwould they
render the marriage voidable? (2002 BAR)
A: NO. The non-disclosure to a wife by her husband of his
pre-marital relationship with another woman is not a
ground for annulment of marriage. For fraud as a vice of
consent in marriage, which may be a cause for its
annulment, comes under Art. 46 of the FC, the fraud, as
vice of consent, is limited exclusively by law to those
kinds or species of fraud enumerated in Art. 46 in
relation to Art. 45(3).
A: If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage,
they will:
1.
2.
Q: Under what conditions, respectively, may drug
addiction be a ground, if at all,for the declaration of nullity
of marriage, annulment of marriage, and legal
separation? (1997 Bar)
A:
Declaration of Nullity of
Marriage
a.
b.
c.
d.
Legal Separation
Vitiated consent as a ground for annulment of
marriage
There is vitiation of consent when:
a. The
b.
Annulment of Marriage
3.
a.
b.
Not constitute grounds for declaration of nullity
(FC, Art. 36).
Not constitute grounds to render the marriage
voidable (FC, Arts. 45 and 46); and
Constitute grounds for legal separation (FC, Art. 55).
drug addiction
must amount to
psychological
incapacity
to
comply with the
essential obligations
of
marriage;
It
must
be
antecedent (existing
at the time of
marriage), grave and
incurable (.)
The drug addiction
must be concealed;
It must exist at the time
of marriage;
There should be no
cohabitation with full
knowledge of the drug
addiction;
The case is filed
within five (5) years
from
discovery.
There should be no
condonation
or
consent to the drug
addiction;
Theaction mustbe filed
within five (5) years
GR: Consent of either party was obtained by force,
intimidation or undue influence.
Force or violence – “There is violence when, in order to
wrest consent, serious or irresistible force is employed.
Intimidation – “There is intimidation when one of the
contracting parties is compelled by a reasonable and wellgrounded fear of an imminent and grave evil upon his
person or property, or upon the person or property of his
spouse, descendants, or ascendants, to give his consent”
(NCC, Art. 1335, par. 2,).
Undue influence – control over one’s will
XPN: However, if the same having disappeared or ceased,
such party thereafter freely cohabited with the other as
husband and wife.
A threat to enforce one's claim through competent
authority however, if the claim is just or legal, does not
vitiate consent.
Impotence or physical incapacity
Impotence (impotentia copulandi) refers to lack of
power of copulation and not to mere sterility
(impotentia genrandi) which refers to ability to
procreate. The test is not the capacity to reproduce, but the
capacity to copulate (Paras, 2008). Although impotency
59
CIVIL LAW
carries with it sterility, a sterile person is not necessarily
impotent. (Paras, 2016)
condition and yet married her. After two (2) years of
cohabiting with Yvette, and in his belief that she
would probably never be able to bear him a healthy
child, Joseph now wants to have his marriage with
Yvette annulled on the ground that Yvette has STD.
Yvette opposes the suit contending that Joseph is
estopped from seeking annulment of their marriage
since he knew even before their marriage that she was
afflicted with HIV virus. Can the action of Joseph for
annulment of his marriage with Yvette prosper?
Requisites for impotence to be a ground for
annulment of marriage
1.
2.
3.
4.
5.
Exists at the time of the Celebration of marriage;
Permanent (does not have to beabsolute);
Incurable;
Unknown to the other spouse; and,
The other spouse must not also be Impotent.
A: NO. Concealment of a sexually transmitted disease may
annul the marriage if there was fraud existing in the party
concerned. In this case, there was no fraud because Joseph
knew that Yvette was suffering from HIV when he married her
(FC, Art. 46, par. 3).
Presumption of potency of one spouse
GR:Presumption is in favor of potency.
XPN: Doctrine of triennial cohabitation.
Art. 45 v. 46 of the FC on STD as ground for
annulment
Doctrine Triennial cohabitation
If after 3 years of living together with her husband, the wife
remained a virgin, the husband is presumed to be
impotent (Rabuya, 2018). The husband will have to
overcome this presumption.
Relative impotency may now be invoked as a ground for
annulment. The Committee has decided to include
relative impotency of one party because there are cases
where a person is impotent with respect to his spouse but not
with other men or women (Sempio Diy, 1995).
ARTICLE 45
ARTICLE 46
Affliction
Concealment
Ground for Annulment
The fact of being afflicted
The act of concealing
because it constitutes fraud
Concealment
Not necessarily
Nature of the Disease
Must be serious and incurable
Q: The day after John and Marsha got married, John told
her that he was impotent. Marsha continued to live with
John for two years. Is Marsha now estopped from filing an
annulment case against John? (2007 Bar)
Role of the prosecutor or Solicitor General in cases of
annulment and judicial declaration of nullity
The prosecutor or Solicitor General shall take steps to
prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed. Even if there is
no suppression of evidence, the public prosecutor has to
make sure that the evidence to be presented or laid down
before the court is not fabricated. Only the active
participation of the public prosecutor or the Solicitor
General will ensure that the interest of the State is
represented and protected in proceedings fordeclaration
of nullity of marriages by preventing the fabrication or
suppression of evidence (FC, Art. 48).
Requisites of affliction of a SEXUALLY TRANSMITTED
DISEASE (STD) as a ground for annulment
One of the parties is afflicted with STD;
STD mustbe:
a.
Existing at the time the marriage is
celebrated;
b. Serious; and
c.
Apparently Incurable;
3.
The other spouse is not aware of the other’s affliction;
and
The injured party must be free from STD.
4.
NOTE: The non-intervention of the prosecutor is not fatal
to the validity of the proceedings in cases where the
respondent in a petition for annulment vehemently
opposed the same and where he does not allege that
evidence was suppressed or fabricated by any of the
parties (Tuason v. CA, G.R. No. 116607, April 10, 1996).
Q: Yvette was found to be positive for HIV virus,
considered sexually transmissible, serious and
incurable. Her boyfriend Joseph was aware of her
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Doesnothaveto be serious
and incurable
PRESENCE OF PROSECUTOR
A: NO. Unlike the other grounds for annulment of
voidable marriage which are subject to ratification by
continued cohabitation, the law does not allow
ratification in case of impotency.
1.
2.
Necessary
Collusion – Where for purposes of getting an annulment or
nullity decree, the parties come up with an
60
PERSONS AND FAMILY RELATIONS
agreement making it appear that the marriage is
defective due to the existence of any of the grounds for the
annulment of marriage or the declaration of its nullity
provided by law and agreeing to represent such false or
non-existent cause of action before the proper court (Sta.
Maria, 2010).
reconciliation, stop or abate the proceedings and
even rescind a decree of legal separation already
granted (Lapuz v. Eufemio, G.R. No. L-31429,
January 31, 1972).
GROUNDS FOR LEGAL SEPARATION (FC, ART.
55)
(1997, 2002, 2003, 2006, 2007 Bar)
Actionsprohibitedinannulmentanddeclarationof
absolute nullity of marriage cases
1.
2.
3.
4.
5.
1.
Compromise;
Confession ofjudgment;
Stipulation of facts;
Summary judgment; and
Judgment on the pleadings.
NOTE: Respondent’s child is not included
2.
What the law prohibits is a judgment based exclusively or
mainly on defendant's confession (Ocampo v.
Florenciano, G.R. No. L-13553, February 23, 1960). Thus,
stipulation of facts or confession of judgment if
sufficiently supported by other independent substantial
evidence to support the main ground relied upon, may
warrant an annulment or declaration of absolute
nullity.
3.
4.
5.
PENDENCY OF ACTION
6.
7.
Support of the spouses;
Support and custody of the common children;
Visitation rightsof the other parent (FC, Art.49).
8.
9.
10.
Abandonment of petitioner by respondent without
justifiable cause for more than 1 year.
Q: If a man commits several acts of sexual
infidelity, particularly in 2002, 2003, 2004, 2005, does
the prescriptive period to file for legal separation
runfrom 2002?(2007 Bar)
Legal separation is a legal remedy available to parties in a
valid but failed marriage for the purpose of obtaining a
decree from the court entitling him or her certain reliefs
such as the right to live separately from each other
(without affecting the marital bond that exists between
them), the dissolution and liquidation of their absolute
community or conjugal partnership property regime and
the custody of their minor children.
A: The prescriptive period begins to run upon the
commission of each act of infidelity. Every act of sexual
infidelity committed by the man is a ground for legal
separation.
Nature of legal separation
Q: Lucita left the conjugal dwelling and filed a
petition for legal separation due to the physical
violence, threats, intimidation and grossly abusive
conduct she had suffered at the hands of Ron, her
husband. Ron denied such and claimed that since it was
Lucita who had left the conjugal abode, then the decree of
legal separation should not be granted, following Art. 56
par. 4 of the FC which provides that legal separation
An action for legal separation which involves nothing
more than bed-and-board separation of the spouses is
purely personal. The Civil Code recognizes this by:
2.
Physical violence or moral pressure to compel
petitioner to change religious or political
affiliation;
Bigamous marriage subsequently contracted by
respondent in the Philippines or abroad;
Sexual infidelity or perversion;
Lesbianism or homosexuality of respondent; and
NOTE: It must exist after celebration of marriage
LEGAL SEPARATION
1.
Attempt to corrupt or induce petitioner, common
child, child of petitioner to engage in prostitution, or
connivance in such corruption or inducement;
Attempt by respondent against the life of
petitioner;
Final judgment sentencing respondent to
imprisonment of more than 6 years, even if pardoned;
Drug addiction or habitual alcoholism of
respondent;
NOTE: It must exist after celebration of marriage
During the pendency of the action for annulment,
declaration of absolute nullity of marriage or legal
separation, the Court shall, in the absence of adequate
written agreement between the spouses, provide for the:
1.
2.
3.
Repeated physical violence or grossly abusive
conduct against petitioner, common child, child of
petitioner;
By allowing only the innocent spouse and no one
else to claim legal separation;
By providing that the spouses can, by their
61
CIVIL LAW
shall be denied when both parties have given ground for
legal separation. Should legal separation be denied
onthebasisofRon’sclaimofmutual guilt?
c.
d.
A: NO. Art. 56 par. 4 of the FC does not apply since the
abandonment that is a ground for legal separation is
abandonment without justifiable cause for more than one
year. In this case, Lucita left Ron due to his abusive
conduct. Such act does not constitute the abandonment
contemplated in the said provision. Therefore, there is no
mutual guilt between them as there is only one erring
spouse (Ong Eng Kiam v. CA, G.R No. 153206, October
23, 2006).
e.
f.
NOTE: No criminal conviction is necessary to issue a decree
of legal separation. In legal separation, preponderance
of evidence is enough (Gandionco v. Penaranda, G.R. No.
79284, November 27, 1987).
Actsconsideredasactsof violence underR.A. 9262
1.
2.
3.
4.
5.
b.
6.
Engaging in purposeful, knowing, or reckless
conduct, personally or through another that alarms
or causes substantial emotional or psychological
distress to the woman or her child. This shall include,
but not be limited to, the following acts:
a. Stalking or following the woman or her child in
public or private places;
b. Peering in the window or lingering outside
the residence of the woman or her child;
c. Entering or remaining in the dwelling or on
the property of the woman or her child against
her/his will;
d. Destroying the property and personal
belongingness or inflicting harm to animals or
pets ofthewoman orherchild;and
e. Engaging in any form of harassment or violence;
9.
Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or
custody of minor children of access to the woman’s
child/children.
Engage in conduct which the woman or her
child has the right to desist from; or
Desist from conduct which the woman or her
child has the right to engage in,
Attempting to restrict or restricting the woman’s
or her child’s freedom of movement or conduct by:
a.
b.
c.
d.
7.
8.
Causing, threatening to cause, or attempting to
cause physical harm to the woman or her child;
Threatening to cause the woman or her child
physical harm;
Attempting to cause the woman or her child
physical harm;
Placing the woman or her child in fear of
imminent physical harm;
Attempting to compel or compelling the woman
or her child to:
a.
Force, or
Threat of force;
Physical, or Other harm, or
Threat of physical or other harm;
Protection Order
Intimidation directed against the woman or child.
This shall include, but not limited to, the following
acts committed with the purpose or effect of
controlling or restricting the woman’s or her child’s
movement or conduct:
A protection order under R.A. 9262 is an order issued
under this act for the purpose of preventing further acts
of violence against a woman or her child and granting
other necessary relief.
a. Threatening to deprive or actually depriving the
woman or her child of custody to her/his family;
b. Depriving or threatening to deprive the
woman or her children of financial support
legally due her or her family, or deliberately
providing the woman’s children insufficient
financial support;
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Depriving or threatening to deprive the
woman orher child of a legal right;
Preventing the woman in engaging in any
legitimate profession, occupation, business or
activity or controlling the victim’s own money
or properties, or solely controlling the conjugal
or common money, or properties;
Inflicting or threatening to inflict physical harm
on oneself for the purpose of controlling her
actions or decisions;
Causing or attempting to cause the woman or
her child to engage in any sexual activity which
does not constitute rape, by:
i.
Force, or
ii.
Threat of force;
iii. Physical harm, or
iv. Through intimidation directed against
the woman or her child or her/his
immediate family;
The relief granted under a protection order serves
the purpose of safeguarding the victim from further
harm, minimizing any disruption in the victim’s daily
life, and facilitating the opportunity and ability of the
victim to independently regain control over her life. The
provisions of the protection order shall be enforced
by law enforcement agencies. The protection orders
62
PERSONS AND FAMILY RELATIONS
that may be issued under this Act are the Barangay
Protection Order (BPO), Temporary Protection Order
(TPO) and Permanent Protection Order (PPO).
considered since provisions on marriage are
substantive in nature (Brown v. Yambao, G.R. No. L10699, October 18, 1957).
Who may file Petition for Protection orders
Q: Rosa and Ariel were married in the Catholic
Church of Tarlac, Tarlac on January 5, 1988. In
1990, Ariel went to Saudi Arabia to work. There,
after being converted into Islam, Ariel married
Mystica. Rosa learned of the second marriage of
Ariel on January 1, 1992 when Ariel returned to
the Philippines with Mystica. Rosa filed an action
for legal separation on February 5, 1994.
1.
2.
3.
4.
5.
6.
7.
8.
The offended party;
Parents or guardians of the offended party;
Ascendants, descendants or collateral relatives
within the fourth civil degree of consanguinity or
affinity;
Officers or social workers of the DSWD or social
workers of local government units (LGUs);
Police officers, preferably those in charge of
women and children’s desks;
Punong barangay or Barangay Kagawad;
Lawyer, counselor, therapist or healthcare
provider of the petitioner;
At least 2 concerned responsible citizens of the
city or municipality where the violence against
women and their children occurred and who has
personal knowledge of the offense committed.
(Sec. 9. R.A. 9262)
a.
b.
A:
a.
DEFENSES
Grounds for denial of petition for legal separation
(2006 Bar)
1.
2.
3.
4.
5.
6.
7.
8.
Condonation of the act complained of;
Consent to the commission of the offense/act;
Connivance in the commission of the act;
Collusion in the procurement of decree of LS;
Mutual Guilt;
Prescription: 5 yrs from occurrence of cause;
Death of either party during the pendency of
the case (Lapuz-Sy v. Eufemio, G.R. No. L-31429,
January 31, 1972);
Reconciliation of the spouses during the
pendency of the case (FC, Art. 56).
b.
Does Rosa have legal grounds to ask for
legal separation?
Has the action prescribed? (1994 Bar)
YES, the abandonment of Rosa by Ariel for
more than one (1) year is a ground for legal
separation unless upon returning to the
Philippines, Rosa agrees to cohabit with Ariel
which is allowed under the Muslim Code. In
this case, there is condonation. The contracting
of a subsequent bigamous marriage whether in
the Philippines or abroad is a ground for legal
separation under Art. 55 par. 7 of the FC.
Whether the second marriage is valid or not,
Ariel having converted into Islam, is
immaterial.
NO. The aggrieved spouse must file the action
within 5 years from the occurrence of the
cause (FC, Art. 57). The subsequent marriage of
Ariel could not have occurred earlier than
1990, the time he went to Saudi Arabia. Hence,
Rosa has until 1995 to bring the action under
the FC.
COOLING-OFF PERIOD
An action for legal separation shall be in no case tried before
6 months has elapsed since the filing of the petition, to
enable the contending spouses to settle differences. In
other words, it is for possible reconciliation (FC, Art.
58).
Prescriptive period for filing a petition for legal
separation
An action for legal separation shall be filed within five
years from the time of the occurrence of the cause (FC,
Art. 57).
GR: The 6 months cooling-off period is a mandatory
requirement. Petition shall not be granted if it is not
observed (Pacete v. Carriaga, G.R. No. L-53880, March 17,
1994).
Failure to interpose prescription as a defense
When prescription was not interposed as a defense, the
courts can take cognizance thereof, because actions
seeking a decree of legal separation, or annulment of
marriage, involve public interest and it is the policy of our
law that no such decree be issued if any legal
obstacles thereto appear upon the record.
This is an exception to the Rules of Court provision
that defenses not raised in the pleadings will not be
Note: Matters other than the merits of legal separation
can be determined by the court without waiting for the
lapse of the 6-month period.
XPN: There is no cooling-off period if the grounds
alleged are those under R.A. 9262 (Anti-Violence against
63
CIVIL LAW
Women and Children Act). The court can immediately
hear the case.
itself– actio personalis moritur cum persona (Rabuya,
2009).
RECONCILIATION EFFORTS
Effect of death of a party before entry of judgment
The Court is required to take steps toward the
reconciliation of the spouses and must be fully satisfied
that, despite such efforts, reconciliation is highly
improbable (FC, Art. 59).
The court shall order the case closed and terminated
without prejudice to the settlement of estate proper
proceedings in the regular courts (Sec. 21, A.M. 02-1111- SC).
CONFESSION OF JUDGMENT
Effect of death of a party after entry of judgment
Rule in rendering a judgment of legal separation
based upon a stipulation of facts or confession of
judgment
If the party dies after the entry of judgment, the same
shall be binding upon the parties and their
successors in interest in the settlement of the estate
in the regular courts (Sec. 21, A.M. 02-11-11-SC).
A decree of legal separation cannot be issued solely on
the basis of a stipulation of facts or a confession of
judgment. The grounds for legal separation must be
proved. Neither confession of judgment nor summary
judgment is allowed. In any case, the court shall order
the prosecuting attorney or fiscal to take steps to
prevent collusion between the parties and to take care
that the evidence is not fabricated or suppressed (FC,
Art. 60).
Q: May the heirs of the deceased spouse continue the suit
(petition for decree of legal separation) if the death of
the spouse takes place during the pendency of thesuit?
A: NO. An action for legal separation is purely personal,
therefore, the death of one party to the action causes the
death of the action itself – action personalis moritur cum
persona.
NOTE: In cases where one of the spouses is dead, or
where the deceased’s heirs continue the suit, separation of
property and any forfeiture of share already effected
subsists, unless spouses agree to revive former property
regime.
What the law prohibits is a judgment based exclusively
or mainly on defendant’s confession (Ocampo v.
Florenciano,
G.R. No. L-13553, February 23, 1960).
Filing of petition for legal separation
EFFECTS OF LEGAL SEPARATION
Who may file Husband or wife
Within 5 years from the time of the
When to file occurrence of the cause
Family Court of the province or city
Where to file where the petitioner or the respondent
has been residing for at least 6 months
prior to the date of filing or in case of a
non- resident, where he may be found
in the Philippines, at the election of the
petitioner
1.
2.
EFFECTS OF FILING A PETITION FOR LEGAL
SEPARATION
(FC, ART. 61)
Custody of minor children is awarded to the
innocent spouse (subject to FC, Art. 213);
4.
Offending spouse is disqualified to inherit from
innocent spouse by intestate succession;
5.
Provisions in the will of innocent spouse which
favors offending spouse shall be revoked by
operation of law;
6.
Innocent spouse may revoke donations he/she made
in favor of offending spouse; and
NOTE: Prescriptive period: 5 years from finality of
decree of legal separation
3.
The spouses shall be entitled to live separately from
each other.In the absence of a written agreement between
the parties, the court shall designate either the husband or
the wife or a 3rd person to administer the absolute
community or conjugal partnership property.
Effect of death of a party during pendency
Being personal in character, it follows that the death of
one party to the action causes the death of the action
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Spouses entitled to live separately but the
marriage bond is not severed;
ACP/CPG shall be dissolved and liquidated. The share
of the offending spouse in the net profits shall be
forfeited in favour of:
a.
Common children,
b. In default of the common children, children of
the guilty spouse by a previous marriage,
c.
In default of common children and the children
of the guilty spouse, innocent spouse;
7.
64
Innocent spouse may revoke designation of
PERSONS AND FAMILY RELATIONS
offending spouse as beneficiary in any insurance
policy, even when stipulated as irrevocable.
abandoned the husband and he may file an action for
judicial separation of property. If the refusal continues
for more than one year from the expiration of her
contract, the husband may file the action for legal
separation under Art. 55, par. 10 of the FC on the
ground of abandonment of petitioner by respondent
without justifiable cause for more than one year. The
wife is deemed to have abandoned the husband when
she leaves the conjugal dwelling without any intention
of returning (FC, Art. 101). The intention not to return
cannot be presumed during the 3-year period of her
contract.
Q: In case an action for legal separation is granted,
what will happen to a child below the age of seven?
Is the rule absolute?
A: As a rule, the custody of the child shall be awarded to the
innocent spouse, except if the child is below the age of
seven where the law says that the child cannot be
separated from the mother, except if there is a compelling
reason to do so.
The common-law relationship of a child's mother with a
married man is a ground to separate the child from the
mother, because such a situation will not afford the child
a desirable atmosphere where he can grow and develop
into an upright and moral-minded person (Cervantes v.
Fajardo, G.R. No. 79955, January 27, 1989).
c.
If the husband discovers after the marriage that his wife
was a prostitute before they got married, he has no
remedy. No misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute fraud as
legal ground for an action for the annulment of marriage
(FC, Art. 46).
Q: Which of the following remedies:
1.
2.
3.
4.
Declaration of nullity of marriage,
Annulment ofmarriage,
Legal separation, and/or
Separation ofproperty,
d.
2.
3.
4.
5.
A:
a.
If the wife discovers after the marriage that her
husband has “AIDS”?
If the wife goes abroad to work as a nurse and
refuses to come home after the expiration of
her three-year contract there?
If the husband discovers after the marriage that
his wife has been a prostitute before they got
married?
If the husband has a serious affair with his
secretary and refuses to stop notwithstanding
advice from relatives and friends?
If the husband beats up his wife every time he
comes home drunk? (2003 Bar)
e.
LEGAL SEPARATION, AND SEPARATION OF PROPERTY
The wife may file an action for legal separation on the
ground of repeated physical violence on her person
[FC, Art. 55(1)]. She may also file an action for judicial
separation of property for failure of the husband to
comply with his marital duty of mutual respect [FC, Art.
135(4), Art. 101]. She may also file an action for
declaration of nullity of the marriage if the husband’s
behavior constitutes psychological incapacity existing at
the time of the celebration of marriage.
Effect to the donations made by the spouses to each
other
ANNULMENT OFMARRIAGE
Since AIDS is a serious and incurable sexually
transmissible disease, the wife may file an action for
annulment of the marriage on this ground whether
such fact was concealed or not from the wife, provided that
the disease was present at the time of the marriage. The
marriage is voidable even though the husband was not
aware that he had the disease at the time of marriage.
b.
LEGAL SEPARATION
The wife may file an action for legal separation. The
husband’s sexual infidelity is a ground for legal
separation (FC, Art. 55). She may also file an action for
judicial separation of property for failure of her
husband to comply with his marital duty of fidelity [FC,
Art. 135(4), Art. 101].
Can an aggrieved spouse avail himself/herself of:
1.
NONE
The revocation of the donations shall be recorded in the
registries of property in the places where the properties
are located. Alienations, liens and encumbrances
registered in good faith before the recording of the
complaint for revocation in the registries of property
shall be respected. The revocation of or change in the
designation of the insurance beneficiary shall take effect
upon written notification thereof to the insured.
The action to revoke the donation must be brought
within five years from the time the decree of legal
separation has become final (FC, Art. 64).
SEPARATION OFPROPERTY
If the wife refuses to come home for three (3) months
from the expiration of her contract, she is presumed to have
65
CIVIL LAW
Effects of reconciliation while the petition is being
heard by the court
EFFECTS OF RECONCILIATION
As to the Decree:
If the spouses should reconcile, a corresponding joint
manifestation under oath duly signed by them shall be
filed with the court in the same proceeding for legal
separation.
During the pendency of the case:
LS proceedings terminated at whatever stage
After the issuance of the decree:
Final decree of LS to be set aside (FC, Art. 66).
The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage.
As to the Property Regime:
GR: In case there had been already separation of
property and forfeiture of the share of the guilty spouse,
the same shall be maintained (Pineda, 2008).
XPN: The parties, however, can come into an agreement
to revive their previous regime. Their agreement must
be under oath and must contain a list of the properties
desired to be returned to the community or conjugal
property and those which will remain separate, a list of
creditors and their addresses.
As to capacity to succeed: The Family Code does not
provide for the revival of revoked provisions in a will
originally made in favor of the offending party as a
result of the LS. This absence gives the innocent spouse
the right to choose whether the offending spouse will be
reinstituted.
As to the forfeited shares: Those given to the children
cannot be returned since the spouses are no longer the
owners of such. But those given to the innocent spouse
may be returned.
Revival of previous property regime after
reconciliation
Reconciliation does not automatically revive the former
property regime of the spouses. If the spouses want to
revive the previous property regime, they must execute
an agreement to revive the former property regime,
which agreement shall be submitted in court, together
with a verified motion for its approval (FC, Art. 67).
The agreement to revive must be under oath and
specify:
1.
2.
3.
The properties to be contributed anew to the
restored regime;
Those to be retained as separated properties of
each spouse; and
The names of all their known creditors, their
addresses and the amounts owing to each (Pineda,
2008).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
66
PERSONS AND FAMILY RELATIONS
Difference of Declaration of Nullity of Marriage, Annulment and Legal Separation
BASIS
Marriage bond
Status of
children
Property
relations
DECLARATIONOFNULLITYOFMARRIAGE
ANNULMENT
LEGAL SEPARATION
Dissolved
Dissolved
No effect,
remains
GR: Illegitimate
Legitimate
XPN: Children conceived or born of
marriages before declaration of nullity
under Arts. 36 and 53 of the FC considered
legitimate
GR: Governed either by Article 147 or
Article 148 of the Family Code FC. Thus,
property regime shall be liquidated
pursuant to the ordinary rules on coownership.
XPN: Marriages declared void under Article
40 which shall be liquidated in accordance
with Article 43 par. 2 (Valdes v. RTC, G.R. No.
122749. July 31, 1996).
marriage bond
ACP/CPG shall be dissolved & liquidated.[FC,
Art.43(2)]
Share of spouse, who contracted the subsequent
marriage in bad faith, in the net profits of the
community property or conjugal partnership,
shall be forfeited in favor of the common children,
or
If there are none, the children of the guilty spouse
by a previous marriage, or
In default of children, the innocent spouse.
GR: Donations propter nuptias
revocable at the instance of the donor
Donations
propter
nuptias
are
GR: Shall remain valid [FC, Art.43(3)].
XPN:
XPN:
1. If donee contracted the marriage in bad faith, such
ii. If the donation propter nuptias is embodied
donations made to said donee shall be revoked by
in a marriage settlement, the donation is operation of law.
void under Article 86 par. 1 of the FC.
2.
iii. If the subsequent marriage is judicially 3. If both spouses to the marriage acted in bad faith,
declared void by reason of Art. 40 of the FC,
all donations propter nuptias shall be revoked by
the donation remains valid.
operation of law.
XPN to the XPN:
1. If the donee spouse contracted the marriage
in bad faith, all donations are revoked by
operation by law.
2.
3. When both parties to a subsequent marriage
Insurance
contracted in bad faith under Article 44 of the
FC, all donations propter nuptias are revoked
by operation by law.
If the subsequent marriage is judicially
declared by void by reason of Article 40 of the
FC, the innocent spouse may revoke such
designation if the beneficiary spouse acted in
bad faith, even if such designation be stipulated
as irrevocable
67
If one spouse acted in bad faith, innocent spouse may
revoke his designation as beneficiary in the
insurance policy even if such designation be
stipulated as irrevocable [FC, Art.43(4)].
CIVIL LAW
Succession
Intestate Succession: The parties cannot
inherit from each other by way of intestate
succession since they are no longer considered
as spouses.
If one spouse acted in bad faith, innocent spouse may
revoke his designation as beneficiary in the
insurance policy even if such designation be
stipulated as irrevocable[FC, Art.43(4)].
Testate Succession:
If one spouse contracted the marriage in bad faith, he
shall be disqualified to inherit from innocent spouse
by testate and intestate succession [FC,
Art.43(5)]
GR: Any Testamentary provision by one in
favor of the other shall remain valid
XPN:
1. If the subsequent marriage is rendered void by
non- compliance with Article 40 of the Family
Code FC, the spouse who contracted the
subsequent marriage in bad faith is
disqualified to inherit from the innocent
spouse
2.
3. If the marriage is void by reason of the bad
faith of both parties under Article 41 of the
Family Code FC, all testamentary dispositions
made by one in favor of the other are revoked
by operation of law
NOTE: The parties are not disqualified to
institute each other as voluntary heir in their
respective wills to be executed after
the judicial declaration of nullity
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
68
PERSONS AND FAMILY RELATIONS
In the absence or insufficiency thereof from
their separate properties
Manage the household (FC, Art. 71);
Not to neglect duties, or commit acts which tend to
bring danger, dishonor, or injury to family (FC, Art.
72);
Either spouse may practice any legitimate
profession/business, even without the consent of the
other.
c.
RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE
4.
5.
ESSENTIAL OBLIGATIONS
6.
Rights and obligations of the spouses (2010 Bar)
1.
Essential marital obligations (LOR) (FC, Art. 68):
Live together which includes consortium
(cohabitation)
and
copulation
(sexual
intercourse),
b. Observe mutual love, respect, fidelity, and
c. Render mutual help and support
NOTE: The other spouse may object on valid, serious
and moral grounds. In case of disagreement, the court
shall decide whether:
a.
a.
b.
NOTE: It is true that the Family Code, obligates the spouses
to love one another but this rule sanctions affection and
sexual intimacy, as expressions of love, that are both
spontaneous and mutual and not the kind which is
unilaterally exacted by force or coercion. Further, the
delicate and reverent nature of sexual intimacy between a
husband and wife excludes cruelty and coercion. When
sexual intimacy it is egoistically utilized to despoil marital
union in order to advance a felonious urge for coitus by
force, violence or intimidation, the Court will step in to
protect its lofty purpose, vindicate justice and protect our
laws and State policies. Besides, a husband who feels
aggrieved by his indifferent or uninterested wife's absolute
refusal to engage in sexual intimacy may legally seek the
court's intervention to declare her psychologically
incapacitated to fulfill an essential marital obligation. But
he cannot and should not demand sexual intimacy from her
coercively or violently (People v. Jumawan, G.R. No.
187495, April 21, 2014). Therefore:
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith.
Other obligations of spouses
1. Exercise the duties and enjoy the rights of parents;
2. Answer for civil liability arising from injuries caused
by children below 18;
3. Exercise parental authority over children’s property
Essential marital obligations cannot be compelled by
court
a. The right to sexual intercourse involves
normal intercourse. The wife may refuse to
have sexual intercourse with the husband if
he resorts to abnormal or perverse practices.
b. The wife can also refuse to have sexual
intercourse with the husband if she is ill, if it
would endanger her health, or if he is
suffering from some venereal disease.
c. If the husband forces the wife to have sexual
intercourse with him against her will, he
may be charged with coercion (Sempio-Diy,
1995).
2.
GR: Performance of essential marital obligation under
Art. 68 of the FC cannot be compelled by court because
it will be a violation of personal liberty. (Arroyo v.
Arroyo, G.R. No. L-17014, August 11, 1921)
XPN:Giving support.
Reasons when the Court may exempt one spouse
from living with the other
a.
b.
Fix the family domicile (FC, Art. 69);
If one spouse should live abroad.
Other valid and compelling reasons.
NOTE: The Court shall not grant the exemption if it is
not compatible with the solidarity of the family.
NOTE: In case of disagreement the Court shall decide.
3.
Objection is proper; and
Benefit has accrued to the family prior to the
objection or thereafter. If the benefit accrued
prior to the objection, the resulting obligation
shall be enforced against the community
property. If the benefit accrued thereafter, such
obligation shall be enforced against the separate
property of the spouse who has not obtained
consent. (FC, Art. 73 as amended by R.A.
10572)
Jointly support the family (FC, Art. 70);
a. Expenses shall be paid from the community
property,
b. In the absence thereof from the income or fruits
of their separate properties,
PROPERTY RELATIONS OF THE SPOUSES
69
CIVIL LAW
The property relations shall be governed by the ff. in the
stated order:
1.
2.
3.
XPNs:
1. For marriages contracted prior to the effectivity of the
FC on August 3, 1988, conjugal partnership of gains
shall govern the property relations and Art. 116 of the
NCC will apply. The provisions of the FC shall have no
retroactive effect because it shall impair vested rights.
2. Subsequent marriage contracted within one year from
the death of the deceased spouse without liquidation
of the community property or conjugal partnership of
gains, either judicially or extra-judicially, as required
under Arts.103 and 130 of the FC. In such case, a
mandatory regime of complete separation of property
shall govern the subsequent marriage (Rabuya, 2009).
Property relation agreed and embodied in the
marriage settlement;
Provisions of the FC; and
Local custom (FC, Art. 74).
Commencement of Property Regime
A property regime commences at the precise moment of
the celebration of the marriage (i.e. actual time the marriage
is celebrated on a certain date).
Any stipulation, express or implied, for the
commencement of the community regime at any other
time shall be void (FC, Art. 88).
Q: Marriage being a contract, may the parties enter into
stipulations which will govern their marriage?
A: The nature, consequences and incidents of marriage are
governed by law and not subject to stipulation between the
spouses. This, however, is not an absolute rule. The law
allows the spouses to fix their property relations during the
marriage through a device known as “marriage settlement”
subject only to the condition that whatever settlement they
may have must be within the limits provided by the Family
Code.
Laws that will govern the property relations of the
spouses
GR: Philippine laws shall govern, regardless of place of
celebration of marriage and residence of spouses, in the
absence of contrary stipulation in a marriage settlement
(FC, Art. 80).
XPN: Lex rei sitae applies:
a.
b.
c.
MARRIAGE SETTLEMENT
Where both spouses are aliens;
With respect to the extrinsic validity of
contracts affecting property not situated in
the Philippines, and executed in the country
where the property is located; or
With respect to extrinsic validity of contracts
entered into in the Philippines but affecting
property situated in a foreign country whose
laws require different formalities for its
extrinsic validity (FC, Art. 80).
It is a contract entered into by a man and a woman who
intend or plan to get married fixing the property regime
that will govern their present and future properties during
their marriage. It is also called as Ante-nuptial Agreement
(Sempio-Diy, 1995).
Requisites of a valid Marriage Settlement (FC, Art. 77)
a.
b.
c.
d.
Rule on waiver of rights over the share in the
community or conjugal property
The provisions in the marriage settlement must be in
accordance with law, morals or public policy; otherwise
such agreement is void (Paras, 2008).
GR: Cannot be waived during the marriage.
XPN: In case of judicial separation of property.
A marriage settlement need not be notarized. The law is
clear that the marriage settlements and any modification
thereof shall be in writing signed by the parties and
executed before the celebration of the marriage (FC, Art.
77). The law merely requires it to be in writing; it does not
require that it be in a public instrument for purposes of its
validity (Albano, 2013).
NOTE: The waiver must be in a public instrument and
recorded in the office of the local civil registrar where the
marriage contract was recorded as well as in the proper
registry of property.
Property regime governing the property relations of
spouses in the absence of marriage settlement or when
regime agreed upon is void (1992, 1995, 2005 Bar)
The marriage settlements must be registered in the proper
local civil registry where the marriage contract was
recorded as well as in the proper registries of property in
order that they may prejudice or bind third persons (FC,
Art. 77).
GR: Absolute Community Property (FC, Art. 75)
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
In Writing;
Signed by the parties;
Executed before the celebration of marriage;
Registration (to bind 3rd persons)
70
PERSONS AND FAMILY RELATIONS
BASIS
As to
formalities
As
to
inclusion of
present
property
As to
inclusion
of future
property
Revocation
DONATION
PROPTER
NUPTIAS
Donations
of
future property
are governed by
the provisions
on
testamentary
succession and
the formalities
of wills [FC, Art.
82(2)]
Present
property may be
donated up to
1/5
of
the
donor’s present
property if the
future spouses
have chosen a
regime
other
than
absolute
community of
property
(FC,
Art. 84)
Future property
may be included,
provided
the
donation
is
mortis
causa.
[NCC, Art. 84(2)]
Grounds
for
revocation are
found in Art. 86
of FC.
ORDINARY
DONATION
Modification of the marriage settlement (FC, Art. 76)
(2005 BAR)
Governed by
Title III, Book
III of the NCC.
For any modification in the MS to be valid:
1.
The requisites for a valid MS must be present;
2.
There must be judicial approval;
3.
Subject to the provisions of Arts. 66, 67, 128, 135, and
136 of FC.
Effect on the ante-nuptial agreement in case the
marriage is not celebrated (FC, Art. 81)
GR: Everything stipulated in the settlements or contracts in
consideration of the marriage shall be rendered void.
There is no
limit
except
that
the
donor
shall
leave sufficient
property for
his
support
and that of all
relatives
entitled
to
support from
him (NCC,
Art. 750) and
further
no
legitimes
of
compulsory
heirs shall be
impaired.
(NCC, Art. 752)
Future
property
cannot
be
included. [NCC,
Art. 751]
XPN: Those stipulations not dependent upon, or are not
made in consideration of, the marriage, subsist.
DONATION PROPTER NUPTIAS OR DONATION
BY REASON OF MARRIAGE
(FC, ART. 82)
Those donations which are made before the celebration of
the marriage, in consideration of the same, and in favor of
one or both of the future spouses.
The formalities of the donation propter nuptias follows the
same formalities as set forth in the law on donations.
NOTE: Donations of future property are governed by
provisions on testamentary succession and formalities of
wills.
Donation propter nuptias (DPN) v. Ordinary
Donation
Requisites for Donation Propter Nuptias
Grounds for
revocation are
found
in
donations.
a.
b.
c.
Requisites if the DPN is made by one spouse in favor of the
other
Additional requirements for validity of the MS
1.
FACTUAL SITUATION
If one of both of the
parties are:
18-21 years old
Sentenced with
interdiction
Disabled
civil
Made before celebration of marriage;
Made in consideration ofthemarriage; and
Made in favor of one or both of the future spouses.
ADDITIONAL
REQUIREMENT
The ff. must be made
a party to the MS,
otherwise the
MS is void:
Parents;
or
those
required to give consent
Guardian appointed by
the court
Guardian appointed by
the court
2.
3.
There must be a MS stipulating a property regime
other than AC;
Donationin theMS benot morethan 1/5 of the present
property; and
There mustacceptance byotherspouse.
Rule regarding DPN made between spouses
GR: Future spouses cannot donate to each other more
than 1/5 of their present property and any excess
from which shall be considered void.
XPN: If they are governed by ACP, then each spouse can
donate to each other in their marriage settlements
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CIVIL LAW
present property without limit, provided there is sufficient
property left for their support and the legitimes are not
impaired.
solemnized on the
fixed date(FC, Art.
1149).
Effect of donations of encumbered property
2. Marriage is
judicially
declared void.
Ground for
Revoked
by
nullity:
operation
of law.
Contracted
subsequent
marriage before
prior marriage
has been
judicially
declared
void.
Any other
5 yrs
grounds.
3. Marriage took place without
consent of parents or guardian, Finality of judicial
when required by law.
declaration of nullity
(if action is to recover
property).
5 yrs
Such donations are valid. In case of foreclosure of the
encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be
liable for the deficiency. If the property is sold for more than
the total amount of the obligation, thedoneeshallbeentitled
to theexcess(FC, Art. 85).
Donations that may be revokedby the donor
(FC, Art. 86)
Adonation by reasonofmarriagemayberevoked by the
donor in the following cases:
1.
GR: Marriage is not celebrated or is judicially declared
void ab initio.
XPN: donations made in the marriage settlements
2.
3.
4.
5.
6.
Marriage takes place without therequired consent
of parents or guardians.
Marriage is annulled and donee acted in bad faith.
Upon legal separation, the donee being the guilty
spouse.
If with a resolutory condition which was
complied with.
Donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on
donations in general.
4.
5.
6.
Groundsfor filinganactionfor revocationofa DPNand
theirrespectiveprescriptiveperiods
The prescriptive periods in other provisions of the Civil
Code should apply, depending on the ground of
revocation Except for the action to revoke a donation to
the guilty spouse in case of a legal separation, which the
second paragraph of Art. 64 of the Code states must be
brought within
5 years from the time of the decree of legal separation
has become final, there is no other provision in the
Family Code on the period of prescription of the action
to revoke a donation proper nuptias. (Sempio-Diy,
2010)
GROUNDS (FC, Art. 86)
1.
Marriage
celebrated.
is
XPN: Those automatically
rendered void by law.
7.
Acts of ingratitude: (NCC, Art. 765)
1.
PRESCRIPTIVE PERIOD
(reckoning
point)
not
2.
Commission of an offense against the person, honor
or property of the donor, his wife or his children
under his parental authority;
GR: Imputation to the donor any criminal
offense or any act involving moral turpitude;
XPN: if the crime was committed againstthe
doneehimself,hiswifeorhis children under his
authority
5 yrs
From the time the
marriage was
not
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Time the donor came
to know that the
required
parental
consent was not
obtained.
Marriage is annulled and 5 yrs
donee acted in bad faith.
Finality of decree
Upon legal separation 5 yrs
(LS), donee being the
guilty spouse.
Finality of decree
Donation subject to
5 yrs
resolutory condition
which was complied with. Happening of the
resolutory condition
Donee committed an act 1 yr
of ingratitude
From
donor’s
knowledge of the
commission of an act
of ingratitude.
3.
72
Undue refusal to support the donor when he is
PERSONS AND FAMILY RELATIONS
legally or morally bound to give such support.
DONATION DURING THE MARRIAGE
Rule regarding donations between spouses during
the marriage (FC, Art. 87)
GR: Every donation or grant of gratuitous advantage,
direct or indirect, between spouses is considered void.
XPN: Moderate gifts on the occasion of any family rejoicing.
The aforementioned rules also apply to common law
spouses (Matabuena v. Cervantes, G.R. No. L- 28771,
March 31, 1971).
PROPERTY RELATIONS OF SPOUSES
Different property regimes which may be adopted
by future spouses
I.
II.
III.
IV.
V.
Absolute Community of Property (ACP)
Conjugal Partnership of Gains (CPG);
Absolute Separation of Property (ASOP);
A combination of the above regimes;
Any other regime within limits provided by the
FC.
The rule against donation to one another between the
spouses does not include a spouse being a beneficiary of an
insurance contract over the life of the other (Gercio v.
Sun Life Assurance Co., of Canada, G.R. No. 23703,
September 28 1925).
73
CIVIL LAW
ACP v. CPG v. CSOP
ABSOLUTE
COMMUNITY OF PROPERTY
CONJUGAL
PPARTNERSHIP OFGAINS
COMPLETE
SEPARATION OF PROPERTY
When applicable
When spouses:
1. When the future spouses adopt it in a
1. When future spouses adoptit in a
1. Adopt it in amarriage settlement;
marriage settlement.
marriagesettlement;
2. Do not choose any economic system; 2. Ifthemarriage is celebrated under the 2. ACP or CPG is dissolved;
or
New Civil Code and they have not
3. Prior marriage is dissolved due to
3. Adopted a different property regime
adopt any economic system.
death of one spouse and surviving
and thesame isvoid.
spouse failed to complywiththe
requirements under Art. 103
(judicial settlement proceeding of
the estateof deceased spouse);
4. By judicial order. Judicial separation
of property may either be voluntary
or for sufficient cause.
Composition
All the properties owned by the spouses Each spouse retains his/her property
at the time of marriage become before the marriage and only the fruits and
community property.
income of such properties becomepart
ofthe conjugal properties during the
marriage.
Effect of Separation In Fact
The separation in fact shall not affect the regime of ACP, but:
1. The spouse who leaves the conjugal home or refuses to live therein, withoutjust
cause, shall nothave therightto be supported;
2. When consent ofonespouseto any transaction oftheother is required by law,
judicial authorization shall beobtained in a summary proceeding.
3. In case of insufficiency of community orconjugal partnership property,
separate property of both spouses shall be solidarily liable for the support of the
family. Spouse present shall, upon proper petition in a summary proceeding, be
given judicial authority to administer or encumber any specific separate property
of the other spouseandusethefruitsorproceeds thereofto satisfy thelatter’s
share (FC, Arts. 100 & 127).
Effect of Dissolution
Upon dissolution and liquidation of the Upon dissolution of the partnership, the
community property, what is divided separate properties of the spouses are
equally between the spouses or their returned and only the net profits of the
heirs is the net remainder of the
partnership are divided equally
properties of the
between the
ACP.
spouses of their heirs.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
74
PERSONS AND FAMILY RELATIONS
Grounds for revival of former property regime
1.
2.
3.
4.
5.
6.
7.
Civil interdiction of the prisoner-spouse
terminates;
Absentee spouse reappears;
Court authorizes resumption of administration by the
spouse formerly exercising such power;
Spouse who has abandoned the conjugal home returns
and resumes common life with the other;
Parental authority is judicially restored to the
spouse previously deprived thereof;
Reconciliation and resumption of common life of
spouse who had been separated in fact for at least 1
year;
Spouses agree to revive their former property
regime.
3.
4.
Properties excludedintheAbsoluteCommunity
1.
2.
3.
Grounds for transfer ofadministration of the exclusive
property of each spouse
4.
When one spouses:
1.
2.
3.
4.
In absence of evidence, property acquired during the
marriage is presumed to belong to the community, unless
proven otherwise by strong and convincing evidence
(FC, Art. 93).
The sale or encumbrance of a conjugal property
requires the consent of both the husband and the wife
(Guiang v. CA, G.R. No. 125172, June 26, 1998). The
absence of the consent of one renders the entire sale or
encumbrance null and void, including the portion of the
conjugal property pertaining to the husband who
contracted the sale. Neither would the conjugal
partnership be liable for the loan on the ground that it
redounded to the benefit of the family (Homeowners
Savings & Loan Bank v. Dailo, G.R. No. 153802, March
11, 2005).
ABSOLUTE COMMUNITY OF PROPERTY
(ACP)
A property regime wherein the spouses are considered coowners of all property brought into the marriage, as well as
those acquired during the marriage, which are not
otherwise excluded from the community either by the
provisions of the Family Code or by the marriage
settlement. (Rabuya, 2009)
A wife, by affixing her signature to a deed of sale on the
space provided for witnesses, is deemed to have given
her implied consent to the contract of sale. The consent
need not always be explicit or set forth in any particular
document so long as it is shown by acts of the wife that
such consent or approval was in fact given (Pelayo v.
Perez, G.R. No. 141323, June 8, 2005).
Laws that govern the absolute community of
property
1.
2.
Family Code
Civil Code provisions on co-ownership
When the sale was entered into prior to the effectivity of the
FC Art.173, in relation to Art. 166 of the NCC will apply if there
was a finding of lack of the wife's consent. Under said
provisions, the sale would have been merely
voidable, and not void.
Properties included in the absolute community
1.
2.
Property acquired during the marriage by gratuitous
title and its fruits as well as income thereof unless
the grantor expressly provide they shall form part
of the community property;
Property for personal and exclusive use of either
spouse but jewelries shall form part of the ACP
because of their monetary value;
Property acquired before the marriage by one with
legitimate descendants by former marriage and its
fruits and income, if any;
Those excluded by the marriage settlement (FC,
Art. 92).
Presumption of inclusion in the absolute
community
Is
sentenced
to penalty with civil
interdiction;
Becomes fugitive from justice or is hiding as an
accused in a criminal case;
Is judicially declared absent
Becomes guardian of another
NOTE: Transfer of administration of the exclusive
property of either spouses does not confer
ownership over the same (Rodriguez v. De la Cruz, G.R.
No. 3629, September 28, 1907).
I.
title, if expressly made to form part of the
community property by the donor, testator or
grantor;
Jewelry or properties with monetary value;
Winnings in gambling.
All the property owned by the spouses:
a.
At the time of the celebration of the
marriage; or
b. Acquired thereafter;
The use of the jurat, instead of an acknowledgment, does not
elevate the marital consent into the level of a public
document but instead consigns it to the status of a private
Property acquired during the marriage by gratuitous
75
CIVIL LAW
writing. Hence, the presumption of regularity does not
apply and the wife still needs to prove its genuineness and
authenticity as required under the rules of evidence (Pan
Pacific Industrial Sales Co., Inc. v. CA, G.R. No. 125283,
February 10, 2006).
8.
9.
The fact that the document contains a jurat, and not an
acknowledgment, should not affect its genuineness or
that of the related document of conveyance itself, the
Deed of Absolute Sale. In this instance, a jurat suffices as the
document only embodies the manifestation of the
spouse's consent, a mere appendage to the main
document (Pan Pacific Industrial Sales Co., Inc. v. CA, G.R.
No. 125283, February 10, 2006).
NOTE: The payment of which shall be considered as
advances to be deducted from the share of the debtorspouse upon liquidation of the community
A. CHARGES UPON AND OBLIGATIONS OF
THE ABSOLUTE COMMUNITY
PROPERTY
10. Expenses of litigation between the spouses.
However, if suit is found to be groundless, it cannot
be charged against the ACP (FC, Art. 94).
Charges upon the ACP
1.
The support of
a. The spouses
b. Their common children
c. Legitimate children of either spouse;
ACP v. CPG as to charges
ACP (FC, Art. 94)
CPG(FC, Art. 121)
Support of the spouses, their common children, and
legitimate children of either spouse.
Debts and obligations contracted during
marriage:
a. Bytheadministratorspouse designated inthe
marriage settlement/appointed by court/one
assuming sole administration;
b. By one without the consent of the other;
c. By one with the consent of other; or
d. By both spouses
e. For (a) and (b), creditor has the burden of
proving benefit to the family and ACP/CPG
chargeable to the extent of benefit proven,
otherwise, chargeable to the separate property of
the obligor spouse.
f.
For (c) and (d), real (Rul) benefit to family is
presumed.
All taxes, liens, charges and expenses including minor
repairs upon ACP or CP.
Expenses to enable either spouse to commence/complete
a professional, vocational or other activity for selfimprovement.
Value donated/promised by both spouses in favor of
common legitimate children for exclusive purpose of
commencing or completing professional or vocational
course or other activity for self-improvement.
Expenses of litigation between spouses unless the suit is
found to be groundless.
NOTE: Support of illegitimate children of either spouse is
chargeable to exclusive property of the illegitimate parent
(FC, Art. 197).
2.
All debts and obligations contracted during
the marriage by:
a. The designated administrator-spouse for the
benefit of the community
b. By both spouses
c. By one spouse with the consent of the other;
3.
Debts and obligations contracted by either spouse
without the consent of the other to the extent that
the family may have been benefited;
All taxes, liens, charges and expenses, including
major or minor repairs, upon the community
property;
All taxes and expenses for mere preservation
made during marriage upon the separate
property of either spouse used by the family;
Expenses to enable either spouse to commence
or complete a professional or vocational course, or
other activity for self-improvement;
Ante-nuptial debts of either spouse insofar as
they have redounded to the benefit of the family;
(2007 Bar) NOTE: For ante-nuptial debts, those
contracted by one spouse without the consent of the
other during the marriage and those contracted by
the administrator-spouse, the burden of proof that
such debts were contracted for the benefit of the
community or of the family lies with the creditorparty litigant claiming as much (Rabuya, 2009).
4.
5.
6.
7.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
The value of what is donated or promised by
both spouses in favor of their common legitimate
children for the exclusive purpose of commencing
or completing a professional or vocational course or
other activity for self- improvement;
Payment, in case of absence or insufficiency of
the exclusive property of the debtor-spouse, of:
a. Ante-nuptial debts of either spouse which
did not redound to the benefit of the
family;
b. The support of illegitimate children of
either spouse;
c. Liabilities incurred by either spouse by
reason of a crime or quasi-delict;
For illegitimate children, For illegitimate children,
support from separate support from separate
property
of
person property
of
person
76
PERSONS AND FAMILY RELATIONS
obliged to give support.
In case of insufficiency or
absence of
separate
property, ACP shall
advance
support,
chargeable to share of
parent upon liquidation.
Taxes and expenses for
preservation
during
marriage upon separate
property of either spouse
used by family.
1. Ante-nuptial debts are
chargeable to ACP if
they redounded to the
benefit of family.
2. Personal debts not
redounding to benefit of
the family such as
liabilities incurred by
reason of crime or
quasi-delict
are
chargeable
to
the
separate property of
the debtor spouse.
There is no presumption that the obligations incurred
by one of the spouses during the marriage are charged
against their community of property. Before any
obligation may be chargeable against the community of
property, it must first be established that such obligation is
among the charges against the same (Wong, et al, v. IAC, G.R.
No. 70082, August 19, 1991).
obliged to give support. In
case of insufficiency or
absence
of
separate
property,
CP
shall
advance
support,
chargeable to share of
parent upon liquidation,
but
only
after
obligations in Art. 121
have been covered (FC, Art.
121).
Taxes and expenses for
mere
preservation
during marriage upon
separate property of
either
spouse,
regardless of whether
used by the family
because the use and
enjoyment of separate
property of the spouses
belong
tothe
partnership.
For ante-nuptial debts,
same as ACP but in case of
insufficiency
of
separate
property,
obligations enumerated in
Art. 121 must first be
satisfied before such
debts
may
be
chargeable to the CP (FC,
Art. 12).
Insufficiency of thecommunity property to cover
liabilities
GR: The spouses shall be solidarily liable for the unpaid
balancewith theirseparate properties.
XPN: Those falling under paragraph 9 of Art. 94. of the
Family Code (Ante-nuptial debts, support of illegitimate
children, liabilities incurred by spouse by reason of a crime
or quasi-delict) –in which case the exclusive property of
the spouse who incurred such debts will be liable.
However, if the exclusive property is insufficient,
payment will be considered as advances to be deducted
from share of debtor- spouse. (FC, Art. 94 [9])
B. OWNERSHIP, ADMINISTRATION, ENJOYMENT
AND DISPOSITION OF THE ABSOLUTE
COMMUNITY PROPERTY
Administration of Community Property
GR: The administration of community property
belongs to both spouses jointly.
XPN:
1.
2.
3. In case of insufficiency
of separate property,
chargeable to ACP but
considered
advances
deductible from the
share of the debtorspouse
upon
liquidation.
3.
4.
Q: An individual, while single, purchases a house and lot
in 1990 and borrows money in 1992 to repair it. In
1995, such individual is married while the debt is
still being paid. After the marriage, is the debt still
the responsibility of such individual? (2007 Bar)
Agreement that only one of the spouses shall
administer the community property;
If one spouse is incapacitated or otherwise
unable to participate in the administration of the
common properties – capacitated or able spouse
may assume sole powers of administration without
the need of court approval or authorization;
If a spouse without just cause abandons the other or
fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court
for soleadministration;
During the pendency of the legal separation case,
the court may designate either of the spouses as
sole administrator.
NOTE: But such powers do not include:
1.
2.
3.
A: NO. Ante-nuptial debts of either spouse shall be
conidered as the liability of the absolute community of
property insofar as they have redounded to the benefit
of the family.
Disposition;
Alienation; or
Encumbrance of the
community property.
conjugal
"Courtauthorization"inthesaleofconjugal properties
77
or
CIVIL LAW
Court authorization is resorted to in cases where the
spouse who does not give consent is incapacitated. If
there is no showing that the spouse is incapacitated,
court authorization cannot be sought (Manalo v.
Fernandez, G.R. No. 147928, January 23, 2002).
governed by ACP whereby all the properties owned by the
spouses at the time of the celebration of the marriage as
well as whatever they may acquire during the marriage
shall form part of the absolute community. In ACP, neither
spouse can sell or encumber property belonging to the ACP
without the consent of the other. Any sale or encumbrance
made by one spouse without theconsent of the other shall be
void although it is considered as a continuing offer on the
part of the consenting spouse upon authority of the
court or written consent of the other spouse.
Disagreement in the administration of community
property(FC, Art. 96)
In case of disagreement, the decision of the husband shall
prevail but subject to recourse to the court by the wife for
proper remedy.
Q: Does the prohibition cited above include lease by the
husband over properties of the community of
propertywithout the consentof the wife?
NOTE: Prescriptive period for recourse is within 5 years
fromthedateofthe contract implementingsuch decision.
A: YES. In the contract of lease, the lessor transferred his
right of use in favor of the lessee. The lessor's right of use is
impaired therein. He may even be ejected by the lessee if
the lessor uses the leased realty. Therefore, the lease is a
burden on the land. It is an encumbrance on the land.
Moreover, lease is not only an encumbrance but also a
qualified alienation, with the lessee becoming, for all intents
and purposes, and subject to its terms, the owner of the thing
affected by the lease (Roxas v. CA, G.R. No. 92245, June 26,
1991).
Sale or Disposition of Community Property
Alienation or encumbrance of community property
must have the written consent of the other spouse or the
authority of the court without which the disposition or
encumbrance is VOID. However, the transaction shall be
construed as a continuing offer on the part of the
consenting spouse and the third person, and may be
perfected as a binding contract upon the acceptance by the
other spouse or authorization by the court before the
offer is withdrawn by either or both offerors (FC, Arts. 96
and 124; Sps. Antonio and Luzviminda Guiang v. CA, et
al., G.R. No. 125172, June 26, 1998).
Donation of a community property by a spouse
GR: A spouse cannot donate any community property
without the consent of the other.
The absence of consent of one of the spouses renders the
entire sale null and void, including the sale of the portion
of the conjugal property pertaining to the spouse who
contracted the sale.
XPN: Moderate donations for charity or on occasion of family
rejoicing or distress (FC, Art. 98).
Separation in fact between husband and wife (FC, Art.
100)
The consent of one spouse regarding the disposition does
not always have to be explicit or set forth in any particular
document, so long as it is shown by acts of the said spouse
that such consent or approval was indeed given (Sps.
Cirelos v. Sps. Hernandez, et al. G.R. No. 146523, June
15, 2006). However, even if the other spouse actively
participated in negotiating for the sale of the property, that
other spouse's written consent to the sale is required by
law for its validity. Being aware of a transaction is not
consent (Jader-Manalo v. Camaisa, G.R. No. 147978,
January 23, 2002).
GR: Such separation does not affect the regime of
absolute community
XPNs:
1.
Spouse who leaves the conjugal home or refuses to live
therein without just cause has no right to be
supported;
2.
When consent of one spouse to any transaction of the
other spouse is required by law, judicial
authorization must be obtained;
3.
If community property is insufficient, the
separate property of both spouses shall be
solidarily liablefor the support of the family.
Q: Marco and Gina were married in 1989. In 1999, Gina
left Marco and lived with another man, leaving the two
children of school age with Marco. When Marco needed
money for their children’s education he sold a parcel of
land registered in his name, without Gina’s consent,
which he purchased before his marriage. Is the sale by
Marco valid, void, or voidable? Explain with legal
basis.(2015 BAR)
Abandonment (1999, 2003 Bar)
If a spouse without just cause abandons the other or fails
to comply with his or her obligations to the family, the
aggrieved spouse may petition the courtfor:
1. Receivership;
2. Judicial separation of property;
A:Thesale is VOID. Thepartieswere married in 1989. In the
absence of a marriage settlement, the parties shall be
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
78
PERSONS AND FAMILY RELATIONS
3.
Authority to be the sole administrator of the
absolute community (FC, Art. 101).
mandatory regime of complete separation shall govern the
property relations of the subsequent marriage.
Presumption of Abandonment
Upon lapse of the one-year period and liquidation is made,
any disposition or encumbrance involving the
community property of the terminated marriage shall
be void (FC, Art. 103).
A spouse is deemed to have abandoned the other when he
or she has left the conjugal dwelling without
intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has
failed within the same period to give any information as to
his or her whereabouts shall be prima facie
presumed to have no intention of returning to the
conjugal dwelling (Pineda, 2008).
The reason for the law is that, the law seeks to protect
the children's interest in the first marriage (Albano,
2013).
2.
3.
4.
The presumption is rebuttable by the presentation of
clear, strong and convincing evidence that the absent
spouse did not intend to leave the present spouse and
family (Pineda, 2008).
5.
Prohibition against the sale of property between
spouses
NOTE: The absolute community of property or the
conjugal partnership is considered dissolved only
upon the issuance of the judicial decree of separation,
not at the moment when the parties enter into a
compromise agreement in the course of the
proceedings for separation of property (Albano,
2013).
GR: Spouses cannot sell property to each other.
XPNs:
1. When a separation of property was agreed upon in
the marriage settlement;
2. When there has been a judicial separation of property
under Articles 135 and 136 of the Family Code
(NCC, Art. 1490).
D. LIQUIDATION OF THE ABSOLUTE
COMMUNITY ASSETS AND LIABILITIES
Procedure in case of dissolution of ACP
NOTE: The proscription against the sale of property
between spouses under Art. 1490 of the New Civil Code
applies even to common law relationships. In an earlier
ruling, the SC nullified a sale made by a husband in favor
of a concubine, after he had abandoned his family and
left the conjugal home where his wife and children lived,
and from whence they derived their support, for being
contrary to morals and public policy. The sale was
regarded by the court as subversive of the stability of the
family, a basic social institution which public policy
cherishes and protects (Ching v. CA, G.R. No. 165879,
November 10, 2006).
1.
2.
Inventory of all properties of the ACP, listing
separately the communal properties from
exclusive properties of each spouse;
Payment of community debts;
NOTE: First, pay out of the community assets. If not
enough, husband and the wife are solidarily liable
for the unpaid balance with their separate
properties.
3.
C. DISSOLUTION OF ABSOLUTE COMMUNITY
REGIME
4.
Dissolutionof Absolute Community Property (2009
BAR)
5.
Absolute Community Property is terminated by: (FC, Art.
99)
1.
Legal separation;
Annulment;
When the marriage is declared void under Art.40 of the
Family Code;
Judicial separation of property during marriage (FC,
Art. 99).
6.
Death of either spouse;
Delivery to each spouse of his/her remaining
exclusive properties;
Equal division of net community assets Unless there
is:
a.
Anagreementforadifferentproportion;or
b. A voluntary waiver of such share;
Delivery of the presumptive legitimes of the
common children;
Adjudication of conjugal dwelling and custody of
common children (FC, Art. 102).
Applicable procedure inthe dissolution of the ACP incase
themarriageisterminatedbydeath
NOTE: If the surviving spouse contracts another marriage
without compliance with the foregoing requirement, a
79
CIVIL LAW
Community property shall be liquidated in the same
proceeding for the settlement of the estate of the
deceased.
a.
If no judicial proceeding is instituted, the surviving
spouse shall, judicially or extra-judicially, liquidate the
community property within 1 year from the death of the
deceased spouse (FC, Art. 103).
b.
c.
Consequences of failure to liquidate within 1 year
1.
2.
Failure to liquidate the community property within
1 year from the death of the deceased spouse
contrary to Art. 103 of the Family Code, would render
any disposition or encumbrance involving
community property of the terminated marriage void.
If the surviving spouse contracts a subsequent
marriage without compliance with the foregoing
requirements, the subsequent marriage shall be
governed, mandatorily, by a regime of complete
separation of property (Rabuya, 2006).
II.
2.
Those acquired during the marriage by gratuitous
title;
NOTE:
a.
CONJUGAL PARTNERSHIP OF GAINS
(CPG)
b.
It is the property relation formed by the husband and the
wifeby placingin acommon fund: (FC, Art. 106)
1.
2.
The proceeds, product, fruits and income of their
separate properties;
Those acquired by either or both of them
through:
a.
Effort;
b. Chance.
c.
3.
Commencement of CPG
Law that governs the conjugal partnership
The rules on the contract of partnership in all that is not in
conflict with what is expressly determined in the FC and by
the spouses in their marriage settlements (FC, Art. 108).
4.
Those acquired by right of redemption, barter or
exchange with exclusive property;
That purchased with exclusive money of either
spouse.
NOTE: The controlling factor is the source of the
money used, or the money promised to be paid.
Only inchoate right over conjugal property
Alienation of exclusive properties of either
spouse
The interest of the spouses in the conjugal properties is only
inchoate or a mere expectancy and does not ripen into title
until it appears the dissolution and liquidation of the
partnership that there are net assets (Sempio-Diy, 1995).
Either spouse may mortgage, encumber, alienate or
otherwise dispose of his or her exclusive property (FC, Art.
111 as amended by R.A. 10572).
EXCLUSIVE PROPERTY OF THE SPOUSES (FC,
ART. 109)
Rules in cases of improvement of exclusive
property (FC, Art. 120)
1. Reverse accession – If the cost of the
Those brought into the marriage as his/her own;
NOTE:
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Pensions will not form part of the conjugal
partnership of gains when it is given to
him voluntarily and he is not entitled as a
matter of right such as a fruit of industry
or labor.
Proceeds of life insurance policy will not
form part of the conjugal partnership of
gains when the beneficiary of the life
insurance is the estate and the premiums
are sourced from the separate property of
the spouse.
Retirement Benefits will not form part of
the conjugal partnership of gains when it
is given to him voluntarily and he is not
entitled as a matter of right such as a fruit
of industry or labor.
NOTE: In right of redemption, for it to form part of
the exclusive property of the spouse, the ownership
over such property must still pertain to the said
spouse.
CPG shall commence at the precise moment when the
marriage ceremony is celebrated.
1.
A property purchased before the marriage
and fully paid during the marriage remains to
be a separate property of either spouse
(Lorenzo v. Nicolas, G.R. No. L-4085, July 30,
1952).
Fruits and income of said properties shall be
included theconjugal partnership
Those included therein in the marriage
settlement, subject to the 1/5 limitation
under Article 84 and the rule in Article
92(3) of the Family Code which apply by
analogy
80
PERSONS AND FAMILY RELATIONS
improvement and the value of the improvement is
more than the value of the principal property at
the time of the improvement, the entire property
becomes conjugal.
5.
NOTE: For reverse accession to apply, the separate
property must be owned by a spouse exclusively at
the time of the introduction of the improvement
neither it will apply if the property is partly owned
by a spouse and partly owned by a third person.
2.
6.
7.
8.
Accession– If the cost of the improvement and the
value of the improvement is equal to or less than
the value of the principal property, the entire
property becomes the exclusive property of the
respective spouse.
CONJUGAL PARTNERSHIP PROPERTY
Composition of CPG (1995,1998,2004,2005, 2008
Bar) (FC, Art. 117)
NOTE: In either case, there shall be
reimbursement upon the liquidation of the conjugal
partnership and ownership of entire property
shall be vested only upon reimbursement.
1.
a.
b.
c.
2.
3.
A: The wife will now own both the parcel of land the
house introduced by H and W. Reverse Accession under
Article 120 of the Family Code will not apply since at the
time of the introduction of the improvement the parcel
of land is owned by the father of W which she inherited
it when her father died. What will apply here instead is
the ordinary rule of accession. However, the conjugal
partnership of gains will still enjoy the said property as
a usufructuary and W will be the naked owner thereof.
Livestock in excess of what was brought to the
marriage;
Those acquired by chance such as winnings in
gamblings and bettings (FC, Art. 117).
Requisites:
1.
Property is bought on installment prior to the
marriage; and
2.
Paid partly from exclusive funds and partly from
conjugal funds.
Rules in determining ownership:
1.
If full ownership was vested before the marriage
– it shall belong to the buyer spouse.
2.
If full ownership was vested during the marriage
– it shall belong to the conjugal partnership.
GR: All property acquired during the marriage, whether
the acquisition appears to have been made, contracted
or registered in the name of one or both spouses, is
presumed to be conjugal.
NOTE: In either case, any amount advanced by
the partnership or by either or both spouses
shall be reimbursed by the owner/s upon
liquidation of the partnership.
XPN: Unless the contrary is proved.
Obligations Chargeable to Separate Property
4.
Acquisition is made during the marriage,
Thru onerous title,
At the expense of common fund;
Property bought through installment (FC, Art. 118)
Presumption of inclusion of property in the
Conjugal Partnership of Gains
3.
Those acquired by onerous title during the marriage
with conjugal funds;
NOTE: Requisites:
Q: A parcel of land is owned by the father of W. With his
permission, H and W constructed their house over the
said parcel of land. After some time, the father of W
died leaving W as his sole heir. Who now owns the
parcel of land and the improvements introduced by the
H and W? Assume that the property regime of the H and
W is conjugal partnership of gains.
1.
2.
administrator-spouse which does not benefit the
community;
Debts contracted during the marriage without the
consent of the other which did not benefit the
family;
Ante-nuptial debts by either spouse which did not
benefit the family;
Taxes incurred on the separate property which is
not used by the family;
Expenses incurred during the marriage on a
separate property if the property is not used by the
family and not for its preservation.
Q: Yamane asserts that the parcel of land, which was
purchased at auction, belonged to the conjugal
partnership of him and his late wife. In the title, his
name appeared to be merely descriptive of the civil
status of the registered owner, his late wife. The
purchase took place prior to the advent of the Family
Support of illegitimate children;
Liabilities incurred by reason of a crime or quasidelict;
Expenses of litigation between the spouses if found
to be groundless;
Debts contracted during the marriage by the
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CIVIL LAW
Code. Is the property conjugal or paraphernal
property of his latewife?
sine qua non to the operation of the presumption in
favor of the conjugal partnership (Pintiano-Anno, v.
Anno, et al., G.R. No. 163743, January 27, 2006).
A: CONJUGAL. In this case, the provisions of the NCC would
apply since the purchase took place before the FC took
effect. Under Art. 160 of the NCC, all property of the
marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains
exclusively to the husband or the wife. In this case,
there was no proof that the property had been
acquired exclusively by Yamane's late wife. The mere
registration of a property in the name of one spouse
does not destroy its conjugal nature in the absence of
strong, clear and convincing evidence that it was
acquired using the exclusive funds of said spouse
(Spouses Go v. Yamane, G.R. No. 160762, May 3, 2006).
3.
3.
Effect if properties were registered during the
marriage
The fact that the properties were registered in the name
of the spouses is no proof that the properties were
acquired during the marriage. It is well-settled that the
registration does not confer title but merely confirms
one already existing (Jocson v. CA, G.R. No. L-55322,
February 16, 1989).
Q: H & W got married on October 1926. H
subsequently cohabited with X. During the
cohabitation of H with X, H acquired certain
properties and places his status as single. What is the
nature of said properties?
Those obtained from labor, industry, work or
profession of either or both spouses;
Fruits of conjugal property due or received during the
marriage and net fruits of separate property;
A: THEY ARE CONJUGAL PROPERTIES. Whether a
property is conjugal or not is determined by law and not by
the will of one of the spouses. No unilateral
declaration by one spouse can change the character of
conjugal property. The clear intent of H in placing his
status as single is to exclude W from her lawful share in the
conjugal property. The law does not allow this. The
cohabitation of a spouse with another person, even for a
long period, does not sever the tie of a subsisting
previous marriage.
NOTE: Net fruits refer to the remainder of the fruits after
deducting the amount necessary to cover the
expenses of administration of said exclusive
property.
4.
5.
Share of either spouse in hiddentreasure;
Those acquired through occupation such as hunting
orfishing;
Q: Dolores seeks to recover a parcel of land, alleging
that she and her husband acquired such during their
marriage, that it formed part of their conjugal properties
and that he sold it without her consent. She presents as
evidence their marriage contract and the initial tax
declaration over the property.
H and X’s cohabitation cannot work to the detriment of W as
thelegalspouse. The marriage of H and W continued to exist
regardless of the fact that H was already living with X.
Hence, all property acquired from the date of their
marriage until the death of W are presumed conjugal. It was
neither claimed nor proved that any of the subject
properties was acquired outside or beyond this period
(Villanueva v. CA, G.R. No. 143286, April 14, 2004).
A: RECOVERY IS NOT WARRANTED. The rule is all
property of the marriage is presumed to be conjugal in
nature. However, for this presumption to apply, the party
who invokes it must first prove that it was acquired
during the marriage. Here, Dolores' evidence consisted
of her marriage contract and the initial tax declaration
over the property. She did not identify when she and
her husband first occupied and possessed the land.
Neither did she present any witness to prove that they
first occupied the property during their marriage and
that they both worked on the land (Pintiano-Anno v.
Anno, G.R. No. 163743, January 27, 2006).
Q: Suppose a property was acquired by one spouse while
they were living separately, is this property conjugal
ornot?
A: It is presumed to be conjugal. All property acquired
during the marriage regardless of whether the spouses are
living together or not, are presumed to be conjugal
property (Flores v. Escudero, G.R. No. L-5302, March 11,
1953).
A. CHARGE UPON AND OBLIGATIONS OF
THE CONJUGAL PARTNERSHIP OF GAINS
(CPG)
The presumption of conjugality of the properties of the
husband and wife applies only when there is proof that
the property was acquired during the marriage. If there
is no showing as to when the properties alleged to be
conjugal were acquired, the presumption does not apply
(Francisco v. CA, G.R. No. 102330, November 30, 1998).
Proof of acquisition during the coverture is a condition
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
1.
2.
82
Support of the spouses, their common children and
the legitimate children of either spouse;
Debts and obligations contracted by one without the
consent of the other to the extent that the family
PERSONS AND FAMILY RELATIONS
3.
4.
5.
6.
7.
8.
9.
benefited;
Debts and obligations contracted during the marriage
by an administrator-spouse, both spouses or one with
the consent of the other;
Taxes, liens, charges, expenses, including major or
minor repairs upon conjugal property;
Taxes and expenses for mere preservation made
during the marriage of separate property;
Expenses for professional, vocational or selfimprovement courses of either spouse;
Ante-nuptial debts to the extent the family has been
benefited;
Value of what is donated or promised to common
legitimate children for professional, vocation or selfimprovement courses;
Expenses of litigation between the spouses unless the
suit is found to be groundless (FC, Art. 121).
of the exclusive property of the debtor-spouse, the same
advantage is not accorded in the system of conjugal
partnership of gains. To reiterate, conjugal property
cannot be held liable for the personal obligation
contracted by one spouse, unless some advantage or
benefit is shown to have accrued to the conjugal
partnership (Go v. Yamane, G.R. No. 160762, May 3,
2006).
B. ADMINISTRATION OF THE CONJUGAL
PARTNERSHIP OF GAINS (ART. 124)
GR: The right to administer the conjugal partnership
belongs to both spouses jointly.
XPN:
1.
If one spouse is incapacitated or otherwise unable
to participate in the administration of the common
properties – capacitated or able spouse may
assume sole powers of administration.
2.
If a spouse without just cause abandons the other
or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court
for sole administration.
3.
During the pendency of a legal separation case, the
court may designate either of the spouse as sole
administrator.
NOTE: If the conjugal partnership is insufficient to
cover the foregoing liabilities, spouses shall be
solidarily liable for the unpaid balance with their
separate properties.
Charges against the Separate Property that may be
charged upon the CPG
Requisites:
1.
All the responsibilities of the partnership have
already been covered; and
2.
The spouse who is bound has no exclusive
properties or the same are insufficient.
Charges:
1.
2.
3.
But such powers do not include:
1. Disposition;
2. Alienation; or
3. Encumbrance of the conjugal or community
property.
Personal debts of either spouse contracted
before the marriage which did not redound to
the benefit of the family;
Support of the illegitimate children of either
spouse;
Fines and indemnities arising from delicts
and quasi- delicts.
NOTE: The sale of conjugal property without the
consent of the husband is void. If one spouse is
incapacitated or otherwise unable to assume sole
powers of administration of the conjugal properties, the
other spouse may assume sole powers of
administration. These powers do not include
disposition or encumbrance without authority or
written consent of the other spouse. (Aggabao v.
Parulan, G.R. No. 165803, September 1, 2010)
If levy was made on the conjugal property by reason of
the husband being a guarantor, the levy is improper.
The payment of personal debts contracted by the
husband or the wife before or during the marriage shall
not be charged to the conjugal partnership except as
they redounded to the benefit of the family (FC, Art.
122). (2000, 2005 Bar)
Disagreement in the administration of the CPG
In case of disagreement, the decision of the husband shall
prevail subject to recourse to the court by the wife for
proper remedy.
Q: If one of the spouses committed the crime of
slander and was held liable for damages in a
damage suit, is it chargeable against the conjugal
partnership?
NOTE: Prescriptive period for recourse is 5 years from
the date of the contract implementing such decision.
(2000, 2002 Bar)
A: NO. Unlike in the system of absolute community
where liabilities incurred by either spouse by reason of
a crime or quasi-delict is chargeable to the absolute
community of property, in the absence or insufficiency
C. DISSOLUTION OF CONJUGAL
PARTNERSHIP OF GAINS
Conjugal partnership is terminated by:
83
CIVIL LAW
1.
2.
3.
4.
Death of either spouse;
Legal separation;
Annulment or Declaration of Nullity;
Judicial separation of property during marriage
(FC, Art. 126).
partnership liabilities, the surviving spouse and the
children shall not be entitled to support.
Effects if the community property is not liquidated
(FC, Art. 130)
D. LIQUIDATION OF THE CONJUGAL
PARTNERSHIP ASSETS AND LIABILITIES
1.
2.
3.
4.
5.
6.
7.
8.
9.
1.
Inventory of all the properties;
Restitution of advances made to each of the
spouses;
Reimbursement for use of exclusive funds;
Debts and obligations of the CP are paid;
Delivery of exclusive properties;
Payment of losses and deterioration of movables
belonging to each of the spouses;
Division of the net conjugal partnership;
Delivery of the common children’s presumptive
legitimes;
Adjudication of conjugal dwelling and custody of
common children (FC, Art. 129).
2.
The system of complete separation of property will
govern the property relations between the spouses only
in the following cases:
1.
2.
3.
Liquidation of community property if the
termination of the marriage by death
4.
Upon termination of marriage by death, the community
property shall be liquidated in the same proceeding for
the settlement of the estate of the deceased spouse (FC,
Art. 130).
Support to the surviving spouse and to the children
during liquidation
1.
2.
Marriage settlement
Family Code in supplemental character (FC, Art.
149)
Kinds of separation of property
1.
As to extent: (FC, Art. 144)
a.
Total
b. Partial – In this case, the property not agreed
upon as separate shall pertain to the absolute
community.
2.
As to kinds of property: (FC, Art. 144)
a. Present property
b. Future property
c. Both present and future property
Liquidation of community property in the absence
of a judicial settlement proceeding (FC, Art. 130)
In the absence of a judicial settlement proceeding, the
surviving spouse shall liquidate the community
property either, judicially or extra-judicially within 1
year from the death of the deceased spouse.
Instances when separation of property is allowed
(FC, Art. 134)
COMPLETE SEPARATIN OF PROPERTY
(CSOP)
If during the liquidation of the CP, the conjugal
partnership assets are less than the conjugal
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
When it is expressly provided for in the marriage
settlement
When it is so decreed by a competent court
Mandatory regime of complete separation of
property
By failure of the surviving spouse to liquidate the
absolute community or conjugal partnership of
gains of a previous marriage which has been
terminated by death within the one-year period
required by law prior to contracting another
marriage. The subsequent marriage is
mandatorily governed by a regime of complete
separation.
Rules governing the regime of separation of
property
The support to be given to the surviving spouse and to
the children during liquidation shall come from the
common mass of property and shall be particularly
charged against the fruits, rents or income pertaining to
their shares to the inventories property. But where the
support given exceeds the fruits, rents or income
pertaining to their shares, the excess shall be deducted
from their respective shares as these are deemed
advances from the inventoried property (FC, Art. 133).
III.
Any disposition or encumbrance made by the
surviving spouse involving community property
of the terminated marriage shall be void.
Should the surviving spouse contract a
subsequent marriage a mandatory regime of
complete separation of property shall govern the
property relations of the subsequent marriage.
1.
2.
84
By agreement through marriage settlement
By judicial order
PERSONS AND FAMILY RELATIONS
If the spouses opted for voluntary separation of
property, the parties may agree to the revival even in
the absence of a reason/ground. However, a subsequent
voluntary separation of property is no longer allowed.
Sufficient causes for judicial separation of property
1. Civil interdiction of the spouse of petitioner;
2. Judicial declaration of absence;
3. Loss of parental authority as decreed by the
court;
4. Abandonment or failure to comply with
family obligation; (2003 Bar)
5. Administrator spouse has abused authority;
6. Separation in fact for one year and
reconciliation is highly improbable. (FC, Art.
135)
If the separation of property is for a sufficient cause, the
revival of the previous property regime depends upon
the cessation of the ground which was the basis of the
judicial order. A subsequent judicial separation of
property for a sufficient cause may be allowed so long
as there is a new ground to rely on.
The procedure of the revival of previous property
regime is the same as those followed upon
reconciliation of the spouses after the finality of legal
separation.
NOTE: In cases provided in 1, 2 and 3, the presentation
of the final judgment against the guilty or absent spouse
shall be enough bases for the grant of the decree of
judicial separation of property.
Transfer of Administration of Exclusive Property to
another Spouse during the Marriage
Effects of judicial separation of property between
spouses
1.
2.
3.
4.
(a) By agreement
The absolute community or conjugal partnership is
dissolved;
The liability of the spouses to creditors shall be
solidary with their separate properties;
Mutual obligation to support each other continues
except when there is legal separation;
Rights previously acquired by creditors are not
prejudiced.
Requisites:
1. By means of a public instrument;
2. To be recorded in the registry of
property of the place where the property
is located.
(b)
Based on these grounds:
1. Other spouse becomes the guardian of
the other;
2. The other spouse is judicially declared an
absentee;
3. Other spouse is sentenced to a penalty
which carries with it civil interdiction; or
4. Other spouse becomes fugitive from
justice or hiding as an accused in a
criminal case (FC, Art. 142).
In case of voluntary agreement for the separation of
property, the law does not require specific reasons to
justify the Court in approving the same. The law leaves
the matter to the discretion of the court (Sempio-Diy,
1995). (2005 Bar)
Rights of the spouses under the regime of
separation of property
1.
2.
By order of the court upon petition
Each spouse shall own, dispose of, administer,
possess, and enjoy his or her own separate
property, without need of the consent of the other.
Each spouse shall own all earnings from his or her
profession, business or industry and all fruits,
natural, industrial or civil, due or received during
the marriage from his or her separate property (FC,
Art. 145).
Liabilities of the spouses for family expenses under
the regime of separation of property (FC, Art. 146)
GR: Both spouses shall bear the family expenses in
proportion to their income.
XPN: In case of insufficiency or default thereof, to the
current market value of their separate properties.
Revival of previous property regime
85
CIVIL LAW
IV. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
BASIS
ART. 147(1997, 2000, 2006, 2009, 2010 BAR)
Applicability
ART. 148(1992, 1998, 2000, 2006, 2009 Bar)
1. Parties without legal impediment to marry; With legal impediment caused by:
2. Void marriage on the ground of psychological
1. Adulterous relationships
incapacity.
2. Bigamous/polygamous marriages
3. Incestuous void marriages under Art. 37
4. Voidmarriagesby reason ofpublicpolicy (FC,
Art. 38).
1. The man and the woman must be capacitated to 1. The man and the woman must be
marry each other;
incapacitated to marry each other or they do
2. live exclusively with each other ashusband and
not live exclusively with each other as
As to requisites
wife; and
husband and wife; and
3. their union is without the benefit of marriage or 2. Theirunion iswithoutthebenefitofmarriage
their marriage is void (Mercado-Fehr v. Fehr,
or their marriage is void (FC, Art. 148).
G.R. No. 152716, October 23, 2003
Salas, Jr. v. Aguila, G.R. No. 202370,
September 23, 2013).
Owned in equal shares
Separately owned by theparties.Ifany is married,
Salaries & wages
his/her salary pertains to the CPG of the legitimate
marriage.
Property exclusively
acquired
Belongs to party
Belongs to such party
uponproofofacquisition throughexclusivefunds
Property acquired by Governed by rules of co-ownership
Owned in common in proportion to their
both through their
respective contributions
work or industry
Property acquired while living together No presumption of joint acquisition.
presumed obtained by their joint efforts, work or
industry andowned by them in equalshares.
Actual joint contribution of money, property or
industry shall be owned by them in common
Presumption
If one party did not participate in acquisition:proportion.
presumed to have contributed through care and
maintenance of family and household However, their contributions are presumed equal,
(Buenaventura v. CA, G.R. No.
in the absence if proof to the contrary.
127358, March 31, 2005).
When only one of the parties to a void marriage is in If one of the parties is validly married to another,
good faith, theshare of theparty in bad faith in the his/her share in the co-ownership shall accrue to
co-ownership shall be forfeited in favorof:
the ACP or CPG existing in the marriage.
Forfeiture
Proof of actual
contribution
1. their common children
If the party who acted in BF is not validly married
2. in caseof defaultof orwaiver by any or all of the to anotherorifboth parties arein BF, such sharebe
common children or their descendants, each forfeited in mannerprovided in the last par. of Art.
vacant share shall belong to the respective
147
surviving descendants
3. In the absence of descendants, such shareshall
belong to the innocent party.
Not necessary
Necessary
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
86
PERSONS AND FAMILY RELATIONS
NOTE: For as long as it is proven that s property was
acquired during marriage, the presumption of conjugality
will attach regardless in whose name the property is
registered.
depending on the presence or absence of the legal
impediment between them.
Art. 50 of the Family Code, and Sec. 19 of the Rules on
Declaration of Nullity applies only to marriages which are
declared void ab initio or annulled by final judgement
under Art. 40 and 45 of the Family Code. Art. 50 does not
apply to marriages which are declared void ab initio
under Art. 36 which should be declared void without
waiting for the liquidation of the properties of the
parties.
The presumption is not rebutted by the mere fact that the
certificate of title of the property or the tax declaration is in
the name of one of the spouses (Villanueva v. CA, G.R. No.
143286, April 14, 2004).
Property regime in case the marriage is declared null
and void on the ground of psychological
incapacity
In this case, petitioner’s marriage to respondent was
declared void under Art. 36 of the FC and not under Art.
40. Thus, what governs the liquidation of property owned
in common by petitioner and respondent are the rules
on co-ownership under Art. 496 of the NCC. Partition
may be made by agreement between the parties or by
judicial proceedings. It is not necessary to liquidate
the property of the spouses in the same proceeding for
declaration of nullity of marriage (Dino v. Dino, G.R. No.
178044, January 19, 2011).
The property relation between the parties is governed by
Art. 147 of the Family Code. Property acquired by both
spouses through their work and industry shall be
governed by the rules on equal co-ownership. Any
property acquired during the union is prima facie
presumed to have been obtained through their joint
efforts. A party who did not participate in the
acquisition of the property shall still be considered as having
contributed thereto jointly if said party's "efforts
consisted in the care and maintenance of the family
household." Unlike the conjugal partnership of gains, the
fruits of the couple's separate property are not included in
the co-ownership.
Co-ownership under Art. 147
When a man and a woman who are capacitated to marry
each other, live exclusively with each other as husband
and wife without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by them
in equal shares and the property acquired by both of them
through their work or industry shall be governed by the
rules of co-ownership.
Q: Miko and Dinah started to live together as husband
and wife without the benefit of marriage in 1984. 10 years
after, they separated. In 1996, they decided to live
together again, and in 1998 they got married. On
February 17, 2001, Dinah filed a complaint for
declaration of nullity of her marriage with Miko on the
ground of psychological incapacity. The Court rendered
the following decision:
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to
have been obtained by their joint efforts, worker industry,
and shall be owned by them in equal shares. A party who
did not participate in the acquisition by the other party of
any property shall be deemed to have contributed jointly in
the acquisition thereof if the former's efforts consisted in
the care and maintenance of the family and of the
household.
1. Declaringthe marriage null and void;
2. Dissolving the regime of Absolute Community of
Property; and
3. Declaring that a decree of absolute nullity of
marriage shall only be issued after liquidation,
partition, and distribution of the parties’ properties
under Art, 147.
Under this article, there is a presumption that the
properties which they acquired during their cohabitation
were acquired through their joint efforts, work or
industry. It further provides that a party who did not
participate in the acquisition thereof shall be deemed to
have contributed jointly in the acquisition thereof if his or
her efforts consisted in the care and maintenance of the
family and of the household.
Dinah filed a Motion for Partial Reconsideration
questioning the portion of the decision on the
issuance of a decree of nullity of marriage only after the
liquidation, partition and distribution of properties
under Article 147. If you are the judge, how will you
decide the petitioner’s Motion? Why? (2014 Bar)
A: I will grant the partial reconsideration. If the
marriage is declared void under Art. 36, the provisions of the
Family Code on liquidation, partition and distribution
of the properties on absolute community or conjugal
partnership will not apply but rather Art 147 or Art. 148
Co-ownership under Art. 148
Co-ownership may ensue in case of cohabitation where,
for instance, one party has a pre-existing valid marriage,
provided that the parties prove their actual joint
contribution of money, property or industry and only to
87
CIVIL LAW
the extent of their proportionate interest thereon
(Francisco v. Master Iron Works Construction Corp., G.R.
No. 151967, February 16, 2005).
Q: Benjamin is married to Azucena. While Azucena is out
of country, Benjamin developed a romantic
relationship with Sally, but her father was against this. In
order to appease her father, Sally convinced Benjamin to
sign a purported marriage contract. Eventually, their
relationship ended a few years later. Benjamin asked
the court for the partition of the properties he acquired
with Sally in accordance with Article 148 of the FC, for his
appointment as administrator of the properties
during the pendency of the case. Among the 44
properties which were the subject of the partition, 7
were enumerated by Benjamin while Sally named 37
properties in her answer. Is Benjamin’s contention
correct?
Q: Romeo and Juliet lived together as husband and wife
without the benefit of marriage. During their
cohabitation, they acquired a house. When they broke up,
they executed an agreement where he agreed to leave
the house provided Juliet will pay his entire share in
their properties. She failed to do so butshe also ignored
his demand for her to vacate. Romeo sued her for
ejectment which the court granted. Was the court
correct in granting the same?
A: NO. Under Art. 147 of the Family Code, the property is coowned by the parties. In the absence of proof to the
contrary, any property acquired by common-law spouses
during their cohabitation is presumed to have been
obtained thru their joint efforts and is owned by them in
equal shares. Their property relationship in such a case is
essentially governed by the rules on co-ownership. Thus,
Romeo cannot seek the ejectment of Juliet therefrom. As a coowner, she is as much entitled to enjoy its possession and
ownership as him (Abing v. CA, G.R. No. 146294, July 31,
2006).
A: YES. The property relations of Benjamin and Sally is
governed by Article 148 of the Family Code. They
cohabitated without the benefit of marriage. Thus, only
the properties acquired by them through their actual
joint contribution of money, property, or industry shall
be owned by them in common in proportion to their
respective contributions. Thus, the 37 properties being
claimed by Sally is excluded as part of her conjugal
properties with Benjamin because Sally was not legally
married to Benjamin. As regards the seven remaining
properties, only one of them is registered in the names
of the parties as spouses. The other four were registered
in the name of either one of them with the description
“married to” and the last two were named to Sally as an
individual. The words “married to” preceding the name
of a spouse are merely descriptive of the civil status of
the registered owner, which do not prove co-ownership.
Without proof of actual contribution from either or both
spouses, there can be no co-ownership under Article
148 of the Family Code (Go-Bangayan v. Bangayan, Jr.,
G.R. No. 201061, July 3, 2013).
Q: Bert and Joe, both male and single, lived together
as common law spouses and agreed to raise a son of
Bert’s living brother as their child without legally
adopting him. Bert worked while Joe took care of
they were able to acquire real estate assets
registered in their names as co-owners.
Unfortunately, Bert died of cardiac arrest, leaving
no will. Bert was survived by his biological siblings,
Joe and the boy.
Can Article 147 on co-ownership apply to Bert
and Joe, whereby all properties they acquired
will be presumed to have been acquired by their joint
industry and shallbe ownedby them in equal shares?
b. If Bert and Joe had decided in the early years of
their cohabitation to jointly adopt the boy, would
they have been legally allowed to do so? Explain
with legal basis.
a.
Retroactive application of Art. 148 of the Family Code
Although the adulterous cohabitation of the parties or the
acquisition of the property occurred before the
effectivity of the Family Code on August 3, 1998,
Article 148 applies because the said provision was
intended precisely to fill up the hiatus in Article 144 of the
NCC. Before Article 148 of the Family Code was enacted,
there was no provision governing property relations of
couples living in a state of adultery or concubinage
(Atienza v. De Castro, G.R. No. 169698, November 29,
2006).
A:
NO, Article 147 of the Family Code cannot apply to
Bert and Joe because the law only applies to a man and a
woman who are capacitated to marry each other who live
together as husband and wife without the benefit of
marriage or under a void marriage. In the case of Bert and
Joe, they are both men so the law does not apply.
a.
THE FAMILY UNDER THE FAMILY CODE
THE FAMILY AS AN INSTITUTION
NO, because joint adoption is allowed between
husband and wife. Even if Bert and Joe are cohabiting
with each other, they are not vested with the right to
jointly adopt under the Family Code or even under the
Domestic Adoption Act (Sec. 7, R.A. 8552).
b.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Being the foundation of the nation, it is a basic social
institution which public policy cherishes and protects. (FC,
Art. 149).
88
PERSONS AND FAMILY RELATIONS
Family relations include:
1.
2.
3.
4.
This rule shall not apply to cases which may not be
subject of compromise under the Art. 2035 of the
New Civil Code.
Between husband and wife;
Between parents and children;
Among other ascendants and descendants;
Among brothers and sisters, whether of the full or
half-blood (FC, Art. 150).
Q: Jose alleged that he and his family have been
occupying two (2) parcels of land, which was then
offered to sell to Jose the subject lands which Jose
accepted. However, Consuelo decided to "cancel"
their agreement. In response, Jose expressed his
disapproval to Consuelo's plan and demanded
that respondents proceed with the sale, which
the latter ignored. Upon learning of such sale,
Jose sent a demand letter to Rene asserting his
right to the subject lands. As his demands went
unheeded, Jose brought the matter to the
barangay upon for conciliation proceedings
between him and Rene. When it reached the CA
such Court moto proprio dismissed the case on
the ground that they failed to apply article 151.
Can the CA motu proprio dismiss such case?
A suit between a brother-in-law and a sister-in-law is not
within the coverage of the law, hence, the failure of the
plaintiff to allege earnest efforts to effect a
compromise is not necessary. The relationship is based on
consanguinity, except that of the husband and wife (Gayon
v. Gayon, G.R. No. L-28394, November 26, 1970). The
enumeration of brothers and sisters as members of the
same family does not comprehend brothers- or sistersin-law (Guerero v. RTC, G.R. No. 109068, January 10,
1994).
Rules to remember:
1.
2.
3.
A: YES, Non-compliance with the earnest effort
requirement under Article 151 of the Family Code is
not a jurisdictional defect which would authorize the
courts to dismiss suits filed before them motu
proprio. Rather, it merely partakes of a condition
precedent such that the non-compliance therewith
constitutes a ground for dismissal of a suit should the
same be invoked by the opposing party at the earliest
opportunity, as in a motion to dismiss or in the
answer. Otherwise, such ground is deemed waived.
Family relations exists even if they are not living
together
Illegitimate children are not included in the
family relations under this Article because they
have their own families.
Adopted children are included. (Minutes of
Committee Meeting of August 24, 1985)
Rules governing family relations
Family relations are governed by law. No custom,
practice or agreement destructive of the family shall be
recognized or given effect (FC, Art. 149).
If the respondents as parties-defendants could not,
and did not, after filing their answer-to-petitioner’s
complainant, invoke the objection of absence of the
required allegation on earnest efforts at a
compromise, the appellate court unquestionably did
not have any authority or basis to motu propio order
the dismissal of petitioner’s complaint (Moreno vs.
Kahn, G.R. No. 217744, July 30, 2018).
NOTE: Even if not all forms of extra-marital relations
are punishable under penal law, the sanctity of marriage
is constitutionally recognized and likewise affirmed by
our statutes as a special contract of permanent union.
Accordingly, the Court has had little qualms with
penalizing judicial employees for their dalliances with
married persons or for their own betrayals of the
marital vow of fidelity (Concerned Employee v. Glenda
Mayor, A.M. No. P- 02-1564, November 23, 2004).
The following cannot be compromised:
1.
2.
3.
4.
5.
6.
Requisites before a suit between members of the
same family may prosper
1. Earnest efforts toward a compromise have been
made;
2. Such efforts failed;
3. The fact that earnest efforts toward a
compromise have been made but the same have
failed appears in the verified complaint or petition
(FC, Art. 151).
Civil status of persons;
Validity of a marriage or legal separation;
Any ground for legal separation;
Future support;
Jurisdiction of courts; and
Future legitime (NCC, Art. 2035).
NOTE: A sister-in-law or a brother-in-law is not covered
by these two provisions. Being an exception to the
general rule, Art. 150 of the Family Code must be strictly
construed (Gayon v. Gayon, G.R. No. L-28394, November
26, 1970).
THE FAMILY HOME
89
CIVIL LAW
It is the dwelling house where the husband and wife and
their family reside, and the land on which it is situated.
It is constituted jointly by the husband and the wife or
by an unmarried head of a family (FC, Art. 152).
2.
3.
Q: On March 30, 2000, Mariano died intestate and
was survived by his wife, Leonora and children,
Danilo and Carlito. One of the properties he left was
a piece of land in Alabang where he built his
residential house. After his burial, Leonora and
Mariano’s children extra-judicially settled his
estate. Thereafter, Leonora and Danilo advised
Carlito of their intention to partition the property.
Carlito opposed invoking Art. 159 of the Family
Code. Carlito alleged that since his minor child
Lucas still resides in the premises, the family home
continues until the minor beneficiary becomes of
age. Is the contention of Carlito tenable? (2014 Bar)
Constitution of Family Home (FH)
The FH is deemed constituted on a house and lot from
the time it is occupied as a family residence, (FC Art.
153).
Guidelines in the constitution of the Family Home
1.
2.
3.
4.
5.
6.
FH is deemed constituted from the time of actual
occupation as a family residence;
Only 1 FH may be constituted;
Must be owned by the person constituting it;
Must be permanent;
Same rule applies to both valid and voidable
marriages and even to common law spouses; (FC,
Arts. 147 and 148)
It continues despite death of one, both spouses,
or an unmarried head of the family for 10 years
or as long as there is a minor beneficiary (FC, Art
159).
A: NO. To qualify as beneficiary of the FH the person
must be among those mentioned under Art. 154 of the
Family Code, he/she must be actually living in the FH
and must be dependent for legal support upon the head
of the family (Patricio v. Darion, G.R. No. 170829,
November 20, 2006). While Lucas satisfies the first and
second requisites, he cannot, however, directly claim
legal support from his grandmother, Leonora because
the person primarily obliged to give him support is his
father Carlito. Thus, the partition may be successfully
claimed by Leonora and Danilo. Occupancy of the FH
either by the owner thereof or by “any of its
beneficiaries” must be actual. That which is “actual” is
something real, or actually existing, as opposed to
something merely possible, or to something which is
presumptive and constructive. Actual occupancy,
however, need not be by the owner of the house. Rather,
the property may be occupied by the “beneficiaries”
enumerated by Art. 154 of the Family Code (Manacop v.
CA, G.R. No. 97898, August 11, 1997).
The heirs cannot partition the same unless the court
finds compelling reasons therefor. This rule shall apply
regardless of whoever owns the property or constituted
the FH (FC, Art 159).
The FH must be part of the properties of the absolute
community or the conjugal partnership or the exclusive
properties of either spouse, with the latter’s consent. It
may also be constituted by an unmarried head of a
family on his or her own property (FC, Art 156).
NOTE: Property that is subject of a conditional sale on
instalments where ownership is reserved by the vendor
to guarantee payment of the purchase price may be
constituted as a FH.
NOTE: This enumeration may include the in-laws where
the FH is constituted jointly by the husband and wife.
But the law definitely excludes maids and overseers.
Beneficiaries of a Family Home (FC, Art. 154)
1.
2.
3.
4.
5.
6.
Effect of death of one or both spouses or of the
unmarried head of the family upon the family home
Husband and wife, or
Unmarried head of the family,
Parents (may include parents-in-law),
Ascendants,
Descendants
Brothers and sisters (legitimate or illegitimate)
living in the FH and dependent on the head of
the family for support.
The FH shall continue despite the death of one or both
spouses or of the unmarried head of the family for a
period of 10 years or for as long as there is a minor
beneficiary and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the
property or constituted the FH (FC, Art. 159). (2010
BAR)
Requisites to be considered as beneficiary (FC, Art
156)
1.
Exemption of Family Home from execution, forced
sale or attachment
They must be among the relationships enumerated
in Art. 154 of the Family Code;
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
They live in the FH; and
They are dependent for legal support upon the
head of the family.
90
PERSONS AND FAMILY RELATIONS
GR: FH is exempt from execution, forced sale or
attachment.
From the time of its constitution and so long as any of
its beneficiaries resides therein, the FH continues to be
such and is exempt from execution, forced sale or
attachment (FC, Art. 153).
3. And in both cases, whether under the Civil Code
or the Family Code, it is not sufficient that the
person claiming exemption merely alleges that
such property is a FH. This claim for exemption
must be set up and proved (Juanita Trinidad
Ramos, et al. v. Danilo Pangilinan et al. G.R. No.
185920, July 20, 2010).
However, the rule is not absolute. Art. 155 of the Family
Code provides the circumstances wherein the FH will
not be exempt from execution, forced sale of
attachment, to wit:
Exemption of Family Home must first be set up and
proved
The FH’s exemption from execution must be set up and
proved to the Sheriff before the sale of the property at
public auction. It should be asserted that the property is
a FH and that it is exempted from execution at the time
it was levied or within a reasonable time thereafter. It is
not sufficient that the person claiming exemption
merely alleges that such property is a FH. Failure to do
so will estop one from later claiming the said exemption
(Spouses Araceli Oliva-De Mesa and Ernesto de Mesa v.
Spouses Claudio D. Acero Jr. and Ma.Rufina D. Acero,
Sheriff Felixberto L. Samonte and Registrar Alfredo
Santos, G.R. No. 185064, January 16, 2012).
XPN: Under Art. 155 of the Family Code:
1.
Debts due to laborers, mechanics, architects,
builders, material men and others who rendered
service or furnished materials for the
constitution of the building;
2.
Non-payment of Taxes;
3.
Debts incurred Prior to its constitution;
4.
Debts secured by Mortgages on the premises
before or after such constitution.
NOTE: Exemption is limited to the value allowed in the
Family Code.
Requisites for the creditor to avail of the right to
execute (FC, Art 160)
Rule for the family home to be exempted from
execution
He must be a judgment creditor;
His claim must not be among those excepted
under Art. 155;
3. He has reasonable grounds to believe that the FH
is worth more than the maximum amount fixed in
Art. 157
1.
2.
1. If the FH was constructed before the effectivity
of the FC, then it must have been constituted
either judicially or extra-judicially as provided
under Arts. 225, 229-231 and 233 of the NCC.
Judicial constitution of the FH requires the filing of
a verified petition before the courts and the
registration of the court’s order with the Registry
of Deeds of the area where the property is located.
Meanwhile, extrajudicial constitution is governed
by Arts. 240 to 242 of the New Civil Code and
involves the execution of a public instrument
which must also be registered with the Registry of
Property.
Procedure in exercising the right to execute
1.
2.
2. For FH constructed after the effectivity of the
FC, there is no need to constitute extra- judicially
or judicially, and the exemption is effective from
the time it was constituted and lasts as long as any
of its beneficiaries actually resides therein.
Moreover, the FH should belong to the absolute
community or conjugal partnership, or if
exclusively by one spouse, its constitution must
have been with consent of the other, and its value
must not exceed certain amounts depending upon
the area where it is located. Further, the debts
incurred for which the exemption does not apply
as provided under Art. 155 for which the FH is
made answerable must have been incurred after
the effectivity of the Family Code.
3.
4.
Creditor must file a motion in the court
proceeding where he obtained a favorable
judgment for a writ of execution against the FH;
There will be a hearing on the motion where the
creditor must prove that the actual value of the
FH exceeds the maximum amount fixed by the
Family Code, either at the time of its constitution
or as a result of improvements introduced after
its constitution;
If the creditor proves that the actual value
exceeds the maximum amount, the court will
order its sale in execution;
If the FH is sold for more than the value allowed,
the proceeds shall be applied as follows:
a.
The obligations enumerated in Art. 155 of
the Family Code must be paid
b.
The judgment in favor of the creditor will
be paid, plus all the costs of execution
The excess, if any, shall be delivered to the judgment
debtor (FC, Art. 160).
91
CIVIL LAW
NOTE: The actual value of the FH shall not exceed, at
the time of its constitution, the amount of P300,000 in
urban areas, and P200,000 in rural areas, or such
amounts as may hereafter be fixed by law (FC, Art. 157).
effectivity of the Family Code. Art. 162 simply means
that all existing family residences at the time of the
effectivity of the Family Code are considered FH and are
prospectively entitled to the benefits accorded to a
family home under the Family Code (Manacop v. CA, 277
SCRA 64, August 11, 1997).
Q: A complaint for damages was filed against
Hinahon in 1986 when she incurred liabilities as
early as 1977, which action prospered in 1989. The
house and lot that she owned was levied upon and
sold at auction. She assails the levy and sale on the
ground that it was her family home and therefore
exempt from execution. Decide.
NOTE: The Family Code does not have a retroactive
effect. Thus, prior to August 5, 1988, the procedure
mandated by the Old Civil Code had to be followed for a
Family Home to be constituted as such. There being no
proof that the subject property was judicially or
extrajudicially constituted as a family home, it follows
that petitioner cannot avail of the law’s protective mantle.
(Modequillo v. Breva, G.R. No. 86355, May 31, 1990)
A: IT IS NOT EXEMPT. Under Art. 155 of the Family
Code, the FH shall be exempt from execution, forced
sale, or attachment except for, among other things,
debts incurred prior to the constitution of the FH. The
house and lot was not constituted as a FH, whether
judicially or extra-judicially, at the time that the debtor
incurred her debts. Under prevailing jurisprudence, it is
deemed constituted as such by operation of law only
upon the effectivity of the Family Code on August 3,
1988, thus, the debts were incurred before the
constitution of the FH (Gomez-Salcedo, et al. v. Sta. Ines,
et al., G.R. No. 132537, October 14, 2005).
Requisites in the sale, alienation, donation, assignment
or encumbrance of the FH
The following must give their written consent:
1. The person who constituted the FH;
2. The spouse of the person who constituted the FH;
3. Majority of the beneficiaries of legal age.
NOTE: In case of conflict, the court shall decide.
Here, the complaint against Hinahon was instituted on
June 17, 1986, to seek redress for damages suffered by
them due to acts and omissions committed by her as
early as 1977. This means that Hinahon’s liability arose
long before the levied property was constituted as FH
by operation of law in August 1988. It is thus clear that
the liability incurred by Hinahon falls squarely under
one of the instances when a FH may be the subject of
execution, forced sale, or attachment to answer for
debts incurred prior to the constitution of the FH
(Gomez-Salcedo, et al. v. Sta. Ines, et al., G.R. No. 132537,
October 14, 2005).
Limitations on Family Home
1.
2.
3.
PATERNITY AND FILIATION
Q : Has the residential house and lot of Cesario
Montana which he and his family built in 1960 but
which was not constituted as a family home,
whether judicially or extrajudicially, under the NCC
been constituted as a family home by operation of
law under Art. 153 of the FC, and therefore, exempt
from execution from a money judgement where the
debt or liability was incurred before the effectivity
of the FC?
Paternity is the civil status of a father with regard to the
child.
Filiation is the civil status of a child with regard to his
parents.
Filiation may be by nature or adoption, legitimate or
illegitimate.
A : NO. Under Art. 162 of the Family Code, it is provided
that “the provisions of this Chapter shall also govern
existing family residences insofar as said provisions are
applicable.” It does not mean that Arts. 152 and 153 of
the Family Code have a retroactive effect such that all
existing family residences are deemed to have been
constituted as a FH at the time of their occupation prior
to the effectivity of the FX and are exempt from
execution for the payment of obligations before the
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Each family can have only one FH. After one FH
has been constituted, no other FH can be
established without first dissolving the existing
one.
FH can be constituted only on the dwelling place,
and therefore in the locality where the family has
its domicile.
The value of the FH must not exceed the limit
fixed by law (Tolentino, 2013).
NOTE: Paternity or filiation is established by clear and
convincing evidence (Constantino v. Mendez, G.R. No.
57227, May 14, 1992).
Classifications of filiation (2009 Bar)
I.
92
Natural
a. Legitimate – conceived OR born within a valid
marriage
PERSONS AND FAMILY RELATIONS
b.
Illegitimate – conceived AND born outside
a valid marriage
the Family Code.
Presumption of legitimacy (2006, 2008, 2010 Bar)
Judicial Act
a. Legitimated – conceived and born outside of
wedlock of parents without impediment to
marry at the time of conception or were so
disqualified only because either or both of
them were below eighteen (18) years of age
(FC, Art. 177).
b. Adopted – a filiation created by law which
vests between two persons a relationship
similar to that which results from legitimate
paternity and filiation.
II.
I.
Article 164 of the Family Code provides that the
children conceived or born during the marriage of the
parents are legitimate.
The presumption of legitimacy of children does not only
flow out from a declaration contained in the statute but
is based on the broad principles of natural justice and
the supposed virtue of the mother. The presumption is
grounded in a policy to protect innocent offspring from
the odium of illegitimacy (Liyao, Jr. v. Tanhoti-Liyao, G.R.
138961, March 7, 2002).
NATURAL
The presumption of legitimacy under Article 164 of the
Family Code may be availed only upon convincing proof
of the factual basis therefor, i.e., that the child’s parents
were legally married and that his/her conception or
birth occurred during the subsistence of that marriage.
Else, the presumption of law that a child is legitimate
does not arise (Angeles v. Maglaya, G.R. No. 153798,
September 2, 2005).
A. LEGITIMATE CHILDREN
Legitimate child
GR: One who is conceived OR born during the marriage
of the parents (FC, Art. 164).
XPN: Born outside of a valid marriage (void marriages)
but considered as legitimate child:
1.
2.
NOTE: The child by himself cannot choose his own
filiation. Neither can he elect the paternity of the
husband of his mother when the presumption of his
legitimacy has been successfully overthrown.
Children of marriages which are declared void
under Art. 36; and
Children of marriages which are declared void
under Art. 53 (Rabuya, 2009).
Q: What is the effect of the declaration of a wife
against the legitimacy of the child where the child is
conclusive presumed to be the legitimate child of H
and W?
Requisites for a child conceived by artificial
insemination to be considered legitimate (FC, Art.
166 no. 3)
1.
2.
3.
4.
A: The child shall still be legitimate, although the
mother may have declared against his legitimacy. This
law likewise applies to such instances where the mother
may have been sentenced as an adulteress (FC, Art. 167).
The artificial insemination is made on the wife,
not on another woman;
The artificial insemination on the wife is done
with the sperm of the husband or of a donor, or
both the husband and a donor;
The artificial insemination has been authorized
or ratified by the spouse on a written instrument
executed and signed by them before the birth of
the child; and
The written instrument is recorded in the civil
registry together with the birth certificate of the
child (FC, Art. 164).
NOTE: Art. 167 of the Family Code applies only to a
situation where the wife denies the paternity of the
husband. Art. 167 does not apply to a situation where a
child is alleged not to be the child of nature or biological
child of the couple (Rabuya, 2009).
Q: Roderick and Faye were high school sweethearts.
When Roderick was 18 and Faye, 16 years old, they
started living together as husband and wife without
the benefit of marriage. When Faye reached 18
years of age, her parents forcibly took her back and
arranged for her marriage to Brad. Although Faye
lived with Brad after the marriage, Roderick
continued to regularly visit Faye while Brad was
away at work. During their marriage, Faye gave
birth to a baby girl, Laica. When Faye was 25 years
old, Brad discovered her continued liaison with
Roderick and in one of their heated arguments, Faye
Rights of legitimate children (FC, Art. 174)
1.
2.
3.
To bear the surname of the father and the
mother;
To receive support from their parents, their
ascendants, and in proper cases, their brothers
and sisters;
To be entitled to the legitimate and other
successional rights granted to them by Art. 174 of
93
CIVIL LAW
shot Brad to death. She lost no time in marrying her
true love Roderick, without a marriage license,
claiming that they have been continuously
cohabiting for more than 5 years.
1.
2.
A:
a)
b)
Prescripti
on
What is the filial status of Laica?
Can Laica bring an action to impugn her own
status on the ground that based on DNA
results, Roderick is her biological father?
(2008 Bar)
2 years – husband
does NOT reside
in the same
municipality or
city
Having been born during the marriage of Faye
and Brad, she is presumed to be the legitimate
child of Faye and Brad. This presumption had
become conclusive because the period of time to
impugn her filiation had already prescribed.
NO, she cannot impugn her own filiation. The law
does not allow a child to impugn his or her own
filiation. In the problem, Laica’s legitimate
filiation was accorded to her by operation of law
which may be impugned only by Brad, or his
heirs in the cases provided by law within the
prescriptive period.
3 years – husband
is living abroad
Remedy
Real party
in interest
ACTION TO
IMPUGN
LEGITIMACY
(FC, ART. 166)
Action to impugn
legitimacy or
illegitimacy
GR: Husband
XPNs: Heirs, in
cases where:
1. Husband
died
before the
expiratio
n of the
period for
bringing
the
action;
2. Husband
died after
filing the
complaint
, without
having
desisted;
3. Child was
born after
XPN: Lifetime
of the putative
father.
In cases where
the action is
for the
recognition of
illegitimate
child by “open
and continuous
possession” of
the status.
GR: Only the husband can contest the legitimacy of the
child.
XPNs: Heirs of the husband may impugn the filiation of
the child within the period prescribed in Art. 170 of the
Family Code only in the following cases:
ACTION TO
CLAIM
LEGITIMACY
(FC, ART. 173)
Action to claim
legitimacy
(compulsory
recognition)
GR: Child
1.
2.
3.
If the husband should die before the expiration of
the period fixed for bringing his action;
If he should die after the filing of the complaint,
without having desisted therefrom; or
If the child was born after the death of the husband
(FC, Art. 171). (2008 BAR)
Prescriptive period for filing action impugning the
legitimacy of the child (2010 BAR)
XPNs: Heirs of
the child, in
cases where:
1. Child
died in
state
of
insanit
y
2. Child
died
during
minori
ty
GR: The prescriptive period for filing action impugning
the legitimacy of the child shall be counted from the
knowledge of birth or its recording in the civil registry.
XPN: If the birth was:
1.
2.
NOTE: Must be
filed within 5
years.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
GR: During the
lifetime of the
child
Person/s who may attack the legitimacy of the child
Action to impugn legitimacy v. Action to claim
legitimacy
BASIS
the death
of
husband.
1 year – husband
resides in the
same municipality
or city where
birth took place
Concealed from; or
Was unknown to the husband or his heirs, the
periods shall be counted from the discovery or
knowledge of the birth of the child or of the act of
registration of said birth, whichever is earlier (FC,
Art. 170).
Grounds in impugning legitimacy of a child (FC, Art.
166)
Legitimacy of the child may be impugned only on the
following grounds:
94
PERSONS AND FAMILY RELATIONS
1. Physical impossibility for the husband to have
sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded
the birth of the child because of:
a.
b.
c.
physical inability to copulate (Menciano v. San Jose, G.R.
No. L-1967, May 28, 1951).
Q: Will an infliction of the last stages of tuberculosis
be a ground for impugnation of the legitimacy of the
child?
Physical incapacity of the husband to have
sexual intercourse with his wife,
The fact that the husband and wife were living
separately in such a way that sexual
intercourse was not possible, or
Serious illness of the husband which
absolutely prevented intercourse;
A: Tuberculosis, even in its last stages, is not the kind of
serious illness of the husband that will establish
physical impossibility of access (Andal v. Macaraig, G.R.
No. L- 2474, May 30, 1951).
Rule on status of child where the mother contracted
another marriage within 300 days after termination
of the former (1999 Bar)
2. Proved that for biological or other scientific
reasons, the child could not have been that of the
husband, except in the case of children conceived
through artificial insemination;
3. In case of children conceived through artificial
insemination, the written authorization or
ratification of either parent was obtained through
mistake, fraud, violence, intimidation or undue
influence.
The child shall be considered as conceived during the:
1.
Former marriage– if child is born:
Before 180 days after the solemnization of the
subsequent marriage, provided it is born within 300
days after termination of former marriage
Sterility and Impotency
2. Subsequent marriage –if a child is born:
Sterility is not synonymous with impotency. Sterility is
the inability to procreate, while impotency is the
180 days after the celebration of the subsequent
marriage, even though it be born within 300 days after
the termination of the former marriage.
Illustrations:
1.
180th day takes place before 300th day
180th day from
solemnization of
terminated
2.
solemnized
300th day from
termination of former
marriage
Born during this period:
Born during this period:
Marriage
Marriage
180th day takes after 300th day
300th day from
termination of
former marriage
terminated
solemnized
180th day from
solemnization of
subsequent
marriage
Born during this period:
Born during this period:
conceived during
Former Marriage
Marriage
95
CIVIL LAW
B. ILLEGITIMATE CHILDREN (2005, 2009,
2010 Bar)
1.
2.
3.
4.
5.
6.
7.
8.
2.
NOTE: Provided that the father has the right to institute
an action before the regular courts to prove nonfiliation during his lifetime.
Children conceived and born outside a valid
marriage:
Children born of couples who are not legally
married or of common law marriages;
Children born of incestuous marriage;
Children born of bigamous marriage;
Children born of adulterous relations between
parents;
Children born of marriages which are void for
reasons of public policy under Art. 38, Family Code;
Children born of couples below 18
Children born of void marriages under art. 35,
except where the marriage is void for lack of
authority on the part of the solemnizing officer, but
the parties or either of them believed in good faith
that the solemnizing officer had authority, in which
case the marriage will be considered valid and the
children will be considered legitimate.
ESTABLISHING ILLEGITIMATE FILIATION (1995,
1999, 2005, 2010 Bar)
Q: Julie had a relationship with a married man who
had legitimate children. A son was born out of the
illicit relationship in 1981. Although the putative
father did not recognize the child in his birth
certificate, he nevertheless provided the child with
all the support he needed and spent time regularly
with the child and his mother. When the man died in
2000, the child was already 18 years old so he filed a
petition to be recognized as an illegitimate child of
the putative father and sought to be given a share in
his putative father’s estate. The legitimate family
opposed, saying that under the FC his action cannot
prosper because he did not bring the action for
recognition during the lifetime of his putative
father.
Rights of an illegitimate child (1990, 2003, 2006,
2009, 2010 Bar)
1.
2.
3.
4.
They shall use the surname of the mother;
They shall be under the parental authority of the
mother;
They shall be entitled to support in conformity with
the FC, PROVIDED, only as to the separate property
of the parent
They shall be entitled to a legitime which shall
consist of ½ of the legitime of a legitimate child (FC,
Art. 176).
1. If you were the judge, how would you rule?
2. Wishing to keep the peace, the child during the
pendency of the case decides to compromise
with his putative father’s family by abandoning
his petition in exchange for what he would have
received as inheritance if he were recognized as
an illegitimate child. As the judge, would you
approve such compromise? (2015 Bar)
A:
1. If I were the judge, I will not allow the action for
recognition filed after the death of the putative
father.
Effect of the recognition of an illegitimate child by
the
father
Such recognition would be a ground for ordering the
latter to give support to, but not the custody of the child.
The law explicitly confers to the mother sole parental
authority over an illegitimate child; it follows that only
if she defaults can the father assume custody and
authority over the minor (Briones v. Miguel, G.R. No.
156343, October 18, 2004).
Filiation of illegitimate children, like legitimate
children is established by:
(1) Record of birth appearing in the civil register
or a final judgment;
(2) An admission of legitimate filiation in a public
document or in a private handwritten
instrument signed by the parent concerned;
AND IN THE ABSENCE THEREOF, Filiation
may be proved by:
(3) The open and continuous possession of the
status of a legitimate child;
Also, under the R.A. 9255, the illegitimate child has the
option to use the surname of the father.
Republic Act 9255
This act provides that illegitimate children may
optionally use the father’s surname provided that:
1.
An illegitimate child who has not been recognized by
options (1) or (2) of the abovementioned
enumeration MAY PROVE his filiation under number
(3) based on open and continuous possession of the
status of an illegitimate child but pursuant to Article
Filiation has been recognized by the father
through the record of birth appearing in the
civil register
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Admission in public document OR private
handwritten instrument is made by the father
96
PERSONS AND FAMILY RELATIONS
175 of the NCC, provided that he or she must file the
action for recognition during the lifetime of the
putative father. The provision of Article 285 of the
Civil Code allowing the child to file the action for
recognition even after the death of the father will not
apply because in the case presented, the child was no
longer a minor at the time of death of the putative
father.
Children entitled to legitimation
2. NO, I will not approve the compromise agreement
because filiation is a matter to be decided by law. It
is not for the parties to stipulate whether a person
is a legitimate or illegitimate child of another (De
Jesus v. Estate of Dizon, G.R. No. 142877, October 2,
2001). In all cases of illegitimate children, their
filiation must be duly proved (NCC, Art. 887).
Requisites of legitimation
Only children conceived and born outside of wedlock of
parents who, at the time of conception, were not
disqualified by any impediment to marry each other or
were so disqualified only because either or both of them
were below eighteen (18) years of age (Art. 177, FC as
amended by R.A. 9858). (1990, 2004, 2008, 2009 Bar)
1.
2.
Child must have been conceived and born outside
of wedlock;
Child’s parents, at the time of former’s
conception, were not disqualified by any
impediment to marry each other or were so
disqualified only because either or both of them
were below eighteen (18) years of age;
The subsequent valid marriage of the parents.
Public instrument subscribed and made under oath
by the putative father indicating the illegitimate
child as his is sufficient to establish illegitimate
filiation
Q: Who may impugn the legitimation? (FC, Art. 182)
Q: Why is an illegitimate child of a woman, who gets
married, allowed to bear the surname of her
subsequent spouse, while a legitimate child may
not?
A: Legitimation may be impugned only by those who are
prejudiced in their rights, within 5 years from the time
their cause of action accrues, that is, from the death of
the putative parent.
A: To allow the child to adopt the surname of his
mother’s second husband, who is not his father could
result in confusion in his paternity. It could also create
the suspicion that the child, who was born during the
covertures of his mother with her first husband, was in
fact sired by the second husband, thus bringing his
legitimate status into discredit (Republic v. Vicencio, G.R.
No. 88202. December 14, 1998).
NOTE: The right referred to are successional rights.
Hence, only those whose successional rights are directly
affected may impugn the legitimation that took place.
II.
A.
3.
Q: Roderick and Faye were high school sweethearts.
When Roderick was 18 and Faye, 16 years old, they
started living together as husband and wife without
the benefit of marriage. When Faye reached 18
years of age, her parents forcibly took her back and
arranged for her marriage to Brad. Although Faye
lived with Brad after the marriage, Roderick
continued to regularly visit Faye while Brad was
away at work. During their marriage, Faye gave
birth to a baby girl, Laica. When Faye was 25 years
old, Brad discovered her continued liaison with
Roderick and in one of their heated arguments, Faye
shot Brad to death. She lost no time in marrying her
true love Roderick, without a marriage license,
claiming that they have been continuously
cohabiting for more than 5 years. Can Laica be
legitimated by the marriage of her biological
parents? (2008 Bar)
JUDICIAL
LEGITIMATE CHILDREN
Legitimated children are those who, because of the
subsequent marriage of their parents to each other, are
by legal fiction considered legitimate.
Legitimation (2004, 2010 BAR)
Legitimation is a remedy or process by means of which
those who in fact not born in wedlock and should
therefore be ordinarily illegitimate, are by fiction,
considered legitimate.
A: NO, she cannot be legitimated by the marriage of her
biological parents. In the first place she is not, under the
law, the child of Roderick. In the second place, her
biological parents could not have validly married each
other at the time she was conceived and born simply
because Faye was still married to Roderick Brad at that
time. Only children conceived or born outside of
wedlock of parents who, at the time of the conception of
It takes place by a subsequent valid marriage between
parents. Furthermore, it shall retroact to the time of the
child’s birth (FC, Art 180).
NOTE: The annulment of a voidable marriage shall not
affect the legitimation (FC, Art. 178).
97
CIVIL LAW
the child were not disqualified by any impediment to
marry each other, may be legitimated. (FC, Art. 177)
RIGHTS OF LEGITIMATE AND ILLEGITIMATE CHILDREN
NOTE: Legitimated children shall enjoy the same rights as legitimate children. (FC, Art. 179)
BASIS
LEGITIMATECHILDREN
ILLEGITIMATE CHILDREN
Bear the surname of either the mother or
the father under R.A. 9255
Surname
Bear the surnames of both parents
(mother and father)
Receive support from:
Support
Legitime
1. Parents;
2. Ascendants; and
3. In proper cases, brothers and sisters
under Art. 174 of the Family Code.
Full Legitimes and other successional
rights under the New Civil Code
NOTE: Under the amendatory provisions of
RA 9255, the use of illegitimate father's
surname is
permissive and not obligatory (Rabuya,
2008).
Receive support according to provision of
Family Code
Share is equivalent to ½ of the share of a
legitimate child
His/her whole lifetime regardless of type For primary proof:
of proof provided under Art. 172 of the his/her whole lifetime
Period for filing action for claim of Family Code
legitimacy or illegitimacy
For secondary proof:
only during the lifetime of the alleged
parent
Transmissibility of right to file an
action to claim legitimacy
Yes
No
Yes
No right to inherit ab intesto from
legitimate children and relatives of
father and mother under Art. 992, New
Civil Code (Iron Curtain Rule).
Right to inherit ab intesto
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
98
PERSONS AND FAMILY RELATIONS
The manner of claiming filiation is the same for both
legitimate and illegitimate children
ACTION TO CLAIM FILIATION
Paternity and filiation or the lack of the same is a
relationship that must be judicially established and it is
for the court to declare its existence or absence. It
cannot be left to the will or agreement of the parties (De
Asis v. CA, G.R. 127578, February 15, 1999).
Person/s who may file for claim legitimate filiation
(FC, Art. 173)
GR: The right of claiming legitimacy belongs to the child
XPN: The right is transferred to his heirs when the child
dies:
4. During minority or
5. In a state of insanity.
6. After commencing the action for legitimacy
The manner of claiming filiation is the same for both
legitimate and illegitimate children
Person/s who may file for claim legitimate filiation
(FC, Art. 173)
NOTE: Questioning legitimacy may not be collaterally
attacked. It can be impugned only in a direct action
GR: The right of claiming legitimacy belongs to the child
XPN: The right is transferred to his heirs when the child
dies:
1. During minority or
2. In a state of insanity.
3. After commencing the action for legitimacy
Person/s who may file for claim illegitimate filiation
GR: The right of claiming illegitimacy belongs to the
child
NOTE: Questioning legitimacy may not be collaterally
attacked. It can be impugned only in a direct action
XPN: The right is transferred to his heirs when:
1. During minority or
2. In a state of insanity.
3. After commencing the action for illegitimate
filiation
Person/s who may file for claim illegitimate filiation
GR: The right of claiming illegitimacy belongs to the
child
Prescription of action to claim legitimacy or
illegitimacy
XPN: The right is transferred to his heirs when:
1. During minority or
2. In a state of insanity.
3. After commencing the action for illegitimate
filiation
An action must be brought:
3. By the child – during his lifetime
4. By his heirs – within 5 years should the child dies
during minority, in a state of insanity or after
commencing the action for legitimacy
Prescription of action to claim legitimacy or
illegitimacy
NOTE: Provided that the action for illegitimacy is based
on admission of paternity or filiation in a birth
certificate or written instrument.
However, if the action for illegitimacy is based on open
and continuous possession of status of illegitimate
filiation or any other means allowed by the Rules of
Court and special laws, the action must be brought
during the lifetime of the alleged parent.
An action must be brought:
1. By the child – during his lifetime
2. By his heirs – within 5 years should the child dies
during minority, in a state of insanity or after
commencing the action for legitimacy
NOTE: Provided that the action for illegitimacy is based
on admission of paternity or filiation in a birth
certificate or written instrument.
Kinds of proof of filiation (1995, 1999, 2010 Bar)
Proof of filiation has two kinds (FC, Art 172, 1st par):
1. Primary proof consists of the ff.:
a.
Record of birth appearing in civil registrar or
final judgment;
b.
Admission of legitimate filiation in public
document
or
private
handwritten
instrument signed by parent concerned.
2. Secondary consists of the ff. (FC, Art 172, 2nd
par):
a.
Open and continuous possession of
However, if the action for illegitimacy is based on open
and continuous possession of status of illegitimate
filiation or any other means allowed by the Rules of
Court and special laws, the action must be brought
during the lifetime of the alleged parent.
Paternity and filiation or the lack of the same is a
relationship that must be judicially established and it is
for the court to declare its existence or absence. It
cannot be left to the will or agreement of the parties (De
Asis v. CA, G.R. 127578, February 15, 1999).
99
CIVIL LAW
b.
legitimacy;
Any means allowed by the Rules of Court
and special laws.
Prima facie case of sexual relations with the
putative father
A prima facie case exists if a woman declares —
supported by corroborative proof — that she had sexual
relations with the putative father; at this point, the
burden of evidence shifts to the putative father. Further,
the two affirmative defenses available to the putative
father are:
NOTE: To prove open and continuous possession of the
status of an illegitimate child, there must be evidence of
manifestation of the permanent intention of the
supposed father to consider the child as his, by
continuous and clear manifestations of parental
affection and care, which cannot be attributed to pure
charity.
1.
Such acts must be of such a nature that they reveal not
only the conviction of paternity, but also the apparent
desire to have and treat the child as such in all relations
in society and in life, not accidentally, but continuously
(Jison v. CA, G.R. No. 124853, February 24, 1998).
2.
Q: Rosanna, as surviving spouse, filed a claim for
death benefits with the SSS upon the death of her
husband, Pablo. She indicated in her claim that the
decedent is also survived by their minor child, Lyn,
who was born in 1991. The SSS granted her claim
but this was withdrawn after investigation, when a
sister of the decedent informed the system that
Pablo could not have sired a child during his
lifetime because he was infertile. However in Lyn’s
birth certificate, Pablo affixed his signature and he
did not impugn Lyn’s legitimacy during his lifetime.
Was the SSS correct in withdrawing the death
benefits?
Rules in proving filiation
GR: Primary proof shall be used to prove filiation.
XPN: In absence of primary proof, secondary proof may
be resorted to.
Pictures or certificate of baptism do not constitute
authentic documents to prove the legitimate
filiation of a child
Pictures or canonical baptismal certificate do not
constitute the authentic documents to prove the
legitimate filiation of a child. The baptismal certificate of
the child, standing alone, is not sufficient. It is not a
record of birth. Neither is it a public instrument nor a
private handwritten instrument (Abelle v. Santiago, G.R.
No. L- 16307, April 30, 1963).
A: NO. Children conceived or born during the marriage
of the parents are legitimate (FC, Art. 164). This
presumption becomes conclusive in the absence of
proof that there is physical impossibility of access under
Art. 166 of the Family Code. Upon the expiration of the
periods for impugning legitimacy under Art. 170, and in
the proper cases under Art. 171, of the Family Code, the
action to impugn would no longer be legally feasible and
the status conferred by the presumption becomes fixed
and unassailable. In this case, there is no showing that
Pablo, who has the right to impugn the legitimacy of
Lyn, challenged her status during his lifetime. There is
adequate evidence to show that the child was in fact his
child, and this is the birth certificate where he affixed
his signature (SSS v. Aguas, et al., G.R. No. 165546,
February 27, 2006).
Baptismal certificate does not prove filiation
Just like in a birth certificate, the lack of participation of
the supposed father in the preparation of a baptismal
certificate renders this document incompetent to prove
paternity. And “while a baptismal certificate may be
considered a public document, it can only serve as
evidence of the administration of the sacrament on the
date specified but not the veracity of the entries with
respect to the child’s paternity. Thus, baptismal
certificates are per se inadmissible in evidence as proof
of filiation and they cannot be admitted indirectly as
circumstantial evidence to prove the same” (Antonio
Perla v. Mirasol Baring and Randy B. Perla, G.R. No.
172471, November 12, 2012).
Q: In an action for partition of estate, the trial court
dismissed it on the ground that the respondent, on
the basis of her birth certificate, was in fact the
illegitimate child of the deceased and therefore the
latter's sole heir, to the exclusion of petitioners.
However, trial court failed to see that in said birth
certificate, she was listed therein as “adopted.” Was
the trial court correct in dismissing the action for
partition?
NOTE: A will which was not presented for probate
sufficiently establish filiation because it constitutes a
public document or private handwritten instrument
signed by the parent concerned.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Incapability of sexual relations with the mother
due to either physical absence or impotency; or
That the mother had sexual relations with other
men at the time of conception (charles gotardo v.
Divina buling, g.r. no. 165166, august 15, 2012).
100
PERSONS AND FAMILY RELATIONS
A: NO. The trial court erred in relying upon the said birth
certificate in pronouncing the filiation of the
respondent. However, since she was listed therein as
“adopted”, she should therefore have presented
evidence of her adoption in view of the contents of her birth
certificate. In this case, there is no showing that she
undertook such. A record of birth is merely prima facie
evidence of the facts contained therein. It is not
conclusive evidence of the truthfulness of the
statements made there by the interested parties.
(Rivera v. Heirs of Romualdo Villanueva, G.R. No. 141501,
July 21, 2006)
compromised. Art. 164 of the Family Code is clear that a
child who is conceived or born during the marriage of his
parents is legitimate (Concepcion v. CA, G.R. No.
123450, August 31, 2005).
Q: What is the effect of Ma. Theresa’s claim that the child is
her illegitimate child with her second husband, to
the status of the child?
A: NONE. This declaration – an avowal by the mother that
her child is illegitimate – is the very declaration that is
proscribed by Art. 167 of the Family Code. This
proscription is in consonance with, among others, the
intention of the law to lean towards the legitimacy of
children (Concepcion v. CA, G.R. No. 123450, August 31,
2005).
Q: In a complaint for partition and accounting with
damages, Ma. Theresa alleged that she is the
illegitimate daughter of Vicente, and therefore
entitled to a share in the estate left behind by the latter.
As proof, she presented her birth certificate which
Vicente himself signed thereby acknowledging that
she is his daughter. Is the evidence presented by
Ma.Theresa sufficient to prove her claim that she is an
illegitimatechild of Vicente?
Q: In a petition for issuance of letters of
administration, Cheri Bolatis alleged that she is the sole
legitimate daughter of decedent, Ramon and Van
Bolatis. Phoebe, the decedent’s second wife, opposed
the petition and questioned the legitimate filiation of
Cheri to the decedent, asserting that Cheri’s birth
certificate was not signed by Ramon and that she had
not presented the marriage contract between her
alleged parents which would have supported her claim.
A: YES. Ma. Theresa was able to establish that Vicente was
in fact her father. The due recognition of an
illegitimate child in a record of birth, a will, a statement
before a court of record, or in any authentic writing is, in
itself, a consummated act of acknowledgment of the child,
andno further court action is required (De Jesus v. Estate of
Juan Dizon, G.R. No. 142877, October 2, 2001. Any
authentic writing is treated not just as a ground for
compulsory recognition; it is in itself a voluntary
recognition that does not require a separate action for
judicial approval (Eceta v. Eceta, G.R. No. 157037, May
20, 2004).
In said birth certificate, it was indicated that her birth
was recorded as the legitimate child of Ramon and Van
Bolatis, and contains as well the word “married” to
reflect the union between the two. However, it was not
signed by Ramon and Vanemon Bolatis. It was merely
signed by the attending physician, who certified to
having attended to the birth of a child. Does the
presumption of legitimacy apply toCherimon?
Q: Gerardo filed a complaint for bigamy against Ma.
Theresa, alleging that she had a previous subsisting
marriage when she married him. The trial court
nullified their marriage and declared that the son, who
was born during their marriage and was registered
as their son, as illegitimate. What is the status of the
child?
A: NO. Since the birth certificate was not signed by
Cher’s alleged parents but was merely signed by the
attending physician, such a certificate, although a public
record of a private document is, under Sec. 23, Rule 132 of the
Rules of Court, evidence only of the fact which gave rise to
its execution, which is, the fact of birth of a child. A birth
certificate, in order to be considered as validating proof
of paternity and as an instrument of recognition, must be
signed by the father and mother jointly, or by the
mother alone if the father refuses. There having been no
convincing proof of respondent’s supposed legitimate
relations with respect to the decedent, the presumption
of legitimacy under the law did not therefore arise in her
favour (Angeles v. Angeles- Maglaya, G.R. No. 153798,
September 2, 2005).
A: The first marriage being found to be valid and
subsisting, whereas that between Gerardo and Ma.
Theresa was void and non-existent; the child should be
regarded as a legitimate child out of the first marriage. This
is so because the child's best interests should be the
primordial consideration in this case.
Q: Gerardo and Ma. Theresa, however, admitted that
the child was their son. Will this affect the status of the
child?
Q: On the basis of the physical presentation of the
plaintiff-minorbefore itandthe factthat thealleged father
had admitted having sexual intercourse with the child's
mother, the trial court, in an action to prove filiation
with support, held that the plaintiff- minor is the child
A: NO. The admission of the parties that the child was their
son was in the nature of a compromise. The rule is that:
the status and filiation of a child cannot be
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of the defendant with the plaintiff- minor's mother.
Wasthetrialcourtcorrect inholding such?
Nepomuceno v. Archbencel Ann Lopez, represented by
her mother Araceli Lopez G.R. No. 181258, March 18,
2010).
A: NO. The birth certificate that was presented by the
plaintiff-minor appears to have been prepared without
the knowledge or consent of the putative father. It is
therefore not a competent piece of evidence on
paternity. The local civil registrar in this case has no
authority to record the paternity of an illegitimate
child on the information of a third person. A
baptismal certificate, while considered a public
document, can only serve as evidence of the
administration of the sacrament on the date specified
therein but not the veracity of the entries with respect to
the child's paternity (Macadangdang v. CA,G.R. No. L49542, September 12, 1980). Thus, certificates issued
by the local civil registrar and baptismal certificates
are per se inadmissible in evidence as proof of filiation and
they cannot be admitted indirectly as circumstantial
evidence to prove the same (Jison v. CA, G.R. No.
124853, February 24, 1998; Cabatania v. CA, G.R. No.
124814, October 21, 2004).
ADOPTION
Adoption is the process of making a child, whether
related or not to the adopter, possess in general, the
rights accorded to a legitimate child. It is a juridical act,
a proceeding in rem which creates between two
persons a relationship similar to that which results from
legitimate paternity and filiation. The modern trend is
to consider adoption not merely as an act to establish a
relationship of paternity and filiation, but also as an act
which endows the child with a legitimate status (In the
Matter of the Adoption of Stephanie Nathy Astorga
Garcia, G.R. No. 148311, March 31, 2005).
The relationship established by the adoption is limited
to the adopting parents and does not extend to their
other relatives, except as expressly provided by law.
Thus, the adopted child cannot be considered as a
relative of the ascendants and collaterals of the
adopting parents, nor of the legitimate children which
they may have after the adoption, except that the law
imposes certain impediments to marriage by reason of
adoption. Neither are the children of the adopted
considered descendants of the adopter.
NOTE: In this age of genetic profiling and DNA analysis,
the extremely subjective test of physical resemblance or
similarity of features will not suffice as evidence to
prove paternity and filiation before courts of law. This
only shows the very high standard of proof that a child
must present in order to establish filiation.
Q: Ann Lopez, represented by her mother Araceli Lopez,
filed a complaint for recognition and support of
filiation against Ben-Hur Nepomuceno. She assailed
that she is the illegitimate daughter of Nepomuceno
submitting as evidence the handwritten note
allegedly written and signed by Nepomuceno. She
also demanded for financial support along with filial
recognition. Nepomuceno denied the assertions
reasoning out that he was compelled to execute the
handwritten note due to the threats of the National
People’s Army. RTC ruled in favor of Ann. Is the trial
court correct?
Preference in adoption (AID)
1. Adoption by the extended family;
2. Domestic Adoption;
3. Inter-Country Adoption.
I.
Applies to adoption of Filipino children, where the
entire adoption process beginning from the filing of the
petition up to the issuance of the adoption decree takes
place in the Philippines (Rabuya, 2009).
A: Ann’s demand for support is dependent on the
determination of her filiation. However, she relies only on
the handwritten note executed by petitioner. The note does
not contain any statement whatsoever about her filiation to
petitioner. It is, therefore, not within the ambit of Article
172(2) vis-à-vis Art. 175 of the Family Code which admits as
competent evidence of illegitimate filiation an admission of
filiation in a private handwritten instrument signed by the
parent concerned.
A. WHEN ALLOWED
Adoption need NOT be a last resort
B. WHO CAN ADOPT
1.
2.
3.
The Court is mindful that the best interests of the child in
cases involving paternity and filiation should be advanced.
It is, however, just as mindful of the disturbance that
unfounded paternity suits cause to the privacy and peace
of the putative father’s legitimate family (Ben-Hur
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
DOMESTIC ADOPTION ACT (R.A. 8552)
Filipino citizens;
Aliens;
Guardians with respect to their ward.
NOTE: A guardian may only adopt his ward after
termination of guardianship and clearance of his
financial accountabilities.
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PERSONS AND FAMILY RELATIONS
Qualifications of a Filipino who may adopt
(Section 7 (a) Article 3, RA 8552)
1.
2.
3.
4.
5.
6.
7.
Filipino spouse.
Rule on Joint Adoption of Spouses
Of legal age;
In possession of full civil capacity and legal
rights;
Possesses good moral character;
Has not been convicted of any crime involving
moral turpitude;
Emotionally and psychologically capable of
caring forchildren;
Who is in a position to support and care for
his/her children in keeping with the means of the
family; and
GR: at least sixteen (16) years older than the
adoptee.
GR:Husband and wife shall adopt jointly (Sec. 7, Article 3,
RA 8552)
XPNs:
a.
b.
NOTE: In seeking to adopt his own illegitimate son or
daughter, the law requires that the consent of the
spouse of the adopter must be given to such adoption.
XPN:
a.
b.
If on the other hand, the spouse would adopt the
illegitimate son or daughter of the other, joint
adoption is still mandatory
Adopter is the biological parent of the
adoptee; or
Adopter is the spouse of the adoptee's
parent.
c.
NOTE: A reading of Arts. 27 and 28 of P.D. 603 clearly
shows that the temporary residence of the adopting
parents in a foreign country does not disqualify them
from adopting (Nieto v. Magat, G.R. No. L-62465, May 24,
1985).
2.
3.
4.
Possesses same qualifications as those
enumerated for Filipino adopters;
His country has diplomatic relations with the
Philippines;
His government allows the adoptee to enter his
country as his adopted child;
He has been certified by his diplomatic or
consular office or any appropriate government
agency that he has the legal capacity to adopt in
their country;
A: I will dismiss the petition. The husband and wife must
jointly adopt and there are only three recognized
exceptions to the joint adoption: 1) one spouse seeks to
adopt the legitimate child of the other; 2) if one spouse
seeks to adopt his or her own illegitimate child; 3) if the
spouses are legally separated. The case of Maria and
Daniel does not fall under any of the exceptions,
accordingly the petition by the wife alone should be
dismissed.
GR: Has been living in the Philippines for at least 3
continuous years prior to the application for adoption
and maintains such residence until adoption decree has
been entered.
XPNs:
i.
ii.
iii.
Spouses are legally separated.
Q: Spouses Esteban decided to raise their two
nieces, Faith and Hope, both minors as their own
children after their parents died in a vehicular
accident. Ten years after, Esteban died. Maria later on
married her boss Daniel, a British National who had been
living in the Philippines for 2 years. With the permission
of Daniel, Maria filed a petition for the adoption of Faith
and Hope. She did not include Daniel as her copetitioner because for Maria, it was her former
husband Esteban who has raised the kids. If you are the
judge, how will youresolve the petition? (2014 BAR)
Qualifications of an alien who may adopt
(Section 7 (b), Article 3, RA 8552)
1.
One spouse seeks to adopt the legitimate son or
daughter of the other;
One spouse seeks to adopt his own illegitimate son
or daughter, provided, that the other signifies
his consent
Q: Spouses Primo and Monina Lim, childless, were
entrusted with the custody of two minor children, the
parents of whom were unknown. Eager to have children
of their own, the spouses made it appear that they were
the children’s parents by naming them Michelle P.
Lim and Michael Jude Lim. Subsequently, Monina
married Angel Olario after Primo’s death. She decided to
adopt the children by availing the amnesty given under
R.A. 8552 to those individuals who simulated the birth of
a child. She filed separate petitions for the adoption of
Michelle, then 25 years old and Michael, 18. Both
Michelle and Michael gave consent to the adoption. The
He is a former Filipino who seeks to adopt a
relative within the 4th civil degree of
consanguinity or affinity;
He is married to a Filipino and seeks to adopt
jointly with his spouse a relative within the
4th degree of consanguinity or affinity;
He is married to a Filipino and seeks to adopt
the legitimate or illegitimate child of his
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CIVIL LAW
trial court dismissed the petition and ruled that Monina
should have filed the petition jointly with her new
husband. Monina, in a Motion for Reconsideration
argues that mere consent of her husband would
suffice and that joint adoption is not needed, for the
adoptees are already emancipated. Is the trial court
correct in dismissing the petitions for adoption?
5.
6.
A: YES. Section 7, Art. 3 of R.A. 8552 reads: Sec. 7 –
Husband and wife shall jointly adopt x x x.
by the adopter(s) as his/her own child since
minority;
A child whose adoption has been previously
rescinded; or
A child whose biological or adoptive parent(s) has
died: Provided, that no proceedings shall be
initiated within six (6) months from the time of
death of said parent(s) (Sec. 8, Art. 3, RA 8552).
Child
The use of the word “shall” in the above-quoted
provision means that joint adoption by the husband and the
wife is mandatory. This is in consonance with the concept
of joint parental authority over the child which is the ideal
situation. As the child to be adopted is elevated to the
level of a legitimate child, it is but natural to require the
spouses to adopt jointly. The rule also ensures harmony
between the spouses.
A child is any person below 18 years old (Sec. 3, Art. 1, RA
8552)
Child legally free for adoption
A child voluntarily or involuntarily committed to the
DSWD as dependent, abandoned or neglected pursuant
to the provisions of the Child and Youth Welfare Code
maybe subject of Inter-Country Adoption; provided that
in case of a child shall be made not earlier that six (6)
months from the date the Deed of Voluntary
Commitment was executed by the child’s biological
parent/s. A legally-free child is freed of his biological
parents, guardians, or adopters in case of rescission.
The law is clear. There is no room for ambiguity.
Monina, having remarried at the time the petitions for
adoption were filed, must jointly adopt. Since the
petitions for adoption were filed only by Monina
herself, without joining her husband, Olario, the trial court
was correct in denying the petitions for adoption on this
ground (In Re: Petition for Adoption of Michelle P. Lim,
In Re: Petition for Adoption of Michael Jude P. Lim,
Monina P. Lim, G.R. Nos. 168992-93, May 21, 2009).
NOTE: The prohibition against physical transfer shall
not apply to adoption by a relative or children with
special medical conditions (Rabuya, 2018).
Joint adoption when the adoptees are already
emancipated
Necessity of written consent for adoption under
domestic adoption
Even if emancipation terminates parental authority, the
adoptee is still considered a legitimate child of the
adopter with all the rights of a legitimate child such as:
The written consent of the following is necessary for
adoption:
a.
(1) To bear the surname of the father and the mother;
(2) To receive support from their parents; and (3) to
be entitled to the legitime and other successional
rights. Conversely, the adoptive parents shall, with
respect to the adopted child, enjoy all the benefits
to which biological parents are entitled such as
support and successional rights.
b.
c.
d.
C. ADOPTEE
1.
2.
3.
4.
Any person BELOW eighteen (18) years of age who
has been administratively or judicially declared
available for adoption;
The legitimate son/daughter of one spouse by the
other spouse;
An illegitimate son/daughter by a qualified adopter
to improve his/her status to that of legitimacy;
A person of legal age if, prior to the adoption, said
person has been consistently considered and
treated
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
e.
Biological parent(s) of the child, if known, or the
legal guardian, or the proper government
instrumentality which has legal custody of the
child;
Adoptee, if ten (10) years of age or over;
Illegitimate sons/daughters, ten (10) years of
age or over, of the adopter if living with said
adopter and the latter's spouse, if any;
Legitimate and adopted sons/daughters, ten
(10) years of age or over, of the adopter(s) and
adoptee, if any;
Spouse, if any, of the person adopting or to be
adopted (Sec. 9, Art. 3, RA 8552).
Q: Bernadette filed a petition for adoption of the three
minor children of her late brother, Ian. She alleged that
when her brother died, the children were left to thecareof
their paternal grandmother, becausetheir biological
mother Amelia went to Italy to work and has allegedly
abandoned her children. This grandmother died
however, and so she filed the petition for adoption.
The minors gave their written consent to the adoption
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PERSONS AND FAMILY RELATIONS
and so did all of her own grown-up children. The trial
court granted the decree of adoption even though the
written consent of the biological mother of the children
was not adduced by Bernadette. Was the trial court correct
in granting the decree ofadoption?
The adopter cannot seek the rescission of the adoption but
he may disinherit the adoptee.
A: NO. The rule is adoption statutes must be liberally
construed in order to give spirit to their humane and
salutary purpose which is to uplift the lives of
unfortunate, needy or orphaned children. However, the
discretion to approve adoption proceedings on the part of the
courts should not to be anchored solely on those
principles, but with due regard likewise to the natural
rights of the parents over the child. The written consent of
the biological parents is indispensable for the
validity of the decree of adoption. Indeed, the natural
right of a parent to his child requires that his consent must be
obtained before his parental rights and duties may be
terminated and vested in the adoptive parents. In this
case, petitioner failed to submit the written consent of
Amelia Ramos to the adoption. This is so under Sec. 9 (b) of
R.A. 8552, otherwise known as the Domestic Adoption Act of
1998. Bernadette failed in this respect, thus
necessitating the dismissal of her petition for adoption
(Landingin v. Republic, G.R. No. 164948, June 27, 2006).
When the adopter has committed the following:
Grounds upon which an adoptee may seek judicial
rescissionof the adoption (S-A-R-A)
1.
2.
3.
4.
Sexual assault or violence committed against the
adoptee;
Attempt on the life of the adoptee;
Repeated physical and verbal maltreatment by the
adopter despite having undergone counseling;
Abandonment and failure to comply with
parental obligations;
Grounds by which an adopter may disinherit adoptee
a.
b.
c.
Effects of Domestic Adoption
d.
e.
GR: Severance of all legal ties between the biological parents
and the adoptee and the same shall then be vested on the
adopters (Sec. 16, Art. 5, RA 8552).
f.
g.
XPN: In cases where the biological parent is the spouse
of the adopter;
1. Deemed a legitimate child of the adopter
(Sec. 17, Article 5, RA 8552);
2. Acquires reciprocal rights and obligations arising
fromparent-child relationship;
3. Right to use surname of adopter (NCC, Art. 365);
4. In legal and intestate succession, the adopters
and the adoptee shall have reciprocal rights of
succession
without
distinction
from
legitimate filiation. However, if the adoptee
and his/her biological parents had left a will, the
law on testamentary succession shall govern (Sec.
18, Art. 5, RA 8552).
h.
Groundless accusation against the testator of a crime
punishable by 6 years or more imprisonment;
Found guilty of attempt against the life of the
testator, his/her spouse, descendant or
ascendant;
Causes the testator to make changes or changes
a testator’s will through violence, intimidation,
fraud orundue influence;
Maltreatment of the testator by word or deed;
Conviction of a crime which carries a penalty of civil
interdiction;
Adultery or concubinage with the testator’s wife;
Refusal without justifiable cause to support the
parent or ascendant;
Leads adishonorable ordisgraceful life.
Effects of rescission of the adoption under the
Domestic Adoption Act of 1998 (R.A. 8552)
1.
If adoptee is still a minor or is incapacitated –
Restoration of:
a. Parental
authority of the
adoptee’s biological parents, if known; or
b. Custody of the DSWD;
2.
Reciprocal rights and obligations of the adopters
and adoptee to each other shall be extinguished;
Court shall order the civil registrar to cancel the
amended certificate of birth of the adoptee and restore
his/heroriginal birth certificate;
Succession rights shall revert to its status prior to
adoption, but only as of the date of judgment of
judicial rescission;
Vested rights acquired prior to judicial rescission
shallberespected.(Sec. 20, Art. 6, RA 8552)
3.
Who may file the action for rescission of domestic
adoption
4.
The adoptee has the sole right to severe the legal ties
created by adoption and the one who will file the action for
rescission. However, if the adoptee is still a minor or above
18 years of age but incapacitated, the Department of
Social and Welfare Development as the adoptee’s guardian
or counsel may assist the adoptee for rescinding the
decree of adoption.
5.
Q: Despite several relationships with different
women, Andrew remained unmarried. His first
relationship with Brenda produced a daughter, Amy,
now 30 years old. His second, with Carla, produced
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CIVIL LAW
two sons: Jon and Ryan. His third, with Donna, bore him
two daughters: Vina and Wilma. His fourth, while
Elena, bore him no children although Elena has a
daughter Jane, from a previous relationship. His last,
with Fe, produced no biological children but they
informally adopted without court proceedings, Sandy,
now 13 years old, whom they consider as their own.
Sandy was orphaned as a baby and was entrusted to
them by the midwife who attended to Sandy’s birth. All
the children, including Amy, now live with Andrew in
his house.
a.
b.
c.
d.
e.
A:
a.
b.
c.
d.
e.
abroad where the petition is filed, the supervised
trial custody is undertaken, and the decree of adoption
is issued outside the Philippines (Sec. 3(a), RA 8043).
A. WHEN ALLOWED
Adoption ONLY AS A LAST RESORT: No child shall be
matched to a foreign adoptive family unless it is
satisfactorily shown that the child cannot be adopted locally
(Sec. 11, Article 3, RA 8043)
B. WHO MAY ADOPT
Is there any legal obstacle to the legal adoptionof
Amy by Andrew?
To the legal adoption of Sandy by Andrew
and Elena?
In his old age, can Andrew be legally entitled to
claim support from Amy, Jon, Ryan, d. Vina,
Wilma and Sandy assuming that all of them
have the means to support him?
Can Amy, Jon, Ryan, Vina, Wilma and Sandy
legally claim support from each other?
Can Jon and Jane legally marry? (2008 Bar)
a.
b.
Qualifications needed for a Filipino or alien to
adopt (Sec. 9, Article 3, RA 8043)
At least 27years old and16yearsolderthan the
child to beadopted atthetimeof the application
unless:
1.
2.
NO, there is no legal obstacle to the legal adoption of
Amy by Andrew. While a person of age may not be
adopted, Amy falls within two exceptions: (1) she is
an illegitimate child and she is being adopted by her
illegitimate father to improve her status; and (2)
even on the assumption that she is not an
illegitimate child of Andrew, she may still be
adopted, although of legal age, because she has been
consistently considered and treated by the adopter
as his own child since minority. In fact, she has been
living with him until now.
YES. There is a legal obstacle to the adoption of Sandy by
Andrew and Elena. Andrew and Elena cannot adopt
jointly because they are not married.
YES. Andrew can claim support from all of them, except
from Sandy, who is not his legitimate, illegitimate or
adopted child.
YES. Amy, Jon, Ryan, Vina and Wilma can ask support
from each other because they are half- blood brothers
and sisters, and Vina and Wilma are full-blood sisters
(Art. 195 [5], FC), but not Sandy who is not related to
any of them.
YES. Jon and Jane can legally marry because they are not
related to each other. Jane is not a daughter of
Andrew.
II.
Adopter is the parent by natureofthe child;
Adopter is the spouse of the parent by
nature of the child to be adopted
If married, his spouse must jointly file for
adoption;
d. Has the capacity to act or assume all rights and
responsibilities of parental authority;
e.
Not been convicted of a crime involving moral
turpitude;
f.
Eligible to adopt under his national law;
g. In a position to provide for proper care and
support and give necessary moral values;
h. Agrees to uphold the basic rights of the child
mandated by the UN convention of rights of Child and the
Philippine Laws;
i.
Comes from a country with which the Philippines
has diplomatic relations and adoption is allowed under
his national law;
j.
Possesses all the qualifications and none of the
disqualifications under the law or other applicable
Philippinelaws.
c.
Necessity of written consent for adoption in intercountry adoption
The written consent of the following is necessary for
adoption:
INTER-COUNTRY ADOPTION ACT OF
1995 (R.A. 8043)
1.
Inter-Country Adoption
It is a socio-legal process of adopting a Filipino child by a
foreigner or a Filipino citizen permanently residing
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Any alien;
Filipino citizen, both permanently residing
abroad.
106
Written consent to the adoption in the form of a
sworn statement by the biological and/or
adopted children of the applicants who are ten
(10) years of age or over, to be attached to the
application filed with the Family Court or Inter-
PERSONS AND FAMILY RELATIONS
2.
Country Adoption Board (Sec. 28, Art. 8, Amended
Implementing Rules and Regulations of RA 8043);
and
If a satisfactory pre-adoptive relationship is
formed between the applicant and the child, the
written consent to the adoption executed by the
DSWD is required. (Sec. 50, Art. Art. 8, Amended
Implementing Rules and Regulations of RA 8043)
NOTE: No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the child
cannot be adopted in the Philippines.
GR: There shall be no physical transfer of a voluntarily
committed child earlier than 6 months from the date of
execution of Deed of Voluntary Commitment.
Q: Sometime in 1990, Sarah, born a Filipino but by
then a naturalized American citizen, and her
American husband Sonny Cruz, filed a petition in the
Regional Trial Court of Makati, for the adoption of the
minor child of her sister, a Filipina, can the petition be
granted? (2000 Bar)
XPN:
a.
b.
Adoption by relative;
Child with special medical condition.
INTER-COUNTRY ADOPTION BOARD
Function of Inter-Country Adoption Board
A: IT DEPENDS. If Sonny and Sarah have been residing in the
Philippines for at least three (3) years prior to the
effectivity of R.A. 8552, the petition may be granted.
Otherwise, the petition cannot be granted because the
American husband is not qualified to adopt.
The Inter-Country Adoption Board (ICAB) acts as the
central authority in matters relating to inter-country
adoption. The Board shall ensure that all the
possibilities for adoption of the child under the Family
Code have been exhausted and that the inter-country
adoption is in the best interest of the child
While the petition for adoption was filed in 1990, it was
considered refiled upon the effectivity of R.A. 8552. This
is the law applicable, the petition being still pending
with the lower court. Under the Act, Sarah and Sonny
must adopt jointly because they do not fall in any of the
exceptions where one of them may adopt alone. When
husband and wife must adopt jointly, the Supreme
Court has held in a line of cases that both of them must
be qualified to adopt. While Sarah, an alien, is qualified
to adopt, for being a former Filipino citizen who seeks to
adopt a relative within the 4th degree of consanguinity
or affinity, Sonny, an alien, is not qualified to adopt
because he is neither a former Filipino citizen nor
married to a Filipino. One of them not being qualified to
adopt, their petition has to be denied. However, if they
have been residents of the Philippines 3 years prior to
the effectivity of the Act and continues to reside here
until the decree of adoption is entered, they are
qualified to adopt the nephew of Sarah under Sec. 7(b)
thereof, and the petition may be granted.
Trial custody
It is the pre-adoptive relationship which ranges six (6)
months from the time of the placement. It starts from the
actual transfer of the child to the applicant who, as actual
custodian, shall exercise substitute parental authority
over the person of the child.
Results of Trial Custody
1.
2.
C. ADOPTEE
If unsatisfactory – the relationship shall be
suspended by the board and the foreign
adoption agency shall arrange for the child’s
voluntary care.
If satisfactory – the Board shall submit the
written consent of the adoption to the foreign
adoption agency within 30 days after the
request of the latter’s request.
NOTE:The child shall be repatriated as a last
resort if found by the ICAB to be in his/her
interests.
Only a legally free child may be adopted provided the
following are submitted:
a. Child study;
b. Birth certificate/ foundling certificate;
c. Deed of VoluntaryCommitment/Decree of
Abandonment/Death Certificate ofparents;
d. Medical evaluation or history;
e. Psychological evaluation; and
f.
Recent photo.
Child
A child is any person below 15 years old (Sec. 3, RA
8043).
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CIVIL LAW
Distinction Between Domestic Adoption Act and Inter-country Adoption Act
DOMESTIC ADOPTION ACT (R.A. 8552)
INTER-COUNTRY ADOPTION ACT (R.A.
8043)
Inter-country Adoption Board (ICAB)
Governing body
DSWD
When may adoption be resorted to
Adoption need not be the last resort
Who may adopt
Adoption only as last resort: No child
shall be matched to a foreign adoptive
family unless it is satisfactorily shown
that the child cannot be adopted locally
(Sec. 11).
1. Any
FILIPINO
CITIZEN 1. FILIPINO CITIZEN permanently
(regardless of where residing)
residing abroad may file an
application for inter-country
b. Of legal age;
adoption of a Filipino child if
c. At least sixteen (16) years older
he/she:
than the adoptee, (may
bewaived when the adopter is
a.
Is at least twenty-seven
the biological parent of the
(27) years of age;
adoptee, or is the spouse of the
b.
At least sixteen (16) years older
adoptee’s parent;
than the child to be adopted, at
d. In possession of full civil
the time of application unless
capacity and legal rights;
the adopter is the parent by
e. Of good moral character, has
nature of the child to be adopted
not been convicted of any crime
or the spouse of such parent;
involving moral turpitude,
c.
Has the capacity to act and
emotionally
and
assume all rights and
psychologically capable of
responsibilities of parental
caring for children; and
authority under his national
f.
Who is in a position to support
laws, and has undergone the
and care for his/her children in
appropriate counseling from an
keeping with the means of the
accredited counselor in his/her
family.
country;
d.
Has not been convicted of a
2. Any ALIEN possessing the same
crime involving moral turpitude;
qualifications as above stated for
e.
Is in a position to provide the
Filipino nationals, Provided;
proper care and support to give
the necessary moral values and
a.
That he/she has been living in
example to all his children
the Philippine for at least three
including the child to be
(3) continuous years prior to
adopted;
the filing of the application for
f.
If married, his/her spouse must
adoption and maintains such
jointly file for the adoption;
residence until the adoption
g.
Is eligible to adopt under his/her
decree is entered;
national law;
b. That his/her country has
h.
Agrees to uphold the basic rights
diplomatic relations with the
of the child as embodied under
Republic of the Philippines;
Philippine laws, the U.N.
c.
He/she has been certified by
Convention on the Rights of the
his/her diplomatic or consular
Child and to abide by the rules
office or any appropriate
and regulations issued to
government agency that he/she
implement the
has the legal capacity to adopt
provisions of this Act;
in his/her country;
i.
Comes from a country with
d. That his/her government
whom the Philippines
allows the adoptee to enter
has diplomatic relations and
his/her country as his/her
whose government maintains a
adopted son/daughter; and
similarly Authorized and
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
108
PERSONS AND FAMILY RELATIONS
The requirements on residency
accredited agency and that
and certification to adopt in
adoption is allowed under
his/her country may be
his/her national laws; and
WAIVED for the following:
j. Possesses all the qualifications
i.
A former Filipino
and none of the
citizen who seeks
disqualifications provided
to adopt a relative
herein and in other applicable
within the fourth
Philippine laws.
(4th) degree of
consanguinity or
2. ALIEN with above qualifications
affinity; or
e.
One who seeks to
adopt the
legitimate
son/daughter of
his/her Filipino
spouse; or
iii. One who is married
to a Filipino citizen
and seeks to adopt
jointly with his/her
spouse a relative
within the fourth
(4th) degree of
consanguinity or
affinity of the
Filipino spouse.
3. The GUARDIAN with respect to the
ward after the termination of the
guardianship and clearance of his/her
financial
ii.
Who may be adopted
a.
b.
c.
d.
e.
f.
Any person below eighteen
(18) years of age who has
been administratively or
judicially
declared
available for adoption;
The
legitimate
son/daughter of one spouse
by the other spouse;
An
illegitimate
son/daughter by a qualified
adopter to improve his/her
status to that of legitimacy;
A person of legal age if,
prior to the adoption, said
person
has been consistently
considered and treated by
the adopter(s) as his/her
own child since minority;
A child whose adoption
has been
previously
rescinded; or
A child whose biological or
adoptive parent(s) has died:
Provided,
That
109
a.
b.
c.
Filipino children [Sec. 3(a)];
Below 15 years of age
[Sec. 3(b)]; and
Who are legally free,
meaning children who have
been
voluntarily
or involuntarily committed
to the DSWD [Sec. 3(f) and
Sec. 8)].
NOTE: IRR of 2004 adds that: Any
child who has been voluntarily or
involuntarily committed to the
Department
as
dependent,
abandoned or neglected pursuant
to the provisions of the Child and
Youth Welfare Code may be the
subject of Inter-Country Adoption
xxx (Sec. 26).
CIVIL LAW
no proceedings shall be
initiated within six (6)
months from the time of
death of said parent(s)(Sec.
8).
Venue
Petition for adoption shall be filed with
Family Court of the province or city
where the prospective adoptive parents
reside (Rule on Adoption, Sec. 6)
Either with the Philippine RTC
having jurisdiction over the child, or
with the Inter-country Board
through an intermediate agency, in
the country of the adoptive parents
(Sec. 10).
IRR of 2004 provides that:
Application shall be filed with the
Board or the Central Authority or the
Foreign Adoption Agency in the
country where the applicant resides.
In case of foreign nationals who file
petition for adoption under RA 8552
or Domestic Adoption Law, the Court
after finding petition to be sufficient
in form and substance and proper
case for inter-country adoption shall
immediately transmit the petition to
the board for appropriate
action (Sec. 30).
Where adoptive parents reside
Trial Custody
Takes place in the Philippines
Rescission
Only upon petition of adoptee, never by No provision limiting act of rescission
adopters (Sec.19).
only to adoptee. In IRR, the procedure
is provided for when adoption
process is terminated:
SECTION 47. DISRUPTION AND
TERMINATION OF PLACEMENT. - In
the event of serious damage in the
relationship between the child and
the applicant/s where the continued
placement of the child is not
inhis/her best interests, the Central
Authority and/or the
FAA shall take the necessary
measures to protect the child, in
particular, to cause the child to be
withdrawn from the applicant/s and
to arrange for his/her temporary
care. The Central Authority and/or
FAA shall exhaust all means to
remove
the
cause
of
the
unsatisfactory relationship which
impedes or prevents the creation of a
mutually
satisfactory
adoptive
relationship. A complete report
should be immediately forwarded to
the Board with actions taken as well
as recommendations and appropriate
plans. Based on the report, the Board
may terminate the pre-adoptive
relationship.
SEC. 48. NEW PLACEMENT FOR
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
110
PERSONS AND FAMILY RELATIONS
CHILD. In the event of termination of
the pre-adoptive relationship, the
Board shall identify from the Roster
of Approved Applicants a suitable
family with whom to place the child.
The Central Authority and/or the
FAA may also propose a replacement
family whose application shall be
filed for the approval of the Board.
No adoption shall take place until
after the Board has approved the
application of such replacement
family.
111
CIVIL LAW
NOTE: If the community property or the
conjugal partnership is insufficient to cover
them, the spouses shall be solidarily liable for
the unpaid balance with their separate
properties.
SUPPORT
It comprises everything indispensable for sustenance,
dwelling,
clothing,
medical attendance and
transportation, in keeping with the financial capacity of
the family, including the education of the person
entitled to be supported until he completes his
education or training for some profession, trade or
vocation, even beyond the age of majority (FC, Art. 194).
(2010 Bar)
Separate property of person- For the support of the
following:
2.
a.
b.
c.
Characteristics of support (PRIMPEN)
1.
2.
3.
4.
5.
6.
7.
d.
Personal;
Reciprocal on the part of those who are by law
bound to support each other;
Intransmissible;
Mandatory;
Provisional character of support judgment;
Exempt from attachment or execution; and
Not subject to waiver or compensation
PERSONS OBLIGED TO GIVE SUPPORT
Persons obliged to support each other (2008 Bar)
1.
2.
3.
Support comprises everything indispensable for:
a.
Sustenance;
b. Dwelling;
c.
Clothing;
d. Medical attendance;
e.
Education – includes schooling or training for
some profession, trade or vocation, even beyond
the age of majority;
f.
Transportation – includes expenses going to and
from school, or to from place of work.
4.
5.
6.
Legal – required or given by law;
Judicial– required by court; May be:
a. Pendente lite
b. In a final judgment
Conventional – by agreement
Q: Rule when:
a. Two or more persons are obliged to give
support;
b. Two or more recipients at the same time claim
support from the same persons who does not
have sufficient means to satisfy all claims
Rules on support of illegitimate children of either
spouse
1.
A:
It depends upon the property regime of the
spouses.
a.
ACP or CP- For the support of the following:
a.
b.
c.
spouses;
common children of the spouses; and
legitimate children of either spouse
b.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Legitimate ascendants & descendants;
Parents and their legitimate children, and the
legitimate and illegitimate children of the latter;
Parents and their illegitimate children, and the
legitimate and illegitimate children of the latter;
Legitimate brothers and sisters whether full or
half- blood (FC, Art. 195).
NOTE: Brothers and sisters not legitimately related
likewise bound to support each other. However, when
the need for support of the brother or sister, being of
age, is due to a cause imputable to the claimant’s fault
or negligence, in this case, the illegitimate brother or
sister has no right to be supported (FC, Art. 196;
Rabuya, 2009).
Kinds of support
3.
Spouses;
NOTE: The spouse must be the legitimate spouse in
order to be entitled to support
COMPOSITION OF SUPPORT
1.
2.
Illegitimate children;
Legitimate ascendants;
Descendants,
whether legitimate
or illegitimate;
Brothers and sisters, whether legitimately
or illegitimately related (Rabuya, 2009).
112
The payment of the same shall be divided
between them in proportion to the resources of
each. However, in case of urgent need and by
special circumstances, the judge may order only
one of them to furnish support provisionally,
without prejudice to his right to claim
reimbursement from the other obligors of their
corresponding shares (FC, Art. 200).
The order established under Art. 199 of the
PERSONS AND FAMILY RELATIONS
Family Code shall be followed, unless the
concurrent obliges should be the spouse and a
child, in which case, the child shall be preferred
(FC, Art. 200).
Q: Belen, in behalf of her minor children, instituted a
petition for declaration of legitimacy and support
against Federico, their alleged father, and Francisco,
father of Federico. It appears that the marriage of the two
was annulled due to the minority of Federico. May
Francisco be ordered to give support?
Sources of Support
A: YES. There appears to be no dispute that the children are
indeed the daughters of Federico by Belen. Under Art. 199 of
the Family Code, “Whenever two or more persons are
obliged to give support, the liability shall devolve upon
the following persons in the following order herein
provided:
SOURCES OF SUPPORT
DURING
PENDING
AFTER
MARRIAGE
LITIGATION
LITIGATION
Spouses
From the
ACP
GR: No
community
obligation to
property
GR: From the
support
community
property assets XPN: If there is
Legal
XPN: If Art.
Separation. In
203 applies,
which case, the
that if the
court may
claimant
require the
spouse is the
guilty spouse
guilty spouse,
to give
he/she is not
support.
entitled to
support.
1.
2.
3.
4.
The obligation to give support rests principally on those
more closely related to the recipient. However, the more
remote relatives may be held to shoulder the
responsibility should the claimant prove that those who
are called upon to provide support do not have the means to
do so. Here, since it has been shown that the girls' father,
Federico, had no means to support them, then Francisco,
as the girls’ grandfather, should then extend the support
needed by them.
NOTE: The second option in Art. 204 of the Family Code, that
of taking in the family dwelling the recipient, is
unavailing in this case since the filing of the case has
evidently made the relations among the parties bitter and
unpleasant (Mangonon, et al. v. CA, et al., G.R. No. 125041,
June 30, 2006).
CPG
Support is
considered an
advance of
such spouses’
share.
From the
community
property
NOTE: The
rule does not
apply if the
spouses are
under ACP
based on Art.
153.
Children
From the
community
property
The spouse;
The descendants in the nearest degree;
The ascendants in the nearest degree: and
The brothers and sisters.
Q: Marcelo and Juana called Dr. Arturo to their house to
render medical assistance to their daughter-in- law
who was about to give birth to a child. He
performed the necessary operation. When Dr.
Arturo sought payment, Marcelo and Juana refused to
pay him without giving any good reason. Who is bound
to pay the bill for the services rendered by Arturo?
A: HER HUSBAND, not her father and mother- in-law. The
rendering of medical assistance in case of illness is
comprised among the mutual obligations to which the
spouses are bound by way of mutual support (FC, Arts. 142
and 143). If every obligation consists in giving, doing
or not doing something (NCC, Art. 1088), and spouses
are mutually bound to support each other, there can be
no question but that, when either of them by reason of
illness should be in need of medical assistance, the
other is under the unavoidable obligation to furnish
the necessary services of a physician in order that
health may be restored, and he or she may be freed from
the sickness by which life is jeopardized (Pelayo v. Lauron,
G.R. No. L-4089, January 12, 1909).
From the
separate
properties of
the spouses
Liability to support (FC, Art. 199)
Theliability to support should beobserved in the following
order:
a.
Spouse;
b. Descendants in the nearest degree;
c.
Ascendants in the nearest degree;
d. Brothers and sisters.
113
CIVIL LAW
Q: Cheryl married Edward Lim and they begot three
children. Cheryl, Edward and their children lived at the
house of Edward’s parents, Prudencio and
Filomena, together with Edward’s ailing
grandmother and her husband. Edward was
employed with the family business, which provided him
with a monthly salary of P6,000 and shouldered
the family expenses. Cheryl had no steady source of
income. Cheryl caught Edward in “a very compromising
situation” with the midwife of Edward’s
grandmother. After a violent confrontation with
Edward, Cheryl left the Forbes Park residence. She
subsequently sued, for herself and her children,
Edward, Edward’s parents and grandparents for
support. Edward and his parents were ordered by the
RTC to “jointly” provide, monthly support to Cheryl
and her children. Is the court’s judgment in making
Edward’s parents concurrently liable with Edward to
provide support to Cheryl and her children correct?
Mutual support of the spouses after the final
judgment granting the petition for legal separation,
annulment and declaration of nullity of marriage
GR: Spouses are no longer obliged to render mutual
support after final judgment. The obligation of mutual
support ceases after final judgment.
XPN: In case of legal separation the Court may order that
the guilty spouse shall give support to the innocent one.
Effect of adultery of the wife
Adultery of the wife is a valid defense in an action for
support. If adultery is proved and sustained, it will
defeat the action for support. But if both are equally at fault,
the principle of in pari delicto applies in which the
husband cannot avail of the defense of adultery.
Q: H and W are living separately. Both had been
unfaithful to each other. After their separation, H had
been giving money to W for her support.
Subsequently, W brought an action against H for
separatemaintenance.Willtheactionprosper?
A: YES. However, the Supreme Court modified the
appealed judgment by limiting liability of Edward’s
parents to the amount of monthly support needed by
Cheryl’s children. Edward’s parents are liable to
provide support but only to their grandchildren. By
statutory and jurisprudential mandate, the liability of
ascendants to provide legal support to their
descendants is beyond cavil. Petitioners themselves
admit as much — they limit their petition to the narrow
question of when their liability is triggered, not if they are
liable.
A: YES. The principle of in pari delicto is applicable. Both
are at fault. Consequently, H cannot availof himself of the
defense of adultery of W. Besides, the act of H in giving
money to W is implied condonation of the adultery of
W (Amacen v. Baltazar, G.R. No. L-10028, May 28, 1958).
AMOUNT
There is no showing that private respondent is without
means to support his son; neither is there any evidence to
prove that petitioner, as the paternal grandmother, was
willing to voluntarily provide for her grandson's legal
support. Cheryl is unable to discharge her obligation
to provide sufficient legal support to her children. It also
shows that Edward is unable to support his children. This
inability of Edward and Cheryl to sufficiently provide for
their children shifts a portion of their obligation to the
ascendants in the nearest degree, both in the paternal
(petitioners) and maternal lines, following the ordering
in Article 199 (Spouses Lim v. Cheryl Lim, G.R. No.
163209, October 30, 2009).
Amount shall be in proportion to the resources or
means of the giver and to the necessities of the recipient (FC,
Art. 201).
Support may be decreased or increased
proportionately according to the reduction or increase of
the necessities of the recipient and the resources of the
person obliged to furnish the same (FC, Art. 202).
WHEN DEMANDABLE
Theobligation to givesupport isdemandable fromthe time
the person who has a right to receive support needs it
for maintenance.
SUPPORT DURING MARRIAGE LITIGATION
During the pendency of the action for annulment or
declaration of absolute nullity of marriage and action for
legal separation, the court shall provide for the support
of the spouses and their common children in the absence
of a written agreement between the spouses. (FC, Art.
49).
The support shall be paid only from the date of judicial or
extrajudicial demand.
The right to support does not arise from mere fact of
relationship but from imperative necessity without which
it cannot be demanded. The law presumes that such
necessity does not exist unless support is demanded.
Sources of support shall be the properties of the
absolute community or conjugal partnership.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Effect of Reaching Age of Majority
114
PERSONS AND FAMILY RELATIONS
If a person is of age and no longer studies, he still entitled
to support unless there are just reasons for the
extinguishment of the right. (Javier v. Lucero, 94 Phil.
634). If, upon the other hand, he has not yet finished
his studies even if already of age, he still entitled
generally to be supported. Of course, if the person
supporting dies, the obligation ceases (Falcon v. Arca, L18135, July 31, 1963).
XPN:In caseof contractual support or support given by will,
the excess in amount beyond that required for legal support
shall be subject to levy on attachment or execution.
NOTE: Contractual support shall be subject to adjustment
whenever modification is necessary due to changes in
circumstances beyond the contemplation of the parties.
Q:Jurisdictional questionsmay be raisedatany time. What
is the exception with respect to the provisional character
of judgment for support and the application of
estoppel?
MANNER OF PAYMENT
Payment shall be made within first five days of each
corresponding month. In case of death of the person
entitled to receive support, his heirs shall not be obliged
to return what he has received in advance for such support.
(FC, Art. 203).
A: Judgment for support is always provisional in
character. Res Judicata does not apply. The lower court
cannot grant a petition based on grounds, such as bigamy, not
alleged in the petition. Such a decision based on
grounds not alleged in the petition is void on the ground of
no jurisdiction.
PaymentbyThirdPersonUnder Article208
The obligation to reimburse under this article is one that
likewise arises from quasi-contract. As distinguished
from articles 206 of the Family Code and 2164 of the Civil
Code, “the obligor unjustly refuses or fails to give
support.” The law creates a promise of reimbursement on
the part of the person obliged to furnish support, inspite of
the deliberate disregard of his legal and moral duty
(Rabuya, 2006).
However, if the lower court’s void decision is not assailed on
appeal which dealt only with the matter of support, the losing
party is now estopped from questioning the
declaration of nullity and the SC will not undo the
judgment of the RTC declaring the marriage null and void for
being bigamous.
It is axiomatic that while a jurisdictional question may be
raised at any time, this however admits of an exception
where estoppel has supervened (Lam v. Chua, G.R. No.
131286, March 18, 2004).
OPTIONS
Options given to persons giving support
a.
b.
Q: Edward abandoned his legitimate children when they
were minors. After 19 years from the time Edward
left them, they, through their mother, finally sued him for
support, which the court granted. The court ordered
him to pay 2M pesos as support in arrears.
To give a fixed monthly allowance; or
To receive and maintain the recipient in the giver’s
homeor family dwelling(FC, Art. 204).
If support is given by a stranger without the
knowledge of the person obliged to give support;
GR: The stranger
reimbursement
shall
have
the
right
Edward assails the grant of the support in arrears as
erroneous since under Art. 203 of the FC, there was
never any demand for support, judicial or extrajudicial, from them. Is his contention right?
of
XPN: Unless it appears that he gave it without any
intention of being reimbursed (FC, Art. 206).
A: NO. Edward could not possibly expect his daughtersto
demand support from him considering their tender
years at the time that he abandoned them. In any event, the
mother of the girls had made the requisite demand for
material support although this was not in the
standard form of a formal written demand. Asking one to
give support owing to the urgency of the situation is no less
a demand just because it came by way of a request or a plea
(Lacson v. Lacson, et al., G.R. No. 150644, August 28,
2006).
NOTE: If the person obliged to give support unjustly refuses
or fails to give it when urgently needed, any third person
may furnish support to the needy individual, with a
right of reimbursement (FC, Art. 207).
ATTACHMENT
Attachment or execution of the right to receive support
(FC, Art. 208)
GR:The right to receive support and any money or property
obtained as support cannot be attached nor be subject to
execution to satisfy any judgment against the recipient.
115
CIVIL LAW
Q: Noel helped Lea by extending financial help to
support Lea’s children with Edward. May Noel seek
reimbursement of his contributions? If yes, from
whom may he do so?
consequences, be likewise compelled. DNA testing andits
results is now acceptable as object evidence without
running afoul self-incrimination rights of a person
(Agustin v. CA, G.R. No. 162571, June 15, 2005)
A: YES. Pursuant to Art. 207 of the Family Code, Noel can
rightfully exact reimbursement from Edward. This
provision reads that “[W]hen the person obliged to
support another unjustly refuses or fails to give support
when urgently needed by the latter, any third person
may furnish support to the needy individual, with right
of reimbursement from the person obliged to give
support.” The resulting juridical relationship between the
Edward and Noel is a quasi-contract, an equitable principle
enjoining one from unjustly enriching himself at the
expense of another (Lacson v. Lacson, et al., G.R. No.
150644, August 28, 2006).
PARENTAL AUTHORITY
Parental Authority is “the mass of rights and obligations
which parents have in relation to the person and
property of their children until their emancipation and
even after this under certain circumstances” (Sempio- Diy,
1995).
Parental authority includes
1.
Q: Fe and her son Martin sued Martin’s alleged
biological father Arnel for support. Arnel denied
having sired Martin, arguing that his affair and
intimacy with Fe had allegedly ended in long before
Martin’s conception. As a result, Fe and Martin moved
for the issuance of an order directing all the parties to
submit themselves to DNA paternity testing. The said
motion was granted by the court. Did the order of the
court convert the complaint for support to a petition
for recognition?
2.
Characteristics of parental authority
1.
2.
Jointly exercised by the father and mother;
Natural right and duty of the parents;
GR: Cannot be renounced, transferred or
waived;
A: The assailed order did not convert the action for
support into one for recognition but merely allowed Fe to
prove their cause of action. But even if the order
effectively integrated an action to compel recognition with
an action for support, such was valid and in accordance
with jurisprudence. The integration of an action to compel
recognition with an action to claim one’s inheritance is
allowed (Tayag v. CA, G.R. No. 95229, June 9, 1992). A
separate action will only result in a multiplicity of suits.
Furthermore, the declaration of filiation is entirely
appropriate to the action for support (Agustin v. CA, G.R.
No. 162571, June 15, 2005).
XPN: In cases authorized by law such as in cases
of adoption, guardianship and surrender to a
children's home or an orphan institution (Santos
v. CA, G.R. No. 113054, March 16, 1995).
3.
4.
Purely personal;
Temporary.
Exercise of parental authority
The father and the mother shall jointly exercise parental
authority over the persons of their common children. In case
of disagreement, the father’s decision shall prevail unless
there is a judicial order to the contrary (FC, Art. 211).
Q: Can DNA testing be ordered in a proceeding for support
without violating the constitutional right against selfincrimination?
If the child is illegitimate, parental authority is with the
mother.
A: YES. Compulsory DNA testing and the admissibility of the
results thereof as evidence are constitutional (People
v. Yatar, G.R. No. 150224, May 19, 2004).
NOTE: Parental authority and responsibility are
inalienable and may not be transferred or renounced
except in cases authorized by law. The right attached to
parental authority, being purely personal, the law
allows a waiver of parental authority only in cases of
adoption, guardianship and surrender to a children's
home or an orphan institution (Arts. 222-224, FC; Act
No. 3094).
Moreover, it has mostly been in the areas of legality of
searches and seizure and in the infringement of
privacy of communication where the constitutional right
to privacy has been critically at issue.
If, in a criminal case, an accused whose very life is at stake
can be compelled to submit to DNA testing, so much more
so may a party in a civil case, who does not face such dire
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Caring for and rearing of such children for civic
consciousness and efficiency;
Development of their moral, mental and
physical character and well-being (FC, Art. 209).
Visitation rights
116
PERSONS AND FAMILY RELATIONS
It istheright ofaccessof anoncustodial parent to his or her
child or children.
NOTE: Tender-Age Presumption
No child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to
order otherwise [FC, Art 213(2)]. (2006 Bar)
Who are entitled of visitation rights
1.
2.
The non-custodial parent in cases of:
a. Legal separation;
b. Separation de facto;
c. Annulment;
d. Declaration of nullity on the ground of
psychological incapacity or failure to comply
with the requirements of Article 52;
The paramount consideration in matters of custody of a
child is the welfare and well-being of the child.
The use of the word “shall” in Art. 213 of the FC is
mandatory in character. It prohibits in no uncertain terms
the separation of a mother and her child below 7 years,
unless such separation is grounded upon compelling
reasons as determined by a court (Lacson v. San JoseLacson, G.R. No. L-23482, August 30, 1968).
Illegitimatefatheroverhisillegitimatechild.
NOTE: In case of annulment or declaration of absolute
nullity of marriage, Article 49 of the Family Code grants
visitation rights to a parent who is deprived of custody of
his children. Such visitation rights flow from the
natural right of both parent and child to each other’s
company. There being no such parent-child relationship
between them, a person has no legally demandable right of
visitation (Concepcion v. CA, G.R. No. 123450, August 31,
2005).
“Compelling Reasons”
The so-called “tender-age presumption” under Article213
of the Family Code may be overcome only by compelling
evidence of the mother’s unfitness. The mother has been
declared unsuitable to have custody of her children in one or
more of the following instances:
1.
2.
3.
4.
5.
6.
7.
8.
Q: Carlitos Silva and Suzanne Gonzales had a live- in
relationship. They had two children, namely, Ramon
Carlos and Rica Natalia. Silva and Gonzales eventually
separated. They had an understanding that Silva would
have the children in his company on weekends. Silva
claimed that Gonzales broke that understanding on
visitation rights. Hence, Silva filed a petition for
custodial rights over the children before the RTC. The
petition was opposed by Gonzales who claimed that Silva
often engaged in gambling and womanizing which she
feared could affect the moral and social values of the
children. In the meantime, Suzanne had gotten
married to a Dutch national. She eventually
immigrated to Holland with her children Ramon Carlos
and Rica Natalia. Can Silva be denied visitation rights?
Insanity
Abandonment
Neglect
Drug addiction
Affliction with a communicable disease
Maltreatment of the child Immorality
Unemployment
Habitual drunkenness
NOTE: In one case, the SC ruled that sexual preference or
moral laxity alone does not prove parental neglect or
incompetence; to deprive the wife of custody, of her
minor child, her moral lapses must have an adverse effect on
the welfare of the child or it must have distracted the
offending spouse from exercising proper parental care
(Pablo-Gualberto v. Gualberto, G.R. No. 154994 &
156254, June 28, 2005).
A: GR: NO.
Exercise of parental authority in case of absence,
death, remarriage of either parent, or legal or de facto
separation of parents
XPN: If the fears and apprehensions were founded as to the
father’s corrupting influence over the children and if it is
proven therefore that indeed the father is a negative
influence because of reasons like immorality,
drunkenness, etc. on the children, the court, taking into
consideration the best interest of the children, can deny his
petition for the exercise of his visitation rights (Silva v. CA,
G.R. No. 114742, July 17, 1997).
a.
b.
Parentalpreference rule
The natural parents, who are of good character and who
can reasonably provide for the child are ordinarily
entitledtocustody asagainstallpersons.
c.
117
Absence or death of either parent – parent
present shall continue exercising parental
authority
Remarriage of either parent – it shall not
affect the parental authority over the
children, unless the court appoints another person
to be the guardian of the person or property of
the children (FC, Art. 213).
Legal or de facto separation of parents – the
parent designated by the court.
CIVIL LAW
Considerations in the designation of child custody
the RTC (petition a quo). Upon reaching the CA it
remanded the case a quo for determination of who
should exercise custody over Queenie. Was such
action proper?
The Court shall take into account all relevant
considerations in the designation of the parent, especially the
choice of the child over seven years of age except when
the parent chosen is unfit.
A: NO, CA erroneously applied Section 6 of Rule 99 of
the Rules of Court. This provision contemplates a
situation in which the parents of the minor are married
to each other but are separated either by virtue of a
decree of legal separation or because they are living
separately de facto. In the present case, it has been
established that petitioner and Respondent Loreta were
never married. Hence, that portion of the CA Decision
allowing the child to choose which parent to live with is
deleted, but without disregarding the obligation of
petitioner to support the child.
NOTE: The relevant Philippine law on child custody for
spouses separated in fact or in law (Art. 213, 2nd par.) is
also undisputed: “no child under seven years of age shall be
separated from the mother x x x.”(This statutory
awarding of sole parental custody to the mother is
mandatory, grounded on sound policy consideration,
subject only to a narrow exception not alleged to obtain
here.) Clearly then, the Agreement’s object to establish a
post-divorce joint custody regime between respondent and
petitioner over their child under seven years old
contravenes Philippine law. The Philippine courts do not
have the authority to enforce an agreement that is
contrary to law, morals, good customs, public order, or
public policy (Dacasin v. Dacasin, G.R. No. 168785,
February 5, 2010).
General rule is that the father and the mother shall
jointly exercise parental authority over the persons of
their common children. However, insofar as illegitimate
children are concerned, Article 176 of the Family Code
states that illegitimate children shall be under the
parental authority of their mother. Accordingly,
mothers (such as Renalyn) are entitled to the sole
parental authority of their illegitimate children (such as
Queenie), notwithstanding the father's recognition of
the child. In the exercise of that authority, mothers are
consequently entitled to keep their illegitimate children
in their company, and the Court will not deprive them of
custody, absent any imperative cause showing the
mother's unfitness to exercise such authority and care.
(Masbate vs. Relucio, G.R. No. 235498, July 30, 2018)
Q: If the parents are separated de facto, who
between them has custody over their child/
children?
A: In the absence of a judicial grant of custody to one
parent, both of them have custody over their
child/children
The parent who has been deprived of the rightful
custody of the child may resort to the remedy of habeas
corpus (Salientes v. Abanilla, G.R. No. 162734, August 29,
2006).
SUBSTITUTE PARENTAL AUTHORITY
Substitute Parental Authority (2004 BAR)
NOTE: The general rule that children less than 7 years
of age shall not be separated from the mother finds its
raison d'etre in the basic need of minor children for
their mother's loving care. This is predicated on the
"best interest of the child" principle which pervades not
only child custody cases but also those involving
adoption, guardianship, support, personal status and
minors in conflict with the law (Pablo-Gualberto v.
Gualberto, G.R. No. 154994/G.R. No. 156254, June 28,
2005).
It is the parental authority which the persons
designated by law may exercise over the persons and
property of unemancipated children in case of death,
absence or unsuitability of both parents or in default of
a judicially appointed guardian.
Order of substitute parental authority
1.
NOTE: The law considers the natural love of a
parent to outweigh that of the grandparents, such
that only when the parent present is shown to be
unfit or unsuitable may the grandparents
exercise substitute parental authority (Santos v.
CA, G.R. No. 113054, March 16, 1995).
Q: Queenie was born to Renalyn and Ricky James,
who had been living together with Renalyn's
parents without the benefit of marriage. Three (3)
years later, the relationship ended. Renalyn went to
Manila, supposedly leaving Queenie behind in the
care and custody of her father, Ricky James. Ricky
James alleged that, the parents of Renalyn took
Queenie from the school where he had enrolled her.
When asked to give Queenie back, Renalyn's
parents refused. Consequently, Ricky James filed a
petition for habeas corpus and child custody before
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Surviving Grandparent;
2.
3.
118
Oldest brother or sister, over 21 years unless unfit
ordisqualified;
Actual Custodian over 21 year unless unfit or
disqualified (FC, Art. 216);
PERSONS AND FAMILY RELATIONS
4.
In case of foundlings, abandoned, neglected or
abused children similarly situated, parental
authority shall be entrusted in summary judicial
proceedings to heads of children’s homes,
orphanages and similar institutions duly
accredited by the proper government agency (FC,
Art. 217).
supervision instruction or custody. It can also co- exists
with the parents’ parental authority.
Persons who may exercise special parental
authority (FC, Art. 218)
a.
b.
c.
d.
Q: Bonifacia Vancil, a US citizen, is the mother of
Reeder C. Vancil, a US Navy serviceman who died in
the USA on December 22, 1986. During his lifetime,
Reeder had two children named Valerie and Vincent
by his common-law wife, Helen G. Belmes. Bonifacia
obtained a favorable court decision appointing her
as legal and judicial guardian over the persons and
estate of Valerie Vancil and Vincent Vancil, Jr. She
alleged that Helen was morally unfit as guardian of
Valerie considering that Helen’s live-in partner
raped Valerie several times. Can Bonifacia exercise
substitute parental authority over Valerie and
Vincent?
The school;
School administrators;
School teachers;
Individual, entity or institution engaged in child
care.
Scope of special parental authority
The scope of special parental authority and
responsibility applies to all authorized activities,
whether inside or outside the premises of the school,
entity or institution.
NOTE: The nature of the liability of persons having
special parental authority over said minors for their
acts or omissions causing damage to another is
principal and solidary. The parents, judicial guardians
or the persons exercising substitute parental authority
over said minor shall be subsidiarily liable (FC, Art.
219). (2003, 2010 Bar)
A: NO. Bonifacia, as the surviving grandparent, can
exercise substitute parental authority only in case of
death, absence or unsuitability of Helen. Considering
that Helen is very much alive and has exercised
continuously parental authority over Vincent, Bonifacia
has to prove, in asserting her right to be the minor’s
guardian, Helen’s unsuitability. Bonifacia, however, has
not proffered convincing evidence showing that Helen is
not suited to be the guardian of Vincent. Bonifacia
merely insists that Helen is morally unfit as guardian of
Valerie considering that her live- in partner raped
Valerie several times. (But Valerie, being now of major
age, is no longer a subject of this guardianship
proceeding).
Substitute parental authority vis-à-vis Special
parental authority
SUBSTITUTE PARENTAL
AUTHORITY
Exercised in case of:
(DAU)
1.
2.
3.
Even assuming that Helen is unfit as guardian of minor
Vincent, still Bonifacia cannot qualify as a substitute
guardian. She is an American citizen and a resident of
Colorado. Obviously, she will not be able to perform the
responsibilities and obligations required of a
guardian.In fact, in her petition, Bonifacia admitted the
difficulty of discharging the duties of a guardian by an
expatriate, like her. To be sure, she will merely delegate
those duties to someone else who may not also qualify
as a guardian (Vancil v. Belmes, G.R. No. 132223, June 19,
2001).
Death
Absence, or
Unsuitability of
parents.
SPECIAL PARENTAL
AUTHORITY
Exercised
concurrently
with the parental authority
of the parents;
Rests on the theory that
while the child is in the
custody of the person
exercising special parental
authority, the parents
temporarily
relinquish
parental authority over the
child
to the latter.
EFFECTS OF PARENTAL AUTHORITY UPON THE
PERSON OF THE CHILDREN
Right to Child’s Custody
Special Parental Authority (2003, 2004, 2005, 2010
Bar)
The right of parents to the custody of their minor
children is one of the natural rights incident to
parenthood, a right supported by law and sound public
policy. The right is an inherent one, which is not created
by the state or decisions of the courts, but derives from
the nature of the parental relationship (Sagala-Eslao v.
CA, G.R. No. 116773, January 16, 1997).
It is the parental authority granted by law to certain
persons, entities or institutions in view of their special
relation to children under their supervision instruction
or custody. It is denominated as special because it is
limited and is present only when the child is under their
119
CIVIL LAW
Parents’ right to custody of the child
1.
2.
GR: Parents are never deprived of the custody and care
of their children.
XPNS:
1.
2.
For cause;
NOTE: the law presumes that the child’s welfare
will be best served in the care and control of his
parents.
CHILD ABUSE LAW (R.A. 7610) SEC. 10
Section 10. Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to
the Child's Development. –
If in consideration of the child’s welfare or wellbeing, custody may be given even to a nonrelative.
a.
Basis for the duty to provide support
Family ties or relationship, not parental authority.
NOTE: The obligation of the parents to provide support
is not coterminous with the exercise of parental
authority.
b.
Rule on the parent’s duty of representation
GR: Parents are duty-bound to represent their minor
children in all matters affecting their interests;
NOTE: This duty extends to representation in court
litigations.
XPN: A guardian ad litem may be appointed by the court
to represent the child when the best interest of the child
so requires.
Scope of the parent’s right to discipline the child
(FC, Art. 223)
c.
Persons exercising parental authority may:
1.
Impose discipline on minor children as may be
required under the circumstances;
2.
Petition the court for the imposition of
appropriate disciplinary measures upon the
child, which include the commitment of the child
in entities or institutions engaged in child care or
in children’s homes duly accredited by the proper
government agency.
NOTE: Such commitment must not exceed 30 days.
d.
Limitations on the exercise of the right to discipline
the child and its consequences
Persons exercising such right are not allowed to:
1.
Treat the child with excessive harshness or
cruelty; or
2.
Inflict corporal punishment.
Otherwise, the following are its consequences:
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Parental authority may be suspended;
Parent concerned may be held criminally liable
for violation of RA 7160 (Special Protection of
Children against Abuse, Exploitation and
Discrimination Act)
120
Any person who shall commit any other acts of
child abuse, cruelty or exploitation or to be
responsible for other conditions prejudicial to
the child's development including those covered
by Article 59 of Presidential Decree No. 603,
as amended, but not covered by the Revised
Penal Code, as amended, shall suffer the penalty
of prision mayor in its minimum period.
Any person who shall keep or have in his
company a minor, twelve (12) years or under or
who in ten (10) years or more his junior in any
public or private place, hotel, motel, beer
joint, discotheque, cabaret, pension house,
sauna or massage parlor, beach and/or other
tourist resort or similar places shall suffer the
penalty of prision mayor in its maximum period and
a fine of not less than Fifty thousand pesos
(P50,000): Provided, That the provision shall not
apply to any person who is related within the
fourth degree of consanguinity or affinity or
any bond recognized by law, local custom and
tradition or acts in the performance of a social,
moral or legal duty.
Any person who shall induce, deliver or offer a
minor to any one prohibited by the Act to keep or
have in his company a minor as provided in the
preceding paragraph shall suffer the penalty of
prision mayor in its medium period and a fine of
not less than Forty thousand pesos (P40,000);
Provided, however, That should the
perpetrator be an ascendant, stepparent or
guardian of the minor, the penalty to be imposed
shall be prision mayor in its maximum period, a
fine of not less than Fifty thousand pesos (P50,000),
and the loss of parental authority over the
minor.
Any person, owner, manager or one entrusted
with the operation of any public or private
place of accommodation, whether for
occupancy, food, drink or otherwise, including
residential places, who allows any person to
take along with him to such place or places any
minor as described in the law shall be imposed a
penalty of prision mayor in its medium period and
a fine of not less than Fifty thousand pesos
(P50,000), and the loss of the license to operate
PERSONS AND FAMILY RELATIONS
e.
such a place or establishment.
Any person who shall use, coerce, force or
intimidate a street child or any other child to:
8.
Beg or use begging as a means of living;
Act as conduit or middlemen in drug
traffickingorpushing;or
Conduct any illegal activities, shall suffer the
penalty of prision correccional in its
medium period to reclusion perpetua.
9.
1.
2.
3.
10.
11.
The penalty for the commission of acts punishable
under Articles 248, 249, 262, paragraph 2, and 263,
paragraph 1 of Act No. 3815, as amended, the Revised
Penal Code, for the crimes of murder, homicide, other
intentional mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the
victim is under twelve (12) years of age.
12.
The penalty for the commission of acts punishable
under Article 337, 339, 340 and 341 of Act No. 3815, as
amended, the Revised Penal Code, for the crimes of
qualified seduction, acts of lasciviousness with the
consent of the offended party, corruption of minors, and
white slave trade, respectively, shall be one (1) degree
higher than that imposed by law when the victim is
under twelve (12) years age.
Liability of persons exercising special parental
authority over the child (FC, Art. 219)
They are principally and solidarily liable for damages
caused by the acts or omissions of the child while under
their supervision, instruction or custody.
NOTE: Parents, judicial guardians or those exercising
substitute parental authority over the minor are
subsidiarily liable for said acts and omissions of the
minor.
The victim of the acts committed under this section
shall be entrusted to the care of the Department of
Social Welfare and Development (Sec. 10, R.A. 7610).
Q: Jayson and his classmates were conducting a science
experiment about fusion of sulphur powder and iron
fillings under the tutelage of Tabugo, the subject
teacher and employee of St. Joseph College. Tabugo left
her class while the experiment was ongoing without
having adequately secured the students from any
untoward incident or occurrence. In the middle of the
experiment, Jayson checked the result of the
experiment by looking into the test tube with
magnifying glass and it was moved towards his eyes. At
that instance, the compound spurted from the test tube
and several particles hit Jayson’s eyes. His left eye
was chemically burned, for which he had to undergo
surgery and spend for medication. Jayson filed a
complaint for damages against the school and Tabugo.
Can the said school and its teacher, Tabugo, be held
liable for the unfortunate incident ofJayson?
Liabilities of Parents under Art. 59 of Presidential
Decree No. 603 (Child and Youth Welfare Code)
Article 59. Crimes. - Criminal liability shall attach to any
parent who:
1.
2.
3.
4.
5.
6.
7.
Improperly exploits the child by using him,
directly or indirectly, such as for purposes of
begging and other acts which are inimical to his
interest and welfare.
Inflicts cruel and unusual punishment upon the
child or deliberately subjects him to indignation
and other excessive chastisement that embarrass
or humiliate him.
Causes or encourages the child to lead an
immoral or dissolute life.
Permits the child to possess, handle or carry a
deadly weapon, regardless of its ownership.
Allows or requires the child to drive without a
license or with a license which the parent knows
to have been illegally procured. If the motor
vehicle driven by the child belongs to the parent,
it shall be presumed that he permitted or ordered
the child to drive (Art. 59, PD 603).
Conceals or abandons the child with intent to
make such child lose his civil status.
Abandons the child under such circumstances as
to deprive him of the love, care and protection he
needs.
Sells or abandons the child to another person for
valuable consideration.
Neglects the child by not giving him the
education which the family's station in life and
financial conditions permit.
Fails or refuses, without justifiable grounds, to
enroll the child as required by Article 72.
Causes, abates, or permits the truancy of the child
from the school where he is enrolled. "Truancy"
as here used means absence without cause for
more
than
twenty
schooldays,
not
necessarilyconsecutive.
It shall be the duty of the teacher in charge to
report to the parents the absences of the child the
moment these exceed five schooldays.
A: YES. The proximate cause of the student’s injury was
the concurrent failure of petitioners to prevent the
foreseeable mishap that occurred during the conduct of
the science experiment. Petitioners were negligent by
failing to exercise the higher degree of care, caution and
foresight incumbent upon the school, its administrators
and teachers. Art. 218 of the Family Code, in relation to
Art. 2180 of the New Civil Code, bestows special
parental authority on a school, its administrators and
121
CIVIL LAW
teachers, or the individual, entity or institution engaged
in child care, and these persons have responsibility over
the minor child while under their supervision,
instruction or custody. Authority and responsibility
shall apply to all authorized activities whether inside or
outside the premises of the school, entity or institution.
A parent is required to post a bond if the market value
of the property or the annual income of the child
exceeds P50,000.
In this case, the petitioners’ negligence and failure to
exercise the requisite degree of care and caution was
demonstrated by the following: (i) petitioner school did
not take affirmative steps to avert damage and injury to
its students although it had full information on the
nature of dangerous science experiments conducted by
the students during class; (ii) petitioner school did not
install safety measures to protect the students who
conduct experiments in class; (iii) petitioner school did
not provide protective gears and devices, specifically
goggles, to shield students from expected risks and
dangers; and (iv) petitioner Tabugo (the teacher) was
not inside the classroom the whole time her class
conducted the experiment, specifically, when the
accident involving the student occurred (St. Joseph’s
College v. Miranda, G.R. No. 182353, June 29, 2010).
Rules regarding the use of the child’s property
(Art. 226, FC)
NOTE: The bond shall not be less than 10% of the value
of the property or annual income (FC, Art. 225).
1.
2.
a.
b.
The property of minor children shall be devoted
to their support and education unless the title or
transfer provides otherwise.
The parents have the right to use only the fruits
and income of said property for the following
purposes:
Primarily, to the child’s support;
Secondarily, to the collective daily needs of the
family.
Rule on lease of property belonging to minor
children
EFFECTS OF PARENTAL AUTHORITY UPON THE
PROPERTY OF THE CHILDREN
GR: The parents, as legal guardians of the minor’s
property, may validly lease the same, even without
court authorization, because lease has been considered
as an act of administration.
Legal guardianship can be exercised by the father or
mother, jointly, without need of court appointment over
the property of an unemancipated child.
XPNs: Court authorization is required if:
1. If the lease will be recorded in the Registry of
Property;
2. If the lease is for a period of more than one year,
because this is already deemed an act of dominion.
NOTE: In case of disagreement, the father’s decision
shall prevail unless there is a judicial order to the
contrary (FC, Art. 229).
SUSPENSION OR TERMINATION OF PARENTAL
AUTHORITY
Kinds of properties of a minor
ADVENTITIOUS
PROSFECTITIOUS
Earned
or
1. Property given by the
acquired by the child
parents to the child
through his work or
for the latter to
industry by onerous
administer;
or gratuitous title;
2. Owned by the parents;
2. Owned by the child;
3. Parents
are
3. Child is also the
usufructuary;
usufructuary, but the
child’s use of the 4. Property
property shall be
administered by the
secondary to all
child.
collective daily needs
of the family;
Grounds for Termination of Parental Authority
1.
4.
1. Permanently:
a. Death of parents;
b. Emancipation of the child;
c. Death of child (FC, Art. 228).
2. Temporarily:– it may be revived
a. Adoption of the child;
b. Appointment of general guardian;
c. Judicial declaration of abandonment of the
child in a case filed for the purpose;
d. Final judgment divesting parents of
parental authority;
e. Incapacity of parent exercising parental
authority;
f. Judicial declaration of absence or incapacity
of person exercising parental authority (FC,
Art. 229).
Administered by the
parents.
Necessity of posting a bond by the parents
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
122
PERSONS AND FAMILY RELATIONS
NOTE: In case of temporary termination of
parental authority, parental authority may be
revived thru a court judgment (Rabuya, 2009).
NOTE: While a teacher is administratively liable or
civilly liable in the event that he or she inflicts corporal
punishment to a student, it has been held that where
there was no criminal intent on the part of the teacher
who angrily and repeatedly whipped a student resulting
in slight physical injuries to the said student and where
the purpose of the teacher was to discipline a student,
the said teacher cannot be held feloniously liable for the
criminal offense of slight physical injuries (Bagajo v.
Marave, G.R. No. L-33345, November 20, 1978).
Grounds for suspension of Parental Authority
1.
2.
3.
4.
5.
6.
Gives corrupting orders, counsel or example;
Treats child with excessive harshness and cruelty;
Subjects/allows child be subjected to acts of
lasciviousness (FC, Art. 231);
Conviction of crime with penalty of civil
interdiction
(FC, Art. 230);
Culpable negligence of parent or person exercising
parental authority;
Compels the child to beg.
EMANCIPATION
It is the release of a person from parental authority
whereby he becomes capacitated for civil life.
NOTE: If the person exercising Parental Authority has
subjected the child or allowed him to be subjected to
sexual abuse, he/she shall be permanently deprived of
PA.
Emancipation takes place by attainment of majority at
the age of (18) eighteen years (FC, Art. 234 as amended
by RA 6809). (2010 Bar)
Effects of emancipation
If the ground for suspension of parental authority is
civil interdiction, the suspension is automatic so as its
reinstatement.
1. Parental authority over the person and property of
the child is terminated.
2. Child shall be qualified and responsible for all acts
Revocation of suspension of Parental Authority and its
revival
of civil life, save exceptions established by existing
3. Contracting marriage shall require parental consent
until the age of 21.
The suspension may be revoked and parental authority
revived by filing a case for the purpose, or in the same
proceeding if the court finds that the cause therefore
had ceased and will not be repeated.
4. The responsibility of parents or guardians for
children and wards below 21 under the second and
third paragraphs of Art. 2180 of the New Civil Code
shall not be derogated.
Transfer or renunciation of Parental Authority
RETROACTIVITY OF FAMILY CODE
GR: Parental authority and responsibility are
Inalienable and may not be transferred and renounced.
GR: The Code shall have retroactive effect (FC, Art. 256).
XPN: In cases authorized by law.
XPN: When retroactivity would prejudice vested rights.
(2005, 2010 Bar)
Loss of parental authority over the minor under the
Child Abuse Law (RA 7610)
Vested right
When an ascendant, stepparent or guardian of the
minor, induces, delivers or offers him to any person
who would keep or have in his company such minor,
twelve (12) years or under or who in ten (10) years or
more his junior, in any public or private place, hotel,
motel, beer joint, discotheque, cabaret, pension house,
sauna or massage parlor, beach and/or other tourist
resort or similar places.
Some right or interest in property that has become fixed
or established and is no longer open to doubt or
controversy. Rights are vested when the right to
enjoyment, present or prospective, has become the
property of some person as present interest.
Q: Antonia Aruego and her sister Evelyn filed a
petition in the courts seeking Jose Aruego, Jr. and
his five children to recognize them as illegitimate
children and compulsory heirs of Jose. They claim
that there is open and continuous possession of
status of illegitimate children of Jose who had an
amorous relationship with their mother Luz Fabian
until the time of the death of Jose. The court
Corporal punishment
It is the infliction of physical disciplinary measures to a
student. This is absolutely prohibited under the Family
Code (Sta. Maria, 2010).
123
CIVIL LAW
declared that Antonia Aruego is an illegitimate
daughter of the deceased with Luz Fabian while
Evelyn is not. Antonia and Evelyn contested the
decision citing provisions of the Family Code
particularly Art. 127 on Filiation, Art.172 on
illegitimate children’s filiation, and Art.256 on the
retroactivity of the code. Whether the provisions of
the Family Code can be applied retroactively and
will it impair the vested rights of the respondents?
NOTE: In case of descendants of the same degree, or
of brothers and sisters, the oldest shall be preferred.
In case of ascendants, the paternal shall have a better
right (NCC, Art. 305).
A: The action for compulsory recognition and
enforcement of successional rights which was filed
prior to the advent of the Family Code, must be
governed by Art. 285 of the New Civil Code and not by
Art. 175, par. 2 of the Family Code. The present law
cannot be given retroactive effect insofar as the instant
case is concerned, as its application will prejudice the
vested right of private respondent to have her case
decided under Art. 285 of the New Civil Code. The right
was vested to her by the fact that she filed her action
under the regime of the New Civil Code. Prescinding
from this, the conclusion then ought to be that the
action was not yet barred, notwithstanding the fact that
it was brought when the putative father was already
deceased, since private respondent was then still a
minor when it was filed, an exception to the general rule
provided under Art. 285 of the New Civil Code. Hence,
the trial court, which acquired jurisdiction over the case
by the filing of the complaint, never lost jurisdiction
over the same despite the passage of E.O. No. 209, also
known as the Family Code of the Philippines (Aruego v.
CA, G.R. No. 112193, March 13, 1996).
FUNERALS
3.
Any person who:
a. Shows disrespect to the dead, or
b. Wrongfully interferes with a funeral shall be
liable to the family of the deceased for
damages, material and moral (NCC, Art. 309).
4.
Funeral expenses are chargeable against the
property of the deceased. However, if the
deceased is one of the spouses, they are
chargeable against the conjugal partnership
property (NCC, Art. 310).
A: The law gives the right and duty to make funeral
arrangements to Rosario, she being the surviving legal
wife of Atty. Adriano. The fact that she was living
separately from her husband and was in the United
States when he died has no controlling significance. To
say that Rosario had, in effect, waived or renounced,
expressly or impliedly, her right and duty to make
arrangements for the funeral of her deceased husband
is baseless. The right and duty to make funeral
arrangements, like any other right, will not be
considered as having been waived or renounced, except
General Guidelines:
Duty and right to make arrangements in funerals
in accordance with Art. 199, FC:
a. Spouse;
b. Descendants in the nearest degree;
c. Ascendants in the nearest degree;
d. Brothers and sisters.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Funeral shall be:
a. In keeping with the social position of the
deceased;
b. In accordance with the expressed wishes of
the deceased;
c. In absence of the expressed wishes, his
religious beliefs or affiliation shall
determine;
d. In case of doubt, the form of funeral is to be
decided upon by the person obliged to make
arrangements for the same, after consulting
the other members of the family (NCC, Art.
307).
Q: Adriano and Rosario are married to each other.
However, their marriage turned into sour and they
were eventually separated-in-fact. Years later,
Adriano met Fe which he courted and eventually
decided to live together as husband and wife while
his marriage with Rosario is still subsisting. Adriano
later died while Rosario and the rest of his family
are in the United States spending their Christmas
vacation. When Rosario learned of Adriano’s death,
she immediately called Fe for the delay of Adriano’s
interment which was unheeded by Fe. The remains
of Adriano were interred at the mausoleum of Fe’s
family allegedly according to Adriano’s oral request
from her. Who between Rosario and Fe is entitled to
the remains of Adriano?
NOTE: If an action for recognition was filed prior to the
effectivity of the FC, Art. 173 of the Family Code cannot
be given retroactive effect because it will prejudice the
vested rights of petitioners transmitted to them at the
time of the death of their father, Eutiquio Marquino.
"Vested right" is a right in property which has become
fixed and established and is no longer open to doubt or
controversy. It expresses the concept of present fixed
interest, which in right reason and natural justice
should be protected against arbitrary State action
(Marquino v. IAC, G.R. No. 72078, June 27, 1994).
1.
2.
124
PERSONS AND FAMILY RELATIONS
upon clear and satisfactory proof of conduct indicative
of a free and voluntary intent to that end.
document
or
private
handwritten instrument
(Art. 176, FC, as amended
by RA. 9225)
Even assuming, ex gratia argumenti, that Atty. Adriano
truly wished to be buried in the Fe’s family plot at the
Manila Memorial Park, the result remains the same.
Article 307 simply seeks to prescribe the "form of the
funeral rites" that should govern in the burial of the
deceased. The right and duty to make funeral
arrangements reside in the persons specified in Article
305 in relation to Article 199 of the Family Code. Even if
Article 307 were to be interpreted to include the place
of burial among those on which the wishes of the
deceased shall be followed, Dr. Arturo M.Tolentino (Dr.
Tolentino), an eminent authority on civil law,
commented that it is generally recognized that any
inferences as to the wishes of the deceased should be
established by some form of testamentary disposition
(Valino v. Adriano, G.R. No. 182894, April 22, 2014).
Conceived prior
to annulment of
marriage
Conceived after
annulment
of
marriage
Mother’s
Rule with regard to the use of surname of a
married woman
FACTUAL
CIRCUMSTANCE OF
THE WIFE
Valid marriage (before
husband dies) (NCC,
Art. 370)
USE OF SURNAMES
Rule with regard to the use of surname by a child who is
(1) legitimate, (2) legitimated, (3) adopted and (4)
illegitimate
CHILD
CONCERNED
Legitimate
Legitimated
Natural
child
acknowledged
both parents
Natural child by
legal fiction
Natural
child
acknowledged
by one parent
Adopted
Illegitimate
Under
the
amendatory
provision of R.A. 9225, the use
of the illegitimate father’s
surname s PERMISSIVE and
not obligatory (Rabuya, 2009).
Father’s
SURNAME TO BE USED
Father’s
Recognizing parent
Adopter’s
Mother’s
or
father’s
if
requisites R.A. 9255 are
complied with
Marriage
is
annulled
(NCC, Art.
371)
NOTE: An illegitimate child
shall have the “option” to use
the surname of the father in
the following instances:
1.
2.
If his/hre filiation has been
expressly recognized by
the father through the
record of birth appearing
in the civil register; or
When an admission of
paternity is made by the
father
in
a
public
Wife is the
guilty party
Wife is the
innocent
party
Legally separated (NCC,
125
SURNAME TO BE
USED
1.
First name and
maiden name (her
maiden first name
and surname) (FC,
Art.
370)
+
husband’s
surname.
2. Firstname
+
husband’s surname
3. Husband’s
full
name + prefix
indicating that is
his wife (e.g., Mrs.)
4. Retain the use of
her maiden name
*Use
of
husband’s
surname is not a duty
but merely an option for
the wife.
Shall resume using her
maiden name
Choices:
1. Resume using her
maiden name
2. Continue
using
husband’s surname
Unless:
a. Courth
decrees
otherwise;
b. She or the former
husbnad is married
again to another
person
Wife shall continue
CIVIL LAW
Art. 372)
Widowed spouse (NCC,
Art. 373)
Divorced (at least if
they allow it later or for
those who got divorced
the
Japanese
occupation)
sought prior to the filing (Sec. 2, Rule 103, Rules of
Court);
B. Must not be filed within 30 days prior to an election
(Sec. 3, Rule 103, Rules of Court);
C. Petition must be verified (Sec. 2, Rule 103, Rules
of Court).
using the name and
surname employed by
her prior to the legal
separation
She may use deceased’s
husband’s surname as
though he is still living.
Choices
same
as
widowed spouse.
Q: Virginia Remo, a Filipino citizen, is married
to Francisco Rallonza. In her passport, the
following entries appear: “Rallonza” as her
surname, “Maria Virginia” as her given name,
and “Remo” as her middle name. Prior to the
expiration of her passport, Virginia applied for
the renewal of her passport with the DFA, with
a request to revert to her maiden name and
surname in the replacement passport.
Virginia, relyingon Article 370 of the Civil
Code, contends that the use of the husband’s
surname by the wife is permissive rather than
obligatory. Is Virginia correct ?
Grounds for change of name which have been held
valid
1.
2.
3.
4.
5.
6.
One has continuously used and been known
since childhood by a Filipino name and was
unaware of alien parentage;
The change results as a legal consequence, as
in legitimation;
There is a sincere desire to adopt a Filipino
name to erase signs of former alienage, all in
good faith and without prejudicing anyone;
The change will avoid confusion;
The new first name or surname has been
habitually and continuously used by the
petitionerand is publicly known by that first
name or nickname (Pineda, 2010).
The name is:
a. Ridiculous,
b. Extremely difficult to write or
pronounce; and
c. Dishonorable.
A:
NO. A married woman has an option, but not a
duty, to use the surname of the husband in any of the
ways provided by Art. 370 of the New Civil Code.
However, R.A. 8239 or the Philippine Passport Act of
1996 limits the instances when a married woman
applicant may exercise the option to revert to the use
of her maiden name. These are death of husband,
divorce, annulment, and declaration of nullity of
marriage.
In case of renewal of passport, a married woman
may either adopt her husband’s surname or
continuously use her maiden name. However, once
she opted to use her husband’s surname in her
original passport, she may not revert to the use of
her maiden name, except if any of the four grounds
provided under R.A. 8239 is present.
Q: Can a person change his registered first
name and sex on the basis of a sex
reassignment?
A: NO. Before a person can legally change his given name,
he must present proper or reasonable cause or any
compelling reason justifying such change. In addition,
he must show that he will be prejudiced by the use of his
true and official name. Under the Civil Register Law, a birth
certificate is a historical record of the facts as they existed
at the time of birth. Thus, the sex of a person is
determined at birth, visually done by the birth
attendant (the physician or midwife) by examining
the genitals of the infant. Considering that there is no law
legally recognizing sex reassignment, the determination of a
person’s sex made at the time of his or her birth, if not
attended by error, is immutable (Silverio v. Republic,
G.R. No. 174689, October 22, 2007).
Further, even assuming R.A. 8239 conflicts with the
Civil Code, the provisions of R.A. 8239 which is a
special law specifically dealing with passport
issuance must prevail over the provisions of the Civil
Code which is the general law on the use of
surnames. A basic tenet in statutory construction is
that a special law prevails over a general law (Remo v.
Sec. of Foreign Affairs, G.R. No. 169202, March 5, 2010).
Procedural requirements for a petition for change of
name
In case of identity of names and surnames between
ascendants and descendants, the word "Junior" can be
used only by a son. Grandsons and other direct male
descendants shall either:
Identity of names and surnames
In case of identity of names and surnames, the younger
person shall be obliged to use such additional name or
surname as will avoid confusion (NCC, Art. 374).
A. 3 years residency in the province where the change is
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
126
PERSONS AND FAMILY RELATIONS
1.
2.
Add a middle name or the mother's surname, or
Add the Roman Numerals II, III, and so on (NCC,
Art. 375).
surname of their mother, unless their father recognizes
their filiation, in which case, they may bear the father's
surname. In the case of these children, their registration
in the civil registry requires that their middle names be
indicated therein, apart of course from their given
names and surnames (In re: Petition for Change of Name
and/or Correction of Entry in the Civil Registry of Julian
Lin Carulasan Wang, G.R. No. 159966, March 30, 2005)
NOTE: No person can change his name or surname
without judicial authority (NCC, Art. 376).
Elements of usurpation of name
1.
2.
3.
Actual use of another’s name by the defendant;
Use is unauthorized;
Use of another’s name is to designate
personality or identify a person.
Q: Does an illegitimate child have a middle name?
A:
NO. An illegitimate child whose filiation is not
recognized by the father bears only a given name and his
mother's surname, and does not have a middle name.
Itis only when the illegitimate child is legitimated by
the subsequent marriage of his parents or acknowledged
by the father in a public document or private handwritten
instrument that he bears both his mother's surname as his
middle name and his father's surname as his surname (In
Re: Petition for Change of Name of Julian Wang v. Cebu
Civil Registrar, G.R. No. 155966, March 30, 2005).
Remedies available to the person whose name has
been usurped
1.
2.
Civil – insofar as private persons are concerned:
a.
Injunction
b. Damages
Criminal – when public affairs are prejudiced.
NOTE: If the purpose of the usurpation is to conceal ones
true identity then, he is guilty of concealing true name
under Art.178 of theRPC(Pineda, 2010).
Q: Honorato filled a petition to adopt his minor
illegitimae child Stephanie. Stephanie has been
using her mother’s middle name and surname.
He prayed that Stephanie’s middle name be
changed from “Astorga” to “Garcia,” which is
her mother’s surname and that her surname
“Garcia” be changed to “Catindig,” which is his
surname. This the trial court denied. Was the
trial court correct in denying Honorato’s
request for Stephanie’s use of her mother’s
surname as her middle name?
It can also be a violation of CA 142 or the Anti-Alias
Law.
Use of another’s name is not always actionable
GR: The unauthorized or unlawful use of another
person’s surname gives a right of action to the latter
(NCC, Art. 378).
XPN: It is not actionable when it is used as stage,
screen or pen name.
A: No. The name of a individual has two parts –
the given name or proper name and the surname
or family name. the given name may be freely
selected by the parents for the child, but the
surname to which the child is entitled is fixed by
law. The Civil Code (Arts. 364 to 380) is silent as to
the use of a middle name. een Art. 176 of the
Family Code, as amended by R.A. 9225 (An Act
Allowing Illegitimate Children to Use the Surname
of their Father) is siled as to what middle name a
child may use.
Provided:
1.
2.
3.
Use is in good faith;
No injury is caused to the rights of the person
whose name was used;
Use is motivated by:
a. Modesty
b. Desire to avoid unnecessary trouble
c. Other reason not prohibited by law or morals.
An adopted child is entitled to all the rights provided
by law to a legitimate child without discrimination of
any kind, including the right to bear the surname of
her father and her mother. As she had become a
legitimate child on account of her adoption, it follows
that Stephanie is entitled to utilize the surname of
her father, Honorato Catindig, and that of her
mother, Gemma Garcia.
MIDDLE NAME
A middle name has practical or legal significance as it
serves to identify the maternal pedigree or filiation of a
person and distinguishes him from others who may
have the same given name and surname as he has. Art.
364 of the Civil Code states that legitimate and
legitimated children shall principally use the surname
of their father. Art. 174 of the Family Code gives
legitimate children the right to bear the surnames of the
father and mother, while illegitimate children, under
Art. 176, as amended by R.A. 9255, shall use the
Since there is no law prohibiting an illegitimate child
adopted by her natural father, like Stephanie, to use,
as middle name her mother's surname, the High
127
CIVIL LAW
Court found no reason why she should not be
allowed to do so.
the request would be denied (In Re: Petition for
change of name and/or correction/cancellation of
entry in civil registry of Julian Lin Carulasan Wang,
G.R. No. 159966, March 30, 2005).
NOTE: The Supreme Court granted the petition for 2
reasons:
1.
2.
NOTE: The touchstone for the grant of a change of
name is that there be proper and reasonable cause
for which the change is sought.
The adopted child's continued use of her
mother's surname as her middle name will
maintain her maternal lineage; and
It will also eliminate the stigma of her
illegitimacy.
Q: Giana was born to Andy and Aimee, who at the
time of Giana’s birth were not married to each
other. While Andy was single at that time, Aimee
was still in the process of securing a judicial
declaration of nullity on her marriage to her exhusband. Gianna’s birth certificate, which was
signed by both Andy and Aimee, registered the
status of Gianna as “legitimate”, her surname
carrying that of Andy’s, and that her parents
were married to each other.
The Supreme Court, in granting the petition,
predicated its ruling upon the statutory principle
that adoption statutes, being humane and salutary,
should be liberally construed to carry out the
beneficent purposes of adoption. The modern trend
is to consider adoption not merely as an act to
establish a relationship of paternity and filiation, but
also as an act which endows a child with legitimate
status (In the Matter of the Adoption of Stephanie
Nathy Astorga Garcia, G.R. No. 148311, March 31,
2005).
Can a judicial action for correction of entries in
Gianna’s birth certificate be successfully
maintained to:
Q: The petition filed by the parents in behalf of
their minor son Julian Lin Carulasan Wang
sought the dropping of the latter's middle name,
"Carulasan." The parents averred that their plan
for Julian to study in Singapore and adjust to its
culture necessitates the drop since in that
country, middle names or the mother's surname
are not carried in a person's name. They
therefore anticipate that Julian may be subjected
to discrimination on account of his middle name,
which is difficult to pronounce in light of
Singapore's Mandarin language which does not
have the letter "R" but if there is, Singaporeans
pronounce it as "L." Should the petition for the
dropping of his middle name be granted?
a. Change her status from “legitimate” to
“illegitimate”; and
b. Change her surname from that of Andy’s
to Aimee’s maiden surname?
c. Instead of a judicial action, can
administrative proceedings be brought
for the purpose of making the above
corrections?
d. Assuming that Aimee is successful in
declaring her former marriage void, and
Andy and Aimee subsequently married
each other, would Gianna be legitimated?
(2008 Bar)
A:
A: NO. Petitioners’ justification for seeking the
change in the name of their child, that of
convenience, was characterized by the Supreme
Court as amorphous, to say the least, and would not
warrant a favorable ruling. As Julian is only a minor
and has yet to understand and appreciate the value
of any change in his name, it is best that the matter
be left to his judgment and discretion when he
reaches legal age.
The State has an interest in the names borne by
individuals and entities for purposes of
identification, and that a change of name is a
privilege and not a right, such that before a person
can be allowed to change the name given him either
in his birth certificate or civil registry, he must show
proper or reasonable cause, or any compelling
reason which may justify such change. Otherwise,
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
a.
b.
128
A judicial action cannot be maintained to
change the status of Gianna from “legitimate”
to “illegitimate” child of Andy and Aimee.
While it is true that Gianna is the biological
daughter of Andy and Aimee conceived and
born without marriage between them,
Gianna is presumed, under the law as the
legitimate child of Aimee and her husband.
This filiation may be impugned only by the
husband. To correct the status of Gianna in
her birth certificate from “legitimate child of
Andy and Aimee” to “illegitimate child of
Andy and Aimee” will amount to indirectly
impugning her filiation as the child of
Aimee’s husband in a proper action. What
cannot be done directly cannot be done
indirectly.
A judicial action to change the surname of
Gianna from the surname of Andy to the
PERSONS AND FAMILY RELATIONS
maiden surname of Aimee is also not
allowed. Gianna, being presumed to be the
legitimate child of Aimee’s husband is
required by law to be registered under the
surname of Aimee’s husband. While it is true
that Gianna’s registered surname is
erroneous, a judicial action for correction of
entry to change the surname of Gianna to
that of Aimee’s maiden surname will also be
erroneous. A judicial action to correct an
entry in the birth certificate is allowed to
correct an error and not to commit another
error.
NOTE: The word "principally" as used in the codal
provision is not equivalent to "exclusively" so that
there is no legal obstacle if a legitimate or
legitimated child should choose to use the surname
of its mother to which it is equally entitled. If the
mother's surname is used by the child since
childhood and the child has been using it already in
various records, then there is an ample justification
for the continuation of the use of the mother’s
surname. It is therefore, not whimsical, but on the
contrary, is based on a solid and reasonable ground,
i.e. to avoid confusion (Alfon v. Republic, G.R. No. L51201, May 29, 1980).
Alternative Answers: It may be noted that the
problems does not show whether Gianna was born
while Aimee was living with her ex-husband. Neither
does it show who filed the judicial action to correct
the entries.
ABSENCE
The special status of a person who has left his
domicile and thereafter his whereabouts and fate are
unknown, it being uncertain whether he is already
dead or still alive (Olaguiviel v. Morada, 63 O.G.
4940).
If the problem is intended only for purpose of
determining whether factual changes are in order,
then the answers are:
a.
b.
c.
Kinds of absence
A Change from “legitimate” to “illegitimate” is
properupon proof of lack of marriage between
Andy and Aimee
If the child is considered illegitimate, then she
should follow the surname of her mother.
Under R.A. 9048, only typographical errors
are allowed to be corrected administratively.
The change of status from legitimate to
illegitimate is not typographical error and
even assuming that it is, its administrative
correction is not allowed under R.A. 9048.
Typographical error involving status, age,
citizenship, and geneder are expressly
excluded from what may be corrected
administratively.
Physical Absence
Legal Absence
3
1.
Stages of Absence
Provisional Absence – when a person
disappears from his domicile his whereabouts
being unknown, without leaving an agent to
administer his property (NCC, Art. 381).
Declared Absence– when a person disappears
from his domicile and 2 years thereafter have
elapsed without any news about him or since the
receipt of the last news, or 5 years have elapsed
in case he left a person to administer his
property (NCC, Art. 384)
Presumptive Death – the absentee is presumed
dead (Jurado, 2011).
2.
3.
The change of surname is also not allowed
administratively. R.A. 9048 provides for an
administrative procedure for change of first name
only and not for change of surname.
d.
1.
2.
Provisional absence
1. When a person disappears from his domicile
2. His whereabouts are unknown; and
a. He did not leave any agent; or
b. He left an agent but the agent’s power has
expired
No, Gianna will no t be legitimated. While the
court may have declared the marriage void ad
initio and therefore, no marriage took place in
the eyes of the law, Gianna will still not be
legitimated. This is because at the time she
was conceived and born, her biological
parents could not havevalidly married each
other. For their marriage to be valid, the court
must first declare the first marriage null and
void. In the problem, Gianna was conceived
and born before the court has decreed the
nullity of her mother’s previous marriage.
Remedy of an interested party, a relative or a friend of the
absentee toprotect the latter's interest
They may petition the Court for the appointment of a
representative to represent the absentee in all that may be
necessary.
129
CIVIL LAW
Duty of the Court after appointing the representative
NOTE: A judicial declaration of absence is
necessary for interested persons to be able to
protect their rights, interests and benefits in
connection with the person who has disappeared.
It is also necessary to protect the interest of the
absentee. (Sta. Maria, Jr., 2010)
The Court shall:
1. Take the necessary measures to safeguard the rights
and interests of the absentee;
2. Specify
the
powers,
obligations,
and
remuneration oftherepresentative;
3. Regulate
the
powers,
obligations
and
remuneration according to the circumstances by
the rules concerning guardians (NCC, Art. 382).
ADMINISTRATION OF THE PROPERTY OF THE
ABSENTEE
Administration of the property of the absentee
ceases when (NCC, Art. 389):
Order of preference in the appointment of a
representative
1.
1. Spouse present, except, when legally separated.
2. In the absence of spouse, anycompetent person (NCC,
2.
Art. 383).
3.
NOTE: The administrator of the absentee's property shall
be appointed in accordance with the same order.
Absentee appears personally or by means of an
agent.
Death of the absentee is proved, and his testate
or intestate heirs appear.
A third person appears, showing by a proper
document that he has acquired the absentee's
property by purchase or other title.
DECLARTION OF ABSENCE
PRESUMPTION OF DEATH
Requisite (NCC, Art. 384):
1.
2.
3.
Kinds:
The absentee have disappeared from his
domicile;
His whereabouts are not known; and
He has been absent without any news for 2
years if noboby was left to administer his
property or 5 years if somebody was left to
administer such property.
1.
2.
Rules in ordinary presumption of death (NCC, Art.
390)
Absence may be judicially declared if (NCC, Art.
387):
1.
2.
In case of:
1.
Disappearance upon or before reaching the age
of seventy five (75) years:
a.
After an absence of seven (7) years -the
absentee is presumed dead for all purposes
except succession.
b. After an absence of ten (10) years - the
absentee is presumed dead for all purposes
including succession.
The absentee left no agent to administer his
property – after two (2) years without any
news about the absentee or since receipt of
the last news.
The absentee has left a person to administer
his property – after five (5) years
Person who may ask for the declaration of
absence (NCC, Art. 385)
2.
3.
4.
5.
2.
Spouse present;
Heirs instituted in a will;
Relatives who may succeedby intestacy;
Persons who may have over the property of
the absentee some right subordinated to the
condition of his death.
Disappearance at the age of seventy six (76)
years or older after an absence of five (5) years the absentee is presumed dead for all purposes
including succession.
NOTE: The word “absence” in the rule that a
presumption of death is raised by the “absence” of a
person from his domicile when unheard of for seven
years, means that a person is not at the place of his
domicile and his actual residence is unknown, and it
is for this reason that his existence is doubtful, and
that, after seven years of such absence, his death is
resumed. But removal alone is not enough (Gorham
Effectivity of judicial declaration of absence
Judicial declaration of absence take effect six (6)
months after its publication in a newspaper of
general circulation.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Ordinary presumption – ordinary absence;
absentee disappears under normal conditions
without danger or idea of death.
Extraordinary presumption – qualified
absence; disappearance with great probability
of death.
130
PERSONS AND FAMILY RELATIONS
v. Settegast, 98 SW 655, also cited by Sta. Maria,
2010).
any news of Arturo, his whereabouts or even if he
was alive or not. Believing that Arturo was
already dead, Juana married Dante on June 1986.
Subsequently, however, Dante's application for
naturalization filed with the United States
Government was denied because of the
subsisting marriage between Juana and Arturo.
Hence, on March, 2007, Juana filed a Petition for
declaration of presumptive death of Arturo with
the RTC. The RTC dismissed the petition on the
ground that Juana was not able to prove the
existence of a well-grounded belief that her
husband Arturo was already dead as required
under Article 41 of the Family Code.
Presumption of death of absentee under an
ordinary presumption
Absentee is presumed to have died under an
ordinary presumption at the end of the five, seven or
ten year period, as the case may be.
Presumption of death for all purposes
The following are presumed dead for all purposes
including the division of estate among heirs in case
of extraordinary presumption of death (NCC, Art.
391):
b.
Person on board a vessel lost during a sea
voyage, or an airplane which is missing, who has
not been heard of for four (4) years since the
loss of the vessel or airplane;
2. Person in the armed forces who has taken at in
war, and has been missing for four (4) years;
3. Person who has been in danger of death under
other circumstances and his existence has not
been known for four (4) years.
1.
c.
A:
a.
Presumption of death of absentee under an
extraordinary presumption
The absentee presumed to have died under an
extraordinary presumption at the time of
disappearance. e.g. when the calamity took place.
Q: May a petition for the declaration of
presumptive death be the subject of a judicial
declaration, if it is the only question upon which
a competent court has to pass?
A: NO. Under the NCC, the presumption of death is
established by law and no court declaration is
needed for the presumption to arise. Moreover, it is
clear that a judicial declaration that a person is
presumptively dead, being a presumption juris
tantum only, subject to contrary proof, cannot
become final. If a judicial decree declaring a person
presumptively dead, cannot become final and
executory even after the lapse of the reglementary
period within which an appeal may be
taken, then a petition for such a declaration is
useless, unnecessary, superfluous and of no benefit
to the petitioner.
Was the RTC correct in dismissing the
petition based on Article 41 of the Family
Code?
Will the petition for declaration of
presumptive death, therefore, prosper?
NO. Since the marriages were both celebrated
under the auspices of the Civil Code, it is the Civil
Code that applies to this case not Art. 41 of the Family
Code. Under theCivil Code, proof of well-founded
belief is not required. Juana could not have been
expected to comply with the requirement of
proof of "well- founded belief" since the FC was
not yet in effect at the time of her marriage to
Dante. Moreover, the enactment of the FC in
1988 does not change this conclusion. The FC
shall have no retroactive effect if it impairs
vested rights. To retroactively apply the
provisions of the FC requiring Juana to exhibit
"well- founded belief" will, ultimately, result in
the invalidation of her second marriage, which
was valid at the time it was celebrated.
Such a situation would be untenable and would
go against the objectives that the Family Code
wishes to achieve.
b.
Q: Juana married Arturo in January 1973.
However, because the latter was unemployed the
spouses constantly argued. Thus, Arturo left the
conjugal dwelling on October 1975. Years passed
without any word from Arturo. Juana didn’t hear
131
NO. Under the NCC, the presumption of death is
established by law and no court declaration is
needed for the presumption to arise. For the
purposes of the civil marriage law, Art. 83 of the
Civil Code, it is not necessary to have the former
spouse judicially declared an absentee. The law
only requires that the former spouse has been
absent for seven consecutive years at the time of
the second marriage, that the spouse present
does not know his or her former spouse to be
living, that such former spouse is generally
reputed to be dead and the spouse present so
believes at the time of the celebration of the
marriage. Since death is presumed to have taken
place by the seventh year of absence, Arturo is to
CIVIL LAW
be presumed dead starting October 1982.
Further, the presumption of death cannot be the
subject of court proceedings independent of the
settlement of the absentee’s estate. In case the
presumption of death is invoked independently
of such an action or special proceeding, there is
no right to be enforced nor is there a remedy
prayed for by the petitioner against her absent
husband. Neither is there a prayer for the final
determination of his right or status or for the
ascertainment of a particular fact, for the
petition does not pray for a declaration that the
petitioner's husband is dead, but merely asks for
a declaration that he be presumed dead because
he had been unheard of for seven years. In sum,
the petition for a declaration that the
petitioner's husband is presumptively dead,
even if judicially made, would not improve the
petitioner's situation, because such a
presumption is already established by law
(Valdez v. Republic, G.R. No. 180863, September 8,
2009).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
132
PERSONS AND FAMILY RELATIONS
Declaration of presumptive death for purpose of conrtacting subsequent marriage v. Opening succession
and declaration of absence under the Rules of Court
DECLARATION OF PRESUMPTIVE DEATH FOR THE PURPOSE OF:
OPENING OF SUCCESSION
NCC, Arts. 390-396
Absentee’s co-heirs,
heirs, assigns,
representative or
successors-in-interest
To open succession
GR: Absence of ten years.
XPN: If he disappeared after
the age of seventy-five years,
an absence of five years shall
be sufficient in order that his
succession may be opened
If the absentee appears, or
without appearing his
existence is proved, he shall
recover his property in the
condition in which it may be
found, and the price of any
property that may have been
alienated or the property
acquired therewith; but he
cannot claim either fruits or
rents. (Art. 392, Civil Code)
CONTRACTING SUBSEQUENT MARRIAGE DECLARATION OF ABSENCE
Applicable laws
Arts. 41-44, Family Code
Who may file petition
Spouse present
Purpose of petition
For the purpose of
contracting subsequent
marriage by spouse present
When to file petition
GR: 4 consecutive years absence of
spouse – and the spouse present
has a well-founded belief that the
absent spouse was already dead
XPN: 2 consecutive years absence
of spouse – In case of
disappearance where there is
danger of deathunder the
circumstances set forth in the
provisions of Article 391 of the
Civil Code (Art. 41, FC)
Effect of reappearance
It does not automatically
terminate the subsequent
marriage. To cause the
termination of the subsequent
marriage, the reappearance must
be made in an affidavit of
reappearance and the recording of
a sworn statement of the fact and
circumstances of such
reappearance in the civil registry.
If, however, there was previous
judgment annulling or declaring
the prior marriage void, then the
reappearance of the absent
spouse, the execution of the
affidavit, and the recording of the
sworn statement
shall not result to the termination
of the subsequent marriage.
133
Rule 107, Rules of Court
1. Spouse present;
2. Heirs instituted in the will;
3. Relatives who will succeed by
intestacy; or
4. Those who have over the property of
the absentee some right
subordinated to the
condition of his death (Sec. 2, Rule 107).
To appoint an administrator over
the properties of the absentee. This
is proper only where the absentee
has properties to be administered
After 2 years:
1. From his disappearance and
without any news about the
absentee; or
2. From the last news about
the absentee.
After 5 years: If he left an administrator
of his property (Sec. 2).
The trustee or administrator shall cease
in the performance of his office, and the
property shall be placed at the disposal
of those who may have a right thereto.
CIVIL LAW
PROPERTY
The human body is NOT a property
It is neither real nor personal property, whether
alive or dead. It is not even property at all, in that
it generally cannot be appropriated.
CHARACTERISTICS
Property
While a human being is alive, he cannot, as such,
be the object of a contract, for he is considered
outside the commerce of man. He may donate part
of his blood, may even sell part of his hair, but he
cannot sell his body (Paras, 2008).
All things which are or may be the object of
appropriation considered as either real or
personal property (NCC, Art. 414).
It is an object or a right which is appropriated or
susceptible of appropriation by man, with capacity
to satisfy human wants and needs (Pineda, 1999).
Under the R.A. 7170 or the Organ Donation Act of
1991, donation of all or a part of a human body
may only occur after a person’s “death” (i.e., the
irreversible cessation of circulatory and
respiratory functions or the irreversible cessation
of all functions of the entire brain, including the
brain system) [Sec. 2(j), RA 7170, as amended]
NOTE: Property does not only cover material
things because it mentions of rights which could
either be classified as real or personal right.
Q: Are the rights under the Bill of Rights
considered as property?
CLASSIFICATIONS OF PROPERTY
A: NO. They are not susceptible of appropriation.
1.
As to mobility
a. Immovable or real property; and
b. Movable or personal property.
2. As to ownership
a. Public dominion; and
b. Private ownership.
3. As to alienability
a. Alienable; and
b. Inalienable.
4. As to individuality
a. Specific property; and
b. Generic property.
5. As to susceptibility to touch
a. Tangible; and
b. Intangible.
6. As to susceptibility to substitution
a. Fungible; and
b. Non fungible.
7. As to accession
a. Principal; and
b. Accessory.
8. As to existence
a. Existing or present property (res
existentes); and
b. Future property (res futurae).
9. As to consumability
a. Consumable; and
b. Non-consumable.
10. As to divisibility
a.
Divisible; and
b.
Indivisible
Requisites for a thing to be considered as
property (USA)
1.
2.
3.
Utility – Capacity to satisfy human wants;
Substantivity/ Individuality – It has a separate
and autonomous existence. It can exist by
itself and not merely as a part of a whole
(Paras, 2008).
Appropriability
Susceptibility
to
ownership/possession, even if not yet actually
appropriated.
Properties NOT susceptible of appropriation
1.
Common things (res communes) –
GR: Those properties belonging to everyone.
While in particular no one owns common
property, still in another sense, res communes
are really owned by everybody in that their
use and enjoyment are given to all of mankind
(Paras, 2008).
e.g. air, wind, sunlight
XPN: Those that may be appropriated under
certain conditions in a limited way.
e.g. Electricity
2.
Not susceptible due to physical impossibility
e.g. Sun
3.
Not susceptible due to legal impossibility
e.g. Human body
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
134
PROPERTY
Once a house is demolished, its character as an
immovable ceases because a house is classified as
an immovable property by reason of its adherence
to the soil on which it is built (Bicerra v. Teneza,
G.R. No. L-16218, November 29, 1962).
CLASSIFICATION OF PROPERTY BY MOBILITY
REAL OR IMMOVABLE PROPERTY
(1995, 1997, 2007 Bar)
Categories of immovable property:
Mortgage of a building erected on a land
belonging to another
Real properties are categorized by: (NIDA)
1.
2.
3.
4.
A building, by itself, may be mortgaged apart from
the land on which it was built even if a mortgage
of land necessarily includes, in the absence of
stipulation of the improvements thereon,
buildings. Such a mortgage would still be a real
estate mortgage (REM) for the building would still
be considered immovable property even if dealt
with separately and apart from the land (Yee v.
Strong Machinery Company, G.R. No. 11658,
February 15, 1918).
Nature – Those which cannot be carried from
place to place;
Incorporation – Those which are attached to
an immovable in a fixed manner and
considered as an integral part thereof,
irrespective of its ownership;
Destination – Things placed in buildings or on
lands by the owner of the immovable or his
agent in such a manner that it reveals the
intention to attach them permanently thereto;
and
Analogy – Classified by express provision of
law.
A building can be the subject of a chattel
mortgage
When the parties have so expressly designated,
especially when it is considered that the property
given as a security is a house of mixed materials
which by its very nature is considered as personal
property (Luna v. Encarnacion, G.R. No. L-4637,
June 30, 1952).
IMMOVABLE BY NATURE AND
INCORPORATION
Par. 1, Art. 415. Land, buildings, roads and
constructions of all kinds adhered to the soil.
Land
Requisites for a building to be the subject of a
chattel mortgage
By its very nature is immovable property. In
whatever transaction land is involved, it is always
immovable.
1.
2.
A truckful of soil taken from the land (like garden
soil) becomes a personal property because it is no
longer adhered to the land. However, the moment
it is used to cover a land for ornamentation or
gardening, it becomes immovable again (Pineda,
2009).
Parties mutually agreed to consider the
house a personal property; and
That no innocent third party is
prejudiced.
NOTE: Under the doctrine of estoppel, parties to a
contract who agreed to treat as personal property
that which by nature would be real property are
prohibited from assuming inconsistent positions
and repudiating an obligation voluntarily
assumed.
Building
GR: A building is always immovable whether built
in one’s own land or rented.
A building, subjected to a chattel mortgage cannot
be sold extrajudicially (Pineda, 2009).
XPN: When a building is merely superimposed on
the soil or is sold for immediate demolition, in
which case it may be considered as movable or
personal property.
Par. 2, Art. 415. Trees, plants and growing
fruits, while they are attached to the land or
form an integral part of an immovable.
Trees and plants
e.g. Barong-barongs are not permanent structures
but mere superimpositions on land.
Trees may be either be:
Effect of demolition of a house
1.
135
A real property; or
CIVIL LAW
a.
2.
By nature - If they are spontaneous
products of the soil; or
b. By incorporation - If they have been
planted through cultivation or labor.
A personal property.
Assessment Appeals v. Meralco, G.R. No. L-15334,
January 31, 1964).
The moment trees are detached or
uprooted from the land it is considered as
personal property.
Par. 4, Art. 415. Statues, reliefs, paintings or
other objects for use or ornamentation, placed
in buildings or on lands by the owner of the
immovable in such a manner that it reveals the
intention to attach them permanently to the
tenements.
IMMOVABLE BY INCORPORATION & BY
DESTINATION
NOTE: In case of uprooted timber, they
are still not considered as personal
property because timber is an integral
part of the timber land.
“Placed by the owner”
Growing fruits
This means that the objects must be placed by the
owner of the immovable and not necessarily the
owner of the object.
GR: Growing fruits are considered as real
property so long as they are still attached to the
soil. Once removed from the soil, they become
personal properties.
Requisites
1.
XPN: Growing fruits may be exceptionally treated
as personal property pursuant to the provisions of
Art. 416(2) of the New Civil Code (Rabuya, 2008).
2.
E.g.
1. For the purposes of sale of the whole or part
of the crops
2. For purposes of attachment and execution;
and
3. For applying the provisions of the Chattel
Mortgage Law.
Par. 3 distinguished from Par. 4
PAR. 3
Cannot be separated
from the immovable
without breaking or
deterioration.
Need not be placed by
the owner.
IMMOVABLE BY INCORPORATION
Par. 3, Art. 415. Everything attached to an
immovable in a fixed manner, in such a way
that it cannot be separated therefrom without
breaking the material or deterioration of the
object.
Real property by
incorporation.
Res vinta
PAR. 4
Can be separated from
the immovable without
breaking
or
deterioration.
Must be placed by the
owner
of
the
immovable, or by his
agent whether express
or implied.
Real
property
by
incorporation
and
destination.
Par. 5, Art. 415. Machinery, receptacles,
instruments or implements intended by the
owner of the tenement for an industry or
works which may be carried on in a building or
on a piece of land & which tend directly to
meet the needs of the said industry or works.
These are immovables by incorporation, which
when separated from the immovable, regain their
condition as movable.
Steel towers are personal properties
Requisites for machinery to be considered real
property (COTE)
They are not buildings adhered to the soil [(NCC,
Art. 415(1)]; they are not attached to an
immovable in a fixed manner; they can be
separated without substantial damage or
deterioration, and they are not machineries
intended for works on the land (Board of
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Placed by the owner or (by the tenant) as
agent of the owner; and
With the intention of attaching them
permanently even if adherence will not
involve breakage or injury.
1.
2.
136
The industry or work must be Carried on
in a building or on a piece of land; and
The machinery must:
a. Be placed by the Owner of the
tenement or his agent;
PROPERTY
b.
Tend directly to meet the needs of the
said industry or work; and
Be Essential and principal to the
industry or work, and not merely
incidental thereto.
incidentals not considered immobilized by
destination because these businesses can carry on
their functions without these equipments
(Mindanao Bus Co. v. City Assessor and Treasurer,
G.R. No. L-17870, September 29, 1962).
Machinery placed by a tenant or by a
usufructuary is NOT real property.
Machineries bolted or cemented on real
property mortgaged
Since it is placed by a person having only a
temporary right, it does not become immobilized
(Valdez v. Central Altagracia, 225 U.S. 58, 1912).
It is NOT considered an immovable property. The
fact that machineries were bolted or cemented on
real property mortgaged does not make them ipso
facto immovable under Art. 415 (3) and (5) as the
parties intent has to be looked into.
c.
Where a tenant places the machinery under the
express provision of lease that it shall become a
part of the land belonging to the owner upon the
termination of the lease without compensation to
the lessee, the tenant acts as an agent of the owner
and the immobilization of the machineries arises
from the act of the owner in giving by contract a
permanent destination to the machinery. (Ibid.)
When immovable property by nature may be
treated as a chattel
Even if the properties appear to be immovable by
nature, nothing detracts the parties from treating
them as chattels to secure an obligation under the
principle of estoppel (Tsai v. CA, G.R. No. 120098,
October 2, 2001).
Equipment and living quarters of the crew
permanently
attached
are
immovable
properties
Effect of temporary separation of movables
from the immovables to which they are
attached
It is intended to meet the needs of the industry
being undertaken by MPC. The equipment
partakes of the nature of the immovable upon
which it has been placed.
There are two views:
1. They continue to be regarded as
immovables; and
2. Fact of separation determines the
condition of the objects thus recovering
their condition as movables.
The living quarters, if attached to the immovable
platform with permanence, becomes an
immovable as well. Permanence means they
cannot be separated without destroying the
platform or the quarters. If the attachment is not
permanent, or not merely superimposed on the
platform, then the living quarters are movable
properties (2007 Bar).
Equipment of a transportation
classified as personal property
Machines though essential and principal
elements of the industry are personal
properties when provided in the lease
agreement
business
The machines should be deemed personal
property pursuant to the Lease Agreement – is
good only insofar as the contracting persons are
concerned. Hence, while the parties are bound by
the Lease Agreement, third persons acting in good
faith are not affected by its stipulation
characterizing the subject machinery as personal
(Serg’s Products, Inc. v. PCI Leasing and Finance,
Inc., G.R. No. 137705, August 22, 2000).
A transportation business is not carried on in a
building or on a specified land. Hence, equipment
destined only to repair or service a transportation
business may not be deemed real property, but
personal property.
Machines must be essential and principal
elements in the industry and must directly meet
the needs of said industry. It does not include
movables which are merely incidentals, without
which the business can still continue or carry on
their functions.
Par. 6, Art. 415. Animal houses, pigeon-houses,
beehives, fish ponds or breeding places of
similar nature, in case their owner has placed
them or preserves them with the intention to
have them permanently attached to the land,
and forming a permanent part of it; the
animals in these places are included.
Cash registers, typewriters, etc. usually found and
used in hotels and restaurants are merely
137
CIVIL LAW
These are immovables by destination. They are
considered as real property if adhered to the soil
in a permanent manner. The animals in the houses
are considered part of the immovable.
Running or Stagnant Waters – These waters
refer to waters still running through the soil or
ground in mines and quarries (Pineada, 2009).
Par. 9, Art. 415. Docks and structure which,
though floating, are intended by their nature
and object to remain at a fixed place on a river,
lake or coast.
Beehives, Fishponds Or Breeding Places of
Similar Nature Are Real Property; Animals
Contained Therein, Included
When purposely constructed or attached to the
ground or on another immovable (like a treewall), fishponds and other similar breeding places,
like cemented container where breeding of fishes
or crustaceans is done, are considered immovable
property if the owner of the land or tenement
intended them to be permanent
When power barges are classified as real
properties
Power barges are categorized as immovable
property by destination, being in the nature of
machinery and other implements intended by the
owner for an industry or work which may be
carried on in a building or on a piece of land and
which tend directly to meet the needs of said
industry or work (Fels Energy, Inc. v. Province of
Batangas, G.R. No. 168557, February 19, 2007).
The animals in the animal houses, the pigeons in
the pigeon houses, the bees in the beehives, the
fish in the fishponds are included and considered
part of the immovable property (Pineda, 2009).
Floating platform is an immovable property
Cages are not included
The platform is an immovable property by
destination. It was intended by the owner to
remain at a fixed place on a river or coast. Art. 415
(9) of the NCC considers as real property “docks
and structures which, though floating are
intended by their nature and object to remain at a
fixed place on a river, lake, or coasts” (Fels Energy,
Inc. v. The Province of Batangas, G.R. No. 168557,
February 16, 2007).
It will be considered as personal property since
they can be moved from one place to another.
Par. 7, Art. 415. Fertilizer actually used on a
piece of land.
Fertilizers in sacks are not included
Fertilizers which are still in the sacks, although
there is intention to place them or use them on
land, are movable. Only fertilizers actually used on
a piece of land are deemed immovable since it is
already placed in the land and can never be
separated from it.
Vessels are considered personal property under
the civil law and common law and occasionally
referred to as peculiar kind of personal property.
It is essential that a record of documents affecting
the title to a vessel be entered in the record of the
Collector of Customs at the port of entry (Code of
Commerce, Art. 585).
Par. 8, Art. 415. Mines, quarries and slag
dumps, while the matter thereof forms part of
the bed, and waters either running or
stagnant.
Par. 10, Art. 415. Contracts for public works
and servitudes and other real rights over
immovable property.
By their nature, mines quarries and slag dumps
are immovable property.
Immovable By Analogy
Mines - These are mineral lands where
excavations are done to extract minerals such as
gold, ores etc.
These properties refer to contracts for public
works, servitudes and real rights over immovable
property (like usufruct). They are inseparable
from their sources which are immovable, Hence,
for convenience, they are considered immovable
not by their nature, destination or incorporation
but by analogy. While no tangible, they have the
characteristics of real property (Pineda, 2009).
Quarries - These are lands where stones are
chipped of or where sand is being extracted.
Slag dumps - They consist of waste and dirt taken
from a mine and mounted on the surface of the
ground under excavation
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
e.g. Contract over a construction of a bridge
138
PROPERTY
The author, composer, painter, sculptor, inventor
have rights over their works. These rights are
personal property (Pineda, 2009).
Interest in business is a personal property
With regard to the nature of the property
mortgaged which is one-half interest in the
business, such interest is a personal property
capable of appropriation and not included in the
enumeration of real properties in articles 335 of
the Civil Code, and may be the subject of mortgage
(Strochecker v. Ramirez, G.R. No. 18700, September
26, 1922).
Art. 416. The following things are deemed to
be personal property:
(1)
Those
movables
susceptible
of
appropriation which are not included in the
preceding article;
(2) Real property which by any special
provision of law is considered as personalty
(3) Forces of nature which are bought under
control by science; and
(4) In general, all things which can be
transported from place to place without
impairment of the real property to which they
are fixed.
The business of providing telecommunication
is a personal property
The business of providing telecommunication or
telephone service is likewise personal property
which can be the object of theft under Art. 308 of
the RPC.
Art. 417 The following are also considered as
personal property:
Indeed, while it may be conceded that
international long distance calls, the matter
alleged to be stolen in the instant case, take the
form of electrical energy, it cannot be said that
such international long distance calls were
personal properties belonging to PLDT since the
latter could not have acquired ownership over
such calls. PLDT merely encodes, augments,
enhances, decodes and transmits said calls using
its complex communications infrastructure and
facilities (Laurel v. Abrogar, G.R. No. G.R. No.
155076, January 13, 2009).
(1) Obligations and actions which have for
their object movables or demandable sums;
and
(2) Shares of stock of agricultural, commercial
and industrial entities, although they may have
real estate
PERSONAL OR MOVABLE PROPERTY
1995 Bar
Movable properties (SOFTSS)
1.
2.
3.
4.
5.
6.
Tests to determine whether a property is a
movable property (MES)
Movables Susceptible of appropriation
which are not included in Art. 415;
Real property which by any Special
provision of law considers as personalty;
e.g. Growing crops under the Chattel
Mortgage Law
Forces of nature which are brought under
the control of science ;
e.g. Electricity generated by electric
powers, solar light for batteries power.
In general, all things which can be
Transported from place to place without
impairment of the real property to which
they are fixed (NCC, Art. 416);
Obligations and actions which have for
their object movables or demandable
sums; and
Shares of stock of agricultural,
commercial and industrial entities,
although they have real estate (NCC, Art.
417).
a.
b.
c.
Test of Exclusion – Everything not included in
Art. 415 of NCC; e.g. ships or vessels or
interest in a business
By reason of a Special law – Immovable by
nature but movable for the purpose of the
special law; e.g. Growing crops for purposes
of the Chattel Mortgage Law
Test of Mobility – If the property is capable of
being carried from place to place without
injuring the real property to which it may in
the meantime be attached.
Art. 418. Movable property is either
consumable or non-consumable. To the first
class belong those movables which cannot be
used in a manner appropriate to their nature
without their being consumed; to the second
class belong all others.
Special Kind of Personal Property
CLASSIFICATION OF PROPERTY BY NATURE
139
CIVIL LAW
Properties
classified
consumability
1.
2.
according
2.
enter into co-production, joint ventures or
production-sharing agreements with private
individuals or corporations for their exploration,
development and utilization.
Consumable property – That which cannot
be used according to its nature without
being consumed or being eaten or used
up; and
Non-consumable property – That which
can be used according to its nature
without being consumed or being eaten
or used up.
Properties
classified
according
susceptibility to substitution
1.
to
NOTE: In order to be classified as property of
public dominion, an intention to devote it to
public use or to public service is sufficient and it is
not necessary that it must actually be used as
such.
Art. 420. The following things are property of
public dominion:
to
(1)Those intended for public use, such as
roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks,
shores, roadsteads, and others of similar
character;
Fungible property – That property which
belongs to a common genus permitting its
substitution; and
Non- fungible property – That property
which is specified and not subject to
substitution.
(2)Those which belong to the State, without
being for public use, and are intended for
some public service or for the development of
the national wealth.
NOTE: As to whether a property is fungible or
non-fungible is determined by the agreement
of the parties and not on the consumability of
the thing.
Q: Iloc Bilag sold a sold to respondents
separately various portions of a 159,496square meter parcel of land designated by the
Bureau of Lands as Approved Plan No. 544367,
Psu 189147 situated at Sitio Benin, Baguio City
(subject lands), and that they registered
the corresponding Deeds of Sale with the
Register of Deeds of Baguio City. This land is
forms part of the Baguio Townsite Reservation
which is a public land. Respondents, alleged to
have been harassed and threatened by
petitioners, filed a petition for Quieting of title
with prayer of Preliminary Injunction before
the RTC Br. 61 . Petitioners countered, among
others, that RTC has no jurisdiction. Should the
petition be granted?
Art. 419. Property is either of public dominion
or of private ownership
CLASSIFICATION OF PROPERTY BY
OWNERSHIP
1.
2.
3.
In relation to the State
a. Public Dominion; and
b. Patrimonial.
In relation to political subdivisions/local
government unit
a. Public use; and
b. Patrimonial.
In relation to private persons
a. Owned individually; and
b. Owned collectively.
A: No. since the subject lands are untitled and
unregistered public lands, then petitioners
correctly argued that it is the Director of Lands
who has the authority to award their ownership.
Thus, the RTC Br. 61 correctly recognized its lack
of power or authority to hear and resolve
respondents' action for quieting of title.
NOTE: Sacred and religious objects are considered
outside the commerce of man. They are neither
public nor private party (Barlin v. Ramirez, G.R. No.
L-2832, November 24, 1906).
PUBLIC DOMINION
Kinds of property of public dominion (USD)
a. For public Use;
b. Intended for public Service and not for
public use; and
c. For the Development of the national
wealth (NCC, Art. 420).
It means ownership by the public in general. It
may also mean properties or things held by the
State by regalian right.
Properties classified as public dominion cannot be
alienated but are not totally outside the commerce
of man as the Constitution allows the State to
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
140
PROPERTY
Characteristics of properties
dominion (ULEP-ROB)
1.
2.
3.
4.
5.
6.
7.
of
public
municipalities
All other property possessed by any of them is
patrimonial and shall be governed by this
Code, without prejudice to the provisions of
special laws.
In general, they can be Used by
everybody;
Cannot be Levied upon by execution or
attachment;
May Either be real or personal property;
Cannot be acquired by Prescription;
Cannot be Registered under Land
Registration Law and be the subject of
Torrens Title;
Outside the commerce of man – cannot be
alienated or leased or be subject of any
contract;
Cannot be Burdened by voluntary
easement.
Properties for public service and properties
for the development of national wealth
1.
2.
Art. 421. All other property of the State, which
is not of the character stated in the preceding
article, is a patrimonial property.
Public service – It depends on who pays
for the service. If paid for by the political
subdivision, public; if for profit,
patrimonial; and
National wealth – It is still property for
public use under the regalian doctrine.
Property of municipal corporations
1.
2.
3.
4.
5.
6.
7.
8.
Patrimonial Property
This is a property pertaining to the State which is
not intended for public use, public service, or for
the development of the national wealth. It is
intended rather for the attainment of the
economic ends of the State, that is, for its
subsistence.
Provincial roads;
City streets;
Municipal streets;
Squares;
Fountains;
Public waters;
Promenades; and
Public works for public service paid for by
said provinces, cities, or municipalities
(NCC, Art. 424).
NOTE: All other property possessed by any of
them are patrimonial.
Art. 422. Property of public dominion, when
no longer intended for public use or for public
service, shall form part of the patrimonial
property of the State.
Charging of fees does not remove property as
public dominion
Conversion From Property of Public Dominion
To Patrimonial Property, How Effected.
The charging of fees to the public does not
determine the character of the property whether
it is of public dominion or not. The airport lands
and buildings are devoted to public use because
they are used by the public for international and
domestic travel and transportation. The terminal
fees MIAA charges to passengers, as well as the
landing fees MIAA charges to airlines, constitute
the bulk of the income that maintains the
operations of MIAA (Manila International Airport
Authority v. CA, G.R. No. 155650, July 20, 2006).
When no longer intended or operated for public
use or public service, a property of public
dominion shall form part of the State’s patrimonial
property as of the date the Government, through
the Executive or Legislative Departments, has
formally declared that it is no longer needed for
said purposes (Ignacio vs. Director of Land [S.C], 58
Off. Gaz. 2403 [1960]; Cebu Oxygen Acetylynne Co.
vs. Bercilles, 66 SCRA 481).
PRIVATE OWNERSHIP
Art. 423. The property of provinces, cities, and
municipalities is divided into property for
public use and patrimonial property
Art. 424. Property for public use, in the
provinces, cities, and municipalities, consist of
the provincial roads, city streets, municipal
streets, the squares, fountains, public waters,
promenades, and public works for public
service paid by said provinces, cities, or
Art. 425. Property of private ownership,
besides the patrimonial property of the State,
provinces, cities, and municipalities, consists
of all property belonging to private persons,
either individually or collectively.
141
CIVIL LAW
Properties in private ownership of private
persons or entities
Private ownership of land prohibited to Aliens;
KRIVENKO DOCTRINE
All properties not belonging to the State or its
political subdivision are properties of private
ownership pertaining to private persons, either
individually or collectively.
General Rule: Aliens have no right to acquire any
public or private agricultural, commercial or
residential lands in the Philippines.
XPN: Aliens may only acquire such lands by
hereditary succession (Krivenko vs Registry of
deeds, G.R. No. L-630, November 15, 1947).
Patrimonial property of the State
It is the property intended for the attainment of
the economic ends of the State, that is, for
subsistence. It is owned by the State in its private
or proprietary capacity. It is the property not
devoted to public use, public service, or the
development of the national wealth.
Effect of a subsequent sale by the disqualified
alien vendee to a qualified Filipino citizen
If land is invalidly transferred to an alien who
subsequently becomes a citizen or transfers it to a
citizen, the flaw in the original transaction is
considered cured and the title of the transferee is
rendered valid.
An executive or legislative act is necessary to
reclassify property into patrimonial. The
conversion cannot be inferred from non-use.
NOTE: It may be disposed of by the State in the
same manner that private individuals dispose of
their own property subject, however, to
administrative laws and regulations.
Thus, the subsequent transfer of the property to
qualified Filipinos may no longer be impugned on
the basis of invalidity of the initial transfer. The
objective of the constitutional provision to keep
our lands in Filipino hands has been achieved (Lee
v. Republic of the Philippines, G.R. No. 12819,
October 3, 2001).
The fact that the Roppongi site has not been used
for a long time for actual Embassy service does
not automatically convert it to patrimonial
property. An abandonment of the intention to use
the Roppongi property for public service and to
make it patrimonial property must be definite.
Abandonment cannot be inferred from the nonuse alone (Laurel vs Garcia, G.R. No. 92013, July 25,
1990).
NOTE: The constitutional proscription on alien
ownership of lands of the public or private domain
was intended to protect lands from falling in the
hands of non-Filipinos (Lee v. Republic of the
Philippines, G.R. No. 12819, October 3, 2001).
Regalian Doctrine: All lands not otherwise
appearing to be clearly within private ownership
are presumed to be owned by the state (Pineda,
2009).
Any such conversion happens only if the property
is withdrawn from public use. Accordingly, the
withdrawal of the property in question from
public use by the City of Cebu and its subsequent
sale to the petitioner is valid (Cebu Oxygen and
Acetylene Co. v. Bercilles, 66 SCRA 481, August 29,
1975).
Reversion - An action where the ultimate relief
sought is to revert the land back to the
government under the Regalian Doctrine (Pineda,
2009).
Sewage system of a city is a patrimonial
property
Art. 426. Whenever by provision of the law, or
an individual declacration, the expression
“immovable things or property,” or “movable
things or property, “is used, it shall be deemed
to
include,
respectively,
the
things
enumerated in Chapter 1 and in Chapter 2.
It is property of the city, purchased with private
funds and not devoted to public use (it is for
profit). It is therefore patrimonial under the Civil
Code. Nor can the system be considered “public
works for public service” under Art. 424 because
such classification is qualified by ejusdem generis;
it must be of the same character as the preceding
items (City of Cebu v. NAWASA, G.R. No. 12892,
April 20, 1960).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Whenever the word “muebles,” or “furniture,”
is used alone, it shall not be deemed to include
money, credits, commercial securities, stocks
and bonds, jewelry, scientific or artistic
collection, books medals, arms, clothing,
horses or carriages and their accessories,
142
PROPERTY
1.
grains, liquids and merchandise, or other
things which do not have as their principal
object the furnishing or ornamenting of a
building except where from the context of the
law, or the individual declaration, the
contrary clearly appears.
2.
3.
“Muebles” Or “Furniture” When Used Alone;
Effects.
4.
5.
If used alone in a contract or agreement, it will not
include things found therein like money, jewelry,
collections, books, medals, arms, clothing, etc.,
which do not have as their principal purpose the
furnishing or the ornamenting of the building
where the “muebles” or “furniture” is found.
Q: Respondents inherited the subject property
from Emiliana Bacalso, by virtue of Decree No.
98992. Sometime later, they found the heirs of
Alejandra Delfin to be occupying the said
property, to which they even constructed
houses there. The heirs argued they have
better right for it was inherited to them after it
was bought by the predecessor from Emiliana
Bacalso; also, they are the ones paying the
subject property’s realty taxes. Do the
respondents have the better right to the
ownership and possession of the subject
property?
XPN: When the law or the individual declaration
clearly provides that the aforesaid things are
included.
OWNERSHIP
Art. 427. Ownership may be exercised over
things or rights.
A: Yes, respondents have the better right to the
ownership and possession of the subject property.
The basis is the LRA certification, daybook entry,
and Decree No. 98992 that was issued to Emiliana
Bacalso. The Decree bars all claims and rights
which arose as may have existed prior to the
decree of registration.
It is the juridical relation of a person over a thing
by virtue of which said person has the exclusive
power or authority to receive all the benefits and
advantages arising from said thing, save those
restricted by law or the recognized rights of
others.
Kinds of ownership
1.
Art. 428. The owner has the right to enjoy and
dispose of a thing, without other limitations
than those established by law.
Full ownership – Includes all the rights of an
owner;
The owner has also a right of action against
the holder and possessor of the thing in order
to recover it.
NOTE: Naked ownership + Usufruct
2.
Naked ownership – Ownership where the
rights to the use and to the fruits have been
denied;
Art. 429. The owner or lawful possessor of a
thing has the right to exclude any person from
the enjoyment and disposal thereof. For this
purpose, he may use such force as may be
reasonably necessary to repel or prevent an
actual or threatened unlawful physical
invasion or usurpation of his property
NOTE: Full ownership – Usufruct
3.
4.
Elastic – Power/s may be reduced and
thereafter automatically recovered upon the
cessation of the limiting rights;
General – The right to make use of all the
possibilities or utility of the thing owned,
except those attached to other real rights
existing thereon.
Exclusive – There may be two or more owners,
but only one ownership;
Independent – Other rights are not necessary
for its existence; and
Perpetual – Ownership lasts as long as the
thing exists. It cannot be extinguished by nonuser but only by adverse possession.
Sole ownership – Ownership is vested in only
one person; and
Co-ownership– Ownership is vested in two or
more persons. There is Unity of the property,
and plurality of the subjects.
JUS UTENDI, FRUENDI, ABUTENDI, VINDICANDI,
DISPODENDI, POSSIDENDI, ACCESIONES
Characteristics of ownership
Attributes of ownership
143
CIVIL LAW
1.
2.
3.
4.
5.
6.
7.
8.
9.
Right to enjoy (jus utendi); (NCC, Art. 428)
Right to the fruits (jus fruendi);
Right to abuse (jus abutendi);
Right to dispose (jus dispodendi); (NCC Art.
428)
Right to recover (jus vindicandi); (NCC. Art.
428)
Right to accessories (jus accessiones); and
Right to possess (jus possidendi).
Right to exclude (NCC, Art. 429)
Right to enclose (NCC, Art. 430)
over the subject property (based on his
consolidated title over the same) his incidental
right to possess the foreclosed property. To
reiterate, " [p]ossession being an essential right of
the owner with which he is able to exercise the
other attendant rights of ownership, after
consolidation of title[,] the purchaser in a
foreclosure sale may demand possession as a
matter of right."
Thus, it is only upon a credible showing by a third
party claimant of his independent right over the
foreclosed property that the law's prima facie
deference to the mortgagee's consolidated title
should not prevail. Verily, a mere claim of
ownership would not suffice. As jurisprudence
prescribes, the demonstration by the third partyclaimant should be made within the context of an
adversarial hearing, where the basic principles of
Evidence and Civil Procedure ought to be
followed, such as: (1) it is the claimant who has
the burden of proving his claim; (2) the claim
must be established through a preponderance of
evidence; and (3) evidence not presented or
formally offered cannot be admitted against the
opposing party. In this case, none of these
principles were followed for the CA considered
evidence that were not only submitted in a totally
different case against an entirely different party,
but are also innately inadequate to — at least —
prima facie show the source of the third party
claimant's independent title, all to the detriment
of the mortgagee who had already consolidated
his title to the contested property.(Heirs of
Peñaflor v. Dela Cruz, G.R. No. 197797, August 8,
2017)
Lease merely follows the property as a lien or
encumbrance
Q: On April 15, 1991, Nicolasa authorized her
daughter, Carmelita, Artemio's sister, to
mortgage the subject property to Jose, the
predecessor-in-interest of Jose, Jose Jr. and
Virginia in order to secure a loan in the
amount of P112,000.00. As Nicolasa failed to
settle her loan obligation when it fell due, Jose,
led
an
application
for
extra-judicial
foreclosure of mortgage before the Regional
Trial Court of Olongapo City, Branch 72 (RTC),
docketed as Case No. 07-0-91. After the
requirements of posting, notices, and
publication were complied with, the subject
property was sold at a public auction, where
Jose emerged as the highest bidder. A
Certificate of Sale was thus issued in his favor.
The period of redemption expired without the
subject property being redeemed; hence, a
Final Bill of Sale was issued and registered in
Jose's name. Thereafter, the latter executed an
Affidavit of Consolidation of Ownership. This
notwithstanding, Nicolasa persisted in her
occupancy of the subject property and refused
to deliver possession to Jose. Is the Writ of
Possession and Notice to Vacate issued by the
RTC is valid?
REMEDIES TO RECOVER POSSESSION
Legal remedies to recover possession of one’s
property
A: Yes. "It is well-settled that the purchaser in an
extrajudicial foreclosure of real property becomes
the absolute owner of the property if no
redemption is made within one [(1)] year from the
registration of the certificate of sale by those
entitled to redeem. As absolute owner, he is
entitled to all the rights of ownership over a
property recognized in Article 428 of the New
Civil Code, not least of which is possession, or jus
possidendi[.]"
1.
2.
3. Ancillary remedies common to both
a. Writ of preliminary mandatory
injunction; or
b. Writ of possession.
It should be clarified that the purpose of a petition
for the issuance of a writ of possession under Act
No. 3135, as amended by Act No. 4118, is to
expeditiously accord the mortgagee who has
already shown a prima facie right of ownership
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Personal property – Replevin
Real property
a. Accion Interdictal;
i. Forcible entry; or
ii. Unlawful detainer.
b. Accion Publiciana; or
c. Accion Reinvindicatoria.
Q: Spouses Gregorio and Rosario Centeno
previously owned the subject lots, which they
mortgaged in favor of Rural Bank of Sta.
144
PROPERTY
Barbara, Inc. as security for a P1,753.65 loan.
Sps. Centeno, however, defaulted on the loan,
prompting the bank to cause the extrajudicial
foreclosure of the mortgage. Consequently, the
subject lots were sold to the bank, being the
highest bidder at the auction sale.Sps. Centeno
failed to redeem the subject lots within the
one-year redemption period pursuant to
Section 6 of Act No. 3135. Yet, they still
continued with the possession and cultivation
of the aforesaid properties.
meter (sq. m.) parcel of land. His father leased
a 1,000-sq. m. portion of Lot 937-A (subject
land) to respondent Iloilo Santos Truckers, Inc.
(respondent. This notwithstanding, petitioner
allowed the lease to subsist and respondent
had been diligent in paying its monthly rent
amounting to P10,000.00 per month.
Petitioner claimed that when his father died,
respondent stopped paying rent. On the other
hand, respondent maintained that it was
willing to pay rent, but was uncertain as to
whom payment should be made. Respondent
made a consignation on the RTC br. 24 for the
amount of P521,396.89 equivalent for the rent
of February 2007 to March 2011. Petitioner
averred that the amount was insufficient to
cover the unpaid rentals plus interests from
February 2007 to May 2011. Petitioner
clarified that his earlier demand to pay was for
the period of February 2007 to May 2011.
Thus, petitioner posited that respondent had
continuously failed and refused to comply with
the terms and conditions of the lease contract
concerning the payment of monthly rental.
May petitioner eject respondent from the
subject land?
Gerry Centeno, son of Sps. Centeno, later on
purchased the said lots from his parents.
Accordingly, Rosario paid the capital gains
taxes on the sale transaction and tax
declarations were eventually issued in the
name of Gerry.
On March 19, 1998, Rural Bank of Sta. Barbara,
Inc. filed a petition for the issuance of a writ of
possession before the trial court, claiming
entitlement to the said writ by virtue of the
Final Deed of Sale covering the subject lots.
Gerry opposed the petition, arguing that he
purchased and has, in fact, been in actual, open
and exclusive possession of the same
properties for at least 15 years. Is the Rural
Bank of Sta. Barbara, Inc. is entitled to a writ of
possession over the subject lots?
A: Yes. For an unlawful detainer suit to prosper,
the plaintiff-lessor must show that: first, initially,
the defendant-lessee legally possessed the leased
premises by virtue of a subsisting lease
contract; second, such possession eventually
became illegal, either due to the latter's violation
of the provisions of the said lease contract or the
termination thereof; third, the defendant-lessee
remained in possession of the leased premises,
thus, effectively depriving the plaintiff-lessor
enjoyment thereof; and fourth, there must be a
demand both to pay or to comply and vacate and
that the suit is brought within one (1) year from
the last demand.
A: Yes.
It is well-established that after
consolidation of title in the purchasers’ name for
failure of the mortgagor to redeem the property,
the purchasers right to possession ripens into the
absolute right of a confirmed owner. At that point,
the issuance of a writ of possession, upon proper
application and proof of title, to a purchaser in an
extrajudicial foreclosure sale becomes merely a
ministerial function, unless it appears that the
property is in possession of a third party claiming
a right adverse to that of the mortgagor.
Gerry Centeno acquired the subject lots from his
parents, Sps. Centeno, on March 14, 1988 after
they were purchased by Rural Bank of Sta.
Barbara, Inc. and its Certificate of Sale at Public
Auction was registered with the Register of Deeds
of Iloilo City in 1971. It cannot therefore be
disputed that Gerry is a mere successor-ininterest of Sps. Centeno. Consequently, he cannot
be deemed as a third party who is actually holding
the property adversely to the judgment obligor
under legal contemplation.(Rural Bank of Sta.
Barbara, Inc. v. Gerry Centeno, G.R. 200667, March
11, 2013)
In this case, all requisites have been indubitably
complied with, considering that at the time the
suit was instituted on June 21, 2011: (a) there was
a subsisting lease contract[46] between petitioner
and respondent; (b) , respondent was not updated
in its monthly rental payments, as there is no
evidence of such payment for the months of April,
May, and even June 2011-- said omission
constitutes a violation of the lease contract on the
part of respondent; (c) respondent was still in
possession of the subject land; and (d) the case
was filed within one (1) year from petitioner's
letter dated May 24, 2011 demanding that
respondent pay monthly rentals and at the same
time, vacate the subject land. (Teodorico Zaragoza
Q: On June 26, 2003, petitioner Teodorico A.
Zaragoza (petitioner) bought a 3,058-square
145
CIVIL LAW
v. Iloilo Santos Truckers, Inc., G.R. No. 224022, June
28, 2017)
the prospective buyer upon fulfillment of the
condition agreed upon, that is, full payment of the
purchase price. The Shelter Contract Award
granted to respondent expressly stipulates that
"upon completion of payment of the full payment,
the UNION shall execute a Deed of Transfer and
shall cause the issuance of the corresponding
Transfer Certificate of Title in favor of and in the
name of the AWARDEE." It cannot be denied,
therefore, that the parties herein entered into a
contract to sell in the guise of a reimbursement
scheme requiring respondent to make monthly
reimbursement payments which are, in actuality,
installment payments for the value of the subject
house and lot.
RECOVERY OF POSSESSION OF MOVABLE
PROPERTY
Replevin
It is the remedy when the complaint prays for the
recovery of the possession of personal property.
NOTE: A property validly deposited in custodia
legis cannot be subject of a replevin suit (Calub v.
CA, G.R. No. 115634, April 27, 2000).
RECOVERY OF POSSESSION OF IMMOVABLE
PROPERTY
Accion publiciana
Accion interdictal
It refers to an ejectment suit filed within 10 years
after the expiration of one year from accrual of
cause of action or from the unlawful witholding of
possession of the realty (Gabriel Jr. v. Crisologo,
G.R. No. 204626, June 9, 2014).
It is a summary action to recover physical or
material possession only and it must be brought
within one year from the time the cause of action
arises. It may be:
1.
2.
It is an ordinary civil proceeding to recover the
better right of possession, except in cases of
forcible entry and unlawful detainer. What is
involved here is not possession de facto but
possession de jure.
Forcible Entry; or
Unlawful detainer.
Q: PTGWO-ITF (petitioner) is a duly registered
labor organization engaged in an on-going Shelter
Program, which offers residential lots and fullyfurnished houses to its members-seafarers under
a reimbursement scheme requiring no down
payment and no interest on the principal sum
advanced for the acquisition and development of
the land and the construction of the house.
Petitioner entered into a contract under the
Shelter Program with one of its members, Noriel
Decena, with the obligation to reimburse
petitioner the full amount thereof in 180 equal
monthly payments. It was stipulated in the
contract that if the respondent fails to pay 3
monthly reimbursements, he shall be given a 3month grace period to remit his arrears,
otherwise the contract will be cancelled.
Subsequently, the respondent failed to pay 25
monthly reimbursements, Hence the petitioner
cancelled the contract and treated it as rental
payments for his occupancy of the house and lot.
And thereafter file a case for unlawful detainer.
What was the contract entered into by the parties?
Accion reinvindicatoria
It is an action to recover real property based on
ownership. Here, the object is the recovery of the
dominion over the property as owner.
NOTE: Where the facts averred in the complaint
reveals that the action is neither one of forcible
entry nor unlawful detainer but essentially
involves a boundary dispute, the same must be
resolved in an accion reinvindicatoria (Sarmiento
v. CA, G.R. No. 116192, November 16, 1995).
Requisites of accion reivindicatoria
1.
2.
Q. Eliza Zuñ iga-Santos, through her authorized
representative, Nympha Z. Sales, filed a
Complaint or annulment of sale and revocation
of title against respondents Maria Divina
Gracia Santos-Gran and the Register of Deeds
of Marikina City before the RTC. The said
complaint was later amended. Petitioner
alleged, among others, that: (a) she was the
registered owner of three (3) parcels of land
located in the Municipality of Montalban,
A: The contract entered into was a contract to sell.
A contract to sell is defined as a bilateral contract
whereby the prospective seller, while expressly
reserving the ownership of the subject property
despite delivery thereof to the prospective buyer,
binds itself to sell the said property exclusively to
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Identity of property; and
Plaintiff’s title to the property.
146
PROPERTY
Province of Rizal, prior to their transfer in the
name of private respondent Gran; (b) she has a
second husband by the name of Lamberto C.
Santos, with whom she did not have any
children; (c) she was forced to take care of
Lamberto’s alleged daughter, Gran, whose
birth certificate was forged to make it appear
that the latter was petitioner’s daughter; (d)
pursuant to void and voidable documents Sale,
Lamberto succeeded in transferring the
subject properties in favor of and in the name
of Gran; (e) despite diligent efforts, said Deed
of Sale could not be located; and (f) she
discovered that the subject properties were
transferred to Gran. Accordingly, petitioner
prayed, inter alia, that Gran surrender to her
the subject properties and pay damages,
including costs of suit. Gran filed a Motion to
Dismiss, contending, inter alia, that (a) the
action filed by petitioner had prescribed since
an action upon a written contract must be
brought within ten (10) years from the time
the cause of action accrues, or in this case,
from the time of registration of the questioned
documents before the Registry of Deeds; and
(b) the Amended Complaint failed to state a
cause of action as the void and voidable
documents sought to be nullified were not
properly identified nor the substance thereof
set forth. Has the action for the reconveyance
of title already prescribed?
title and possession of the property does not run
against him and in such case, the action for
reconveyance would be in the nature of a suit for
quieting of title which is imprescriptible.(ZuñigaSantos v. Santos Gran, G.R. No. 197380, October 8,
2014)
Q: Felisa Buenaventura, the mother of the
Petitioner
Bella
and
respondents
Resurreccion, Rhea and Regina, owned a
parcel of land with a three-storey building. In
1960, Felisa transferred the same to her
daughter Bella, married to Delfin, Sr., and
Felimon, Sr., the common-law husband of
Felisa, to assist them in procuring a loan
from the GSIS. In view thereof, her title over
the property was cancelled and a new one
was issued in the names of Bella, married
to Delfin, Sr., and Felimon, Sr. Upon Felisa's
death in 1994, the Bihis family, Felisa's other
heirs who have long been occupyi ng the
subject property, caused the annotation of
their adverse claim over the property.
However, the annotation was cancelled, and
thereafter a new TCT over the property was
issued in the names of Bella, et al. Finally, by
virtue of a Deed of Sale dated January 23,
1997, the subject property was sold to Wilson
and Peter, in whose names TCT No. 170475
currently exists. A complaint for reconveyance
was then filed. Was there a trust established
between Felisa and Bella, Delfin,Sr., and
Felimon, Sr.?
A. Yes. It is evident that petitioner ultimately
seeks for the reconveyance to her of the subject
properties through the nullification of their
supposed sale to Gran. An action for reconveyance
is one that seeks to transfer property, wrongfully
registered by another, to its rightful and legal
owner. Having alleged the commission of fraud by
Gran in the transfer and registration of the subject
properties in her name, there was, in effect, an
implied trust created by operation of law pursuant
to Article 1456 of the Civil Code which provides:
Art. 1456. If property is acquired through mistake
or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the
benefit of the person from whom the property
comes. To determine when the prescriptive period
commenced in an action for reconveyance, the
plaintiff’s possession of the disputed property is
material. If there is an actual need to reconvey the
property as when the plaintiff is not in possession,
the action for reconveyance based on implied trust
prescribes in ten (10) years, the reference point
being the date of registration of the deed or the
issuance of the title. On the other hand, if the real
owner of the property remains in possession of
the property, the prescriptive period to recover
A: Yes. An express trust was created.
Trust is the right to the beneficial enjoyment of
property, the legal title to which is vested in
another. It is a fiduciary relationship that obliges
the trustee to deal with the property for the
benefit of the beneficiary. Trust relations between
parties may either be express or implied. An
express trust is created by the intention of the
trustor or of the parties, while an implied trust
comes into being by operation of law. Express
trusts are created by direct and positive acts of the
parties, by some writing or deed, or will, or by
words either expressly or impliedly evincing an
intention to create a trust.
From the letter executed by Felisa, it
unequivocally and absolutely declared her
intention of transferring the title over the subject
property to Bella, Delfin, Sr., and Felimon, Sr. in
order to merely accommodate them in securing a
loan from the GSIS. She likewise stated clearly
that she was retaining her ownership over the
subject property and articulated her wish to have
147
CIVIL LAW
her heirs share equally therein. Hence, while in
the beginning, an implied trust was merely
created between Felisa, as trustor, and Bella,
Delfin, Sr., and Felimon, Sr., as both trustees and
beneficiaries, the execution of the September 21,
1970 letter settled, once and for all, the nature of
the trust established between them as an express
one, their true intention irrefutably extant
thereon.(Wilson Go and Peter Go v. The Estate of
The Late Felisa Tamio De Buenaventura, G.R. No.
211972, July 22, 2015)
contract was for a period of three years. When
the contract expired, Francisco asked the
spouses to peacefully vacate the premises. The
spouses ignored the demand and continued
with the operation of the gasoline station.
One month after, Francisco, with the aid of a
group of armed men, caused the closure of the
gasoline station by constructing fences around
it.
Was the act of Francisco and his men lawful?
Why? (2014 Bar)
Q: A contract of lease executed by Alava
(lessor) and Anita Lao (lessee) was not
registered with the Register of Deeds. Aside
from Anita, Rudy Lao also leased a portion of
the same property where he put up his
business. At that time, Rudy knew that Anita
and her husband were the owners of the said
building. He also knew that she had leased
that portion of the property, and that Jaime
Lao, their son, managed and maintained the
building, as well as the business thereon. Rudy
eventually purchased the entire property from
Alava. Rudy then filed a complaint for unlawful
detainer against Jaime alleging that the latter
had occupied a portion of his property without
any lease agreement and without paying any
rentals, and prayed that an order be rendered
directing Jaime to vacate the premises. Should
the complaint be dismissed?
A: NO, the act was not lawful. Even if the lessee’s
right to occupy the premises has expired, the
lessor cannot physically oust the lessee from the
leased premises if the latter refuses to vacate. The
lessor must go through the proper channels by
filing an appropriate case for unlawful detainer or
recovery of possession. Every possessor has a
right to be respected in his possession (NCC, Art.
539) and in no case can possession be acquired
through force or intimidation as long as there is a
possessor who objects thereto (NCC, Art. 536). The
act of Francisco is an abuse of rights because even
if he has the right to recover possession of his
property, he must act with justice and give the
lessees their day in court and observe honesty and
good faith.
DISTINCTION BETWEEN FORCIBLE ENTRY AND
UNLAWFUL DETAINER
A: YES. The records in this case show that the
respondent has been in possession of the property
in question, not by mere tolerance or generosity of
Rudy, but as the manager of his mother, who
conducted her business in the building which
stood on a portion of the property leased from
Alava. Jaime’s possession was in behalf of his
mother, and not in his own right (Lao v. Lao, G.R.
No. 149599, May 16, 2005).
Forcible Entry
Unlawful Detainer
As to when possession became unlawful
Possession
of
the
defendant is unlawful
from the beginning as
he acquired possession
by; (FISTS)
Effect of non-registration of the contract of
lease
a)Force;
b)Intimidation ;
c)Strategy;
d)Threat; or
e)Stealth.
Although the lease contract was not filed with the
Register of Deeds, nevertheless, the buyer of the
property was bound by the terms and conditions
of said contract. The lease, in effect became a part
of the contract of sale. He had no cause of action
for unlawful detainer against the lessee because of
the subsisting contract of lease; hence, he could
not file the complaint against her (Lao v. Lao, G.R.
No. 149599, May 16, 2005).
Q: Spouses Magtanggol managed and operated
a gasoline station on a 1,000 sq.m. lot which
they leased from Francisco Bigla-awa. The
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Possession
is
inceptively lawful but
becomes illegal from the
time
defendant
unlawfully
withholds
possession after the
expiration
or
termination of his right
thereto.
NOTE: The question of
possession
is
primordial, while the
issue of ownership is
generally unessential in
unlawful detainer (Rosa
Rica Sales Center v. Sps.
Ong, G.R. 132197, August
16, 2005).
As to necessity of demand
No previous demand for Demand is jurisdictional
the defendant to vacate if the ground is non-
148
PROPERTY
2.
is necessary.
payment of rentals or
failure to comply with
the lease contract.
As to necessity of proof of prior physical
possession
Plaintiff must prove that
he was in prior physical
possession
of
the
premises until he was
deprived thereof by the
defendant.
3.
Plaintiff need not have
been in prior physical
possession.
4.
NOTE: The fact that
petitioners
are
in
possession of the lot
does not automatically
entitle them to remain
in possession (Ganilla v.
CA, G.R. No. 150755, June
28, 2005).
As to when one year period is counted from
One year period is One year period is
generally counted from counted from the date of
the date of actual entry last demand or last
of the land.
letter of demand.
REAL v. PERSONAL RIGHTS
Real Right (Right of
Personal Right (Right
possession;
to possess;
possessionis)
possidendi)
Creation
Created by both title and Created by title alone.
mode directly over a It is not directly
thing.
created over a thing
but
is
exercised
through
another
against whom
the
action is to be brought.
Object
Generally corporeal or Incorporeal
or
tangible.
Object
is intangible.
Object
specific property or covers all the present
thing.
and future property of
the debtor (NCC, Art.
2236).
Subjects
a. One definite active a. An active subject
subject (e.g. owner)
(creditor); and
b. One
indefinite b. A definite passive
passive
subject
subject (debtor).
which is the whole
world
Right of pursuit is
therefore available.
Real right follows its
object in the hands
of any possessor.
REQUISITES FOR RECOVERY OF PROPERTY
1.
Clearly identify the land he is claiming in
accordance with the title/s on which he
bases his right of ownership; and
NOTE: Burden of proof lies on the party
who asserts the affirmative of an issue.
The description should be so definite that
an officer of the court might go to the
locality where the land is situated and
definitely locate it.
2.
One in possession is presumed to be the
owner and he cannot be obliged to show or
prove a better title;
Possessor in the concept of an owner is
presumed to be in good faith and he cannot be
expected to be carrying every now and then
his proofs of ownership over the property;
and
He who relies on the existence of a fact,
should prove that fact. If he cannot prove, the
defendant does not have to prove.
Prove that he has a better title than the
defendant.
a. Best proof is a Torrens certificate;
and
b. Tax receipts, tax declarations are only
prima facie evidence of ownership; it
is rebuttable.
NOTE: Plaintiff’s title must be founded on
positive right or title and not merely on the
lack or inefficiency of the defendant’s title. In
other words, he shall not be permitted to rely
upon the defects of the defendant’s title (NCC,
Art. 434).
Enforceability
Enforceable against the Enforceable
only
whole world.
against the original
debtor or his transferee
charged with notice of
the personal rights
Limit
Limited by usefulness, No such limitation.
value or productivity of
the thing.
Reasons why the plaintiff is NOT allowed to
rely on the weakness of defendant’s title
1. Possibility that neither the plaintiff nor the
defendant is the true owner of the property.
In which case, the defendant who is in
possession will be preferred;
Extinguishment
149
CIVIL LAW
Extinguished by loss or
destruction of the thing
This principle authorizes an owner or lawful
possessor of a property to use reasonable force to
prevent or repel an actual or threatened unlawful
physical invasion or usurpation of property (NCC,
Art. 429). There must be no delay in the pursuit,
otherwise, his recourse will be to go to the court
for the recovery of property.
Not so extinguished.
Claim for damages may
still be pursued-in case
of loss or destruction of
the thing.
LIMITATIONS ON THE RIGHT OF OWNERSHIP
Requisites of the Principle of Self-Help
(RODA)
Those imposed by the: (SLOG-C2-SO)
1.
State in the exercise of:
a. Power of taxation;
b. Police power; and
c. Power of eminent domain
2.
Law;
a. Legal easements (i.e., easements of waters
and of right of way) and
b. The requirement of legitime in
succession;
3.
1.
2.
3.
4.
Reasonable force used
Such force is used by the owner or lawful
possessor
There is no delay
Actual or threatened physical invasion or
usurpation of the property.
Right of self-help exercised by third person
A third person who is not a possessor may repel
unlawful possession on the property owned by
another. In such an event, he is acting as a
negotorium gestor. The owner must indemnify
him for injuries sustained (Pineda, 2009).
Owner himself;
a. Voluntary easement
b. Mortgage
c. Pledge
d. Lease;
Test of reasonableness
4.
Grantor of the property on the grantee, either
by:
a. Contract
b. Donation or
c. Will;
5.
Those arising from Conflicts of private rights Those which take place in accession continua;
Constitution - On the prohibition against the
acquisition of private lands by aliens;
Acts in state of necessity – The law permits
injury or destruction of things owned by
another provided this is necessary to avert a
greater danger (with right to indemnity v.
principle of unjust enrichment); and
True owner must resort to judicial process –
When thing is in possession of another; law
creates a disputable presumption of
ownership to those in actual possession.
(2008 Bar).
German Management's drastic action of
bulldozing and destroying the crops of private
respondents on the basis of the doctrine of selfhelp was unavailing because the doctrine of selfhelp can only be exercised at the time of actual or
threatened dispossession which is absent in the
case at bar (German Mgmt. Services Inc. v. CA, G.R.
No. 76216, September 14, 1989).
Art. 429. The owner of lawful possessor of a
thing has the right to exclude any person from
yhe enjoyment and disposal thereof. For this
purpose, he may jse such force as may be
reasonably necessary to repel or prevent an
actual or threatened unlawful physical
invasion of usurpation of his property
“Sic utere tuo ut alienum non laedas”
The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third
person (NCC, Art. 431).
6.
7.
8.
The reasonableness of the defensive acts resorted
to by a possessor is determined not by what he
imagined to exist but by the objective situation
(Pineda, 2009).
NOTE: The intruder must not have succeeded in
its entry, for otherwise, he must resort to court
action; self-help cannot apply. One cannot put the
law into his own hands. Art. 429 must be read in
relation to Art. 536.
Property owner can use his property in any
manner he desires provided he does not injure the
rights of others sic utere tuo ut alienum non
laedas (Pineda, 2009).
PRINCIPLE OF SELF-HELP
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
150
PROPERTY
Art. 430. Every owner may enclose or fence
his land or tenements by means of walls,
ditches, live or dead hedges, or by any other
means without detriment to servitudes
constituted thereon.
Requisites to prove claim of ownership
Limitation on the right of the owner to enclose
or fence one’s land or tenement
Art. 434. In an action to recover, the property
must be identified, and the plaintiff must rely
on the strength of his title and not on the
weakness of the defendant’s claim.
1.
2.
Every owner may enclose or fence his land or
tenement by means of walls, ditches, live or dead
hedges or by any other means provided that in so
fencing the property, no servitude or easement
constituted thereon should be impaired (Pineda,
2009).
Requisites For Action To Recover Property
1. To clearly identify the land he is claiming
in accordance with the title or titles on which
he bases his right of ownership; and,
DOCTRINE OF STATE OF NECESSITY
2. To prove that he has a better title than the
defendant (Pineda, 2009).
The owner of a thing has no right to prohibit the
interference of another with the same, if the
interference is necessary to avert an imminent
danger and the threatened damage, compared to
the damage arising to the owner from the
interference, is much greater. The owner may
demand from the person benefited indemnity for
the damage to him (NCC, Art. 432).
Art. 435. No person shall be deprived of his
property except by competent authority and
for public use and always upon payment of
just compensation
Should this requirement be not first complied
with, the courts shall protect and, in a proper
case, restore the owner in his possession.
This principle authorized the destruction of
property which is lesser in value to avert the
danger poised to another property of greater
value.
Emminent Domain
Requisites of Doctrine of State of Necessity
1.
2.
Proper identification of the property; and
Title must be clear, strong and credible
(Pineda, 2009).
This is the superior right of the State to acquire
private property whether registered or not for
public use upon payment of just compensation.
Interference necessary to avert an
imminent danger and the threatened
damage to the actor or a third person;
Damage to another is much greater than
the damage to the property.
It is one of the limitations on the right of
ownership in the pursuit of public interest.
(Pineda, 2009)
Art. 433. Actual possession under claim of
ownership raises a disputable presumption of
ownership. The true owner must resort to
judicial process for the recovery of the
property.
Elements of “Taking” Of Property For Purposes
Of Eminent Domain
1.
The expropriator must enter a private
property;
2. The entrance into private property must be for
more than a momentary period;
3. The entry into the property should be under
warrant or color of legal authority
4. The property must be devoted to a public use
or otherwise informally appropriated or
injuriously affected; and,
5. The utilization of the property for public use
must be in such a way as to oust the owner and
deprive him of all beneficial enjoyment of the
property (National Power Corporation vs. Court of
Appeals, 254 SCRA 577)
Disputable presumption of ownership
There is disputable presumption of ownership
when a person is in actual possession of the
property under the claim of ownership (Pineda,
2009).
Resort of the owner rebutting the presumption
Under Art. 433 the remedy is judicial process to
recover the property of the person.
151
CIVIL LAW
Q: Alfredo Hababag, Sr. (Alfredo) was the
owner of several parcels of agricultural land
situated in the Municipality of Gubat,
Sorsogon. The aforesaid landholdings were
voluntarily offered for sale (VOS) to the
government under Republic Act No. (RA) 6657,
otherwise known as the "Comprehensive
Agrarian Reform Law of 1988,". The Land Bank
of the Philippines (LBP) initially valued the
subject lands at P1,237,850.00, but Alfredo
rejected the valuation. After summary
administrative
proceedings
for
the
determination of the amount of just
compensation, the Office of the Provincial
Agrarian Reform Adjudicator (PARAD) of the
Department of Agrarian Reform (DAR)
Adjudication Board (DARAB) fixed the value of
the
subject
lands
at
P1,292,553.20. Dissatisfied, Alfredo filed a
Complaint for the determination of the amount
of just compensation before the RTC. RTC
rendered a Decision fixing the amount of just
compensation of the subject lands at
P5,653,940.00. RTC applied the Income
Productivity Approach. CA set aside the RTC's
valuation for failure to give due consideration
to the factors enumerated in Section 17 of RA
6657 and the formula under DAR AO 6-92, as
amended by DAR AO 11-94. Moreover,
contrary to the limitation imposed by DAR AO
6-92 - i.e., that the computed value using the
applicable formula shall not exceed the
landowner's offer to sell - the CA found that the
amount as recomputed by the RTC was way
beyond
the
landowner's
offer
of
P1,750,000.00 as stated in the Claims
Valuation and Processing Form. Is the CA
correct in setting aside the computation of
RTC?
particular case. They are: (a) the acquisition cost
of the land; (b) the current value of like
properties; (c) the nature and actual use of the
property, and the income therefrom; (d) the
owner's sworn valuation; (e) the tax declarations;
(f) the assessment made by government
assessors; (g) the social and economic benefits
contributed by the farmers and the farmworkers,
and by the government to the property; and (h)
the nonpayment of taxes or loans secured from
any government financing institution on the said
land, if any. Corollarily, pursuant to its rulemaking power under Section 49 of the same law,
the DAR translated these factors into a basic
formula, which courts have often referred to and
applied, as the CA did in this case. It, however,
bears stressing that courts are not constrained to
adopt the said formula in every case since the
determination of the amount of just compensation
essentially partakes the nature of a judicial
function. In this accord, courts may either adopt
the DAR formula or proceed with its own
application for as long as the factors listed in
Section 17 of RA 6657 have been duly considered.
In keeping with these considerations, the Court
finds the CA's valuation - which made use of the
DAR formula - as reflective of the factors set forth
in Section 17 of RA 6657. Records disclose that the
CA's computation, as adopted from the LBP's own
computation, is based on: (a) actual production
data; (b) the appropriate industry selling prices of
the products from the Philippine Coconut
Authority and the Bureau of Agricultural Statistics
of Sorsogon; and (c) the actual uses of the
property. Likewise, the (a) income from the
coconut fruit-bearing trees, as well as the
unirrigated riceland, (b) cumulative cost of the
non-fruit-bearing trees; and (c) market value of
the cogonal land have been duly considered. The
Court observes that the holistic data gathered
therefrom adequately consider the factors set
forth in Section 17 of RA 6657, as well as the DAR
formula. As such, the CA's computation, which was
derived from the same, must be sustained. Lest it
be misunderstood, the ascertainment of just
compensation on the basis of the landholdings'
nature, location, and market value, as well as the
volume and value of the produce is valid and
accords with Section 17 of RA 6657 and the DAR
formula, as in this case.
A: Yes. Just compensation is defined as the full
and fair equivalent of the property taken from its
owner by the expropriator. It has been repeatedly
-stressed by this Court that the measure is not the
taker's gain but the owner's loss. The word "just"
is used to intensify the meaning of the word
"compensation" to convey the idea that the
equivalent to be rendered for the property to be
taken shall be real, substantial, full [and] ample.
In this relation, the RTC, sitting as a Special
Agrarian Court, has been conferred with the
original and exclusive power to determine just
compensation for parcels of land acquired by the
State pursuant to the agrarian reform program. To
guide the RTC in this function, Section 17 of RA
6657 enumerates the factors which must be taken
into consideration to accurately determine the
amount of just compensation to be awarded in a
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
On the contrary, the Court finds the RTC's
valuation to be improper, as it contradicts the
definition of "market value" as crafted by
established jurisprudence on expropriation. (Land
Bank of the Philippines v. Alfredo Hababag, Sr.,
Substituted by his wife, Consolacion, and children,
152
PROPERTY
namely: Manuel, Salvador, Wilson, Jimmy, Alfredo,
Jr., and Judith, all surnamed Hababag, G.R. No.
171352, September 16, 2015)
provisional deposit in the amount of P550,000.00
(i.e., at P2,750.00/sq. m.). Thus, this left an unpaid
balance of the "principal sum of the just
compensation," warranting the imposition of
interest. It is settled that the delay in the payment
of just compensation amounts to an effective
forbearance of money, entitling the landowner to
interest on the difference in the amount between
the final amount as adjudged by the court and the
initial payment made by the government. It bears
to clarify that legal interest shall run not from the
date of the filing of the complaint but from the
date of the issuance of the Writ of Possession on
May 5, 2008, since it is from this date that the fact
of the deprivation of property can be established.
As such, it is only proper that accrual of legal
interest should begin from this date. (Republic v.
Leonor Macabagdal, G.R. No. 227215, January 10,
2018)
Q: The Republic of the Philippines filed before
the RTC a complaint against an unknown
owner for the expropriation of a lot located in
Barangay Ugong, Valenzuela City for the
construction of the C-5 Northern Link Road
Project, otherwise known as North Luzon
Expressway (NLEX) Segment 8.1, traversing
from Mindanao Avenue in Quezon City to the
NLEX in Valenzuela City. Petitioner applied for
a writ of possession over the subject lot on May
5, 2008, which was granted, and was
required to deposit with the court the amount
of P550,000.00 (i.e., at P2,750.00/sq. m.) as
provisional deposit. However, respondent
Macabagdal was substituted as partydefendant upon sufficient showing that the
subject lot is registered in her name under the
Transfer Certificate Title of the lot.
Respondent did not oppose the expropriation,
and received the provisional deposit. The RTC
appointed a board of commissioners to
determine the just compensation for the
subject lot, which thereafter submitted report
dated May 23, 2014, recommending a fair
market value of P9,000.00/sq. m. as the just
compensation for the subject lot, taking into
consideration its location, neighborhood and
land classification, utilities, amenities, physical
characteristics, occupancy and usage, highest
and best usage, current market value offerings,
as well as previously decided expropriation
cases of the same RTC involving properties
similarly situated in the same barangay. The
Court of Appeals affirmed this decision, which
brought up the that the CA did not rule on the
issue of the applicable rate of interest which,
in this case, should be at twelve percent (12%)
per annum. from the filing of the complaint
until June 30, 2013, and thereafter, at six
percent (6%) per annum until full payment. Is
the 12% per annum interest on the unpaid
balance, computed from the time of the taking
of the subject lot until full payment, valid?
Q: On February 12, 2013, DPWH, led before the
RTC a complaint against respondent Belly,
seeking to expropriate the lots registered in
the name of respondent under Transfer
Certificate of Title (TCT) Nos. V-92188 8 and V92191 9 with a total area of 1,671 sq. m.
(subject lots), together with the improvements
thereon with an aggregate surface area of
2,121.7
sq.
m.
(collectively,
subject
properties), located in Kowloon Industrial
Compound, Tatalon Street, Brgy. Ugong,
Valenzuela City, for the construction of the
Mindanao Avenue Extension Project, Stage II-C
(Valenzuela City to Caloocan City). DPWH
manifested that it is able and ready to pay
Belly the amounts of P6,684,000.00 (i.e., at
P4,000.00/sq. m.) and P11,138,362.74,
representing the combined relevant zonal
value of the subject lots and the replacement
cost
of
the
improvements
thereon,
respectively.
In her answer, Belly contended that the offer
price is unreasonably low, and that she should
be compensated the fair market value of her
properties at the time of taking, estimated to
be at P25,000.00/sq. m. Moreover, the fair and
just replacement cost of the improvements on
the subject lots should be in the amount of
P22,276,724.00, pursuant to Section 10 of the
Implementing Rules and Regulations of
Republic Act No. (RA) 8974. DPWH was
eventually granted a Writ of Possession, after
Belly received the amount of P17,822,362.74,
representing 100% of the zonal value of the
subject properties.
A: No. The value of the landholdings should be
equivalent to the principal sum of the just
compensation due, and interest is due and should
be paid to compensate for the unpaid balance of
this principal sum after taking has been
completed. From the date of the taking of the
subject lot on May 5, 2008 when the RTC issued a
writ of possession in favor of petitioner, until the
just compensation therefor was finally fixed at
P9,000.00/sq. m., petitioner had only paid a
153
CIVIL LAW
The RTC appointed a board of commissioners
to determine the just compensation for the
properties which, thereafter, submitted its
Commissioner's Report dated June 10, 2013,
recommending the amounts of P7,000.00/sq.
m. and P12,000.00/sq. m. as the just
compensation for the subject lots and the
improvements thereon, respectively, and the
payment of six percent (6%) legal interest
therefor, reckoned from the time of taking.
the parameters set by the law and its
implementing rules and regulations in order to
ensure that they do not arbitrarily fix an amount
as just compensation that is contradictory to the
objectives of the law. Be that as it may, when
acting within the parameters set by the law itself,
courts are not strictly bound to apply the formula
to its minutest detail, particularly when faced with
situations that do not warrant the formula's strict
application. Thus, the courts may, in the exercise
of their discretion, relax the formula's application,
subject to the jurisprudential limitation that the
factual situation calls for it and the courts clearly
explain the reason for such deviation.
A: No. The construction of the Mindanao Avenue
Extension Project, Stage II-C (Valenzuela City to
Caloocan City) involves the implementation of a
national infrastructure project. Thus, for purposes
of determining the just compensation, RA 8974
and its implementing rules and regulations (IRR),
which were effective at the time of the filing of the
complaint, shall govern
In this case, the RTC and the CA upheld the
recommendation
of
the
court-appointed
commissioners, fixing the just compensation for
the improvements on the expropriated properties
at P12,000.00/sq. m., which merely considered
their location, classification, value declared by the
owner, and the zonal valuation of the subject lots.
However, there is no competent evidence showing
that it took into account the prevailing
construction costs and all other attendant costs
associated with the acquisition and installation of
an acceptable substitute in place of the affected
improvements/structures as required by the IRR.
Consequently, the Court cannot uphold and must,
perforce, set aside the said valuation as the just
compensation for the subject improvements.
The replacement cost method is premised on the
principle of substitution, which means that "all
things being equal, a rational, informed purchaser
would pay no more for a property than the cost of
building an acceptable substitute with like utility."
The case of Republic v. Mupas (Mupas) instructs
that in using the replacement cost method to
ascertain the value of improvements, the courts
may also consider the relevant standards
provided under Section 5 of RA 8974, as well as
equity consistent with the principle that eminent
domain is a concept of equity and fairness that
attempts to make the landowner whole. Thus, it is
not the amount of the owner's investment, but the
"value of the interest" in land taken by eminent
domain, that is guaranteed to the owner.
In relation thereto, the Court deems it proper to
correct the award of legal interest to be imposed
on the unpaid balance of the just compensation,
which shall be computed at the rate of twelve
percent (12%) p.a. from the date of taking, i.e.,
from April 10, 2013 when the RTC issued a writ of
possession in favor of petitioner, until June 30,
2013. Thereafter, or beginning July 1, 2013, until
fully paid, the just compensation due respondent
shall earn interest at the rate of six percent (6%)
p.a., in line with the amendment introduced by
BSP-MB Circular No. 799, Series of 2013. (Republic
v. Ng+, G.R. No. 229335, November 29, 2017)
While there are various methods of appraising a
property using the cost approach, Mupas declared
that the use of the depreciated replacement cost
method is consistent with the principle that the
property owner shall be compensated for his
actual loss, bearing in mind that the concept of
just compensation does not imply fairness to the
property owner alone, but must likewise be just to
the public which ultimately bears the cost of
expropriation. The property owner is entitled to
compensation only for what he actually loses, and
what he loses is only the actual value of the
property at the time of the taking. Hence, even as
undervaluation would deprive the owner of his
property without due process, so too would its
overvaluation unduly favor him to the prejudice of
the public.
Q: The Republic of the Philippines filed before
the RTC a complaint against an unknown
owner for the expropriation of a lot located in
Barangay Ugong, Valenzuela City for the
construction of the C-5 Northern Link Road
Project, otherwise known as North Luzon
Expressway (NLEX) Segment 8.1, traversing
from Mindanao Avenue in Quezon City to the
NLEX in Valenzuela City. Petitioner applied for
a writ of possession over the subject lot on May
5, 2008, which was granted, and was
required to deposit with the court the amount
It must be emphasized that in determining just
compensation, the courts must consider and apply
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
154
PROPERTY
of P550,000.00 (i.e., at P2,750.00/sq. m.) as
provisional deposit. However, respondent
Macabagdal was substituted as partydefendant upon sufficient showing that the
subject lot is registered in her name under the
Transfer Certificate Title of the lot.
Respondent did not oppose the expropriation,
and received the provisional deposit. The RTC
appointed a board of commissioners to
determine the just compensation for the
subject lot, which thereafter submitted report
dated May 23, 2014, recommending a fair
market value of P9,000.00/sq. m. as the just
compensation for the subject lot, taking into
consideration its location, neighborhood and
land classification, utilities, amenities, physical
characteristics, occupancy and usage, highest
and best usage, current market value offerings,
as well as previously decided expropriation
cases of the same RTC involving properties
similarly situated in the same barangay. The
Court of Appeals affirmed this decision, which
brought up the that the CA did not rule on the
issue of the applicable rate of interest which,
in this case, should be at twelve percent (12%)
per annum. from the filing of the complaint
until June 30, 2013, and thereafter, at six
percent (6%) per annum until full payment. Is
the 12% per annum interest on the unpaid
balance, computed from the time of the taking
of the subject lot until full payment, valid?
interest should begin from this date. (Republoc v.
Leonor Macabagdal, G.R. No. 227215, January 10,
2018)
Art. 436. When any property is condemned or
seized by competent authority in the interest
of health, safety or security, the owner thereof
shall not be entitled to compensation, unless
he can show that such condemnation or
seizure is unjustified.
Extent of ownership of parcel of land
The owner of a parcel of land is the owner of its
surface and of everything under it, and he can
construct thereon any works or make any
plantations and excavations which he may deem
proper, without detriment to servitudes and
subject to special laws and ordinances. He cannot
complain of the reasonable requirements of aerial
navigation (NCC, Art. 437).
AD COLEUM
The owner of a land has rights not only to its
surface but also to everything underneath and the
airspace above it up to a reasonable height.
Presumably, the landowners’ right extends to such
height or depth where it is possible for them to
obtain some benefit or enjoyment, and it is
extinguished beyond such limit as there would be
no more interest protected by law (Napocor v.
Ibrahim, G.R. No. 168732, June 29, 2007).
A: No. The value of the landholdings should be
equivalent to the principal sum of the just
compensation due, and interest is due and should
be paid to compensate for the unpaid balance of
this principal sum after taking has been
completed. From the date of the taking of the
subject lot on May 5, 2008 when the RTC issued a
writ of possession in favor of petitioner, until the
just compensation therefor was finally fixed at
P9,000.00/sq. m., petitioner had only paid a
provisional deposit in the amount of P550,000.00
(i.e., at P2,750.00/sq. m.). Thus, this left an unpaid
balance of the "principal sum of the just
compensation," warranting the imposition of
interest. It is settled that the delay in the payment
of just compensation amounts to an effective
forbearance of money, entitling the landowner to
interest on the difference in the amount between
the final amount as adjudged by the court and the
initial payment made by the government. It bears
to clarify that legal interest shall run not from the
date of the filing of the complaint but from the
date of the issuance of the Writ of Possession on
May 5, 2008, since it is from this date that the fact
of the deprivation of property can be established.
As such, it is only proper that accrual of legal
Art. 438. Hidden treasure belongs to the
owner of the land, building, or other property
on which it is found.
Nevertheless, when the discovery is made on
the property of another, or of the State or any
of its subdivisions, and by chance, one-half
thereof shall be allowed to the finder. If the
finder is a trespasser, he shall not be entitled
to any share of the treasure.
If the things found be of interest to science or
the arts, the State may acquire them at their
just price, which shall be divided in
conformity with the rule stated.
Art. 439. By treasure is understood, for legal
purposes, any hidden and unknown deposit of
money, jewelry or other precious objects, the
lawful ownership of which does not appear.
HIDDEN TREASURE
155
CIVIL LAW
Treasure is understood, for legal purposes, as any
hidden and unknown deposit of money, jewelry,
or other precious objects, the lawful ownership of
which does not appear (NCC, Art. 439) (1997,
2008, 2014 Bar).
The State is entitled to 75% share and the finder
to 25% (PD 7056-A).
The finder is not entitled to the hidden
treasure if it was deliberately searched. (1976
Bar)
“Other precious objects”
It was not found by chance (NCC, Art. 438).
Moreover, treasure is defined as hidden and
unknown deposit of precious objects, the lawful
ownership of which does not appear. There being
a tip, the deposit is known (NCC, Art. 439).
Under the ejusdem generis rule, the phrase should
be understood as being similar to money or
jewelry.
Oil or gold NOT considered as hidden treasure
Nature and ownership of the old notes and
coins
These are natural resources. The Regalian
Doctrine applies and not the provisions on hidden
treasure.
The ownership of the vault, together with the
notes and coins can now legally be considered as
hidden treasure because its ownership is no
longer apparent. The contractor is not a
trespasser and therefore entitled to one-half of the
hidden treasure and the owner of the property is
entitled the other half (NCC, Art. 438). Since the
notes and coins have historical value, the
government may acquire them at their just price
which in turn will be divided equally between
them (NCC, Art. 438, par. 3). The vault has been
buried for about a century and the successor of
the bank which previously owned it cannot
succeed by inheritance to the property. (2008
Bar)
Rule regarding discovery of hidden treasure
(NCC, Art. 438 in relation to Art. 718)
GR: If the finder is the owner of the land, building,
or other property where it is found, the entire
hidden treasure belongs to him.
XPN: If the finder is not the owner or is a stranger
(includes the lessee or usufructuary, he is entitled
to ½ thereof (NCC, Art. 566).
If the finder is married
If the finder is married, he or she gets one half of
the treasure or its value. His or her spouse is
entitled to share one-half of that share, it being a
conjugal property (NCC, Art. 117, par. 4, FC).
NOTE: Bills and notes found are not hidden
treasures. The owner can be traced through the
serial numbers.
Requisites in order that the finder be entitled
to any share in the hidden treasure (ACTA)
1.
2.
3.
Q: O, owner of Lot A, learning that Japanese
soldiers may have buried gold and other
treasures at the adjoining vacant Lot B,
belonging to Spouses X and Y, excavated in Lot
B where she succeeded in unearthing gold and
precious stones. How will the treasures found
by O to be divided – (1) 100% to O as finder,
(2) 50% to O and 50% to X and Y, (3) 50% to O
and 50% to the State (4) none of the above?
(2010 Bar)
Discovery was made on the property of
Another, or of the State or any of its political
subdivisions;
Made by Chance; and
He is not a Trespasser or Agent of the
landowner (NCC, Art. 438, par. 2).
NOTE: If the things found be of interest to science
or the arts, the State may acquire them at their
just price, which shall be divided in conformity
with the rule stated (NCC, Art. 438).
A: NONE OF THE ABOVE. The finding of the
treasure was not by chance because O knew that
the treasure was in Lot B. While a trespasser is
also not entitled to any share and there is no
indication in the problem whether or not O was a
trespasser, O is not entitled to share because the
finding was not by chance.
“By chance”
The finder had no intention to search for the
treasure. There is no agreement between the
owner of the property and the finder for the
search of the treasure.
ACCESSION
Yamashita treasure
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
156
PROPERTY
The right pertaining to the owner of a thing over
everything which is produced thereby, or which is
incorporated or attached thereto, either naturally
or artificially (NCC, Art. 440).
He who receives the fruits has the obligation to
pay the expenses made by a third person in their
production, gathering and preservation (NCC, Art.
443) (2009 Bar).
Right of accession
Meaning of third person
It is that right of ownership of which an owner of a
thing has over the products of said thing
(accession discreta), as well as to all things
inseparably attached or incorporated thereto
whether naturally or artificially (accession
continua) (Pineda, 2009).
One who is NOT the owner, builder, planter or
sower.
Art. 444. Only such as are manifest or born are
considered as natural or industrial fruits.
Which respect to animals, it is sufficient that
they are in the womb of the mother, although
unborn.
Accession is NOT a mode of acquiring
ownership
It is not one of the modes enumerated under Art.
712 (different modes of acquiring ownership). It is,
therefore, safe to conclude that accession is not a
mode of acquiring ownership.
Existence of the fruit
It depends on the type of fruit:
1. Annual (must be planted every year/must
re-plant after harvest; rice, wheat, corn) –
deemed manifest the moment their
seedlings appear; and
2. Perennial (only planted once and bear
fruit for several seasons; mango and
coconut trees) – deemed to exist only
when they actually appear.
Reason: Accession presupposes a previously
existing ownership by the owner over the
principal. Fundamentally, accession is a right
implicitly included in ownership, without which it
will have no basis or existence (Paras, 2008).
NOTE: In general, the right to accession is
automatic (ipso jure), requiring no prior act on the
part of the owner or principal.
Animal young
They are considered existing even if still in the
maternal womb. They should be considered
existing only at the commencement of the
maximum ordinary period for gestation.
Art. 441. To the owner belongs:
(1) The natural fruits;
(2) The industrial fruits;
(3) The civil fruits.
Pratus sequitor ventrem – offspring follows the
mother
ACCESSION DISCRETA
The right of accession with respect to what is
produced by the property.
This legal maxim means that the offspring follows
the dam (mother). The legal presumption, in the
absence of proof to the contrary, is that the calf, as
well as its mother belongs to the owner of the
latter, by the right of accretion (US v. Caballero,
G.R. No. 8608, September 26, 1913). Thus, when the
ownership over the offspring of the animal when
the male and female belongs to different owners,
the owner of the female was considered also the
owner of the young, unless there is a contrary
custom or speculation.
To the owner belongs the:
1.
2.
3.
Natural fruits - The spontaneous products
of the soil, and the young and other
products of animals;
Industrial fruits - Are those produced by
lands of any kind through cultivation or
labor;
Civil fruits - The rents of buildings, the
price of leases of lands and other
property and the amount of perpetual or
life
annuities
or
other
similar
income (NCC, Art. 441-442).
Art. 445. Whatever is built, planted or sown
on the land of another and the improvements
or repairs made thereon, belong to the owner
of the land, subject to the provisions of the
following articles.
Obligation of the owner who receives the fruit
from a third person
When fruits are deemed to exist
157
CIVIL LAW
1.
2.
Civil fruits accrue daily and are
considered personal property and may be
pro-rated; and
Natural and industrial fruits, while still
growing, are considered as real property;
ordinarily, they cannot be pro-rated.
c.
Basic principles
(BADONG-E)
1.
2.
3.
Art. 446. All works, sowing, and planting are
presumed made by the owner and at his
expense, unless the contrary is proved.
Ownership of fruits
GR: Fruits belong to the owner (NCC, Art. 441).
4.
XPNS: If the thing is: (PULPA)
1. In possession of a Possessor in good faith
(NCC, Art 546) (1992, 1996, 2000 Bar);
before the possession is legally
interrupted;
2. Subject to a Usufruct (NCC, Art. 566);
3. Lease of rural land;
4. Pledged [NCC, Art. 1680 and Art. 2102(7)];
pledge is entitled to the fruits but has the
obligation to compensate or set-off what
he receives with those which are owing to
him; or
5. In possession of an Antichretic creditor
(NCC, Art. 2132).
5.
6.
7.
1.
2.
3.
It is the right pertaining to the owner of a thing
over everything incorporated or attached thereto
either naturally or artificially; by external forces.
He who is in Bad faith is liable for
damages.
Accessory follows the principal;
Union or incorporation must generally be
effected in such a manner that to separate
the principal from the accessory would
result in substantial Damage to either or
diminish its value;
To the Owner of the thing belongs the
extension or increases to such thing;
Bad faith of one party Neutralizes the bad
faith of the other so that they shall be
considered in good faith;
He who is in Good faith may be held
responsible but not penalized; and
No one shall unjustly Enrich himself at the
expense of another.
Building – Erecting a structure or
construction of any kind, with roof for
residential, office, social, commercial or
other purposes;
Planting – Setting into the soil or land
seeds or seedlings of trees such as
mangoes, coconuts, etc;
Sowing – The act of scattering or
spreading
of
germinated
seeds
indiscriminately or evenly through hand
or mechanical device.
Maxims in connection with accession industrial
Immovable Property
a. Accession industrial (Art. 445-455)
i.
Building;
ii.
Planting; and
iii.
Sowing.
1.
2.
3.
Accession natural
i.
Alluvium; (Art. 457)
ii.
Avulsion; ( Art. 459)
iii.
Change of course of rivers; and
(Art. 461-462)
iv.
Formation of islands. (Art. 464465)
The accessory follows the principal;
The accessory follows the nature of that
to which it relates; and
What is built upon the land goes with it;
or the land is the principal, and whatever
is built on it becomes the accessory.
Rule on
industrial
ownership
regarding
accession
GR: The owner of the land is the owner of
whatever is built, planted or sown on that land,
including the improvements or repairs made
thereon.
Movable property
a. Adjunction or Conjunction;
b. Mixture; and
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
continua
Three kinds of industrial endeavors (BPS)
ACCESSION CONTINUA
2.
accession
ACCESSION INDUSTRIAL
Accession exists only if separation is not feasible.
Otherwise, separation may be demanded.
b.
in
FOR IMMOVABLES
GENERAL RULLES OF ACCESSION
1.
Specification.
158
PROPERTY
XPNs:
1. When the doer is in good faith the rule is
modified; or
2. Improvements on the land of one of the
spouses at the expense of the conjugal
partnership will belong to the partnership
or to the spouse who owns the land
depending on which of the two properties
has a higher value (FC, Art. 120).
NOTE: If the doer is in bad faith, he is entitled only
to
necessary expenses for the preservation of the
land.
Art. 447. The owner of the land who makes
thereon, personally or through another,
plantings, constructions or works with the
materials of another, shall pay their value;
and, if he acted in bad faith, he shall also be
obliged to the reparation of damages. The
owner of the materials shall have the right to
remove them only in case he can do so
without injury to the work constructed, or
without the plantings, constructions or works
being destroyed. However, if the landowner
acted in bad faith, the owner of the materials
may remove them in any event, with a right to
be indemnified for damages.
Good faith and bad faith distinguished.
Good Faith - A person who is not aware that there
exists in his title or mode of acquisition any flaw
which invalidates it.
Bad Faith - A person who is aware that there
exists in his title or mode of acquisition any flaw
which invalidates it.
When Both Parties Are in Bad Faith
If both parties are in bad faith, the bad faith of one
cancels the bad faith of the other. Hence, both are
considered in good faith.
NOTE: Good faith is always presumed; and upon
him who alleges bad faith on the part of the
possessor rests the burden of proof.
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CIVIL LAW
Rule if the planter and owner of the land are different
Planter
Landowner
Gathered Fruits
Planter in GF
Keeps fruits before possession is
legally interrupted (NCC, Art. 544,
par. 1) (2008 Bar).
No necessity to reimburse the
planter of expenses since the
planter retains the fruits (NCC, Art.
544, par. 1).
Standing Crops
Planter in GF
Reimbursed for expenses, for
production,
gathering
and
preservation (NCC, Art.443).
Planter
Landowner
Owns fruits provided he pays
planter expenses for production,
gathering and preservation (NCC,
Art. 443).
Planter in BF
Reimbursed for expenses for
production,
gathering
and
preservation (NCC, Art. 443).
Owns fruits provided he pays
planter expenses for production,
gathering and preservation (NCC,
Art. 443).
Planter in BF
Loses what is built, planted or
sown without right to indemnity
(NCC, Art 449).
Entitled to reimbursement for the
necessary
expenses
of
preservation of the land. (NCC, Art.
452).
Owns fruits (NCC, Art. 449).
Rule when the land owner is the builder, planter or sower (1999 Bar)
Land Owner and Builder, Planter or Sower
Good faith
Acquire building etc. after paying indemnity for value
of materials (NCC, Art. 447) (1999 Bar).
Owner of Materials
Good faith
1. Receive indemnity for value of materials; or
2. Remove materials if w/o injury to works,
plantings or constructions (NCC, Art. 447).
Bad faith
Good faith
1. Be indemnified for value of materials and
Acquire building etc. after paying value of materials
damages; or
AND indemnity for damages, subject to the right of
2. Remove materials, w/ or w/o injury and be
the owner of materials to remove (NCC, Art. 447).
indemnified for damages (NCC, Art. 447).
Good faith
Bad faith
1. Acquire w/o paying indemnity and right to
1. Lose materials w/o being indemnified and pay
damages (NCC, Art 445 and 449, by analogy); and
damages (NCC, Articles 445 and 449, by analogy);
2. Pay necessary expenses for preservation. (NCC,
ans
Articles 452 and 546).
2. Recover necessary expenses for preservation of
land without the right to retain the thing until
the indemnity is paid. (NCC, Articles 452 and
546).
Bad faith
Bad faith
As though both acted in good faith (in pari delicto)( NCC, Art. 453) (1999 Bar).
Rule when the land owner is NOT the builder, planter or sower
Land Owner
Good faith
He can either: (NCC, Art. 448) (1992, 1996, 2000,
2001 Bar).
1. Acquire improvements after paying indemnity
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Builder, Planter, Sower and Owner of Materials
Good faith
If the Land Owner:
1. Acquires the improvements after paying
indemnity, Builder, Planter, or Sower has the right
to retain the thing (and cannot be required to pay
160
PROPERTY
for:
a. Necessary expenses; and
b. Useful expenses which could either be:
a. Original costs of improvements; or
b. Increase in the value of the whole (NCC,
Articles 443 and 546).
2.
Sell the land to builder or planter or collect rent
from sower unless the value of the land is
considerably greater than the building etc., in
which case, the builder and planter shall pay
rent.
The parties shall agree upon the terms of the
lease and in case of disagreement, the court shall
fix the terms thereof.
1.
Good faith
The land owner can either:
a.
b.
c.
2.
Acquire improvements without paying
indemnity and collect damages (NCC, Articles
445, 449 and 451).
Order the demolition of work or restoration
to former condition and collect damages in
both cases (NCC, Art. 450); or
Sell the land to builder and planter or rent it
to the sower, and collect damages in both
cases (NCC, Art. 450) (2008 Bar).
rent) until indemnity is paid (NCC, Art. 546) .
If the useful improvements can be removed
without damage to the principal thing, the
Builder, Planter or Sower may remove them,
unless the person who recovers the possession
exercises the other (NCC, Articles 547 and 447).
2. Sells the land, Builder or Planter cannot be
obliged to buy the land if its value is considerably
more than that of the building or trees.
In such case, he shall pay reasonable rent.
The parties shall agree upon the terms of the lease
and in case of disagreement, the court shall fix the
terms thereof (NCC, Art. 448) (1992, 1996, 1999,
2000, 2001 Bar).
Bad faith
1. Lose improvements without right to be
indemnified unless the latter sells the land (NCC,
Art. 449) (1996, 2000 Bar).
2. Recover necessary expenses for preservation of
land without the right to retain the thing until
the indemnity is paid (NCC, Articles 452 and 546).
3. Pay damages to land owner (NCC, Art. 451).
Pay necessary expenses for preservation (NCC,
Articles 452 and 546).
Bad Faith
Acquires improvements after paying indemnity and
damages to builder, planter, sower, unless the latter
decides to remove (NCC, Articles 454 and 447).
He cannot compel the builder planter or sower to buy
the land.
1.
2.
Good Faith
Receive indemnity for improvements and receive
damages; or
Remove them in any event and receive damages
(NCC, Aricles 454 and 447).
The reason why said article (NCC, Art. 447) applies
may be explained as follows:
That if the land owner knew that something was
being built, planted or sown on his land by
another and he did not interpose any objection
thereto, it is as if he was the one building,
planting or sowing in bad faith on his own land
with materials belonging to another, using the
owner of the materials as his worker (Rabuya,
2008).
Bad Faith
Bad Faith
As though both acted in good faith (in pari delicto) (Art. 453).
161
CIVIL LAW
Rule when the land owner, builder, planter, sower and owner of materials are different persons
Land Owner
Good faith
He shall answer subsidiarily for their
value and only in the event that the
one who made use of them has no
property with which to pay (NCC, Art.
455).
and
He can either: (NCC, Art. 448)
1. Acquire improvements after
paying indemnity for:
a. Necessary expenses; and
b. Useful expenses which could
either be:
a. Original
costs
of
improvements; or
b. Increase in the value of
the whole (NCC, Art. 546
& 443).
2.
Builder, Planter, Sower
Good faith
Pay value of materials to its owner
without paying damages (NCC, Art. a.
455).
and
If the Land Owner:
1.
Acquires the improvement, b.
Builder, Planter, or Sower may
demand from the landowner
the value of the materials and
labor (NCC, Art 455).
And he has the right to retain
the thing (and cannot be
required to pay rent) until
indemnity is paid (NCC, Art.
546).
Owner of Materials
Good faith
Collect value of materials
primarily from
builder,
planter, sower, subsidiarily
from land owner (NCC, Art.
455); or
Remove the materials only if
w/o injury to the work
constructed, or without the
plantings, constructions or
works being destroyed
(NCC, Art. 447).
NOTE:
Landowner
is
subsidiarily liable only if he
appropriates/acquires the
improvements.
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 other
(NCC, Articles 547 and 447); or
Sell the land to builder and
planter or collect rent from
sower unless the value of the
land is considerably greater than
the building etc., in which case,
the builder and planter shall pay
rent.
The parties shall agree upon the 2.
terms of the lease and in case of
disagreement, the court shall fix
the terms thereof.
Sells the land or rents it,
Builder or Planter cannot be
obliged to buy the land if its
value is considerably more
than that of the building or
trees.
In such case, he shall pay
reasonable rent.
Good faith
Land Owner can either: (NCC, Art.
448)
1.
Acquire improvements after
paying indemnity for:
a. Necessary expenses; and
b. Useful expenses which could
either be:
a. Original
costs
of
improvements; or
The parties shall agree upon
the terms of the lease and in
case of disagreement, the court
shall fix the terms thereof
(NCC, Art. 448).
Good faith
If the Land Owner:
1.
Acquires the improvement,
Builder, Planter, or Sower has
the right to retain the thing
(and cannot be required to
pay rent) until indemnity is
paid (NCC, Art. 546).
If the useful improvements
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
162
Bad faith
1.
Loses materials without
right to indemnity (NCC, Art.
449); and
2.
Pays damages (NCC, Art.
451)
The builder, planter or sower
would be considered merely an
PROPERTY
b.
2.
Increase in the value of
the whole (NCC, Articles
546 and 443).
Sell the land to builder and
planter or collect rent from
sower unless the value of the
land is considerably greater than
the building etc., in which case, 2.
the builder and planter shall pay
rent.
The parties shall agree upon the
terms of the lease and in case of
disagreement, the court shall fix
the terms thereof.
Without subsidiary liability for
cost of materials.
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
other (NCC, Art. 547); or
agent of the owner of materials.
Therefore, the provisions of
Article 449 of the Civil Code will
apply by analogy. He is even
liable for damages (Rabuya,
2008).
Sells or rents it, Builder or
Planter cannot be obliged to
buy the land if its value is
considerably more than that
of the building or trees.
In such case, he shall pay
reasonable rent.
The parties shall agree upon
the terms of the lease and in
case of disagreement, the
court shall fix the terms
thereof (NCC, Art. 448).
Without indemnity to owner
of materials and collects
damages from him.
Good Faith
1.
Option to:
1.
a. Acquire
improvements
without paying indemnity
and collect damages (NCC,
Articles 445 and 449);
b. Order the demolition of work
2.
or restoration to former
condition
and
collect
damages in both cases (NCC,
Art. 450); or
c. Sell the land to builder and
planter or rent it to the
sower, and collect damages
3.
in both cases (NCC, Art. 450);
2. Has right to demand damages
from both (NCC, Art. 451);
Bad Faith
Lose improvements without
right to be indemnified
unless the landowner sells
the land (NCC, Art. 449);
Pay the value of the materials
to the owner of the
materials.; and
Bad Faith
Recover value from Builder,
Planter, Sower (in pari
delicto);
2.
If Builder, Planter, Sower
acquired
improvements,
remove the materials only if
without injury to the work
constructed, or without the
plantings, constructions or
works being destroyed
(NCC, Art. 447);
3.
No action
owner; and
4.
May be liable to the land
owner for damages (NCC,
Art. 451).
Recover necessary expenses
for preservation of land
without the right to retain
the thing until the indemnity
is paid (NCC, Articles 452 and
546);
Since both the owner of the
materials and the builder, etc.
3. Pay necessary expenses for
acted in bad faith, as between
preservation (NCC, Art. 452 &
them, they are treated as having
546); and
both acted in good faith (De Leon,
2006).
4. Not subsidiarily liable to the
owner of the materials because
4. Pay damages to land owner
as to him, the two acted in bad
(NCC, Art. 451).
faith (De Leon, 2006).
Bad faith
1.
Bad faith
Same as though both acted in good faith (in pari delicto)( NCC, Art. 453).
163
against
Bad faith
land
CIVIL LAW
Bad faith
Good faith
1. Acquires improvements after If he pays the owner of the
paying indemnity and damages, materials, plants or seeds:
unless the latter decides to
remove (NCC, Art. 454, 447 & 443); i. He may demand from the
and
landowner the value of the
materials and labor (NCC, Art
2. Cannot compel builder, planter
455) and shall also be obliged
and sower to buy land.
to the reparation of damages
(NCC, Art. 447); or
ii. Remove the materials in any
event, with a right to be
indemnified for damages (NCC,
Articles 454 and 447).
Bad faith
Bad faith
The owner of the land shall answer Pay value of materials to its owner
subsidiarily for their value and only (NCC, Art. 455)
in the event that the one who made and
use of them has no property with
which to pay (NCC, Art. 455).
If the Land Owner:
and
2.
Good faith
1. Collect value of materials
primarily from builder, planter,
sower, subsidiarily from land
owner (NCC, Art. 455); or
2. Remove the materials in any
event, with a right to be
indemnified for damages (NCC,
Art. 447).
Good faith
1.
1. Acquires the improvement,
Builder, Planter, or Sower may 2.
Land Owner can either: (NCC, Art.
demand from the landowner
448)
the value of the materials and
labor (NCC, Art 455).
1. Acquire
improvements
after
paying indemnity for:
And he has the right to retain the
a. Necessary expenses, and
thing (and cannot be required to
b. Useful expenses which could pay rent) until indemnity is paid
either be:
(Art. 546).
i.
Original
costs
of
improvements
If the useful improvements can be
ii.
Increase in the value of removed without damage to the
the whole (NCC, Articles principal thing, the possessor in
546 and 443).
good faith may remove them,
unless the person who recovers the
Sell the land to builder and planter or possession exercises option 2 (NCC,
collect rent from sower unless the Articles 547 and 447);
value of the land is considerably
greater than the building etc., 2.
in Sells or rents it, Builder or Planter
which case, the builder and planter cannot be obliged to buy the land if
shall pay rent.
its value is considerably more than
that of the building or trees.
The parties shall agree upon the
terms of the lease and in case of In such case, he shall pay
disagreement, the court shall fix the reasonable rent.
terms thereof.
The parties shall agree upon the
terms of the lease and in case of
disagreement, the court shall fix
the terms thereof (NCC, Art. 448).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
164
Collect value of materials
primarily from builder,
planter, sower, subsidiarily
from land owner (NCC, Art.
455); or
Remove the materials in
any event, with a right to be
indemnified for damages
(NCC, Art. 447).
PROPERTY
Rule when the land owner, builder, planter, sower and owner of materials are different persons
Land Owner
Good faith
He shall answer subsidiarily for their
value and only in the event that the
one who made use of them has no
property with which to pay (NCC, Art.
455).
and
He can either: (NCC, Art. 448)
3. Acquire improvements after
paying indemnity for:
c. Necessary expenses; and
d. Useful expenses which could
either be:
a. Original
costs
of
improvements; or
b. Increase in the value of
the whole (NCC, Art. 546
& 443).
4.
Builder, Planter, Sower
Good faith
Pay value of materials to its owner
without paying damages (NCC, Art. c.
455).
and
If the Land Owner:
3.
Acquires the improvement, d.
Builder, Planter, or Sower may
demand from the landowner
the value of the materials and
labor (NCC, Art 455).
And he has the right to retain
the thing (and cannot be
required to pay rent) until
indemnity is paid (NCC, Art.
546).
Owner of Materials
Good faith
Collect value of materials
primarily from
builder,
planter, sower, subsidiarily
from land owner (NCC, Art.
455); or
Remove the materials only if
w/o injury to the work
constructed, or without the
plantings, constructions or
works being destroyed
(NCC, Art. 447).
NOTE:
Landowner
is
subsidiarily liable only if he
appropriates/acquires the
improvements.
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 other
(NCC, Articles 547 and 447); or
Sell the land to builder and
planter or collect rent from
sower unless the value of the
land is considerably greater than
the building etc., in which case,
the builder and planter shall pay
rent.
The parties shall agree upon the 4.
terms of the lease and in case of
disagreement, the court shall fix
the terms thereof.
Sells the land or rents it,
Builder or Planter cannot be
obliged to buy the land if its
value is considerably more
than that of the building or
trees.
In such case, he shall pay
reasonable rent.
Good faith
Land Owner can either: (NCC, Art.
448)
3.
Acquire improvements after
paying indemnity for:
c. Necessary expenses; and
d. Useful expenses which could
either be:
a. Original
costs
of
improvements; or
The parties shall agree upon
the terms of the lease and in
case of disagreement, the court
shall fix the terms thereof
(NCC, Art. 448).
Good faith
If the Land Owner:
3.
Acquires the improvement,
Builder, Planter, or Sower has
the right to retain the thing
(and cannot be required to
pay rent) until indemnity is
paid (NCC, Art. 546).
If the useful improvements
165
Bad faith
3.
Loses materials without
right to indemnity (NCC, Art.
449); and
4.
Pays damages (NCC, Art.
451)
The builder, planter or sower
would be considered merely an
CIVIL LAW
b.
4.
Increase in the value of
the whole (NCC, Articles
546 and 443).
Sell the land to builder and
planter or collect rent from
sower unless the value of the
land is considerably greater than
the building etc., in which case, 4.
the builder and planter shall pay
rent.
The parties shall agree upon the
terms of the lease and in case of
disagreement, the court shall fix
the terms thereof.
Without subsidiary liability for
cost of materials.
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 other
(NCC, Art. 547); or
agent of the owner of materials.
Therefore, the provisions of
Article 449 of the Civil Code will
apply by analogy. He is even
liable for damages (Rabuya,
2008).
Sells or rents it, Builder or
Planter cannot be obliged to
buy the land if its value is
considerably more than that
of the building or trees.
In such case, he shall pay
reasonable rent.
The parties shall agree upon
the terms of the lease and in
case of disagreement, the
court shall fix the terms
thereof (NCC, Art. 448).
Without indemnity to owner
of materials and collects
damages from him.
Good Faith
5.
Option to:
5.
d. Acquire
improvements
without paying indemnity
and collect damages (NCC,
Articles 445 and 449);
e. Order the demolition of work
6.
or restoration to former
condition
and
collect
damages in both cases (NCC,
Art. 450); or
f. Sell the land to builder and
planter or rent it to the
sower, and collect damages
7.
in both cases (NCC, Art. 450);
6. Has right to demand damages
from both (NCC, Art. 451);
Bad Faith
Lose improvements without
right to be indemnified
unless the landowner sells
the land (NCC, Art. 449);
5.
6.
If Builder, Planter, Sower
acquired
improvements,
remove the materials only if
without injury to the work
constructed, or without the
plantings, constructions or
works being destroyed
(NCC, Art. 447);
7.
No action
owner; and
8.
May be liable to the land
owner for damages (NCC,
Art. 451).
Recover necessary expenses
for preservation of land
without the right to retain
the thing until the indemnity
is paid (NCC, Articles 452 and
546);
Pay the value of the materials
to the owner of the
materials.; and
Since both the owner of the
materials and the builder, etc.
7. Pay necessary expenses for
acted in bad faith, as between
preservation (NCC, Art. 452 &
them, they are treated as having
546); and
both acted in good faith (De Leon,
2006).
8. Not subsidiarily liable to the
owner of the materials because
8. Pay damages to land owner
as to him, the two acted in bad
(NCC, Art. 451).
faith (De Leon, 2006).
Bad faith
Bad Faith
Recover value from Builder,
Planter, Sower (in pari
delicto);
Bad faith
Same as though both acted in good faith (in pari delicto)( NCC, Art. 453).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
166
against
Bad faith
land
PROPERTY
Bad faith
Good faith
3. Acquires improvements after If he pays the owner of the
paying indemnity and damages, materials, plants or seeds:
unless the latter decides to
remove (NCC, Art. 454, 447 & 443); iii. He may demand from the
and
landowner the value of the
materials and labor (NCC, Art
4. Cannot compel builder, planter
455) and shall also be obliged
and sower to buy land.
to the reparation of damages
(NCC, Art. 447); or
iv. Remove the materials in any
event, with a right to be
indemnified for damages (NCC,
Articles 454 and 447).
Bad faith
Bad faith
The owner of the land shall answer Pay value of materials to its owner
subsidiarily for their value and only (NCC, Art. 455)
in the event that the one who made and
use of them has no property with
which to pay (NCC, Art. 455).
If the Land Owner:
and
4.
1.
Good faith
1. Collect value of materials
primarily from builder, planter,
sower, subsidiarily from land
owner (NCC, Art. 455); or
2. Remove the materials in any
event, with a right to be
indemnified for damages (NCC,
Art. 447).
Good faith
3.
3. Acquires the improvement,
Builder, Planter, or Sower may 4.
Land Owner can either: (NCC, Art.
demand from the landowner
448)
the value of the materials and
labor (NCC, Art 455).
3. Acquire
improvements
after
paying indemnity for:
And he has the right to retain the
c. Necessary expenses, and
thing (and cannot be required to
d. Useful expenses which could pay rent) until indemnity is paid
either be:
(Art. 546).
iii.
Original
costs
of
improvements
If the useful improvements can be
iv.
Increase in the value of removed without damage to the
the whole (NCC, Articles principal thing, the possessor in
546 and 443).
good faith may remove them,
unless the person who recovers the
Sell the land to builder and planter or possession exercises option 2 (NCC,
collect rent from sower unless the Articles 547 and 447);
value of the land is considerably
greater than the building etc., 4.
in Sells or rents it, Builder or Planter
which case, the builder and planter cannot be obliged to buy the land if
shall pay rent.
its value is considerably more than
that of the building or trees.
The parties shall agree upon the
terms of the lease and in case of In such case, he shall pay
disagreement, the court shall fix the reasonable rent.
terms thereof.
The parties shall agree upon the
terms of the lease and in case of
disagreement, the court shall fix
the terms thereof (NCC, Art. 448).
Good faith
Bad faith
Option to:
1.
a. Acquire
improvements 1. Lose improvements without
without paying indemnity
right to be indemnified unless
and collect damages (NCC,
the landowner sells the land
Art. 445 & 449);
(NCC, Art. 449);
167
Collect value of materials
primarily from builder,
planter, sower, subsidiarily
from land owner (NCC, Art.
455); or
Remove the materials in
any event, with a right to be
indemnified for damages
(NCC, Art. 447).
Good faith
Collect value of materials
primarily from builder,
planter, sower, subsidiarily
from land owner (NCC, Art.
455); or
CIVIL LAW
b.
c.
Order the demolition of work
or restoration to former 2. Recover necessary expenses for 2.
condition
and
collect
preservation of land without
damages in both cases (NCC,
the right to retain the thing
Art. 450); or
until the indemnity is paid
Sell the land to builder and
(NCC, Art. 452 & 546);
planter or rent it to the
sower, and collect damages in 3. Pay value of materials to its
both cases (NCC, Art. 450)
owner plus damages (NCC, Art.
(2008 Bar).
455); and
Remove materials in any
event if builder, planter,
sower acquired materials.
2. Pay necessary expenses for 4. Pay damages to land owner
preservation (NCC, Articles 452
(NCC, Art. 451).
and 546); and
3. Subsidiarily liable to owner of
materials.
Bad faith
Good faith
1. Acquires improvements after If he pays the owner of the
paying indemnity and damages, materials, plants or seeds:
unless the builder, planter or
sower decides to remove (NCC, 1. He may demand from the
Art. 454, 447 & 443); and
landowner the value of the
materials and labor (NCC, Art.
2.
2. Cannot compel builder, planter
455) and shall also be obliged
and sower to buy land.
to the reparation of damages
(NCC, Art. 447); or
2. Remove the materials in any
event, with a right to be
indemnified for damages (NCC,
Articles 454 and 447).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
168
Bad faith
1.
Loses materials without
right to indemnity (NCC,
Art. 449); and
Pays damages (NCC, Art. 451).
The builder, planter or sower
would be considered merely an
agent of the owner of materials.
Therefore, the provisions of
Article 449 of the Civil Code will
apply by analogy. He is even
liable for damages. (Rabuya,
2008).
PROPERTY
Q: Erlinda and Pedro borrowed the amount of
₱l00,000.00 from Teresita. They mortgaged
their property to secure the loan. After Pedro
died, Erlinda ended up being unable to pay the
loan. She sold the mortgaged property to
Teresita for ₱150,000.00. Teresita built a
three-storey
building
amounting
to
₱2,000,000.00. Thereafter, the heirs of Pedro
contested the validity of the Deed of Sale,
alleging that the deed was executed three
years after Pedro died, as such his signature
was forged. For that reason, the deed of sale
was cancelled and Teresita asked for the
payment of ₱2,000,000.00 for the building and
₱150,000.00 for the consideration of the deed.
Who should pay for the amount asked for?
He cannot refuse either to pay or sell and compel
the owner of the building to remove it from the
land where it is erected. He is entitled to such
removal only when, after having chosen to sell the
land, the other party fails to pay for the same
(Ignacio v. Hilario, G.R. No. L-175, April 30, 1946).
A: With respect to ₱150,000.00; a) As they were
married before the effectivity of the Family Code
of the Philippines and absent any showing of any
pre-nuptial agreement between Erlinda and
Pedro, it is safe to conclude that their property
relations were governed by the system of conjugal
partnership of gains. Hence, pursuant to Article
12125 of the Family Code, the ₱l00,000.00 loan
obligation, including interest, if any, is chargeable
to Erlinda and Pedro's conjugal partnership as it
was a debt contracted by the both of them during
their marriage; and b) the liability for the said
₱50,000.00 will not fall on all petitioners, but only
on Erlinda, as she was the only one among the
petitioners who was involved in the said sale.
However, with respect to ₱2,000,000.00, both
Teresita and Erlinda are in bad faith. Whenever
both
the
landowner
and
the
builder/planter/sower are in good faith (or in bad
faith, pursuant to the afore-cited provision), the
landowner is given two (2) options under Article
44836 of the Civil Code, namely: (a) he may
appropriate the improvements for himself after
reimbursing the buyer (the builder in good faith)
the necessary and useful expenses under Articles
54637 and 54838 of the Civil Code; or (b) he may
sell the land to the buyer, unless its value is
considerably more than that of the improvements,
in which case, the buyer shall pay reasonable rent.
Payment of ₱2,000,000.00 for the building is
subject at the option of the landowner. (Erlinda
Dinglasan Delos Santos et al. v. Alberto Abejon and
the estate of Teresita Dinglasan Abejon, G.R. No.
215820, March 20, 2017)
When the land’s value is considerably more than
the improvement, the landowner cannot compel
the builder to buy the land. In such event, a “forced
lease” is created and the court shall fix the terms
thereof in case the parties disagree thereon
(Depra v. Dumalo, G.R. No. L-57348, May 16, 1985).
The landowner upon demand for payment
CANNOT automatically become the owner of the
improvement for failure of the builder to pay for
the value of the land. There is nothing in Articles
448 and 546 which would justify the conclusion
that upon failure of the builder to pay the value of
the land, when such is demanded by the
landowner, the land owner becomes automatically
the owner of the improvement under Art. 445.
Rule when landowner sells the land to a third
person who is in bad faith
Builder must go against the third person but if the
latter has paid the land owner, a case against such
land owner may still be filed by the builder and
the third person may file a third party complaint
against land owner.
Recourse left to the parties where the builder
fails to pay the value of the land
The Civil Code is silent on this point. Guidance
may be had from these decisions:
1.
2.
3.
When there is good faith on the part of both
the owner of the land and the builder, planter
or sower
In Miranda v. Fadullon, G.R. No. L-8220,
October 29, 1955, the builder might be made
to pay rental only, leave things as they are,
and assume the relation of lessor and lessee;
In Ignacio v. Hilario, G.R. L-175, April 30, 1946,
owner of the land may have the improvement
removed; or
In Bernardo v. Bataclan, G.R. No. L-44606,
November 28, 1938, the land and
theimprovement may be sold in a public
auction, applying the proceeds first to the
payments of the value of the land, and the
excess if any, to be delivered to the owner of
the house in payment thereof.
Options available to the landowner if crops are
planted in good faith in his property (2000
Bar)
The owner of the land only has the options of
paying the value of the building or selling the land.
169
CIVIL LAW
As to the pending crops planted in good faith, the
landowner has the option of allowing the planter
in good faith to continue the cultivation and to
harvest the crops, or to continue the cultivation
and harvest the crops himself. In the latter option,
however, the landowner shall have the right to a
part of the expenses of cultivation and to a part of
the net harvest, both in proportion to the time of
possession (NCC, Art. 545).
value of the chapel with right of retention until he
is reimbursed (NCC, Arts. 448, 546 & 547).
(2) Bartolome loses whatever he built, without
any right to indemnify (NCC, Art. 449).
Q: Pecson owned a commercial lot on which he
built a building. For failure to pay realty taxes,
the lot was sold at public auction to
Nepomuceno, who in turn sold it to the
spouses Nuguid. The sale, however, does not
include
the
building.
The
spouses
subsequently moved for the delivery of
possession of the said lot and apartment.
Pecson filed a motion to restore possession
pending determination of the value of the
apartment.
Q: Believing that a piece of land belonged to
him, A erected thereon a building, using
materials belonging to C. the owner of the land,
B was aware of the construction being made by
A, but did not do anything to stop it. What are
the rights of A, B, and C, with respect to the
building and as against each other? (1984 Bar)
A: B, regardless of his good or bad faith, becomes
the owner of the building (NCC, Arts. 445 and 448).
However, A, a builder in good faith will be entitled
to reimbursement of his necessary and useful
expenses, with right to retain the same until paid.
He may also remove the construction, since B
acted in bad faith in not stopping the construction
(NCC, Arts. 454 and 447). C shall have the right to
reimbursement and may also remove them but
only if he can do so without injury to the work
(NCC, Art. 447).
May Pecson claim payment of rentals?
A: YES, Pecson is entitled to rentals by virtue of
his right of retention over the apartment. The
construction of the apartment was undertaken at
the time when Pecson was still the owner of the
lot. When the Nuguids became the uncontested
owner of the lot, the apartment was already in
existence and occupied by tenants.
NOTE: Art. 448 does not apply to cases where the
owner of the land is the builder but who later lost
the land; not being applicable, the indemnity that
should be paid to the buyer must be the fair
market value of the building and not just the cost
of construction thereof. To do otherwise would
unjustly enrich the new owner of the land.
Q: Suppose X was in good faith but Y knew that
X was constructing on his (Y's) land but simply
kept quiet about it, thinking perhaps that he
could get X's house later. What are the
respective rights of the parties over X's house
in this case? (1999 Bar)
Pending complete reimbursement, may the
spouses
Nuguid
benefit
from
the
improvement?
A: Since the lot owner Y is deemed to be in bad
faith (Art. 453), X as the party in good faith may
(a) remove the house and demand indemnification
for damages suffered by him, or (b) demand
payment of the value of the house plus reparation
for damages (Art. 447, in relation to Art. 454). Y
continues as owner of the lot and becomes, under
the second option, owner of the house as well,
after he pays the sums demanded.
A: NO. Since spouses Nuguid opted to appropriate
the improvement for themselves when they
applied for a writ of execution despite knowledge
that the auction sale did not include the apartment
building, they could not benefit from the lot’s
improvement until they reimbursed the improver
in full, based on the current market value of the
property (Pecson v. CA, G.R. No. 115814, May 26,
1995).
Q: Bartolome constructed a chapel on the land
of Eric. What are Bartolome’s rights if he were:
(1) possessor of the land in good faith, or (2) in
bad faith? (1996 Bar)
The builder is entitled to a refund of the
expenses he incurred and not on the market
value of the improvement (2000 Bar)
A: (1) A chapel is a useful improvement,
Bartolome may remove the chapel if it can be
removed without damage to the land, unless Eric
chooses to acquire the chapel. In the latter case,
Bartolome has the right of reimbursement of the
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Under Art. 448 in relation to Art. 546, the builder
in good faith is entitled to a refund of the
necessary and useful expenses incurred by him, or
the increase in value which the land may have
170
PROPERTY
acquired by reason of the improvement, at the
option of the landowner. The builder is entitled to
a refund of the expenses he incurred, and not to
the market value of the improvement.
coming back, they offered their house and lot
for sale to their neighbors, Mr. and Mrs. A (the
buyers) who agreed to buy the property for
128 Million. Because Mr. and Mrs. A needed to
obtain a loan from a bank first, and since the
sellers were in a hurry to migrate, the latter
told the buyers that they could already occupy
the house, renovate it as it was already in a
state of disrepair, and pay only when their
loan is approved and released. While waiting
for the loan approval, the buyers spent Pl
Million in repairing the house. A month later, a
person carrying an authenticated special
power of attorney from the sellers demanded
that the buyers either immediately pay for the
property in full now or vacate it and pay
damages for having made improvements on
the property without a sale having been
perfected.
NOTE: The case of Pecson v. CA, G.R. No. 115814,
May 26, 1995 is not applicable.
The landowner is entitled to the rentals of the
building if he opted to appropriate it, subject
to the right of retention of the builder in good
faith (2000 Bar)
The landowner is entitled to the rentals of the
building. As the owner of the land, he is also the
owner of the building being an accession thereto.
However, the builder in good faith is entitled to
retain the building until indemnity is paid.
Consequently, he is also entitled to retain the
rentals. He, however, shall apply the rentals to the
indemnity payable to him after deducting
reasonable cost of repair and maintenance.
What are the buyers' options or legal rights
with respect to the they expenses incurred in
improving the property under circumstances?
(2015 Bar)
Q: The Church, despite knowledge that its
intended contract of sale with the National
Housing Authority (NHA) had not been
perfected,
proceeded
to
introduce
improvements on the disputed land. On the
other hand, NHA knowingly granted the
Church temporary use of the subject
properties and did not prevent the Church
from making improvements thereon. Did the
Church and NHA act in bad faith?
A: The buyers here may be deemed possessors
or builders in good faith because they were
made to believe that they were allowed to make
repairs or renovation by the sellers themselves.
As builders in good faith, they have the right to
seek reimbursement for the value of the
improvements in case the owner decides to
appropriate them. They cannot be asked to
remove the improvements because that is not one
of the options given by law to the landowner in
case the builder is in good faith.
A: YES. The Church and the NHA, both acted in
bad faith, hence, they shall be treated as if they
were both in good faith (National Housing
Authority v. Grace Baptist Church, G.R. No. 156437,
March 1, 2004).
When there is bad faith on the part of both the
owner of the land and the builder, planter or
sower
Q: A squatter, X, is sought to be evicted by the
landowner Y, seeks reimbursement from the
latter for the improvements he made on the
property, while Y demands the value of all the
fruits X gathered from the land during the
occupancy thereof. Is X entitled to the
indemnity he prays for? Is he bound to pay for
the fruits he received? Why? (1983 Bar)
Q: The Municipality brought the action for the
recovery of a tract of land in the pueblo of Oas
claiming that it was a part of the public square.
Roa alleged that he was the owner of the
property and admitted in writing that he knew
that the land is owned by the Municipality and
that Castillo, whom he bought the property
from did not own the land. On the other hand,
when Roa constructed a substantial building
on the property in question the Municipality
did not oppose the construction. Is there bad
faith on both of the parties?
A: As a possessor in bad faith, X may recover only
the necessary expenses he may have incurred
while in possession and reimbursement for useful
improvements introduced by him if owner Y
chooses to retain them and X must pay Y the value
of all the fruits he received.
A: YES. Roa was not a purchaser in good faith. The
Municipality, having permitted the erection by the
defendant of a building on the land without
objection, acted in bad faith. The rights of the
Q: Mr. and Mrs. X migrated to the US with all
their children. As they had no intention of
171
CIVIL LAW
parties must, therefore, be determined as if they
both had acted in good faith. When there has been
bad faith, not only on the part of the person who
built, sowed, or planted on another's land, but also
on the part of the owner of the latter, the rights of
both shall be the same as if they had acted in good
faith. Therefore, the owner of the land on which
the building, sowing, or planting is done in good
faith shall have a right to appropriate as his own
the work, sowing, or planting after the indemnity
mentioned in articles 453 and 454, or, to oblige
the person who has built or planted, to pay him
the value of the land and to force the person who
sowed to pay the proper rent (Art. 453);
(Municipality of Oas vs Roa, G.R. No. L-2017,
November 24, 1906).
deposit created by the current of water becomes
manifest (Heirs of Navarro v. IAC, G.R. No. 68166,
February 12, 1997).
Man-made or artificial accretions to lands NOT
included
The rule on alluvion does not apply to man-made
or artificial accretions to lands that adjoin canals
or esteros or artificial drainage system (Ronquillo
v. CA, G.R. No 43346, March 20, 1991).
NOTE: If the deposits accumulate, not through the
effects of the current of the water, but because of
the constructions made by the owner purely for
defensive purposes against the damaging action of
the water, the deposits are still deemed to be
alluvion and will belong to the riparian owner.
ACCESSION NATURAL
If the deposit is brought about by sea water
ALLUVION
When the sea moves towards the estate and the
tide invades it, the same becomes a foreshore land
which consequently becomes part of the public
domain. Thus, it belongs to the state.
Alluvium or alluvion (2001, 2003, 2008, 2009
BAR)
It is the gradual deposit of sediment by natural
action of a current of fresh water (not sea water),
the original identity of the deposit being lost.
Where it is by sea water, it belongs to the State
(Government of Philippine Islands v. Cabangis, G.R.
No. L-28379, March 27, 1929).
Registration
Alluvial deposits must be registered. Though,
automatically it is owned by the riparian owner
(Heirs of Navarro v. IAC, G.R. No. 68166, February
12, 1997), it is still subject to acquisitive
prescription which may divest the riparian owner
the ownership over the accretion.
NOTE: Art. 457 of NCC states “To the owners of
the lands adjoining the banks of the rivers belongs
the accretion which they gradually receive from
the effects of the current of the waters.
Failure to register
Riparian owner
If the riparian owner fails to register the deposits
within the prescriptive period of acquiring real
property (10 years if ordinary prescription or 30
years if extraordinary prescription), it subjects
said accretion to acquisition thru prescription by
third persons (Reynante v. CA, G.R. No. 95907, April
8, 1992).
He is the owner of the land adjoining rivers.
Accretion v. Alluvium
Accretion is the process whereby the soil is
deposited while alluvium is the soil deposited.
However, registration under the Torrens System
does not protect the riparian owner against the
diminution of the area of his registered land
through gradual changes in the course of an
adjoining stream.
Requisites of accretion
1.
2.
3.
Deposit be gradual and imperceptible;
Resulted from the effects of the current of
the water; and
The land where the accretion takes place
is adjacent to the banks of a river
Reasons for granting a riparian owner the
right to alluvion deposited by a river
If all the requisites are present, the riparian owner
is automatically entitled to the accretion.
1.
NOTE: The alluvion starts to become the property
of the riparian owner from the time that the
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
172
To compensate him for:
a. Danger of loss that he suffers due to
the location of his land; and
b. The encumbrances and other
easements on his land
PROPERTY
2. To promote the interests of agriculture
as he is in the best position to utilize the
accretion.
land to which the segregated portion
belonged retains the ownership of it,
provided that he removes the same within
two years.
The owners of estates adjoining ponds or lagoons
do not acquire the land left dry by the natural
decrease of the waters, or lose that inundated by
them in extraordinary floods (NCC, Art. 458).
Art. 460. Trees uprooted and carried away by
the current of the waters belong to the owner
of the land upon which they may be cast, if the
owners do not claim them within six months.
If such owners claim them, they shall pay the
expenses incurred in gathering them or
putting them in a safe place.
NOTE: This rule does not apply to lakes.
Q: The First Accretion adjoined the southern
portion of the Motherland. Decades later, the
Second Accretion abutted the First Accretion
on its southern portion. OCT was issued in the
names of all the respondents covering the
Second Accretion. Petitioners alleged that
through deceit, fraud, falsehood, and
misrepresentation, respondent Victoriano,
with respect to the First Accretion, and the
respondents collectively, with regard to the
Second Accretion, had illegally registered the
said
accretions
in
their
names,
notwithstanding the fact that they were not the
riparian owners. Are the petitioners the
exclusive owners of the First and Second
Accretion?
CHANGE IN THE COURSE OF THE RIVER
Whenever a river, changing its course by natural
causes, opens a new bed through a private estate,
this bed shall become of public dominion (NCC,
Art. 462).
Requisites (NAPA)
1.
2.
3.
A: No. Petitioners are not the riparian owners of
the Motherland to which the First Accretion had
attached, hence, they cannot assert ownership
over the First Accretion. Consequently, as the
Second Accretion had merely attached to the First
Accretion, they also have no right over the Second
Accretion. Neither were they able to show that
they acquired these properties through
prescription as it was ·not established that they
were in possession of any of them. Being the
owner of the land adjoining the foreshore area,
respondent is the riparian or littoral owner who
has preferential right to lease the foreshore area.
Accordingly, therefore, alluvial deposits along the
banks of a creek or a river do not form part of the
public domain as the alluvial property
automatically belongs to the owner of the estate to
which it may have been added. The only
restriction provided for by law is that the owner
of the adjoining property must register the same
under the Torrens system; otherwise, the alluvial
property may be subject to acquisition through
prescription by third persons.(Heirs of Francisco I.
Narvasa, Sr. et.al v. Emiliana Imbornal et.al, G.R. No.
182908, August 6, 2014)
There must be a Natural change in the
course of the waters of the river;
otherwise, the bed may be the subject of a
State grant;
The change must be Abrupt or sudden;
The change must be Permanent; and
NOTE: The rule does not apply to temporary
overflowing of the river.
4.
There must be Abandonment by the
owner of the bed.
NOTE: Abandonment pertains to the decision not
to bring back the river to the old bed.
Effect when the river bed is abandoned
River beds which are abandoned through the
natural change in the course of the waters ipso
facto belong to the owners whose lands are
occupied by the new course in proportion to the
area lost. However, the owners of the lands
adjoining the old bed shall have the right to
acquire the same by paying the value thereof,
which value shall not exceed the value of the area
occupied by the new bed (NCC, Art. 461).
NOTE: The rule on abandoned river bed does not
apply to cases where the river simply dries up
because there are no persons whose lands are
occupied by the waters of the river.
Art. 459. Whenever the current of a river,
creek or torrent segregates from an estate on
its bank a known portion of land and
transfers it to another estate, the owner of the
Under the Water Code, the government or the
riparian owner may return the river back to the
original bed (P.D. 1067, Art. 58).
173
CIVIL LAW
AVULSION
Rule on avulsion of uprooted trees
It is the deposit of known (identifiable) portion of
land detached from the property of another which
is attached to the property of another as a result of
the effect of the current of a river, creek or torrent
(2001 Bar).
GR: The owner of the tree retains ownership.
XPN:
1. The owner must claim them within a period of
six months; and
Whenever the current of a river, creek, or torrent
segregates from an estate on its banks a known
portion of land and transfers it to another estate,
the owner of the land to which the segregated
portion belonged retains the ownership of it,
provided that he removes the same within 2 years
(NCC, Art. 459) (2001 Bar).
NOTE: The claim does not require actual
recovery. It can be recovered on the basis of
prescriptive period for acquiring movables
which is four years.
2.
Alluvium v. Avulsion (2001 Bar)
ALLUVIUM
Gradual and
imperceptible.
Soil cannot be
identified.
Belongs to the owner
of the property to
which it is attached.
Merely an attachment.
AVULSION
Sudden or abrupt
process.
Identifiable and
verifiable.
Belongs to the owner
from whose property
it was detached.
Detachment followed
by attachment.
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.
Requisites of avulsion (CAI)
1.
2.
3.
Effects Of Ramifications Of A River
Transfer is caused by the Current of a
river, creek, or torrent;
Transfer is sudden or Abrupt; and
The portion of the land transported is
known or Identifiable.
1. Some parts of the original estate may be
isolated but remaining steady and secure on their
location;
2. Other parts may be separated and pushed away
from the original estate.
NOTE: By analogy, land transferred from one
tenement to another by forces of nature other
than the river current can still be considered as an
avulsion.
Art. 464. Islands which may be formed on the
seas within the jurisdiction of the Philippines,
on lakes, and on navigable or floatable rivers
belong to the State.
Rule on acquisition of titles over an avulsion
Art. 465. Islands which through successive
accumulation of alluvial deposits are formed
in non-navigable and non-floatable rivers,
belong to the owners of the margins or banks
nearest to each of them, or to the owners of
both margins if the island is in the middle of
the river, in which case it shall be divided
longitudinally in halves. If a single island thus
formed be more distant from one margin than
from the other, the owner of the nearer
margin shall be the sole owner thereof.
GR: Original owner retains title.
XPNs: The owner must remove (not merely claim)
the transported portion within two years to retain
ownership, otherwise, the land not removed shall
belong to the owner of the land to which it has
been adjudicated in case of:
1.
2.
Abandonment; or
Expiration of two years, whether the failure to
remove be voluntary or involuntary, and
irrespective of the area of the portion known
to have been transferred.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
If uprooted trees have been transplanted by
the owner of the land which the trees may
have been cast and said trees have taken root
in said land, the owner of the trees, upon
making the claim, is required to refund the
expenses incurred in gathering them or in
putting them in safe place, including the
expenses incurred by the owner of the land
for the preservation of the trees (Rabuya,
2008).
ISLANDS
174
PROPERTY
Rules on ownership with regard to formation
of islands
Different kinds of accession continua as regard
movables
1.
2.
3.
LOCATION
OWNER
If formed on the sea
Within territorial
State
waters.
Outside territorial
First country to occupy.
waters.
If formed on lakes or navigable/ floatable
rivers
State
If formed on non-navigable/non-floatable
rivers
Nearer in margin to
Owner of nearer
one bank.
margin is the sole
owner.
If equidistant.
Island divided
longitudinally in halves.
Adjunction or conjunction;
Mixture; and
Specification.
Adjunction
It is the process by virtue of which two movable
things belonging to different owners are united in
such a way that they form a single object and each
of the things united preserves its own nature (NCC,
Art. 466).
Requisites of adjunction (2BUS)
There is adjunction when there are:
1.
2.
3.
4.
Q: Eduave is the owner of land forming part of
an island in a non-navigable river. Said land
was eroded due to a typhoon, destroying the
bigger portion thereof and improvements
thereon. Due to the movements of the river
deposits on the part of the land that was not
eroded, the area was increased. Later, Eduave
allowed Dodong to introduce improvements
thereon and live there as a caretaker.
However, Dodong later denied Eduave’s claim
of ownership so the latter filed action to quiet
title over the property. Who has a better right
to the land?
Two (2) movables;
Belonging to different owners;
United forming a single object; and
Separation would impair their nature or
result in substantial injury to either thing.
Classes of adjunction or conjunction
1.
2.
3.
4.
5.
A: EDUAVE has a better right to the land. The
land in question is an island that appears in a nonfloatable and non-navigable river, and it is not
disputed that Eduave is the owner of the parcel of
land. The island belongs to the owner of the parcel
of land nearer the margin (NCC, Art. 465). Because
the island is longer than the property of Eduave,
he is deemed ipso jure the owner of that portion
which corresponds to the length of his property
along the margin of the river (Jagualing v. CA, G.R.
No. 94283, March 4, 1991).
Painting (pintura);
Engraftment or Inclusion - Like setting a
precious stone on a golden ring;
Writing (escritura);
Weaving; and
Soldering- Joining a piece of metal to
another metal
a. Ferruminacion - Principal and
accessory are of the same metal; or
b. Plumbatura – Different metals (NCC,
Art. 468)
Ownership of the resulting object
The owner of the principal by law becomes owner
of the resulting object and should indemnify the
owner of the accessories for the values thereof.
Art. 467. The principal thing, as between two
things incorporated, is deemed to be that to
which the other has been united as an
ornament, or for its use or perfection.
NOTE: There is no accession when islands are
formed by the branching of a river; the owner
retains ownership of the isolated piece of land.
Art. 468. If it cannot be determined by the
rule given in the preceding article which of
the two things incorporated is the principal
one, the thing of the greater value shall be so
considered, and as between two things of
equal value, that of the greater volume.
Tests to determine the principal
MOVABLES
Art. 466. Whenever two movable things
belonging to different owners are, without
bad faith, united in such a way that they form
a single object, the owner of the principal
thing acquires the accessory, indemnifying
the former owner thereof for its value.
175
CIVIL LAW
1.
2.
3.
4.
That of greater value;
If two things are of equal value – That of
greater volume;
If two things are of equal volume – That to
which the other has been united as an
ornament, or for its use or perfection; and
That which has greater merits, utility and
volume if things (NCC, Art. 468).
accessory thing shall have a right to choose
between the former paying him its value or
that the thing belonging to him be separated,
even though for this purpose it be necessary
to destroy the principal thing; and in both
cases, furthermore, there shall be indemnity
for damages.
If either one of the owners has made the
incorporation with the knowledge and
without the objection of the other, their
respective rights shall be determined as
though both acted in good faith.
NOTE: In painting and sculpture, writings,
printed matter, engraving and lithographs, the
board, metal, stone, canvas, paper or
parchment shall be deemed the accessory
thing (NCC, Art. 468).
Ownership when the adjunction involves three
or more things
Rights of owners over the thing in adjunction
OWNER OF THE
ACCESSORY
Good faith
1. Acquire accessory
1. Receive payment for
and pay owner of
value of accessory; or
the accessory for
2. GR:
Demand
its value; or
separation provided
2. Demand
the thing suffers no
separation
injury.
provided the thing
suffers no injury.
XPN: If accessory is
more precious than
principal, he may
demand
separation
with or without injury
to the thing.
Good faith
Bad faith
Acquire
accessory Lose accessory and pay
w/o paying the owner damages.
of accessory and
entitled to damages.
Bad faith
Good faith
1. Pay
value
of 1. Receive payment and
accessory and pay
damages; or
damages; or
2. Have
accessory
2. Have the things
separated with or
separated,
even
without injury to
though there is
principal and receive
injury
to
the
damages.
principal and pay
damages.
Bad faith
Same as though both acted in good faith.
PRINCIPAL
If the adjunction involves three or more things,
the court should first distinguish the principal and
apply Art. 466 in an equitable manner such that
the principal acquires the accessory, indemnifying
the former owner thereof for its value.
Art. 469. Whenever the things united can be
separated without injury, their respective
owners may demand their separation.
Nevertheless, in case the thing united for the
use, embellishment or perfection of the other,
is much more precious than the principal
thing, the owner of the former may demand
its separation, even though the thing to which
it has been incorporated may suffer some
injury.
Separation of things is allowed in the following
cases:
1.
2.
3.
Separation without injury;
Separation with injury – Accessory is
much more precious than the principal,
the owner of the former may demand its
separation even though the principal may
suffer injury;
Owner of the principal acted in Bad faith
(NCC, Art. 469).
Art. 470. Whenever the owner of the
accessory thing has made the incorporation
in bad faith, he shall lose the thing
incorporated and shall have the obligation to
indemnify the owner of the principal thing for
the damages he may have suffered.
Art. 471. Whenever the owner of the material
employed without his consent has a right to
an indemnity, he may demand that this
consist in the delivery of a thing equal in kind
and value, and in all other respects, to that
employed, or else in the price thereof,
according to expert appraisal.
If the one who has acted in bad faith is the
owner of the principal thing, the owner of the
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
176
PROPERTY
Indemnity
Good faith
1. Right is subject to stipulations; or
2. Right is in proportion to the part belonging to
him (Co-ownership arises) (NCC, Art.422).
It is made either by:
1.
2.
Delivery of a thing equal in kind and
value; or
Payment of its price including the
sentimental value (NCC, Art. 471).
By will of only one owner/ by chance
Good faith
1. Have the things separated provided the thing
suffers no injury; or
2. If cannot be separated without injury, acquire
interest on mixture in proportion to his part
(co-ownership).
Art. 472. If by the will of their owners two
things of the same or different kinds are
mixed, or if the mixture occurs by chance, and
in the latter case the things are not separable
without injury, each owner shall acquire a
right proportional to the part belonging to
him, bearing in mind the value of the things
mixed or confused.
Bad faith
(caused the mixture)
Art. 473. If by the will of only one owner, but
in good faith, two things of the same or
different kinds are mixed or confused, the
rights of the owners shall be determined by
the provisions of the preceding article.
It is the combination of materials where the
respective identities of the component elements
are lost either voluntarily or by chance (NCC,
Articles. 472-473).
Bad faith
Good faith
(caused the mixture)
As if both acted in GF,
since the first owner
is in BF and the
second owner who
caused the mixture in
GF in a way ratifies
the BF of first owner.
If the material is more precious than the
transformed thing or is of more value, its
owner may, at his option, appropriate the new
thing to himself, after first paying indemnity
for the value of the work, or demand
indemnity for the material.
Kinds of mixtures (COM-CON)
Commixtion – mixture of solids; and
Confusion – mixture of liquids
Proportionate Ownership In Commixtion Or
Confusion
If in the making of the thing bad faith
intervened, the owner of the material shall
have the right to appropriate the work to
himself without paying anything to the maker,
or to demand of the latter that he indemnify
him for the value of the material and the
damages he may have suffered. However, the
owner of the material cannot appropriate the
work in case the value of the latter, for artistic
or scientific reasons, is considerably more
than that of the material.
If the things mixed or confused are not separable
without injury, each owner shall have a right to
the resulting thing proportionate to the value of
the thing he owns. (Pineda, 2009)
Rules regarding mixtures
First Owner
Second owner will
acquire
entire
mixture and entitled
to damages.
Art. 474. One who in good faith employs the
material of another in whole or in part in
order to make a thing of a different kind, shall
appropriate the thing thus transformed as his
own, indemnifying the owner of the material
for its value.
Mixture
1.
2.
First owner will lose his
part on the mixture and
pay damages to the second
owner.
As if both acted in GF,
because the 2nd owner in
GF was the one who
caused the ratification,
because the first owner.
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.
Good faith
Second Owner
By Will of Both Owners or by Accident
177
CIVIL LAW
Specification (NCC, Art. 474)
ADJUNCTION
It is the giving of new form to another’s material
through application of labor. The material
undergoes a transformation or change of identity.
The labor is the principal and the material used is
the accessory.
Respective rights of the maker and the owner
of the materials in specification
Maker (M)
Owner of Materials
(OM)
Good faith
GR: Appropriate the Receive payment
thing transformed and value of materials.
pay the owner of the
materials for its value.
for
SPECIFICATION
Involves at
least two
things.
Involves at
least two
things.
May involve one
thing (or more)
but form is
changed,
Accessory
follows the
principal.
Co-ownership
results.
Accessory
follows the
principal.
Things joined
retain their
nature.
Things mixed
or confused
may either
retain or lose
their
respective
natures.
The new object
retains or
preserves the
nature of the
original object.
Art. 475. In the preceding articles,
sentimental value shall be duly appreciated.
XPN: If the material is
more precious than the
thing transformed, the
owner of the materials
has the option to:
1. Acquire the work
and indemnify the
maker for his labor;
or
2. Demand indemnity
for the material.
Good faith
1. Receive payment for 1. Appropriate
new
value of his work; or
thing and pay the
2. Appropriate the new
maker for the work;
thing and pay the
or
owner of materials 2. Receive payment for
for its value.
value of materials.
Bad faith
Good faith
1. Lose the new thing 1. Appropriate the new
and pay damages to
thing without paying
owner
of
the
and receive damages;
materials; or
or
2. Pay
value
of
NOTE:
Not
materials
and
available if the
damages to owner of
new thing is more
the materials.
valuable
than
materials
for
scientific
or
artistic reasons.
Sentimental Value
The value placed by the owner on the property is
more than the actual value by reason of some
sentiments like, love, affection, respect and honor.
QUIETING OF TITLE
It is a proceeding in equity, the purpose of which
is the declaration of the invalidity of a claim on a
title or the invalidity of an interest in property
adverse to that of the plaintiff, and thereafter to
free the plaintiff and all those claiming under him
from any hostile claim thereon (Pineda, 2009).
Quieting of title is a common law remedy for the
removal of any cloud upon, doubt, or uncertainty
affecting title to real property. Whenever there is a
cloud on title to real property or any interest in
real property by reason of any instrument, record,
claim, encumbrance, or proceeding that is
apparently valid or effective, but is, in truth and in
fact,
invalid,
ineffective,
voidable,
or
unenforceable, and may be prejudicial to said title,
an action may be brought to remove such cloud or
to quiet the title. In such action, the competent
court is tasked to determine the respective rights
of the complainant and the other claimants, not
only to place things in their proper places, and
make the claimant, who has no rights to said
immovable, respect and not disturb the one so
entitled, but also for the benefit of both, so that
whoever has the right will see every cloud of
2. Receive payment for
the value of materials
and damages.
Adjunction, mixture and specification
distinguished
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
MIXTURE
178
PROPERTY
doubt over the property dissipated, and he can
thereafter fearlessly introduce any desired
improvements, as well as use, and even abuse the
property (Phil-Ville Development and Housing
Corporation v. Maximo Bonifacio, et al., G.R. No.
167391, June 8, 2011).
1.
2.
3.
4.
Nature of the action to quiet title
Actions for quieting of title are not suits in rem;
neither are they suits in personam. They are suits
against a particular person or persons in respect
to the res and the judgement will apply only to the
property in dispute.
Persons who may file an action to quiet title
1.
2.
3.
Classifications of actions
1.
2.
Scope of the action to quiet title
Only real properties can be subject of an action for
quieting of title (Pineda, 2009).
QUIETING OF TITLE : REQUIREMENTS
Requisites for an action to quiet title (LCDR)
Plaintiff must have a Legal or equitable
title to, or interest in the real property
which is the subject matter of the action;
A: NO. The attack is direct when the objective is to
annul or set aside such judgment, or enjoin its
enforcement. On the other hand, the attack is
indirect or collateral when, in an action to obtain a
different relief, an attack on the judgment is
nevertheless made as an incident thereof. The
averments readily show that the action was
neither a direct nor a collateral attack for Lim was
asserting only that the existing title registered in
the name of the petitioners' predecessors had
become inoperative due to the conveyance in
favor of Lim's mother, and resultantly should be
cancelled (Oño vs Lim, G.R. No. 154270, March 09,
2010).
NOTE: He need not be in possession of
said property (NCC, Art.477).
2.
3.
4.
Registered owner;
A person who has an equitable right or
interest in the property; or
The State.
Q: Lim filed in the RTC in Cebu City a petition
for the reconstitution of the owner's duplicate
copy of OCT No. RO-9969-(O-20449), alleging
that said OCT had been lost during World War
II by his mother, Luisa, who acquired title to it
by virtue of a deed of sale, albeit unregistered.
On account of the Oños' opposition, and upon
order of the RTC, Lim converted the petition
for reconstitution into a complaint for quieting
of title. The Oños now contend that this action
for quieting of title should be disallowed
because it constituted a collateral attack on
OCT No. RO-9969-(O-20449). Is their
contention correct?
Remedial action – one to remove cloud on
title; and
Preventive action – one to prevent the casting
of a (threatened) cloud on the title.
1.
Prevent future litigation on the
ownership of the property;
Protect true title & possession;
To protect the real interest of both
parties; and
To determine and make known the
precise state of title for the guidance of
all.
There must be Cloud in such title;
Such cloud must be Due to some (IRCEP)
a. Instrument;
b. Record;
c. Claim;
d. Encumbrance; or
e. Proceeding which is apparently valid
but is in truth invalid, ineffective,
voidable or unenforceable, and is
prejudicial to the plaintiff’s title; and
Art. 476. Whenever there is a cloud on title to
real property or any interest therein, by
reason of any instrument, record, claim,
encumbrance or proceeding which is
apparently valid or effective but is in truth and
in fact invalid, ineffective, voidable, or
unenforceable, and may be prejudicial to said
title, an action may be brought to remove such
cloud or to quiet the title.
Plaintiff must
a. Return to the defendant all benefits
he may have received from the latter;
or
b. Reimburse him for expenses that may
have redounded to his benefit.
Reasons for quieting of title
An action may also be brought to prevent a
cloud from being cast upon title to real
179
CIVIL LAW
property or any interest therein.
ACTION TO
ACTION TO REMOVE
QUIET TITLE
CLOUD ON TITLE
As to purpose
To put an end to To
procure
the
vexatious litigation in cancellation; delivery;
respect to the property release
of
an
involved.
instrument,
encumbrance or claim,
which constitutes a
claim in plaintiff’s title,
and which may be used
to injure or to vex him
in his enjoyment of his
title.
As to nature of the action
Remedial in nature,
Preventive in nature, to
involving a present
remove a cloud which
adverse claim.
maybe used for future
actions.
As to nature of claims
Plaintiff asserts own Plaintiff declares his
claim and declares that own claim and title and
the claim of the at the same time
defendant is unfounded indicates the source
and calls on the and
nature
of
defendant to justify his defendant’s
claim
claim on the property pointing its defect and
that same may be prays
for
the
determined by the declaration
of
its
court.
validity.
Filed against whom
Against people who Against defendant who
have claims; claims are asserts claims based on
more general in nature
an invalid instrument
(but not apparent).
Rules in actions for quieting of title
1.
2.
3.
4.
5.
6.
7.
These put an end to vexatious litigation in
respect to property involved; plaintiff
asserts his own estate & generally
declares that defendant’s claim is without
foundation;
Remedial in nature;
Not suits in rem nor personam but suits
against a particular person or persons in
respect to the res (quasi in rem);
May not be brought for the purpose of
settling a boundary disputes.
Applicable to real property or any interest
therein;
An action to quiet title brought by the
person in possession of the property is
IMPRESCRIPTIBLE; and
If he is not in possession, he must invoke
his remedy within the prescriptive
period as follows;
a) Ordinary prescription- 10 years
b) Extraordinary prescription- 30 years.
Requisites for existence of a cloud (ATP)
1.
There is an Apparently valid or effective
instrument;
NOTE: They must appear valid or effective –
and extraneous evidence is needed to prove
their invalidity or ineffectivity.
2.
3.
But such instrument is in Truth:
a. Invalid;
b. Ineffective;
c. Voidable;
d. Unenforceable;
e. Has been extinguished or terminated; or
f. Has
been
barred
by
extinctive
prescription.
Such instrument may be Prejudicial to the
title.
Action to quiet title cannot be availed until the
donation has been first revoked
The barangay traces its claim of ownership over
the disputed property to a valid contract of
donation which is yet to be effectively revoked.
Such rightful claim does not constitute a cloud on
the supposed title of Edgardo over the same
property removable by an action to quiet title
(Dolar v. Brgy. Lublub, G.R. No. 152663, November
18, 2005).
Purpose of an action to remove cloud on title
Art. 477. The plaintiff must have legal or
equitable title to, or interest in the real
property which is the subject matter of the
action. He need not be in possession of said
property.
It is intended to procure the cancellation, or
delivery of, release of an instrument,
encumbrance, or claim constituting a claim on
plaintiff’s title, and which may be used to injure or
vex him in the enjoyment of his title.
Indispensable Requirement For Action To
Quiet Title
Action to quiet title v. Action to remove cloud
on title
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
180
PROPERTY
For an action to quiet title or remove cloud on a
title to stand, the plaintiff must have legal or
equitable title to or interest in the subject real
property. This requirement is indispensable, the
absence of which is fatal to the action. (Pineda,
2009)
insure public safety.
If a building, wall, column or any other
construction is in danger of falling, the owner
must demolish the same to forestall the possibility
of causing death or harm to anyone, or injury to
property. (Pineda, 2009)
Art. 478. There may also be an action to quiet
title or remove a cloud therefrom when the
contract, instrument or other obligation has
been extinguished or has terminated, or has
been barred by extinctive prescription.
Art. 483. Whenever a large tree threatens to
fall in such a way as to cause damage to the
land or tenement of another or to travelers
over a public or private road, the owner of the
tree shall be obliged to fell and remove it; and
should he not do so, it shall be done at his
expense by order of the administrative
authorities.
PRESCRIPTION OR NON-PRESCRIPTION OF
ACTION
Prescriptive periods for bringing an action to
quiet title
1.
2.
Plaintiff in possession – Imprescriptible;
or
Plaintiff not in possession –
a. 10 years (ordinary) or
b. 30 years (extra-ordinary).
C0-OWNERSHIP
Imprescriptibility of action to quiet title
Art. 484. There is co-ownership whenever the
ownership of an undivided thing or right
belongs to different persons.
It is imprescriptible if plaintiff is in possession. If
not, it prescribes within period for filing accion
publiciana or accion reinvidicatoria.
In default of contracts, or of special provisions,
co-ownership shall be governed by the
provisions of this Title.
Laches
There is co-ownership whenever the ownership of
an undivided thing or right belongs to different
persons (NCC, Art. 484). It is the right of common
dominion which two or more persons have in a
spiritual (or ideal) part of the thing which is not
physically divided.
It is the failure or neglect, for unreasonable and
unexplained length of time, to do that which by
exercising due diligence, could or should have
been done earlier.
The negligence or omission to assert a right within
a reasonable time, warranting a presumption that
the party entitled to assert it either has
abandoned it or declined to assert it (Tijam v
Sibonghanoy, G.R. No. L-21450, April 15, 1968).
CHARACTERISTICS OF CO-OWNERSHIP IN
GENERAL
1.
2.
An action filed within the period of limitations
may still be barred by laches (NCC, Articles 1431,
1433 and 1437).
3.
4.
Art. 482. If a building, wall, column, or any
other construction is in danger of falling, the
owner shall be obliged to demolish it or to
execute the necessary work in order to
prevent it from falling.
5.
6.
If the proprietor does not comply with this
obligation, the administrative authorities
may order the demolition of the structure at
the expense of the owner, or take measures to
Plurality of subjects or owners;
There is no mutual representation by the
co-owners;
It exists for the common enjoyment of the
co-owners;
There is a single object which is not
materially divided;
It has no distinct legal personality; and
It is governed first of all by the contract of
the parties; otherwise, by special legal
provisions, and in default of such
provisions, by the provisions of Title III of
the New Civil Code on co-ownership.
Legal effect of co-ownership
181
CIVIL LAW
Co-ownership creates rights in favor of each one
of the co-owners with respect to the property
owned in common.
by accretion.
As to minority or legal disability
In case of a minor who The legal disability of
is a co-owner, this does one joint owner benefits
not benefit the others the others.
for the purpose of
prescription.
Prescription
Prescription
will
Prescription will not run
continue to run among
among them.
co-owners.
The rights of a co-owner can be viewed in two
senses:
1.
2.
His right over the thing owned in
common is limited by the other coowner’s concomitant rights; or
His right over his ideal share or his
undivided interest over the same
property; the individual co-owner has
absolute control and ownership over his
ideal share.
Co-ownership v. Partnership
Requisites of co-ownership (PUS)
1.
2.
3.
CO-OWNERSHIP
Plurality of owners;
Unity of object, which is an undivided
thing or right; and
Each co-owner’s right must be limited
only to his ideal Share of the physical
whole.
No legal personality
Can be created without
the formalities of a
contract
By contract or by will.
Agreement to exist for
more than 10 years is
void.
No
mutual
representation.
Not dissolved by the
death/incapacity of a coowner.
A co-owner can dispose
of his share w/o the
consent of the others
hence in a way a coowner is substituted.
Profits of a co-owner
depend
on
his
proportionate share.
NOTE: By the very nature of co-ownership, a
co-owner cannot point to any specific portion
of the property owned in common as his own
because his share remains intangible and ideal
(Spouses Avila et al v. Spouses Barabat, GR. No.
141993, May 17, 2006).
Rules to govern in co-ownership
a.
b.
c.
Contracts;
Special provision of law; and
Provisions of the civil code.
Co-ownership v. Joint tenancy
There
is
mutual
representation.
Dissolved by death or
incapacity of a partner.
A partner cannot be
substituted without the
consent of the others.
Profits
may
be
stipulated upon;
(e.g.,
profit-sharing
agreements).
collective For profit.
CO-OWNERSHIP
JOINT OWNERSHIP
Tenancy in common
Joint Tenancy
As to the extent of ownership
Each co-owner is the Each joint owner owns
owner of his own ideal the whole thing.
share.
As to disposition
Each co-owner may Joint owner may not
dispose of his undivided dispose of his own share
share without the other without the consent of
co-owners’ consent.
all the rest, because he
really has no ideal
share.
As to transfer of shares in case of death
Upon the death of a co- Upon the death of a joint
owner, his ideal share owner, his share goes to
goes to his heirs.
the other joint owners
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
ORDINARY
PARTNERSHIP
Has legal personality.
Can be created only by
contract, express or
implied
By contract only.
No term limit is set by
law.
For
enjoyment.
No public instrument is May be made in any
needed even if the object form except when real
of the co-ownership is property is contributed.
an immovable.
Alienation of property co-owned
When a co-owner sells the whole property as his,
the sale will affect only his own share but not
those of the other co-owners’ who did not consent
to the sale.
A sale of the entire property by one co-owner
without the consent of the other co-owners is not
182
PROPERTY
null and void but affects only his undivided share
and the transferee gets only what would
correspond to his grantor in the partition of the
thing owned in common (Paulmitan v. CA, G.R. No.
51584, November 25, 1992).
Interests are presumed equal, unless the contrary
is proved (NCC, Art. 485, par. 2).
Q: JM and Kris are siblings. Kris is engaged in
developing subdivisions and is frequently out
of the country. Kris opened a joint savings
account at BPI with JM as the other party in the
account. Kris executed a Special Power of
Attorney in favor of JM giving him the power to
manage and use the funds for his projects in
the country. JM withdrew P1,000,000 from the
joint savings account and deposited in his own
account for the reason that he is going to use it
for the subdivision project in Marikina. Upon
knowledge of this withdrawal, Kris demanded
the return of the withdrawn cash as there was
no project in Marikina that needs funding. Kris
claims that he has all the right to recover the
money. Is his contention correct?
Q: Is there such a thing as perpetual coownership?
A: NO. Any of the co-owners may demand
partition any time.
No co-owner ought to be compelled to stay in a coownership indefinitely. He may insist the partition
of the property any time. Such action to demand
for partition does not prescribe (Patricio v. Dario,
G.R. No. 170829, November 20, 2006).
A co-owner has a right to freely sell or dispose his
undivided share of interest but has no right to sell
a divided or definite part of a real estate owned in
common (Lopez v. Illustre,G.R. No. 2426, January
24, 1906).
A: YES. Under a joint account setup, the depositors
are joint owners or co-owners of the said
account, and their share in the deposits shall be
presumed equal, unless the contrary is proved,
pursuant to Art. 485 of NCC. Nevertheless, as
between the account holders, their right against
each other may depend on what they have agreed
upon, and the purpose for which the account was
opened and how it will be operated.
In a property co-owned by the compulsory heirs,
any act tantamount to partition such as identifying
their shares and constructing their respective
houses automatically terminates co-ownership
(Avila v. Sps. Arabat, G.R. No.141993, March 17,
2006).
JM’s right to obtain funds from the subject account
was conditioned on the necessity of funds for Kris'
projects. Admittedly, at the time he withdrew the
amount of P1,000,000 from the subject account,
there was no project being undertaken for Kris.
While JM is a co-owner of the subject account as
far as the bank is concerned — and may, thus,
validly deposit and/or withdraw funds without
the consent of his co-depositor, Kris — as between
him and Kris, his authority to withdraw, as well as
the amount to be withdrawn, is circumscribed by
the purpose for which the subject account was
opened (Apique v. Fahnenstich, GR No 205705,
August 5, 2015).
Duration of the co-ownership (2000, 2002,
2008 Bar)
An agreement to keep the thing undivided for a
certain period of time, not exceeding ten years,
shall be valid. This term may be extended by a
new agreement.
A donor or testator may prohibit partition for a
period which shall not exceed twenty years (in
relation to NCC, Art. 1083).
Neither shall there be any partition when it is
prohibited by law (NCC, Art. 494).
SOURCES OF CO-OWNERSHIP (LOST-C²)
Share of the co-owners in the benefits and
charges arising from the co-ownership
1.
The share of the co-owners in the benefits and
charges arising from the co-ownership shall be
proportional to their respective interests and any
stipulation in a contract to the contrary shall be
void (NCC, Art. 485, par. 1). Consequently, in order
to determine the share of the co-owners in the
benefits and charges, we must first determine
their respective interests in the co-ownership.
2.
3.
4.
183
Law – e.g. Easement of party walls (NCC, Art.
658); co-ownership between a man and a
woman capacitated to marry each other (Art.
147, FC); between a man and a woman not
capacitated to marry each other (Art. 148, FC);
Occupancy – e.g. When two persons gather
forest products or catch a wild animal;
Succession – e.g. Heirs of undivided property
before partition;
Testamentary (or mortis causa) / Donation
inter vivos – e.g. Where the donor prohibits
CIVIL LAW
5.
6.
partition of the property for a certain period
of time;
Contract; or
By Chance or fortuitous event – e.g. Hidden
treasure
General rights of each co-owner as to the thing
owned in common (USA-COPE-P)
1.
NOTE: One who is merely related by affinity to the
decedent does not become a co-owner of the
latter’s property.
Q: Hilaria Bagayas, an adoptive child, filed a
complaint against her siblings who excluded
her from inheriting from the estate of their
parents. She asked to include her as a
registered owner to the extent of one-third of
the lands covered therein; citing Section 108 of
PD No. 1529 or the “Property Registration
Decree”. In an earlier complaint, she asked for
the annulment of a Deed of Absolute Sale in
favor of her brothers wherein the RTC found
otherwise. They found that the lands where
transferred to the brothers by the father’s
execution of the deed of sale before he died. Is
the dismissal of the earlier complaint on the
ground that it is in the nature of a collateral
attack on the certificates of title constitutes a
bar to a subsequent petition under Section 108
of PD No 1529?
NOTE: The purpose of the co-ownership may
be changed by an agreement, express or
implied.
2.
To Share in the benefits in proportion to his
interest, provided the charges are borne in the
same proportion (NCC, Art. 485);
NOTE: A contrary stipulation is void. Hence,
benefits cannot be stipulated upon by the coowners.
3.
Each co-owner may bring an Action for
ejectment (NCC, Art. 487);
NOTE: Action for ejectment covers; forcible
entry, unlawful detainer, accion publiciana,
quieting of title, accion reivindicatoria, and
replevin.
A: It does not. Section 108 of PD No. 1529 in used
only for contemplating corrections or insertions of
mistakes which are only clerical but certainly not
controversial issues. Although Hilaria Bagayas
was able to prove that she is a legally adoptive
child, the action is not proper. As her petition was
of an annulment of sale and partition. She must
first prove that she is a co-owner of the estate and
conveyance of her lawful shares. However, she
failed to do so. As regards to her citing of Section
108 of PD No. 1529, it was improper; as her intent
for using it is as a mode of directly attacking the
certificates of title issued to the Bagayas brothers.
It was ruled that it was not a direct attack,
therefore cannot be used. The complaint is not
covered by the intention of the decree.
4.
5.
6.
7.
8.
9.
10.
Art. 486. Each co-owner may use the thing
owned in common, provided he does so in
accordance with the purpose for which it is
intended and in such a way as not to injure the
interest of the co-ownership or prevent the
other co-owners from using it according to
their rights. The purpose of the co-ownership
may be changed by agreement, express or
implied.
11.
12.
13.
14.
RIGHT OF CO-OWNERS
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
To Use the thing according to the purpose
intended provided that:
a. It is without prejudice to the interest of
the co-ownership; and
b. Without preventing the use of other coowners (NCC, Art. 486).
184
To Compel other co-owners to contribute to
expenses for preservation of the thing (NCC,
Art. 488) and to the taxes;
To Oppose to any act of alteration (NCC, Art.
491) even if beneficial to the co-owners;
To Protect against acts of majority which are
prejudicial to the minority (NCC, Art. 492, par.
3)
To Exercise legal redemption;
To ask for Partition (NCC, Art. 494);
Right to exempt himself from obligation of
paying necessary expenses and taxes by
renouncing his share in the pro-indiviso
interest; but cannot be made if prejudicial to
co-ownership (NCC, Art.488);
Right to make repairs for preservation of
things can be made at will of one co-owner;
receive reimbursement therefrom; notice of
necessity of such repairs must be given to coowners, if practicable (NCC, Art.489);
Right to full ownership of his part and fruits.
(NCC, Art. 493);
Right to alienate, assign or mortgage own
part; except personal rights like right to use
and habitation (NCC, Art.493);
Right of pre-emption;
Right to be adjudicated thing (subject to right
of others to be indemnified); and
PROPERTY
15. Right to share in proceeds of sale of thing if
thing is indivisible and they cannot agree that
it be allotted to one of them (NCC, Art.498).
One of the co-owner’s action for ejectment against
a defendant is deemed to be instituted for the
benefit of all co-owners of the property. (Resuena
v. CA, G.R. No. 128338, March 28, 2005).
Duties/liabilities of co-owners
1.
2.
3.
4.
5.
6.
Consent of the co-owners is not required to
bring an action for ejectment
Share in charges proportional to respective
interest; stipulation to contrary is void;
Pay necessary expenses and taxes – May be
exercised by only one co-owner;
Pay useful and luxurious expenses – If
determined by majority;
Duty to obtain consent of all if thing is to be
altered even if beneficial; resort to court if
non-consent is manifestly prejudicial;
Duty to obtain consent of majority with
regards to administration and better
enjoyment of the thing; controlling interest;
court
intervention
if
prejudicial
–
Appointment of administrator;
No prescription to run in favor of a co-owner
as long as he recognizes co-ownership;
The law does not require that consent of all the coowners must be first secured before one of them
can bring an action for ejectment.
If the case does not prosper:
GR: The other co-owners are NOT bound by the
judgment.
XPN: If they were also served with summons, even
as unwilling plaintiffs.
A suit for ejectment CANNOT be brought by one
co-owner against another co-owner, since the
latter also has a right of possession; the only effect
of the action will be to obtain recognition of the
co-ownership.
Requisites
for
acquisition
through
prescription:
a. He has repudiated through unequivocal
acts
b. Such act of repudiation is made known to
other co-owners
c. Evidence must be clear and convincing;
7.
8.
RIGHT TO PROPERTY OWNED IN COMMON v.
FULL OWNERSHIP OVER HIS/HER IDEAL
SHARE
1.
Co-owners cannot ask for physical division if
it would render thing unserviceable; but can
terminate co-ownership;
After partition, duty to render mutual
accounting of benefits and reimbursements
for expenses.
NOTE: Each co-owner is granted the right to
use the property owned in common for the
purpose for which it is intended.
Two restrictions in the enjoyment of this
right:
a. The co- ownership shall not be injured;
and
b. The exercise of such right shall not
prevent the other co- owners from using
the property according to their own
rights.
Rights of a co-owner to third parties
1.
2.
Right to property owned in common
Assignees or creditors of the co-owners may
take part in the division of the thing owned in
common and object to its being effected
without their concurrence, but they cannot
impugn any partition already executed; and
2.
XPN: If there has been fraud or it was made
notwithstanding their formal opposition
presented to prevent it, without prejudice to
the right of the debtor or assignor to maintain
its validity (NCC, Art. 497).
Non-intervenors – Retain rights of mortgage
and servitude and other real rights and
personal rights belonging to them before
partition was made.
Full ownership over his/her ideal share
NOTE: A co-owner has full ownership of his
share (undivided interest) and the fruits and
benefits arising therefrom. Being the full
owner thereof, he may alienate, assign or
mortgage it. He can also substitute another
person in the enjoyment of his share, except
only when personal rights are involved.
Q: Melecio Heirs inherited a residential lot,
ancestral house and two other structures
erected thereon, the administration and
Any of the co owners may bring an action in
ejectment
185
CIVIL LAW
management of which were left to the care of
Erna who was then residing in their ancestral
home. The Melecio Heirs purportedly executed
a notarized Special Power of Attorney (SPA)
authorizing Erna to apply for a loan with RBCI
and mortgage the subject properties. Erna
defaulted in the loan payment causing RBCI to
extrajudicially foreclose the mortgaged
properties. demanded RBCI to release the
subject properties from the coverage of Erna's
loan obligation to the extent of their shares
and refused to vacate the premises. RBCI
applied for and was issued a writ of
possession. The Melecio Heirs filed a
complaint in court alleging that the SPA
submitted by Erna was spurious and their
signatures appearing thereon were falsified. Is
the mortgage of the entire property valid?
Q: Spouses Roque Magsano and Susana Capelo
(Sps. Magsano), the parents of Norma, et. al.,
executed in favor of PSLB a Real Estate
Mortgage over their parcel of land as security
for their loan. Sps. Magsano defaulted in their
obligation, causing the extra-judicial foreclose
of the mortgaged property in which PSLB
emerged as the highest bidder. It subsequently
sold the subject land to Sps. Manuel.
Thereafter, Sps. Magsano refused to vacate the
premises despite PSLB’s demands; hence, the
latter applied for and was granted a writ of
possession and demolition. Norma et. al.
sought to annul the Real Estate Mortgage. They
averred that Roque Magsano passed away
prior to the execution of the Real Estate
Mortgage; hence, the mortgage was void, and
could not have conferred any right to PSLB
which it could pass to Sps. Manuel. PSLB and
the heirs of Sps. Manuel denied knowledge of
the death of Roque, and averred that
petitioners have no cause of action to seek the
annulment of the Real Estate Mortgage since
they were not parties thereto.
A: No. Erna did not validly mortgage the entire
property. While Erna, as herself a co-owner, by
virtue of Article 493 of the Civil Code, had the
right to mortgage or even sell her undivided
interest in the said properties, she, could not,
however, dispose of or mortgage the subject
properties in their entirety without the consent of
the other co-owners. The settled rule is that
persons constituting a mortgage must be legally
authorized for the purpose. In the present case,
while Erna appears to be a co-owner of the
mortgaged properties, she made it appear that she
was duly authorized to sell the entire properties
by virtue of the notarized SPA . (Rural Bank of
Cabadbaran, Inc. v. Jorgita A. Melecio-Yap et. al,
G.R. No. 178451, July 30, 2014).
1. Is the Real Estate Mortgage void?
2. Are Sps. Manuel purchasers in
good faith?
A: 1. No. The validity of the Mortgage in favor of
PSLD should be limited only to the Susana’s
portion. At the time the Mortgage was constituted,
Roque was already deceased. Upon Roque’s death,
the conjugal partnership between him and Susana
was dissolved. Thus, an implied co-ownership
arose among Susana and the other heirs of Roque
with respect to his share in the assets of the
conjugal partnership pending liquidation.
Q: Vda. Rosario is the registered owner of 4
parcels of land, which she mortgaged to and
foreclosed. Upon the expiration of the
redemption period, she asked the assistance of
Bobby Tan. Thereafter, she sold the lands to
him. The children of Vda. Rosario said they are
co-owners as they are inheritors of their
deceased father, whose approval was needed
to dispose the subject properties. Are the
subject properties of conjugal in nature, thus
making the children of Vda. Rosario coowners?
While she herself as co-owner had the right to
mortgage or even sell her undivided interest in
the subject property, she could not mortgage or
otherwise dispose of the same in its entirety
without the consent of the other co-owners.
2. No. While the rule is that every person dealing
with registered land may safely rely on the
correctness of the certificate of title issued
therefor and the law will in no way oblige him to
go beyond the certificate to determine the
condition of the property, where the land sold is in
the possession of a person other than the vendor,
as in this case, the purchaser must go beyond the
certificate of title and make inquiries concerning
the actual possessor (Norma C. Magsano, et. al. v.
Pangasinan Savings & Loan Bank, G.R. No. 215038,
October 17, 2016).
A: No. SC ruled that Vda. Rosario is the sole owner
of the parcel of lands. Conjugal partnership
terminates upon the death of one spouse. Vda.
Rosario was already a widow when she sold the
subjected lands to Bobby Tan. Therefore, at the
time of the sale, Vda. Rosario, a widow, can now
dispose the properties on her own volition (Bobby
Tan v. Grace Andrade, G.R. No. 171904, August 07,
2013).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
186
PROPERTY
Q: Dominador and Evangeline are siblings.
Respondent Evangeline then left the country to
work abroad. Evangeline executed General and
Special Powers of Attorney constituting
Dominador as her attorney-in-fact to purchase
real property for her, and to manage or
supervise her business affairs in the
Philippines. Because of such, they opened a
joint account at EPCIB. Dominador then
withdrew the amount of ₱980,000.00 from the
subject account and, thereafter, deposited the
money to his own savings account with the
same bank. This prompted Evangeline to
demand for the return of the amount, but to no
avail. Evangeline then filed a case against
Dominador impleading EPCIB as a party
defendant. In his answer, Dominador asserted,
among others, that he was authorized to
withdraw funds from the subject account to
answer for the expenses of Evangeline’s
projects, considering: (a) that it was a joint
account, and (b) the general and special
powers of attorney executed by Evangeline in
his favor. Can Dominador validly withdraw
from the joint account without Evangeline’s
consent?
However, Dominador’s right to obtain funds
from the subject account was conditioned on the
necessity of funds for Evangeline’s projects.
Admittedly, at the time he withdrew the
amount of ₱980,000.00 from the subject
account, there was no project being
undertaken
for
Evangeline.
Therefore,
Dominador must return the same to Evangeline
(Dominador Apique v. Evangeline Apique
Fahnenstich, G.R. No. 205705, August 5, 2015).
Co-owner’s right to use the property owned in
common
Each co-owner may use the thing owned in
common, provided he does so in accordance with
the purpose for which it is intended and in such a
way as not to injure the interest of the coownership or prevent the other co-owners from
using it according to their rights.
NOTE: If one co-owner alone occupies the entire
house without opposition from the other coowners, and there is no lease agreement, the other
co-owners cannot demand the payment of rent.
Rules on determination of the purpose of the
property
A: Yes. A joint account is one that is held
jointly by two or more natural persons, or by
two or more juridical persons or entities. Under
such setup, the depositors are joint owners or coowners of the said account, and their share in the
deposits shall be presumed equal, unless the
contrary is proved, pursuant to Article 485 of the
Civil Code.
1.
2.
3.
The common banking practice is that
regardless of who puts the money into the
account, each of the named account holder has
an undivided right to the entire balance, and
any of them may deposit and/or withdraw,
partially or wholly, the funds without the
need or consent of the other, during their
lifetime. Nevertheless, as between the account
holders, their right against each other may
depend on what they have agreed upon, and the
purpose for which the account was opened and
how it will be operated.
Since Evangeline and Dominador entered into a
joint account, Dominador is a co-owner of the
subject account as far as the bank is
concerned – and may, thus, validly deposit
and/or withdraw funds without the consent of
his co-depositor, Evangeline – as between him
and Evangeline, his authority to withdraw, as well
as the amount to be withdrawn, is circumscribed
by the purpose for which the subject account was
opened.
Purpose stipulated in the agreement,
express or implied;
In default thereof, its puropose ordinarily
adapted based on its nature; or
In default thereof, the use for which it was
formerly intended.
ACTS OF ALTERATION
Alteration (2008 Bar)
It is a change which is more or less permanent,
which changes the use of the thing and which
prejudices the condition of the thing or its
enjoyment by the others (Paras, 2008).
Alteration includes the act by virtue of which a coowner changes the thing from the state in which
the others believe it should remain. It is not
limited to material charges.
Acts of administration v. Acts of alteration
ACTS OF
ADMINISTRATION
187
ACTS OF
ALTERATION
CIVIL LAW
Refers
to
the
enjoyment,
exploitation,
alteration of the thing
which do not affect its
substance, form, or
purpose.
Transitory
character.
in
Does not affect the
substance or form.
Acts, by virtue of which,
a
co-owner,
in
opposition
to
the
expressed
or
tacit
agreement of all the coowners,
and
in
violation of their will,
changes the thing from
the state in which the
others believe it would
remain, or withdraws it
from the use to which
they believe it is
intended.
for which the property is given be directly to the
advantage of the person misappropriating or
converting the property of another.
Permanent
4.
RIGHT TO PARTITION
Rights of co-owners as to the ideal share of
each (FARTS)
1.
2.
3.
Affects or relates to the
substance or essence of
the thing.
NOTE: The transaction affects only his ideal
share and not that of the other co-owners.
5.
In relation to the right
of a co-owner, they
require the consent of
the majority who
represents
the
controlling interest.
Require the consent of
all co-owners.
Can be exercised by
the
co-owners
through
other
persons.
Must be exercised by
the
co-owners
themselves.
Right to demand partition
GR: Every co-owner has the right to demand
partition (NCC, Art. 494) (2000, 2002, 2008 Bar).
XPNs: (EASI-PAUL)
1. When partition would render the thing
Unserviceable;
2. When the thing is essentially Indivisible;
3. When partition is prohibited by Law by
reason of their origin or juridical nature - e.g.
party walls and fences;
4. When the co-owners Agree to keep the
property undivided for a period of time but
not more than 10 years;
5. When partition is Prohibited by the transferor
(donor/testator) but not more than 20 years
(NCC, Art. 1083);
6. When a co-owner possessed the property as
an Exclusive owner for a period sufficient to
acquire it through prescription (acquisitive
prescription);
The co-owner who makes the alteration shall:
3.
Lose what he has spent;
Be obliged to demolish the improvements
done; and
Pay for the loss and damages the
community property or other co-owners
may have suffered.
NOTE: Estoppel will operate against the coowners who were aware of the execution of the
acts of alteration, but did not object thereto. They
are deemed to have given their implied consent.
Conversion
It is the act of using or disposing of another’s
property without lawful authority to do so in a
manner different from that with which a property
is held by the trustees to whom the owner had
entrusted the same. It is not necessary that the use
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Right to Substitute another person in its
enjoyment, except when personal rights are
involved.
NOTE: Personal rights or jus in personam is
the power belonging to one person to demand
from another, as a definite passive subjectdebtor, the fulfillment of a prestation to give,
to do, or not to do (Paras, 2008).
Effect of alteration without the express or
implied consent of co-owners
1.
2.
Each has Full ownership of his part and of his
share of the fruits and benefits;
Right to Alienate, dispose or encumber;
Right to Renounce part of his interest to
reimburse necessary expenses incurred by
another co-owner;
Right to enter into Transaction affecting his
ideal share; and
NOTE: 10 years ordinary prescription, 30
years extra-ordinary partition.
188
PROPERTY
7.
8.
When co-owners may agree that it be Allotted
to one of them reimbursing the others; and
If they cannot agree, they may Sell the thing
and distribute the proceeds.
3.
NOTE: Prescription begins to run from
the time of repudiation.
NOTE: The right to ask for partition CANNOT be
waived or renounced permanently. Such waiver or
renunciation is void.
Example of acts of repudiation: filing of an
action to:
1. Quiet title; or
2. Recovery of ownership.
Q: X, Y, Z are siblings who inherited a 1Ostorey building from their parents. They
agreed in writing to maintain it as a co-owned
property for leasing out and to divide the net
profits among themselves equally for a period
of 20 years. On the 9th year, X wanted to get
out of the co-ownership so he could get his 1/3
share in the property. Y and Z refused, saying X
is bound by their agreement to keep the coownership for 20 years. Are Y and Z correct?
Explain. (2015 Bar)
XPN to XPN: Constructive trusts can
prescribe. Express trust cannot prescribe as
long as the relationship between trustor and
trustee is recognized (Paras, 2008).
Q: The two lots owned by Alipio were inherited
by his nine children, including Maria, upon his
death. Pastor, Maria’s husband, filed a
complaint for quieting of title and annulment
of documents against the spouses Yabo,
alleging that he owned a total of 8 shares of the
subject lots, having purchased the shares of
seven of Alipio's children and inherited the
share of his wife, Maria, and that he occupied,
cultivated, and possessed continuously,
openly, peacefully, and exclusively the parcels
of land. He prayed that he be declared the
absolute owner of 8/9 of the lots. His co-heirs
then instituted an action to partition the lots.
Did Pastor acquire by prescription the shares
of his other co-heirs or co-owners?
A: Y and Z ARE PARTLY CORRECT. If the coowners agree to keep the thing undivided, such
agreement shall govern provided the period shall
not exceed ten (10) years. In this case, the
agreement to keep the thing undivided shall be
valid at the most for 10 years (NCC, Art. 494).
Prescription
Q: May prescription run against a co-owner?
(2000, 2002, 2008 Bar)
GR: As long as the co-owner expressly or
impliedly
recognizes
the
co-ownership,
prescription cannot run in favor of or against him.
A: NO. The only act which may be deemed as
repudiation by Pastor of the co-ownership over
the lots is his filing of an action to quiet title. The
period of prescription started to run only from
this repudiation. However, this was tolled when
his co-heirs, instituted an action for partition of
the lots. Hence, the adverse possession by Pastor
being for only about six months would not vest in
him exclusive ownership of his wife's estate, and
absent acquisitive prescription of ownership,
laches and prescription of the action for partition
will not lie in favor of Pastor (Salvador v. CA, G.R.
No. 109910, April 5, 1995).
Reason: Possession of a co-owner is like that of a
trustee and shall not be regarded as adverse to the
other co-owners but in fact is beneficial to all of
them. Acts considered adverse to strangers may
not be considered adverse insofar as co-owners
are concerned (Salvador v. CA, G.R. No. 109910,
April 5, 1995).
XPN: Co-owner's possession may be deemed
adverse to the cestui que trust or the other coowners provided the following elements must
concur:
1.
2.
That the evidence thereon must be clear
and convincing (Salvador v. CA, G.R. No.
109910, April 5, 1995).
Notice of the proposed partition to creditors
and/or assignees
That he has performed unequivocal acts
of repudiation amounting to an ouster of
the cestui que trust or the other coowners;
That such positive acts of repudiation
have been made known to the cestui que
trust or the other co-owners; and
The law does not require that a notification be
given but:
1.
189
If notice is given – it is their duty to appear
to concur /oppose, otherwise creditor’s
claims are deemed waived; and
CIVIL LAW
2.
If no notice is given – creditors and/or
assignees may still question the partition
madeon ground of fraud or for being
prejudicial to existing rights.
Rights of third persons in case of partition
(NCC, Art. 499)
1.
NOTE: Third persons who have rights attached to
the community property before its partition, shall
retain such rights even after the partition of the
property. The protection granted by law applies to
both real and personal rights (Pineda, 2009).
2.
Impugning partition already implemented
GR: A partition already executed or implemented
CANNOT be impugned.
XPNs:
1.
2.
RIGHT TO CONTRIBUTION FOR EXPENSES
Expenses which the co-owners
compelled to contribute
In case of fraud, regardless of notification
and opposition; or
In case partition was made over their
objection even in absence of fraud (NCC,
Article 497).
2.
2.
Necessary Expenses
Agree on the allotment of the entire
property to one of them who in turn will
indemnify the others for their respective
interests; or
Sell the property and distribute the
proceeds to the co-owners (Pineda, 2009).
Rights of:
a. Mortgage;
b. Servitude; and
c. Any other Real rights existing before
partition.
Personal rights pertaining to third
persons against the co-ownership (NCC,
Art. 499).
Useful Expenses
Illustration: A, B and C where co-owners of parcel
of land mortgaged to M. If A, B, and C should
physically partition the property, the mortgage in
M’s favor still covers all the three lots, which,
together, formerly constituted one single parcel. If
A alone had contracted an unsecured obligation,
he would of course be the only one responsible
(Paras, 2008).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
be
Necessary expenses, useful expenses, and
expenses of pure luxury defined
Rights of third persons that are not affected by
partition (MRS-P)
1.
can
Only necessary expenses. Useful expenses and
those for pure luxury are not included.
Remedies available to co-owners where the coowned property cannot be physically divided
without rendering it useless or unserviceable
(NCC, Art. 498)
1.
The partition of a thing owned in common
shall not prejudice third persons, who
shall retain the rights of mortgage,
servitude or any other real rights
belonging to them before the division was
made; and
Personal rights pertaining to them against
the co-ownership shall also remain in
force, notwithstanding the partition.
Ornamental Expenses
190
Are those made for the
preservation of the
thing, or those without
which the thing would
deteriorate or be lost,
or those that augment
the income of the things
upon
which
are
expended, or those
incurred for cultivation,
production, upkeep, etc.
(Mendoza v. De Guzman,
G.R.
No.
L-28721,
October 5, 1928).
Incurred
for
the
preservation of the
realty in order that it
may
produce
the
natural, industrial, and
civil fruits it ordinarily
produce
Adds value to the thing
only for certain persons
in view of their
particular
whims,
neither essential for
preservation nor useful
to
everybody
in
general.
PROPERTY
Acts of preservation (NCC, Art.489)
Consent of unpaid creditor
Acts of preservation may be made in the property
of the co-owners at the will of one of the coowners, but he must, if practicable, first notify the
others of the necessity of such repairs.
Renunciation CANNOT be made without the
consent of any unpaid creditor. This is because it
is in effect a novation by substitution. It will
prejudice the rights of the unpaid creditor.
Acts requiring the majority consent of the coowners
RIGHT OF REDEMPTION OF CO-OWNERS
SHARE
1.
2.
3.
Management;
Enjoyment; and
Improvement or embellishment.
The shares of all or any other co-owner if sold to a
third person may be redeemed by a co-owner.
If two or more co-owners want to redeem, they
may do so in proportion to the shares they
respectively have.
Remedy of the minority who opposes the
decision of the majority in co-ownership
Minority may appeal to the court against the
majority’s decision if the same is seriously
prejudicial.
Effect of redemption by a co-owner
Redemption of the whole property by a co-owner
does not vest in him sole ownership over said
property. Redemption within the period
prescribed by law will inure to the benefit of all
co-owners. Hence, it will not put an end to existing
co-ownership (Mariano v. CA, GR. No. 101522, May
28, 1993).
There is no majority unless the resolution is
approved by the co-owners who represent the
controlling interest in the object of the coownership [NCC, Art. 492(2)].
WAIVER
Right of legal redemption cannot be exercised
when there is no co-ownership
A co-owner may opt not to contribute to the
expenses for the preservation of the property
Once the property is subdivided and distributed
among the co-owners, the community ceases to
exist and there is no more reason to sustain any
right of legal redemption. The exercise of this right
presupposes the existence of a co-ownership at
the time the conveyance is made by a co-owner
and when it is demanded by the other co-owners
(Vda. de Ape v. CA, G.R. No. 133638, April 15, 2005).
GR: YES, by renouncing his undivided interest
equal to the amount of contribution.
XPN: If the waiver or renunciation is prejudicial to
the co-ownership, otherwise he cannot exempt
himself from the contribution (NCC, Art. 488).
NOTE: The value of the property at the time of the
renunciation will be the basis of the portion to be
renounced.
A co-owner cannot alienate the shares of his
other co-owners
Failure or refusal of a co-owner to contribute
pro rata to his share in expenses NOT
tantamount to renunciation
While a co-owner has the right to freely sell and
dispose of his undivided interest, nevertheless, as
a co-owner, he cannot alienate the shares of his
other co-owners. The disposition made by Villaner
affects only his share pro indiviso, and the
transferee gets only what corresponds to his
grantor's share in the partition of the property
owned in common. The property being conjugal,
Villaner's interest in it is the undivided one-half
portion. When his wife died, her rights to the
other half was vested to her heirs including
Villaner and their 8 legitimate children (Acabal v.
Acabal, G.R. No. 148376, March 31, 2005).
There must be an express renunciation, otherwise
he is required to reimburse the others for the
expenses they incurred.
Effect of renunciation
Since renunciation is intended as payment for
expenses already made, it is in nature of dacion en
pago - there is a change in the object of the
obligation (i.e. from sum of money to interest in
the co-ownership). Consequently, the consent of
the other co-owner who made the advances is
necessary (Tolentino, 2013).
Status of the sale by a co-owner
191
CIVIL LAW
A sale of the entire property by one co-owner
without the consent of the other co-owners is
valid. However, it will only affect the interest or
share in the undivided property of the co-owner
who sold the same. The remedy is an action for
partition under Rule 69 of the Revised Rules of
Court, the division of the common property
(Acabal v. Acabal, G.R. No. 148376, March 31,
2005).
2.
Rule in case the co-owners cannot agree in the
partition
1.
2.
TERMINATION/EXTINGUISHMENT
Extinguishment of Co-ownership (CALSTEP)
1.
2.
3.
4.
5.
6.
7.
Confusion or merger of the rights in one
co-owner;
Acquisitive prescription in favor of a third
person or a co-owner who repudiates;
Loss or destruction of thing co-owned;
Sale of thing co-owned;
Termination of period agreed upon;
Expropriation; or
Judicial or extra-judicial Partition.
2.
1.
2.
1.
2.
3.
4.
5.
RIGHTS AGAINST INDIVIDUAL CO-OWNERS IN
CASE OF PARTITION
1.
2.
3.
4.
of
co-owners
upon
It refers to the holding of a thing or the enjoyment
of a right (NCC, Art. 523) (2007 Bar).
Mutual Accounting for benefits received,
fruits and other benefits (in relation to
Art. 1087 of NCC);
Mutual Reimbursements for expenses;
Indemnity for Damages caused by reason
of negligence/fraud; and
Reciprocal Warranty for defects of title
and quality of the portion assigned to the
co-owner (NCC, Articles. 500-501).
Requisites of possession (EPAV)
1.
2.
3.
4.
Existence of the thing or right;
Possession in fact or holding or control of
a thing or right;
Animus possidendi or the deliberate
intention to possess; and
Possession is by Virtue of one’s own right,
either as an owner or as a holder.
Right TO Possession v. Right OF Possession
Partition is effected either by (1998 Bar):
Right TO Possession
Jus possidendi
By agreement between the parties; or
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Ejectment – any of the co-owners may file
such action.
Administration – majority of the coowners shall decide.
Improvements – majority of the co-owners
shall take part.
Alteration – all of the co-owners must
agree.
Preservation – any of the co-owners can
do so.
POSSESSION
partition
PARTITION IN CASE CO-OWNERS CANNOT
AGREE
1.
Firstly, the property may be allotted to
one of the co-owners, who shall
indemnify the other; or
Otherwise, it shall be sold, and the
proceeds distributed (NCC, Art. 498).
Acts of co-ownership
It confers upon the co-owner exclusive
title over the property adjudicated to him
(NCC, Art. 1091); and
Possession of the co-owner over the
property adjudicated to him shall be
deemed exclusive for the period during
which the co-possession lasted (NCC, Art.
543) In other words, it is deemed
continuous.
Obligations
(WARD)
If realty is involved, an action for partition
(Rule 69, Rules of Court) against the coowners may be filed; and
In case of personalty and actual partition
could not be made, it may be sold under
the discretion of the court and the
proceeds be divided among the owners
after deducting the necessary expenses.
Rule in case the co-owners cannot agree as to
the partition of a thing which is essentially
indivisible
EFFECT OF PARTITION
1.
By judicial proceedings (NCC, Art. 496).
192
Right OF Possession
Jus possessionis
PROPERTY
An incident or attribute
of ownership over a
thing.
e.g. The owner of a house
is entitled to possess it.
i.
An independent right,
separate from
ownership.
e.g. The lessee of a
property, who is not
the owner thereof, is
entitled to possess it
for the period of the
lease.
ii.
2.
According to the concept of possession
a.
Object of possession
GR: All things and rights susceptible of being
appropriated (NCC, Art. 530).
XPNs:
1.
2.
3.
4.
b.
Res communes;
Property of public dominion;
Easement; and
Prohibited by law.
Possession with no right or title (Grammatical
Degree) – Possessor knows that his
possession is wrongful.
e.g. possession by a thief.
2.
With Juridical title (Juridicial Possession) –
Title is not one of ownership. Possession
peaceably acquired and will not ripen into full
ownership as long as there is no repudiation
of the concept under which property is held.
e.g. possession of a tenant, depositary.
3.
4.
There can be possession in concept of both
owner and holder or in either.
3.
b.
Possession in good faith – possessor is not
aware that there is in his title or mode of
acquisition a defect that invalidates it
(NCC, Art. 526); and
Possession In bad faith – possessor is
aware of the invalidating defect in his
own title (NCC, Art. 526).
NOTE: Only personal knowledge of the flaw in
one’s title or mode of acquisition can make
him possessor in bad faith. It is not
transmissible even to an heir. Possession in
good faith ceases from the moment defects in
his title are made known to the possessor.
With a title in fee Simple (Dominium
Possession) – Arises from ownership; highest
degree of possession; perfect possession.
CLASSES OF POSSESSION
4.
1. According to the name used as to its
existence
b.
According to the condition of the mind
(2008 Bar)
a.
With Just title sufficient to transfer ownership,
but not from the true owner(Real Possessory
Right) – ripens to full ownership by the lapse
of time.
e.g. Possession of a buyer of a car purchased
from one who pretends to be the owner.
a.
In the concept of an owner (en concepto de
dueno) – possessor, by his actions, is
believed by others as the owner, whether
he is in good or bad faith. (NCC, Art. 525).
Such possessor is presumed to possess
just title (NCC, Art. 540);
In the concept of a holder – possessor
holds it merely to keep or enjoy it, the
ownership pertaining to another; e.g.
usufructuary with respect to the thing
itself (NCC, Art. 525).
NOTE: None of these holders may assert a
claim of ownership for himself over the thing
but they may be considered as possessors in
the concept of an owner, or under a claim of
ownership, with respect to the right they
respectively exercise over the thing.
Degrees of possession
1.
Voluntary – by virtue of an
agreement; e.g. possession of an
agent.
Legal – by virtue of law; e.g.
possession in behalf of incapacitated.
According to extent of possession
a.
In one’s own name – possessor claims the
thing for himself (NCC, Art. 524).
In the name of another – held by the
possessor for another; agent, subject to
authority and ratification; if not
authorized, negotiorum gestio (NCC, Art.
524).
b.
193
Actual possession – occupancy in fact of
the whole or at least substantially the
whole property; and
Constructive possession – occupancy of
part, in the name of the whole, under such
circumstances that the law extends the
occupancy to the possession of the whole.
CIVIL LAW
Q: What is the doctrine of constructive
possession?
proof that the holder has a claim of title over the
property. The voluntary declaration of a piece of
property for taxation purposes manifests not
only one’s sincere and honest desire to obtain
title to the property and announces his adverse
claim against the State and all other interested
parties, but also the intention to contribute
needed revenues to the Government. Such an act
strengthens one’s bona fide claim of acquisition of
ownership (Ganila v. CA, G.R. No. 150755, June 28,
2005).
A: The possession of a part is a possession of
the whole. To be considered in possession, one
need not have actual or physical occupation of
every square inch of the property at all times
(Habagat Grill v. DMC-Urban Property Developer,
Inc., G.R. No. 155110, March 31, 2005).
Requisites of constructive possession
1.
2.
3.
4.
Possessor was in actual possession of a
portion or part of the property;
Claim of ownership of the whole area;
Remainder of the area must not be in the
adverse possession of another person; and
Area claimed must be reasonable.
ACQUISITION OF POSSESSION
Modes of acquiring possession
1.
Possession v. Occupation
POSSESSION
Apply to properties
whether with or without
an owner.
Possession does not
confer ownership.
There can be possession
without ownership.
This includes:
a. Constitutum possessorium – when the
possessor who is the owner of the
property continues his possession no
longer under a title of ownership but
under a title less than ownership, i.e.
lessee, depositary, etc.
b. Traditio brevi manu – when the possessor
who is possessing the thing by a title
other than ownership, continues to
possess it under a new title, now of
ownership.
OCCUPATION
Applies only to
property without an
owner.
Occupation confers
ownership.
There can be no
occupation without
ownership.
Person declared as the owner of a certain
property may still not be entitled to its
possession
2.
Possession and ownership are distinct legal
concepts. Ownership confers certain rights to the
owner among which are the right to enjoy the
thing owned and the right to exclude other
persons from possession thereof. On the other
hand, possession is defined as the holding of a
thing or the enjoyment of a right. Literally, to
possess means to actually and physically occupy a
thing with or without a right. Thus a person may
be declared an owner but not entitled to
possession (Heirs of Roman Soriano v. CA, G.R. No.
128177, August 15, 2001).
By Subjection of the thing/right to our will
which does not require actual physical
detention or seizure; and
This includes:
a. Traditio longa manu – delivery by consent
or mere pointing.
b. Traditio symbolica – delivery of a mere
symbol (e.g. key) placing the thing under
the control of the transferee.
3.
By constructive possession or proper Acts
and legal Formalities established by law such
as succession, donation, execution of public
instruments (NCC, Art. 531).
Q: Respondents inherited the subject property
from Emiliana Bacalso, by virtue of Decree No.
98992. Sometime later, they found the heirs of
Alejandra Delfin to be occupying the said
property, to which they even constructed
houses there. The heirs argued they have
better right for it was inherited to them after it
was bought by the predecessor from Emiliana
Bacalso; also, they are the ones paying the
subject property’s realty taxes. Do the
Tax declarations are not conclusive evidence
of ownership
Although tax declarations or realty tax payment of
property are not conclusive evidence of
ownership, nevertheless, they are good indicia of
possession in the concept of owner for no one in
his right mind would be paying taxes for a
property that is not in his actual or at least
constructive possession. They constitute at least
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
By Material occupation (detention) of a thing
or the exercise of a right (quasi-possession);
194
PROPERTY
respondents have the better right to the
ownership and possession of the subject
property?
Gerry Centeno acquired the subject lots from his
parents, Sps. Centeno, on March 14, 1988 after
they were purchased by Rural Bank of Sta.
Barbara, Inc. and its Certificate of Sale at Public
Auction was registered with the Register of Deeds
of Iloilo City in 1971. It cannot therefore be
disputed that Gerry is a mere successor-ininterest of Sps. Centeno. Consequently, he cannot
be deemed as a third party who is holding the
property adversely to the judgment obligor under
legal contemplation (Rural Bank of Sta. Barbara,
Inc. v. Gerry Centeno, G.R. No. 200667, March 11,
2013).
A: Yes, respondents have the better right to the
ownership and possession of the subject property.
The basis is the LRA certification, daybook entry,
and Decree No. 98992 that was issued to Emiliana
Bacalso. The Decree bars all claims and rights
which arose as may have existed prior to the
decree of registration (Heirs of Alejandra Delfin v.
Alevina Rabadon, G.R. No. 165014, July 31, 2013).
Q: Spouses Gregorio and Rosario Centeno
previously owned the subject lots, which they
mortgaged in favor of Rural Bank of Sta.
Barbara, Inc. as security for a P1,753.65 loan.
Sps. Centeno, however, defaulted on the loan,
prompting the bank to cause the extrajudicial
foreclosure of the mortgage. Consequently, the
subject lots were sold to the bank, being the
highest bidder at the auction sale.Sps. Centeno
failed to redeem the subject lots within the
one-year redemption period pursuant to
Section 6 of Act No. 3135. Yet, they still
continued with the possession and cultivation
of the aforesaid properties.
Essential elements of acquiring possession
1.
2.
Corpus – Refers to the existence of the
thing and its holding; and
Animus – Refers to the intent to possess
the thing.
Actual
possession
distinguished
constructive possession
from
Actual possession consists in the manifestation of
acts of dominion over property of such a nature as
a party would naturally exercise over his own;
Constructive possession may be had through
succession, donation, execution of public
instruments, or the possession by a sheriff by
virtue of a court order (Remington Industrial Sales
Corp v. CYMCAPI, G.R. No. 171858, January 22,
2007).
Gerry Centeno, son of Sps. Centeno, later on
purchased the said lots from his parents.
Accordingly, Rosario paid the capital gains
taxes on the sale transaction and tax
declarations were eventually issued in the
name of Gerry.
Acquisition of possession according to person
of possessor (NCC, Art. 532)
On March 19, 1998, Rural Bank of Sta. Barbara,
Inc. filed a petition for the issuance of a writ of
possession before the trial court, claiming
entitlement to the said writ by virtue of the
Final Deed of Sale covering the subject lots.
Gerry opposed the petition, arguing that he
purchased and has, in fact, been in actual, open
and exclusive possession of the same
properties for at least 15 years. Is the Rural
Bank of Sta. Barbara, Inc. is entitled to a writ of
possession over the subject lots?
1.
Personal – The possession acquired by the
same person who is to enjoy it, either the
owner or a mere holder.
Requisites:
a. Capacity to possess;
b. Intent to possess; and
c. Object must be capable
possessed.
A: Yes.
It is well-established that after
consolidation of title in the purchasers’ name for
failure of the mortgagor to redeem the property,
the purchasers right to possession ripens into the
absolute right of a confirmed owner. At that point,
the issuance of a writ of possession, upon proper
application and proof of title, to a purchaser in an
extrajudicial foreclosure sale becomes merely a
ministerial function, unless it appears that the
property is in possession of a third party claiming
a right adverse to that of the mortgagor.
2.
of
being
Through an authorized person – Acquisition
of possession through a legal representative
as provided by law or by appointing an agent.
Requisites:
a. Capacity to possess of the representative
or agent;
b. Authority to possess (for another) of the
representative or agent;
c. Intent to possess for principal; and
195
CIVIL LAW
d.
3.
Minors or incapacitated persons may acquire the
possession of things; but they need the assistance
of their legal representatives for them to be able
to exercise the rights arising from the possession
(NCC, Art. 535).
Principal has intent and capacity to
possess
Through a person without authority (but only
if subsequently ratified) – acquisition of
possession through a person who is not
clothed with authority by the supposed
“principal.”
NOTE: Minors and incapacitated persons may
acquire property or rights by prescription, either
personally or thru their parents, guardians, or
legal representatives (NCC, Art. 1107).
Requisites:
a. Intent to possess for another the
“principal”;
b. Capacity of the “principal” to possess; and
c. Ratification by “principal.”
Nature of minors or incapacitated persons’
possession
Possession is allowed only in those matters where
they have capacity to act (as in the case of
physical seizure of res nullius or donation of
personal property simultaneously delivered to
them) and NOT possession where juridical acts
are imperative like the possession of land the
ownership of which he desires to test in court, for
in such a case, and in similar ones, the
intervention of the legal representatives or
guardians is needed (Paras, 2008).
NOTE: The ratification does not suppress the
consequences of negotiorum gestio (Art.
2144). The principal is deemed to have
acquired possession from the time the gestor
had voluntarily took the management of the
affairs of the former (Pineda, 2009). If the
stranger (gestor) had possessed it in his own
name, it is he who had possession, and not
the so-called “principal” (Paras, 2008).
Acquisition of possession thru succession
Acts which do not give rise to possession
(FATV)
One who succeeds by hereditary title shall not
suffer the consequences of the wrongful
possession of the decedent, if it is not shown that
he was aware of the flaws affecting it; but the
effects of possession in good faith shall not benefit
him except from the date of death of the decedent
(NCC Art. 534).
1.
2.
Effects
3.
If the father or decedent was in bad faith, it does
not necessarily mean that the son was also in bad
faith. The son is presumed to be in GOOD FAITH
(Arriola v. De la Serna, G.R. No. L-5397, December
17, 1909). However, since the father was in BAD
FAITH, the consequences of the GOOD FAITH of
the son should be counted only from the date of
the decedent’s death.
4.
Through Force or intimidation as long as there
is a possessor who objects thereto (NCC, Art.
536).
NOTE: Impliedly, if at first there was objection but
later on such objection ceases, the possession
begun by force or intimidation may be acquired
(Paras, 2008).
NOTE: If the father had been in GOOD FAITH, the
article is not applicable, for the son would not
‘‘suffer.” In such a case, the possession of the
father in GOOD FAITH is added to the possession
of the son in GOOD FAITH, and we cannot say that
the effects of possession in good faith shall
commence only from the decedent’s death (Paras,
2008).
Through acts executed clandestinely and
without the knowledge of the possessor
NOTE: Clandestine possession by itself is hidden or
disguised possession
Acquisition of minors or incapacitated persons
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Through Force or intimidation as long as
there is a possessor who objects thereto
(NCC, Art. 536); (2006 Bar)
Through Acts executed clandestinely and
without the knowledge of the possessor
which means that:
a. Acts are not public; and
b. Unknown to the owner or possessor
Acts merely Tolerated by the owner or
the lawful possessor; and
Acts executed by Violence (NCC, Art 537).
(2001, 2009 Bar)
Acts merely tolerated by the owner or the
lawful possessor.
196
PROPERTY
“Tolerance” is permission, as distinguished from
abandonment. If an owner abandons, as when
within the proper period for prescription, he
brings no action, the possession of another will
ripen into ownership. As a matter of fact, silence
or inaction is NEGLIGENCE, not tolerance. But
where a person occupies another’s land with the
latter’s permission (or tolerance), the occupier, no
matter how long he may remain, can never
acquire ownership, because he never had
possession. Whether there was permission, or
there has been an abandonment, is a question of
fact. Of course, it is possible that although there
was permission at first, the permission was
subsequently withdrawn, and abandonment has
resulted. But this must be proved by clear and
convincing evidence; (Paras, 2008).
same time; the fi rst, in the concept of
owner; the second, in the concept of
holder; other examples: principal and
agent; depositor and depositary; owner
and administrator) (Paras, 2008).
Rules to follow in case there is a dispute of
possession of two or more persons
1.
2.
3.
4.
How to recover possession
First, he should request the usurper to give up the
thing and if the latter refuses, the former should
invoke the aid of the proper and competent court
(that which has jurisdiction over the subject
matter and the parties) (Repide v. Astuar, G.R. No.
505, April 8, 1902). Otherwise, the owner can be
made the defendant in a forcible entry case with all
its repercussions (Santiago v. Cruz, G.R. No. 6276.
March 21, 1911) (Paras, 2008).
Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring
dominion (NCC, Art. 540).
NOTE: Art. 538 applies to preference of
POSSESSION (whether real or personal property is
involved). It also applies whether the possession
was longer or shorter than one year. Art. 1544
applies to preference of OWNERSHIP in case of
DOUBLE SALE (Art. 1544) or a DOUBLE
DONATION (NCC, Art. 744); (Paras, 2008).
Possession by Force or Violence
The force may be:
1. Actual or merely threatened;
2. Done by possessor himself or by his
agent;
3. Done against the owner or against any
other possessor or against the owner’s
representative, such as a capataz; or
4. Done to oust possessor; or if occupied
during the latter’s absence, done to
prevent his getting back the premises
(Paras, 2008).
EFFECTS OF POSSESSION
POSSESSOR IN GOOD FAITH
One is a possessor is in good faith when he is not
aware that there exists in his title or mode of
acquisition any flaw which invalidates it (NCC, Art.
526) (2008 Bar).
Requisites in order to be considered a
possessor in good faith
Rule when two or more persons claim
possession over the same property
1.
2.
3.
GR: Possession as a fact cannot be recognized at
the same time in two different personalities.
XPN:
a. Co-possessors (since here, there is no
conflict of interest, both of them acting as
co-owners, as in the case of property
owned or possessed in common).
b.
Present/actual possessor shall be
preferred;
If there are two possessors, the one
longer in possession; or
If the dates of possession are the same,
the one with a title.
If both claimants have titles, the
competent court will determine the
rightful possessor, and in the meantime,
the thing shall be placed in judicial
deposit (NCC, Art. 538).
Ostensible title or mode of acquisition;
Vice or defect in the title; and
Possessor is ignorant of the vice or defect
and must have an honest belief that the
thing belongs to him.
Cessation of possession in good faith
Possession in good faith ceases from the moment
defects in his title are made known to the
possessor by extraneous evidence or by suit for
recovery by the true owner.
This interruption of good faith may take place
Possession in different concepts or
different degrees (e.g. both owner and
tenant are possessors as a fact at the
197
CIVIL LAW
1.
2.
At the date of summons; or
That of the answer if the date of summons
does not appear.
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.
Effect of cessation of possession in good faith
Possessor is now considered as a possessor in bad
faith and he may be required to pay rent or vacate
the property. In both cases he is required to pay
damages to the lawful owner or possessor of the
property.
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
fi ling thereof (NCC, Art. 539).
Q: A Deed of Sale was executed between Jose
(seller) and Rosario (buyer). However, later
on, Jose could not continue the sale because he
sold the lot to Emma with whom he executed a
formal deed of sale. Informed that the sale in
favor of Emma was not registered, Rosario
registered her adverse claim. Later, Emma
registered her deed of sale and a TCT was
issued to her but with Rosario’s adverse claim.
Emma then took possession of the lot.
Rights of a possessor
1.
2.
3.
a.) Who has a better right to the land?
b.) Is Emma entitled to the improvements she
introduced in the lot?
4.
A:
a.) ROSARIO has a better right. Rosario’s prior
purchase of the land was made in good faith;
she was the only buyer at that time. Her good
faith did not cease after Jose told him of the
second sale to Emma. In order to protect her
right, Rosario registered her adverse claim.
Said recording is deemed to be in good faith
and emphasized Emma’s bad faith (Carbonell
v. CA G.R. No. L-29972, January 26, 1976).
Possession contemplated by law is legal
possession– thief cannot exercise possession. Such
possession is exercised by every possessor–in
good faith or bad faith.
“Every possessor’’ is protected under Art. 539,
whether in the concept of owner or in the concept
of holder.
b.) NO. The possessor in bad faith has neither the
right of retention of useful improvements nor
the right to demand refund for useful
expenses (Art. 546 & 547; Carbonell v. CA G.R.
No. L-29972, January 26, 1976).
NOTE: An adverse possession of property by
another is not an encumbrance in law, and does not
contradict the condition that the property be free
from encumbrance. Likewise, the adverse
possession is not a lien for a lien signifies a
security for a claim (Ozaeta v. Palanca, L-17455,
August. 31, 1964).
Mistake upon a doubtful or difficult question
of law
Legal Means for Restoration of Possession
Mistake upon a doubtful or difficult question of
law may be the basis of good faith provided that
such ignorance is not gross and therefore
inexcusable (NCC, Art. 526.) Ignorance of the law
may be based on an error of fact. (2008 Bar).
A. Reasons for requiring legal means;
1.
2.
RIGHTS OF A POSSESSOR
3.
Right to be respected in possession
B. Thus,
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
To be respected in his possession;
To be protected in said possession by
legal means;
To secure in an action for forcible entry
the proper writ to restore him in his
possession; and
To secure from a competent court in an
action for forcible entry the Writ of
preliminary mandatory injunction to
restore him in his possession (NCC, Art.
539).
198
To prevent spoliation or a disregard of
public order;
To prevent deprivation of property
without due process of law; and
To prevent a person from taking the law
into his own hand.
PROPERTY
1.
2.
3.
4.
The owner should go to court, and not
eject the unlawful possessor by force.
A tenant illegally forced out by the ownerlandlord may institute an action for
forcible entry even if he had not been
paying rent regularly.
The proper actions are forcible entry or
unlawful detainer (summary action or
accion interdictal), accion publiciana,
accion
reivindicatoria;
replevin;
injunction (to prevent further acts of
dispossession). However, injunction is
GENERALLY not the proper remedy to
recover possession, particularly when
there are conflicting claims of ownership.
An accion reivin-dicatoria would be
better. A final judgment in an unlawful
detainer case may be executed even if
there is still pending an accion
reivindicatoria, for the two actions can coexist. A mere trespasser, even if ejected,
has no right to institute an action of
forcible entry (Paras, 2008).
Writ
of
preliminary
mandatory
injunction.
b.
Q: During his lifetime, Velasco acquired Lot A
from spouses Sacluti and Obial evidenced by a
deed of sale. In 1987, spouses Padilla entered
the said property as trustees by virtue of a
deed of sale executed by the Rural Bank. The
Padilla’s averred that the Solomon spouses
owned the property which was identified as
Lot B. However, it was proved during trial that
the land occupied by spouses Padilla was Lot A
in the name of Velasco, whereas the land sold
by the bank to the spouses Padilla was Lot B.
The heirs of Velasco demanded that spouses
Padilla vacate the property, but they refused.
Thus, the heirs filed a complaint for accion
publiciana.
a) Who has the better right
possession?
b) Has the action already prescribed?
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 fi nally decided. The exception,
of course, is a very clear case of usurpation.
Similarly, a receiver should not ordinarily be
appointed to deprive a party who is in possession
of the property in litigation of such possession
(Paras, 2008).
b) NO. The remedy of accion publiciana
prescribes after the lapse of ten years. The
action was filed with the RTC in 1991.
Spouses Padilla dispossessed the heirs of
Velasco of the property in 1987. At the time of
the filing of the complaint, only four years had
elapsed from the time of dispossession
(Spouses Padilla v. Velasco, G.R. No. 169956,
January 19, 2009).
Requisites for the issuance of the writ of
preliminary injunction:
2.
In forcible entry cases (in the original
court) — file within 10 days from the
time the complaint for forcible entry is
filed (not from the time the dispossession
took place) (NCC. Art. 538);
In ejectment (unlawful detainer cases) in
the CFI (RTC) or appellate court (Court of
Appeals) — file within 10 days from the
time the appeal is perfected (that is, from
the time the attorneys are notifi ed by the
Court of the perfection of the appeal),
only if:
a.
of
A:
a) The HEIRS OF VELASCO has the better
right. Accion publiciana, recovery of the right
to possess, is an action filed in the RTC to
determine the better right to possession of
realty independently of the title. The objective
of the plaintiffs in accion publiciana is to
recover possession only, not ownership. Lot A
was the subject of a cadastral case. The OCT
was issued to Sacluti and Obial who sold the
same to Artemio. From the date of sale, until
Artemio’s death, he was in continuous
possession of the land.
Writ of preliminary mandatory injunction
1.
The lessor’s appeal is prima facie
meritorious (NCC, Art. 1674).
Q: On June 26, 2003, petitioner Teodorico A.
Zaragoza (petitioner) bought a 3,058-square
meter (sq. m.) parcel of land. His father leased
a 1,000-sq. m. portion of Lot 937-A (subject
land) to respondent Iloilo Santos Truckers, Inc.
respondent. Notwithstanding this, petitioner
allowed the lease to subsist and respondent
had been diligent in paying its monthly rent
amounting to P10,000.00 per month.
Petitioner claimed that when his father died,
respondent stopped paying rent. On the other
The lessee’s appeal is frivolous or
dilatory; or
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CIVIL LAW
hand, respondent maintained that it was
willing to pay rent, but was uncertain as to
whom payment should be made. Respondent
consigned the amount of P521,396.89
equivalent for the rent of February 2007 to
March 2011 in the RTC. Petitioner averred that
the amount was insufficient to cover the
unpaid rentals plus interests from February
2007 to May 2011. Petitioner clarified that his
earlier demand to pay was for the period of
February 2007 to May 2011. Thus, petitioner
posited that respondent had continuously
failed and refused to comply with the terms
and conditions of the lease contract
concerning the payment of monthly rental.
May petitioner eject respondent from the
subject land?
a.
b.
Possession in the concept of a holder
A: Yes. For an unlawful detainer suit to prosper,
the plaintiff-lessor must show that: first, initially,
the defendant-lessee legally possessed the leased
premises by virtue of a subsisting lease
contract; second, such possession eventually
became illegal, either due to the latter's violation
of the provisions of the said lease contract or the
termination thereof; third, the defendant-lessee
remained in possession of the leased premises,
thus, effectively depriving the plaintiff-lessor
enjoyment thereof; and fourth, there must be a
demand both to pay or to comply and vacate and
that the suit is brought within one (1) year from
the last demand.
a.
In this case, all requisites have been indubitably
complied with, considering that at the time the
suit was instituted on June 21, 2011: (a) there was
a subsisting lease contract between petitioner and
respondent; (b) , respondent was not updated in
its monthly rental payments, as there is no
evidence of such payment for the months of April,
May, and even June 2011-- said omission
constitutes a violation of the lease contract on the
part of respondent; (c) respondent was still in
possession of the subject land; and (d) the case
was filed within one (1) year from petitioner's
letter dated May 24, 2011 demanding that
respondent pay monthly rentals and at the same
time, vacate the subject land (Teodorico Zaragoza
v. IloIlo Santos Truckers, Inc., G.R. No. 224022, June
28, 2017).
f.
g.
b.
c.
d.
e.
Lessees or those merely permitted to
occupy;
Trustees (including parents over the
properties of their unemancipated minor
children or insane children (NCC, Art.
1109); and husband and wife over each
other’s properties, as long as the marriage
lasts, and even if there be a separation of
property which had been agreed upon in
a marriage settlement or by judicial
decree (NCC, Art. 1109);
Antichretic creditors;
Agents;
Attorneys (regarding their client’s
properties)
Depositaries; and
Co-owners (unless the co-ownership is
clearly repudiated by unequivocal acts
communicated to the other co-owners).
Presumption that possessor has a just title
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 (Art. 541).
Requirements under NCC, Art. 541 to raise the
disputable presumption of ownership (of a
thing or a right):
a.
Acquisitive prescription
b.
Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring
dominion (NCC, Art. 540).
One must be in possession (actual or
constructive).
The possession must be in the concept of
owner (not mere holder).
NOTE: A tenant cannot avail himself of
the presumption of just title because he is
not a possessor in the concept of owner)
(Paras, 2008).
Possession in the concept of an owner
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
If a person possesses en concepto de
dueño — he may eventually become the
owner by prescription; and
Thus, a possessor merely in the concept of
holder cannot acquire property by
acquisitive prescription. (This is because
here the possession, far from being
adverse, recognizes right of ownership in
others. One cannot recognize the right of
another and at the same time claim
adverse possession which can ripen to
ownership
through
acquisitive
prescription. For prescription to set in,
the possession must be adverse, public
and to the exclusion of all (Paras, 2008).
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PROPERTY
The Article can apply to both real and personal
property. Thus, if a person possesses the key to a
car over which he claims ownership, he can be
presumed to be the owner. But such presumption
may be overcome by documentary evidence
concerning the car’s ownership (Paras, 2008).
2.
Presumptions in favor of a possessor (GCENCE)
1.
2.
3.
4.
5.
6.
Good faith;
Continuity of initial good faith;
Enjoyment in the same character in which
possession was acquired until the
contrary is proved;
Non-interruption in favor of the present
possessor;
Continuous possession by the one who
recovers possession of which he was
wrongfully deprived; and
Extension of possession of real property
to all movables contained therein.
In case of real properties, the prescriptive
periods are 10 years and 30 years
respectively
for
ordinary
and
extraordinary prescription (Paras, 2008).
c.
Presumption of Possession of Movables Found
in an Immovable
True and Valid Title
The possession of real property presumes that of
the movables therein, as long as it is not shown or
proved that they should be excluded (NCC, Art.
542) (2008 Bar).
Here, there was a mode of transferring ownership
and the grantor was the owner. It is defined as a
title which by itself is suffi cient to transfer
ownership without the necessity of letting the
prescriptive period elapse.
Applicability of the Article:
a. Whether the possessor be in good faith or
bad faith;
b. Whether the possession be in one’s own
name or in another’s; and
c. Whether the possession be in concepto de
dueno or in the concept of holder. Thus,
the lessee of a building is presumed to be
the possessor of the movables found
therein, for he who needs them is
supposed to have been the one who
introduced the movables into the
building.
e.g. B bought a Ford Expedition Limited from S, the
owner thereof. Then S delivered the car to B. B
now has a true and valid title.
b.
Colorable Title
That title where, although there was a mode of
transferring ownership, still something is wrong,
because the grantor is NOT the owner.
e.g. B bought a BMW car from S. S then delivered
the car to B. But it turns out that S never owned
the car, and that somebody else was its owner.
Whether B was in good faith or in bad faith is
immaterial in deciding if he (B) is the owner; what
is important is that he is not the owner because he
did not acquire or purchase the property from the
owner, his title being merely “colorado’’ or
colorable.
NOTE: By “real property’’ and “movables’’, the law
means only real or personal THINGS, not rights
(Paras, 2008).
Exclusive possession by a previous co-owner
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
NOTE: It must be remembered that:
1.
Putative Title
That title where although a person believes
himself to be the owner, he nonetheless is not,
because there was no mode of acquiring
ownership.
KINDS OF TITLE
a.
of the car by prescription after four years
(the car being personal property).
Extraordinary prescription does not need
either good faith or just title, hence in the
example given, if B is in bad faith,
although there may be just title (titulo
colorado), B may get ownership by
prescription only after eight years.
Ordinary prescription needs good faith
and just title, hence in the example given,
if B is in good faith, he may become owner
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CIVIL LAW
case of civil interruption, the Rules of Court shall
apply (NCC, Art. 543).
Natural and industrial fruits are considered
received from the time they are gathered or
severed.
Example of interruption in possession of the
WHOLE thing (NCC, Art. 543)
Civil fruits are deemed to accrue daily and belong
to the possessor in good faith in that proportion
(NCC, Art. 544).
A, B, and C have been co-possessors of a piece of
land since 2002. If in 2006, A, B, and C lose
possession over the whole land, it can be said that
the three of them were in possession for only four
years.
Right of a possessor in good faith to fruits
already received
First Paragraph: “A possessor in good faith is
entitled to the fruits received before the possession
is legally interrupted.’’
Example of Interruption in possession of PART
of the thing (NCC, Art. 543)
A and B have been co-possessors of a piece of land
since 2002 thru a mutual agent X. In 2006, X lost
possession of one-fifth of the land. A’s and B’s
possession over the remaining four-fifth
continues, the interruption being limited only to
one-fifth.
a.
NOTE: If A and B had co-possessed the land in
equal shares, the co-possession of the remaining
four-fifths will also be in equal shares. If A and B
had co-possessed in the proportion of 3 to 1, their
shares in the remaining four-fi fths would also be
in the proportion of 3 to 1. In other words, there is
a PROPORTIONATE losing in the area possessed
(Paras, 2008).
b.
c.
Rules to apply for civil interruption
The “Rules of Court” applies (NCC, Art. 543):
a.
b.
Civil interruption is produced by judicial
summons to the possessor (NCC, Art.
1123); and
Judicial summons shall be deemed not to
have been issued, and shall not give rise
to interruption:
1. If it should be void for lack of legal
solemnities;
2. If the plaintiff should desist from the
complaint or should allow the
proceedings to lapse; or
3. If the possessor should be absolved
from the complaint. In all these cases,
the period of the interruption shall be
counted FOR the prescription (NCC,
Art. 1124).
d.
RIGHTS OF POSSESSOR TO FRUITS
Possessor in good faith is entitled to the fruits
received before the possession is legally
interrupted.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
202
Reason for the law: Justice demands that
the fruits be retained by the possessor
who thought that he was really the owner
of the property, and who, because of such
thought had regulated his daily life,
income, and expenses by virtue of such
fruits. Moreover, the possessor should be
rewarded for having contributed to the
INDUSTRIAL WEALTH, unlike the owner,
who by his presumed negligence, had
virtually discarded his property.
Fruits refer to natural, industrial, and civil
fruits, not to other things. (If no actual
fruits are produced, reasonable rents—
civil fruits—must be given).
Legal interruption happens when a
complaint is filed against him and he
receives the proper judicial summons
(Art. 1123). All fruits accrued and
received since said date must be turned
over to the winner, that is, either the
owner or the lawful possessor adjudged
as such by the court. Before legal
interruption, the fruits received are his
own. After the receipt of the judicial
summons, the right to get the fruits not
yet gathered ceases.
The reason why fruits should be returned
from the TIME of legal interruption is that
it is ordinarily only from said date that the
possessor should be considered in BAD
FAITH. Therefore, should there be proof
that BAD FAITH had not set in even
BEFORE legal interruption, fruits should
be returned from that date of
CONVERSION are not entitled to the
fruits. As a matter of fact, the law provides
that “the possessor in bad faith shall
reimburse the fruits received and those
which the legitimate possessor (or
owner) could have received” (NCC, Art.
549). This is true whether the possession
in BAD faith was legally interrupted or
PROPERTY
not. It is understood of course that he is
entitled to the fruitsreceived BEFORE the
conversion into BAD FAITH, for then, he
would still be in good faith (Paras, 2008).
When natural
considered
received
and
industrial
fruits
right to be indemnified in any other manner (NCC,
Art. 545).
NOTE: This article applies to PENDING fruits,
natural or industrial.
are
Q: What if there are natural or industrial fruits
at the time good faith ceases?
Second Paragraph: “Natural and industrial fruits
are considered received from the time they are
gathered or severed.”
a.
b.
A: The possessor shall have the right to a part of
the expenses of cultivation, and to a part in the net
harvest both in proportion to the time of
possession (NCC, Art 545) (2000, 2008 Bar).
If at the time of legal interruption, the
crops are still growing, the rule on
pending crops, not that on gathered crops,
should apply (NCC, Art. 545).
If at the time of legal interruption, the
crops have already been gathered, but are
sold only after such interruption, the sale
is immaterial, for the law requires only a
gathering or severance, so Art. 544
applies.
Q: A possessed in good faith a parcel of land. At
the time he received judicial summons to
answer a complaint filed by B, the crops still
growing had been there for two months.
Harvest was made only after 4 more months
(For his crop needed a total of 6 months from
planting to harvesting). How should said crops
be divided between A and B?
A: In the proportion of 2 to 4 (or 1 to 2), 2 for A
and 4 for B. This is what the law means when it
says that the net harvest shall be divided in
proportion to the time of possession (Paras, 2008).
When civil fruits are deemed to accrue
Third Paragraph: “Civil fruits are deemed to
accrue daily and belong to the possessor in good
faith in that proportion.’’
a.
b.
Sharing of expenses and charges
If civil fruits (like rents) are accrued daily,
Art. 545 does not apply; and
Actual receipt of the rents is immaterial;
hence, even if received only, for example,
on the 30th of a month, all rents accrued
before the 21st of the month (date for
example of legal interruption) should
belong to the possessor in good faith.
a.
The expenses for cultivation shall also be
divided pro rata (2 to 4). The law says
“the possessor shall have a RIGHT to a
part of the expenses for cultivation in
proportion to the time of possession (This
may in certain cases be UNFAIR because
although he may have spent MORE than
the owner, still he will be entitled to a
reimbursement of LESS since his
possession is shorter. The better rule
would be for the expenses to be borne in
proportion to what each receives from
the harvest) (NCC, Art. 443). Otherwise,
unjust enrichment would result.
b.
The charges (those incurred because of
the land and the fruits, like TAXES, or
INTEREST on MORTGAGES are what are
referred to as CHARGES, and not those
incurred on or in them, such as
improvements) are also to be divided in
proportion to the time of possession (NCC,
Art. 545, 2nd par.);(Paras, 2008).
RIGHT TO PENDING FRUITS
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 desires,
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
Options of the owner in case there are pending
fruits at the time good faith ceases
203
CIVIL LAW
1.
2.
To pay the possessor in good faith
indemnity for his cultivation expenses
and charges and his share in the net
harvest; or
To allow the possessor in good faith to
FINISH the cultivation and gathering of
the growing crops, as an INDEMNITY for
his part of the expenses of cultivation and
the net proceeds (Paras, 2008).
These expenses are not improvements but are
incurred merely to protect the thing from
becoming useless.
Sample of necessary expenses
a.
b.
NOTE: If the possessor refuses, for any reason, to
finish the cultivation and gathering, he forfeits the
right to be indemnified in any other manner [NCC,
Art. 545(3)].
Ordinary repairs are understood such as are
required by the wear and tear due to the
natural use of the thing, and are indispensable
for its preservation (NCC, Art. 592). They do
not increase the thing’s value; rather, they
merely prevent the things from becoming
useless.
Art. 545 applies only to a possessor in GOOD faith
for a possessor in bad faith has no right
whatsoever to fruits already gathered nor to fruits
still pending, except that in the former case
(gathered fruits), he gets back the necessary
expenses for production, gathering, and
preservation of fruits (Art. 443). In the case of
pending fruits, the principle of accession applies,
and the law clearly states that he who plants or
sows in BAD FAITH on the land of another, loses
whatever is planted or sown without right to
indemnity (Paras, 2008).
Urgent repairs — reparacion urgentisima —
are also necessary expenses.
The following are NOT Necessary Expenses
a.
Crops not yet manifest
Art. 545 applies to pending crops. Suppose the
crops have already been planted but are not yet
manifest at the time there is a transfer of
possession, should the article also apply? It is
submitted that the answer is YES, by the
application of the general rules stated in Art. 443
(Paras, 2008).
b.
c.
RIGHT TO BE REIMBURSED
NECESSARY AND USEFUL EXPENSES
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 (NCC, Art. 546).
d.
Those incurred for the filling up with soil
of a vacant or deep lot (This is not also a
repair since the term “repair” implies the
putting back into the condition in which it
was originally, and not an improvement
in the condition thereof by adding
something new thereto. The expenses are
indeed in the nature of USEFUL
improvements;
A house constructed on land possessed by
a stranger (not the owner), because the
house cannot be said to preserve the land
(the house is USEFUL);
Land taxes are, for the purposes of the
Article, not necessary expenses, for they
are needed, not for preservation of the
land itself; but for its continued
possession. Failure to pay said taxes
results not in destruction, but forfeiture,
therefore they should be merely
considered CHARGES. Consequently, Art.
545 regarding PRO RATING of charges
should apply; and
Unnecessary improvements on a parcel of
land purchased at a sheriff’s auction sale,
made just to prevent redemption from
taking place (Paras, 2008).
Rights of a possessor (in the concept of owner)
as to the necessary expenses
Necessary expenses (1992, 1996, 2000 Bar)
Necessary expenses are expenses incurred to
preserve the property, without which, said
property will physically deteriorate or be lost.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Those
incurred
for
cultivation,
production, and upkeep; or
Those made for necessary repairs of a
house.
a.
204
If in good faith — entitled to:
1. Refund; or
2. Retain premises until paid.
PROPERTY
b.
If in bad faith — entitled ONLY to a refund
(no right of RETENTION, as penalty).
1.
NOTE: If the owner sues the possessor for the
recovery of the property, the possessor in good
faith (who is thus entitled to a refund) must file a
counterclaim for the refund of necessary and
useful expenses, otherwise the judgment in the
case for possession will be a BAR to a subsequent
suit brought solely for the recovery of such
expenses. The purpose is clearly to avoid the
multiplicity of suits (Paras, 2008).
2.
3.
Right of removal of necessary expenses
NOTE: The possessor in good faith is
entitled to both the fruits and
expenses (necessary or useful), hence
they do not compensate each other.
There is NO right of removal of necessary
expenses whether in good faith or bad faith.
Necessary expenses affect the existence or
substance of the property itself.
B. If in BAD faith.
The possessor in BAD faith is NOT
ENTITLED to any right regarding the
useful expenses [BUT IN Angeles v.
Guevara, L-15697, October. 31, 1960,
where the Supreme Court thru Justice
Gutierrez David made the statement that
although a possessor in bad faith is NOT
entitled to reimbursements for expenses
incurred, he may nevertheless REMOVE
the objects (repairs on buildings)
provided the things suffer 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. Evidently, here,
the Court was thinking NOT of useful
improvement, but of expenses for PURE
LUXURY or MERE PLEASURE (NCC, Art.
549)].
NOTE: Improvements are so incorporated to the
principal thing that their separation must
necessarily reduce the value of the thing not
curable by ordinary repairs.
Useful expenses
Those which increase the value or productivity of
the property.
Examples of useful expenses
a.
b.
c.
d.
e.
Right to REIMBURSEMENT (of either
the amount spent or the increase in
value — “plus value” — at OWNER’S
OPTION) (NCC, Art. 546).
Right of RETENTION (until paid)
(NCC, Art. 546).
Right of REMOVAL (provided no
substantial damage or injury is
caused to the principal, reducing its
VALUE) — UNLESS the winner
(owner or lawful possessor) exercises
the option in (1) (NCC, Art. 547).
Those incurred for an irrigation system;
Those incurred for the erection of a
chapel, because aside from its possibility
of conversion into such materialistic
things as a warehouse or a residence, the
chapel satisfied spiritual and religious
aspirations and the attainment of man’s
higher destinies. “To uphold the opposite
view would be to reduce life to a mere
conglomeration of desires and lust, when,
as a matter of fact, life is also a beautiful
aggregate of noble impulses and lofty
ideals”;
Those incurred for the making of artificial
fishponds;
Those incurred for the construction of
additional rooms in a house, for use as
kitchen, bathroom, stable, etc;
Those incurred for clearing up land
formerly thickly covered with trees and
shrubbery (Paras, 2008).
Effect of voluntary surrender of property
The voluntary surrender of property is a waiver of
the possessor’s right of retention but his right to
be refunded may still be enforced.
XPN: He also waived the same.
Removal of useful improvements introduced
by the possessor
Only a possessor in good faith is allowed to
remove the useful improvements he introduced
provided that the useful improvements can be
removed without damage to the principal thing
(NCC, Art. 547).
Rights of a possessor (in the concept of owner)
as to the USEFUL expenses
“Damage’’ here means a substantial one that
reduces the value of the property, thus a slight
A. If in GOOD faith.
205
CIVIL LAW
injury curable by an ordinary repair does not
defeat the right of removal, but the repairs should
be chargeable to the possessor, for it is he who
benefits by the removal and the object removed
(Paras, 2008).
ENTERS INTO POSSESSION (NCC,
Art. 549).
POSSESSOR IN BAD FAITH
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 Art. 546 and in Art. 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 (NCC, Art. 549).
NOTE: This right of removal is subordinate to the
owner’s right to keep the improvements himself
by paying the expenses incurred or the
concomitant increase in the value of the property
caused by the improvements.
EXPENSES FOR PURE LUXURY
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 (NCC, Art. 548).
Q: Who is a possessor in bad faith?
A: A possessor in bad faith is one who is aware
that there exists in his title or mode of acquisition
any flaw which invalidates it. Only personal
knowledge of the flaw in one’s title or mode of
acquisition can make him a possessor in bad faith.
Luxurious expenses or expenses for pure luxury or
mere pleasure (ornamental expenses) are expenses
incurred for improvements introduced for pure
luxury or mere pleasure.
Examples of ornamental expenses
a.
b.
c.
NOTE: No tacking of bad faith, unless the
successors in interest had learned of the defect in
the title and still purchased it.
Hand paintings on the wall of a house;
A garage made of platinum; and
Water fountains in gardens.
Bad faith is not transmissible from a person to
another, even an heir is not affected by bad faith of
the deceased predecessor.
Rights of a Possessor (in the Concept of
Owner) as to Luxurious or Ornamental
Expenses
a.
If in GOOD faith:
In general, no right of refund or retention
but can remove if no substantial injury is
caused. However, owner has OPTION to
allow:
1.
2.
b.
Right of the Possessor (in the Concept of
Owner) as to FRUITS
a.
1. Gathered or severed or harvested fruits
are his own (NCC, Art. 544);
Possessor to remove; or
Retain for himself (the owner)
the ornament by REFUNDING the
AMOUNT SPENT (NCC, Art. 548).
2. Pending or ungathered fruits — (prorating between possessor and owner of
expenses, net harvest, and charges) (NCC,
Art. 545).
In BAD faith:
In general, no right of refund or retention
but can remove if no substantial injury is
caused. However, owner has OPTION to
allow:
1.
2.
b.
If in BAD faith:
1. Gathered fruits — must return value of
fruits already received as well as value of
fruits which the owner or legitimate
possessor (not the possessor in bad faith)
could HAVE received with due care or
diligence, MINUS necessary expenses for
cultivation, gathering, and harvesting, to
Possessor to remove; or
Retain for himself (the owner)
the ornament by REFUNDING the
VALUE it has at the TIME owner
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
If in GOOD faith:
206
PROPERTY
prevent the owner from being unjustly
enriched (NCC, Arts. 549 and 443).
1.
2.
2. Pending or ungathered fruits — no
rights at all, not even to expenses for
cultivation because by accession, all
should belong to the owner, without
indemnity (NCC, Art. 449).
3.
Summary of rights of a possessor
GOOD FAITH
BAD FAITH
As to fruits received
Entitled to the fruits Shall reimburse the
received before the fruits received and those
possession is legally which the legitimate
interrupted (NCC, Art. possessor could have
544).
received and shall have
the a right only to
necessary expenses (Art.
546,
par.
1)
and
expenses
in
the
production,
gathering
and preservation of such
fruits (NCC, Art. 443).
As to pending fruits
Liable with legitimate None.
possessor for expenses
of cultivation and shall
share in the net harvest
in proportion to the
time
of
their
possession (NCC, Art.
545).
As to expenses:
(Necessary expenses)
Right
of
Right of reimbursement
reimbursement
and
only.
retention.
(Useful expenses)
Right
of None.
reimbursement,
retention and limited
right of removal.
(Ornamental Expenses)
Shall not be refunded Shall not be refunded
but he has a limited but he has a limited
right of removal, i.e. he right of removal, i.e. he
may remove if the may remove if the
principal thing suffers principal thing suffers
no injury thereby, and if no injury thereby, and if
the lawful possessor the lawful possessor
does not prefer to does not prefer to
refund the amount retain them by paying
expended.
its value at the time he
enters into possession.
As to liability in case of deterioration or loss
No liability
Always liable.
NOTE: The costs of litigation over the property
shall be borne by every possessor (NCC, Art. 550).
“Every possessor’’ refers to one in good faith or bad
faith, in the concept of owner or in the concept of
holder, in one’s own name or in that of another,
and not to the owner or the person adjudged by
the court to be lawfully entitled to possess (Paras,
2008).
Improvements caused by nature or time
Neither the possessor in good faith nor in bad faith
is entitled to:
a.
b.
Possessor has a title/mode of acquisition;
There is a flaw or defect in said
title/mode; and
The possessor is aware or unaware of the
flaw or defect.
Improvements caused by NATURE (like
alluvium, etc.)
Improvements caused by TIME (like the
improved flavor of wine).
Liability for loss or deterioration
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 (NCC, Art. 552).
Rules applicable:
A. Possessor in GOOD FAITH —
1. BEFORE receipt of judicial summons —
NOT LIABLE.
2. AFTER judicial summons
i. Loss or deterioration thru
fortuitous event — not liable.
ii. Thru fraudulent intent or
negligence — liable
B. Possessor in BAD FAITH —
Whether before or after judicial
summons, and whether due to
fortuitous event or not, such
possessor is LIABLE.
Requisites to constitute possession whether in
good faith or in bad faith
XPN: If due to his
fraudulent
act
or
207
CIVIL LAW
If a person loses possession for more than 10
years, he loses possession de jure, or the real right
of possession (NCC, Art. 555). An accion publiciana
or reivindicatoria is still possible unless
prescription, either ordinary or extraordinary, has
set in (Paras, 2008).
negligence, or after
service of summons.
Possessor in good faith has the right of
retention until he has been fully reimbursed
A possessor in good faith has the right of retention
of the property until he has been fully reimbursed
for all the necessary and useful expenses made by
him on the property. Its object is to guarantee the
reimbursement for the expenses, such as those for
the preservation of the property, or for the
enhancement of its utility or productivity. It
permits the actual possessor to remain in
possession while he has not been reimbursed by
the person who defeated him in the possession for
those
necessary
expenses
and
useful
improvements made by him on the thing
possessed (Ortiz v. Kayanan, G.R. No. L-32974, July
30, 1979).
Presumption of Possession
intervening period
during
NOTE: Acts merely tolerated, and those executed
clandestinely and without the knowledge of the
possessor of a thing, or by violence, do not affect
possession (NCC, Art. 537) (2001, 2009 Bar).
Abandonment
Abandonment involves a voluntary renunciation
of all rights over a thing. There must be an
intention to lose the thing.
Requisites
1.
the
2.
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 (NCC, Art
554).
3.
4.
LOSS/TERMINATION OF POSSESSION
Possession is lost through (PRADA)
1.
2.
3.
4.
5.
The abandoner must have been a possessor in
the concept of owner (either an owner or
mere possessor may respectively abandon
either ownership or possession);
The abandoner must have the capacity to
renounce or to alienate (for abandonment is
the repudiation of property right);
There must be physical relinquishment of the
thing or object; and
There must be no spes recuperandi
(expectation to recover) and no more animus
revertendi (intention to return or get back)
(Paras, 2008).
Additional Doctrines:
Possession of another;
Recovery of the thing by the legitimate owner;
Abandonment;
Destruction or total loss of the thing – a thing
is lost when it perishes or goes out of
commerce, or disappears in such a way that
its existence is unknown, or it cannot be
recovered (NCC, Art. 1189; Art. 555); or
Assignment – complete transmission of the
thing/right to another by any lawful manner
(NCC, Art. 555).



Possession of another
Possession of another subject to the provisions of
Art. 537, if a person is not in possession for more
than one year but less than 10 years he losses
possession de facto. He can no longer bring an
action of forcible entry or unlawful detainer, since
the prescriptive period is one year for such
actions. But he may still institute an accion
publiciana to recover possession de jure,
possession as a legal right or the real right of
possession (NCC, Art. 555; Paras, 2008).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES

208
A property owner cannot be held to have
abandoned the same until at least he has
some knowledge of the loss of its
possession or the thing.
There is no real intention to abandon
property when as in the case of a
shipwreck or a fire, things are thrown
into the sea or upon the highway.
An owner may abandon possession
merely, leaving ownership in force, but a
mere
possessor
cannot
abandon
ownership since he never had the same.
If an owner has not lost possession
because there has been no abandonment,
it surely cannot be acquired by another
thru acquisitive prescription. Thus, the
mere fact that land is covered by the sea
completely during high tide for failure in
the meantime of the owner to dam the
water off, does not indicate an
abandonment of the land in favor of
public dominion. Moreover, abandonment
PROPERTY




can hardly refer to land much less to
registered land.
There is no abandonment if an owner
merely tolerated (permitted) another’s
possession, nor if the latter was done by
stealth or effected thru force and
intimidation (NCC, Articles. 537 and 558).
There is no abandonment of movables
even if there is temporary ignorance of
their whereabouts, so long as they remain
under the control of the possessor (that
is, so long as another has not obtained
control of them) (NCC, Art. 556).
In true abandonment, both possession de
facto and de jure are lost.
Abandonment which converts the thing
into res nullius (ownership of which may
ordinarily be obtained by occupation),
does not apply to land (NCC, Art. 714, Civil
Code). Much less does abandonment apply
to registered land (Act, 496, Sec. 46)
(Paras, 2008).
If the possessor has no idea at all about the
whereabouts of the movable, possession is lost,
but not when he more or less knows its general
location, though he may not know its precise or
definite location. In the former, he has lost juridical
control; in the latter, the object remains within his
patrimony (not in the patrimony of another)
(Paras, 2008).
NOTE: An abandoned property is not considered
as a lost thing (Pineda, 1999).
Loss of immovables with respect to third
person
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
(NCC, Art. 557).
Assignment
NOTE: Art. 557 refers to possession of real
property, and other real rights over real property
(like easement or usufruct).
Refers to a total transfer of ownership of property
by the owner to another person either
gratuitously or onerously.
Acts of mere holder
While in assignment, at no time did the thing not
have a possessor (for possession merely changed
hands or control); in abandonment, there was a
time, no matter how short, when the object did
not have any possessor at all. Moreover, while
assignment may in some cases be by onerous title,
abandonment is always gratuitous, otherwise it
becomes a virtual assignment. Moreover, in
assignment, both possession de facto and de jure
are lost, and no action will allow recovery (Paras,
2008).
XPNS:
1. Unless he gave said holder express authority to
do such acts; or
2. Ratifies them subsequently (NCC, Art. 558).
GR: 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.
FINDER OF LOST MOVABLE
Rule regarding the right of a possessor who
acquires a movable claimed by another
Q: Does Art. 555 refer to both real and personal
property?
If the possessor is in:
1. Bad faith – He has no right.
2. Good faith – He has presumed ownership. It is
equivalent to title.
A: YES (for the law does not distinguish) except in
the case of paragraph 4, for it is evident that the
reference to possession of more than one year
concerns only real property, the rule as to movable
property being explicitly stated in Art. 556.
Requisites:
a. Owner has voluntarily parted
with the possession of the thing;
and
b. Subsequent possessor is in the
concept of an owner.
c. Possession in good faith;
LOSS OR UNLAWFUL DEPRAVATION OF A
MOVABLE
A lost thing is one previously under the lawful
possession and control of a person but is now
without any possessor.
Possession of movable property acquired in
good faith
When possession of movables is lost or not lost
209
CIVIL LAW
GR: Doctrine of irrevindicability – The
possession of movable property acquired in good
faith is equivalent to title and the true owner
cannot recover such movable.
3.
Summary
principle
NOTE: This is merely presumptive as it can be
defeated by the true owner (NCC, Art. 559).
In which case the possessor cannot retain the
thing as against the owner, who may recover
it without paying any indemnity
Duty of a finder of a lost movable (NCC, Art.
719)
Whoever finds a lost movable, which is not a
treasure, must return it to its previous possessor.
If the latter is unknown, the finder shall
immediately deposit it with the mayor of the city
or municipality where the finding has taken place.
The mayor in turn must publicly announce the
finding of the property for two consecutive weeks.
C.
Authorized public auction of lost movable
If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be sold at
public auction eight days after the publication.
Awarding of the lost movable to the finder
If the owner or previous possessor did not appear
after 6 months from the publication, the thing
found or its value or proceeds if there was a sale,
shall be awarded to the finder. The finder,
however, shall pay for the expenses incurred for
the publication (NCC, Art. 719).
or
non-recovery
Owner CANNOT RECOVER, even if he offers to
REIMBURSE (whether or not the owner had
lost or been unlawfully deprived):
1. If possessor had acquired it in good faith
by purchase from a merchant’s store, or in
fairs, or markets in accordance with the
Code of Commerce and special laws (NCC,
Art. 1505 and Code of Commerce, Art. 85
and Art. 86);
2. If owner “is by his conduct precluded from
denying the seller’s authority to sell.”
(ESTOPPEL) (NCC, Art. 1505); and
3. If possessor had obtained the goods
because he was an innocent purchaser for
value and holder of a NEGOTIABLE
document of title to the goods (NCC, Art.
1518) (Paras, 2008).
Q: Suppose recently stolen property is found in
possession of A, is A presumed to be the thief?
A: YES, it is a disputable presumption “that a
person found in possession of a thing taken in the
doing of a recent wrongful act is the taker and
doer of the whole act.’’ (Rules of Court, Rule 131,
Sec. 3[j]). It is true that one who possesses a
movable, acquired in good faith, has what is called
an equivalent of title, but this is destroyed when it
is proved that said movable belongs to somebody
else who has lost it, or has been unlawfully
deprived of its possession (NCC, Art. 559) (Paras,
2008).
Duty of the owner who appeared
Give a reward to the finder equivalent to
one-tenth (1/10) of the sum or of the
price of the thing found (NCC, Art. 720);
Reimburse to the finder for the latter’s
expenses incurred for the preservation of
the thing (NCC, Art. 546) and expenses
spent for the location of the owner; and
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
recovery
B.
Owner MAY RECOVER but should
REIMBURSE:
If possessor acquired the object in good
faith at a PUBLIC SALE or AUCTION (NCC,
Art. 559). Because the publicity attendant
to a public sale should have been
sufficient warning for the owner to come
forward and claim the property.
XPN to the XPNs: Where the movable is
acquired in good faith at a public sale, the
owner must reimburse to recover [NCC, Art.
559(2)].
2.
of
A.
Owner
MAY
RECOVER
WITHOUT
REIMBURSEMENT:
1. From possessor in bad faith; or
2. From possessor in good faith (if owner
had LOST the property or been unlawfully
deprived of it) (the acquisition being from
a private person) (NCC, Art. 559).
XPNs:
1. When the owner has lost a movable; or
2. Has been unlawfully deprived of a movable.
1.
Reimburse the expenses for publication if
there was a public auction sale (Pineda,
1999).
210
PROPERTY
Q: In order to contest the title of the possessor
in good faith, what should the true owner do?
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 (NCC, Art. 560).
A: The true owner should present suffi cient proof
of the identity of the object AND that he had either
lost it or has been illegally deprived of it. This
proof is an indispensable requisite a conditio sine
qua non in order that the owner of the chattel may
contest the apparent title of its possessor. Without
adequate proof of such loss or illegal deprivation,
the present holder cannot be put on his defense,
even if as possessor he has no actual proprietary
title to the movable property in question (Paras,
2008).
Lawful recovery of possession that had been
unjustly lost
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 (NCC, Art. 561).
Requisites:
a. Possession was lost unlawfully or unjustly;
b. Possessor lawfully recovers possession;
and
c. Uninterrupted possession is beneficial to
him.
Rule when possessor has already become the
owner
Art. 559 in fact assumes that the possessor is as
yet not the owner, for it is obvious that where the
possessor has come to acquire indefeasible title,
let us say adverse possession for the necessary
period, no proof of loss, or illegal deprivation
could avail the former owner of the chattel. He
would no longer be entitled to recover it under
any condition (Paras, 2008).
USUFRUCT
Usufruct is the right of a person called
usufructuary, to enjoy the property of another
called the owner, with the obligation of returning
it at the designated time and preserving its form
and substance, unless the title constituting it or
the law provides otherwise (Pineda, 2009).
Estafa is considered as unlawful deprivation
Q: Using a falsified manager's check, Justine, as
the buyer, was able to take delivery of a second
hand car which she had just bought from
United Car Sales Inc. The sale was registered
with the Land Transportation Office. A week
later, the seller learned that the check had
been dishonored, but by that time, Justine was
nowhere to be seen. It turned out that Justine
had sold the car to Jerico, the present
possessor who knew nothing about the
falsified check. In a suit by United Car Sales,
Inc. against Jerico for recovery of the car,
plaintiff alleges it had been unlawfully
deprived of its property through fraud and
should, consequently, be allowed to recover it
without having to reimburse the defendant for
the price the latter had paid. Should the suit
prosper? (1998 Bar)
NOTE: A usufruct can be constituted in favor of a
town, corporation or association, but it cannot be
for more than 50 years (NCC, Art. 605).
Characteristics of usufruct (ENA)
1.
Essential – Those without which it cannot be
termed as usufruct:
a.
b.
A: The suit should prosper because the criminal
act of estafa should be deemed to come within the
meaning of unlawful deprivation under Art. 559 as
without it United Car Sales would not have parted
with the possession of its car.
Thus, it was
allowed to recover the property without having to
reimburse the defendant.
c.
d.
Possession of wild animals
211
Real right (whether registered in the
registry of property or not);
Constituted on property
i. Real;
ii. Personal;
iii. Consumable;
iv. Non-consumable;
v. Tangible;
vi. Intangible.
Temporary duration;
Purpose: to enjoy the benefits and derive
all advantages from the object as a
consequence
of
normal
use
or
exploitation.
CIVIL LAW
2.
3.
Natural – That which ordinarily is present, but
a contrary stipulation can eliminate it because
it is not essential;
a. The obligation of conserving or
preserving the form and substance
(value) of the thing.; and
b. It is transmissible.
Accidental – Those which may be present or
absent depending upon the stipulation of
parties
a. Whether it be pure or a conditional
usufruct;
b. The number of years it will exist;
c. Whether it is in favor of one person or
several, etc.
Voluntary – Created by will of the parties
either by act inter vivos (e.g. donation) or
by act mortis causa (e.g. in a last will and
testament);
c.
Mixed– Created by both law and act of the
person (e.g. acquired by prescription: I
possessed in good faith a parcel of land
which really belonged to another. Still in
good faith, I gave in my will to X, the
naked ownership of land and to Y, the
usufruct. In due time, Y may acquire the
ownership of the usufruct by acquisitive
prescription) (Paras, 2008).
Prescriptive – acquired by third persons
through continuous use of the usufruct
for the period required by law.
d.
Obligation to preserve the form and substance
of the thing in usufruct
2. As to the number of beneficiaries
a. Simple – If only one usufructuary enjoys
the usufruct;
b. Multiple – If several usufructuaries enjoy
the usufruct;
i.
Simultaneous – at the same time
ii.
Successive – one after the other
GR: The usufructuary is bound to preserve the
form and substance of the thing in usufruct. This is
to prevent extraordinary exploitation, prevent
abuse of property and prevent impairment.
XPN: In case of an abnormal usufruct, whereby
the law or the will of the parties may allow the
modification of the substance of the thing.
NOTE: In case usufructuary is created by
donation, apply Art. 756. If the usufruct is
testamentary, apply Rules on Fidei
Commisary substitution under Art. 863
and 869.
Q: Chayong owned a parcel of land which she
mortgaged to Michael. Upon the OCT was an
annotation of usufructuary rights in favor of
Cheddy. Is Michael obliged to investigate
Chayong’s title?
3. As to the extent of object:
a. Total – constituted on the whole thing
b. Partial – constituted only on a part
A: NO. The annotation is not sufficient cause to
require Michael to investigate Chayong’s title
because the latter’s ownership over the property
remains unimpaired despite such encumbrance.
Only the jus utendi and jus fruendi over the
property are transferred to the usufructuary. The
owner of the property maintains the jus
disponendi or the power to alienate, encumber,
transform, and even destroy the same (Hemedes v.
CA, G.R. Nos. 107132 & 108472, October 8, 1999).
4. As to the subject matter:
a. Over things
i.
Normal (or perfect or regular) –
involves non-consumable things
where the form and substance
are preserved; or
ii.
Abnormal (or imperfect or
irregular) – Involves consumable
things – that which involves
things which would be useless to
the usufructuary unless they are
consumed or expanded.
KINDS OF USUFRUCT
1. As to origin:
a. Legal – Created by law such as usufruct of
the parents over the property of their
unemancipated children;
b.
NOTE: The right of the parents over the
fruits and income of the child’s property
shall be limited primarily to the child’s
support and secondarily to the collective
daily needs of the family (FC, Art. 226).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
b.
Over rights – involves intangible
property; rights must not be personal or
intransmissible in character so present or
future support cannot be an object of
usufruct.
5. As to the effectivity or extinguishment:
a. Pure – no term or condition
212
PROPERTY
b.
With a term – there is a period which may
be either suspensive or resolutory
i. Ex die – from a certain day
ii. In diem – up to a certain day
iii. Ex die in diem – from a certain
day up to a certain day.
c.
Conditional – subject to a condition which
may be either suspensive or resolutory.
a builder has
built in good
faith on the land
of another a
building, when
the
land
is
considerably
worth more in
value than the
building.
All fruits, uses Only
those
Extent of
and benefits.
particular
or
Enjoyment
specific use.
GR: No form is required in constituting a usufruct.
Even an oral usufruct may be constituted.
XPNs:
1. Usufruct over real property must be
registered to bind third person
2. Statute of Frauds apply in case Real Property
is involved. If Personal property, Statute of
Frauds will apply where the value is P 500 or
higher and in case the agreement is not to be
performed in one year;
3. A usufruct by donation or by will must comply
with formalities of a donation or will
Cause
Usufructuary
pays for ordinary
repairs and pays
for
annual
charges
and
taxes on the
fruits.
Lessee is not
obliged to pay
for
repairs/taxes
unless agreed
upon.
Usufructuary
may lease the
Limitation
property
to
on the use
another
but
of property
cannot alienate
the thing itself.
The
lessee
cannot
constitute
a
usufruct on the
property leased.
Repairs
and Taxes
Rules governing usufruct
1.
2.
The agreement of the parties or the title
giving the usufruct.
In case of deficiency, the provisions on
Civil Code (NCC, Art. 565).
Usufruct v. Lease
BASIS
USUFRUCT
Always
right.
Nature of
the right
Creator of
Right
Origin
A passive owner An active owner
who allows the who makes the
usufructuary to lessee enjoy.
enjoy the object
of usufruct.
LEASE
RIGHTS OF USUFRUCTUARY
a
real Real right only
if, as in the case
of a lease over
real property,
the lease is
registered, or is
for more than
one
year,
otherwise it is a
personal right.
Owner or his May not be the
agent.
owner, as in the
case of a sublessor
or
a
usufructuary.
By law, contract, By contract, by
will of testator or way
of
by prescription. exception
by
law (as in the
case
of
an
implied
new
lease under Art.
1670), or when
Rights of the usufructuary as to the thing and
its fruits (RIRICRES)
1.
To Receive the fruits of the property in
usufruct and half of the hidden treasure he
accidentally finds on the property (NCC,
Articles 566 and 438);
NOTE: The usufructuary is entitled to the
natural, industrial, and civil fruits that will
accrue during the existence of the usufruct.
2.
3.
4.
213
To enjoy any Increase which the thing in
usufruct may acquire through accession (NCC,
Art. 571);
To Retain the thing until he is reimbursed for
advances for extraordinary expenses and
taxes on the capital (NCC, Art. 612);
To make such Improvements or expenses on
the property he may deem proper and to
remove the improvements provided no
damage is caused to the property (NCC, Art.
579);
CIVIL LAW
5.
6.
7.
8.
To Collect reimbursements from the owner
for indispensable extra ordinary repairs, taxes
on the capital he advanced, and damages
caused to him;
To Remove improvements made by him if the
same will not injure the property;
To personally Enjoy the thing or lease it to
another (NCC, Articles. 572-577) generally for
the same or shorter period as the usufruct;
At the
beginning
of the
usufruct
NOTE: As to the thing itself, the usufructuary
may lease the thing to another, even without
the consent of the owner.
To Set-off the improvements he may have
made on the property against any damage to
the same (NCC, Art. 580).
Belong to the owner but he is bound
to reimburse the usufructuary of the
At the
ordinary cultivation expenses (NCC,
termination
Art. 545) out of the fruits received
of the
(NCC, Art. 443). The right of innocent
usufruct
third parties should not be
prejudiced.
Rule as to certain rights (rent, pension,
benefits, rtc.)
Whenever a usufruct is constituted on the right to
receive a rent or periodical pension, whether in
money or in fruits, or in the interest on bonds or
securities payable to bearer, each payment due
shall be considered as the proceeds of fruits of
such right. Whenever it consists in the enjoyment
of benefits accruing from a participation in any
industrial or commercial enterprise, the date of
the distribution of which is not fixed, such benefits
shall have the same character. In either case they
shall be distributed as civil fruits, and shall be
applied in the manner prescribed in the preceding
article (Paras, 2008).
NOTE: Civil fruits accrue daily; stock dividends
and cash dividends are considered civil fruits.
However, dividends declared from “capital stocks”
are not covered by usufruct because such are not
declared from profits of the corporation.
Aside from the right to the fruits, the usufructuary
has the right to the enjoyment (use, not
ownership) of:
a.
b.
c.
The things referred to in Art. 570 are considered
civil fruits and shall be deemed to accrue
proportionately to the naked owner and
usufructuary, for the time the usufruct lasts.
The usufructuary, as a rule, is entitled to the:
a.
If the finder is a usufructuary and he discovers it
by chance, the usufructuary shall be entitled to
one half of the value thereof. The other half
belongs to the naked owner.
b.
ENTIRE jus fruendi (including fruits of
accessions); and
ENTIRE jus utendi (so he can make use for
example of an easement).
When the expenses of cultivation and
production exceeds the proceeds of the
growing fruits
If the finder is a third person and he found hidden
treasure by chance in the property under usufruct,
the usufructuary shall be considered a stranger.
The finder gets half and the other half shall belong
to the naked owner.(Paras, 2008)
If the expenses exceed the proceeds of the
growing fruits, the owner has no obligation to
reimburse the difference (NCC, Art. 567).
Rights of a usufructuary on pending natural
and industrial fruits (NCC, Art. 567)
Limitations to Usufructuary Rights
The usufructuary cannot:
Rights of the usufructuary
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Accessions (whether artificial or natural);
Servitudes and easements; and
All benefits inherent in the property (like
the right to hunt and fish therein, the
right to construct rain water receptacles,
etc.).
Reason:
Rules if the finder of a hidden treasure is a
usufructuary
Fruits
Growing:
a. Belong to the usufructuary;
b. Not bound to refund to the owner
the expenses of cultivation and
production but without prejudice to
the right of third persons.
c. BUT without prejudice to the right
of third persons. (Thus, if the fruits
had been planted by a possessor in
good faith, the pending crop
expenses and charges shall be prorated between said possessor and the
usufructuary).
214
PROPERTY
1.
2.
3.
Sell, pledge or mortgage the property itself
because he is not the owner;
Sell future crops (growing crops at the
termination of the usufruct belong to the
owner); and
Lease the thing for a period longer than the
term of the usufruct without the consent of
owner
3.
If the damages exceed the value of the
improvements, the usufructuary is liable for the
difference as indemnity.
If the improvements exceed the amount of
damages, the usufructuary may remove the
portion of the improvements representing the
excess in value if it can be done without injury;
otherwise, the excess in value accrues to the
owner.
XPN: In lease of rural lands, it may exceed the
lifetime of the usufruct and shall subsist during
the agricultural year.
Q: Can a usufruct be constituted on an
encumbered or mortgaged land?
Q: Why do improvements accrue to the owner?
A: Because there
improvements.
A: YES. The mortgage remains inactive until the
debt is not paid and the mortgage is not for the
purpose of limiting the use of the fruits.
1.
The usufructuary may construct and make
improvements on the property as he may
deem proper;
2.
XPN: If there is an express prohibition to that
effect.
2.
3.
4.
3.
Limitation: the usufructuary cannot alter its
form and substance;
Removal: usufructuary may generally remove
provided no injury is made on the principal
even against the will of the naked owner. If he
has chosen not to remove he cannot be
compelled to remove them; and
Indemnity: no right to be indemnified if the
improvements cannot be removed. He may
however set-off the value of the
improvements against the amount of damage
he had caused to the property (Pineda, 2009).
a.
indemnity
for
To Alienate, pledge or mortgage the right
of usufruct, even by gratuitous title (NCC,
Art. 572);
In a usufruct to Recover property/real
right, to bring the action and to oblige the
owner thereof to give him the proper
authority and the necessary proof to
bring the action ( NCC, Art. 578); and
In a usufruct of part of a Common
property, to exercise all the rights
pertaining to the co-owner with respect
to the administration and collection of
fruits or interests.
Rights with Reference to the THING ITSELF
(in Additionto the Usufruct)
The usufructuary, not being the owner of the thing
subject to usufruct, cannot alienate, pledge or
mortgage the thing itself.
However, the usufructuary may lease the thing to
another (This can be done even without the
owner’s consent; moreover, ordinarily the lease
must not extend to a period longer than that of the
usufruct, unless the owner consents. Thus, the
lease ends at the time the usufruct ends, except in
the case of rural leases.).
Offsetting of damages and improvements
introduced by the usufructuary
Requisites before set-off can be made:
2.
no
Lease, alienation and encumbrance of the
property subject to usufruct
NOTE: If the right of the usufructuary to remove
improvements is not registered in the registration
proceedings of the land in usufruct, an innocent
purchaser for value of the property is not bound
to respect the right.
1.
is
Rights of the usufructuary as to the usufruct
itself
Right of usufructuary to make useful or
luxurious improvements
1.
Notice of intention to set-off.
NOTE: If the lessee should damage the property,
the usufructuary shall answer to the owner (Art.
590). The relation between the owner and the
usufructuary, does not end just because a lease
has been made. The usufructuary, however, can
Damage must have been caused by the
usufructuary;
Improvements must have augmented the
value of the property; and
215
CIVIL LAW
demand reimbursement from the lessee, because
of the latter’s breach of the contract of lease. If the
usufructuary cannot pay the damage to the naked
owner, his bond shall be liable. This is precisely
one reason for the requirement of a bond, NCC,
Art. 583).
b.
Rights
with
Reference
to
USUFRUCTUARY RIGHT ITSELF
Transfer of the usufruct
The transferee can enjoy the rights transferred to
him by the usufructuary until the expiration of the
usufruct. Transfer of usufructuary rights,
gratuitous or onerous, is co-terminous with the
term of usufruct.
the
Exercise of
usufructuary
The usufructuary may alienate (sell, donate,
bequeath, or devise) the usufructuary right
(except a legal usufruct, i.e., the usufruct which
parents have over the properties of their
unemancipated children, because said usufruct is
to be used for certain obligations towards
children); or a usufruct granted a usufructuary in
consideration of his person; or a usufruct acquired
thru a caucion juratoria, for here, the need of the
usufructuary himself is the reason for the
enjoyment (NCC, Art. 587).
of
ownership
by
a
GR: A usufructuary cannot exercise acts of
ownership such as alienation or conveyance.
XPNs: When what is to be alienated or conveyed is
a:
1.
2.
3.
The usufructuary may pledge or mortgage the
usufructuary right (because he OWNS said right)
BUT he cannot pledge or mortgage the thing itself
because he does not own the thing [NCC, Art.
2085(2)]. Neither can he sell or in any way
alienate the thing itself, or future crops, for crops
pending at the termination of the usufruct belong
to the naked owner (NCC, ArtIcles 567 and 572
and Mortgage Law, Art. 106).
--Q: 120 hectares of land from the NHA property
were reserved for the site of the National
Government Center. 7 hectares from which
were withdrawn from the operation. These
revoked lands were reserved
(MSBF).
However, MSBF occupied approximately 16
hectares and leased a portion thereof to
Bulacan Garden Corporation (BGC). BGC
occupies 4,590 sqm. Implementing such
revocation, NHA ordered BGC to vacate its
occupied area. BGC then filed a complaint for
injunction. Has BGC any right over the leased
premises?
Consumable;
Property intended for sale; or
Property which has been appraised when
delivered (NCC, Art. 574).
NOTE: If it has not yet been appraised or if it is not
a consumable, return the same quality (mutuum).
Abnormal usufruct on consumable things
This is another instance of abnormal usufruct, and
is sometimes referred to as a “quasi-usufruct”
because the form and substance is not really
preserved. Thus, this is really a SIMPLE loan. It has
been included however in the title on usufructs
because in what are called UNIVERSAL
USUFRUCTS,
both
non-consumable
and
consumable properties are included. While we
seldom find usufructs on consumable properties
alone, it is a fact that they indeed exist. Thus, the
Supreme Court has held that even money may be
the object of a usufruct (Paras, 2008).
RULES for this ‘QUASI-USUFRUCT’
a.
b.
A: A usufructuary may lease the object held in
usufruct. The owner of the property must respect
the lease entered into by the usufructuary so long
as the usufruct exists. MSBF was given a usufruct
over only a 7-hectare area. NHA cannot evict BGC
if the 4,590 square meter portion MSBF leased to
BGC is within the 7-hectare area held in usufruct
by MSBF. However, the NHA has the right to evict
BGC if BGC occupied a portion outside of the 7hectare area covered by MSBF's usufructuary
rights (NHA v. CA, G.R. No. 148830, April 13, 2005).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
acts
The usufructuary (debtor-borrower) can
use them (as if he is the owner, with
complete right of pledge or alienation).
BUT at the end of the usufruct, he must:
1. Pay the APPRAISED value (if
appraised when fi rst delivered); or
2. If there was no appraisal, return same
kind, quality, and quantity OR pay the
price current at the termination of the
usufruct (therefore not at theoriginal
price or value).
Usufruct on fruit-bearing trees and shrubs
The usufructuary of fruit-bearing trees and shrubs
may make use of the dead trunks, and even of
216
PROPERTY
those cut off or uprooted by accident, under the
obligation to replace them with new plants (NCC,
Art. 575).
development or by replanting, thus he
cannot consume all, otherwise nothing
would be left for the owner.
NOTE: This is a SPECIAL usufruct.
b.
Rights
The usufructuary can use (even for firewood,
though he is NOT the naked owner) the following:
a.
b.
Dead trunks; and
Those cut off or uprooted by accident.
BUT he must REPLACE them with new
plants (for indeed, he was not the naked
owner).
Other SPECIAL usufructs
a.
b.
c.
d.
e.
f.
g.
3.
Of periodical pension, income, dividends
(NCC, Art. 570);
Of woodland (NCC, Art. 577);
Of right of action to recover real property,
real right, or movable property (NCC, Art.
578);
Of part of property owned in common
(Art. 582);
Of the entire patrimony of a person (NCC,
Art. 598);
On a mortgaged immovable (NCC, Art.
600); and
On a fl ock or herd of livestock (NCC, Art.
591).
c.
Special usufruct over a WOODLAND
b.
Cannot alienate the trees (for the trees
are not considered fruits) unless he is
permitted, expressly or impliedly by the
owner (as when the purpose of the
usufruct was really to sell the timber) or
unless he needs the money to do some
repairs (but in the last case, the owner
must be informed).
To bring the action, the usufructuary can DEMAND
from the owner:
a. Authority to bring the action (usually a
special power of attorney); and
b. Proofs needed for a recovery.
Natural resources (including forest or
timber lands) belong to the State
(Regalian Doctrine under Art. XII, Sec. 3 of
the 1987 Philippine Constitution);
A license is generally essential if one
desires to gather forest products (Revised
Administrative Code, Sec. 47).
The action may be instituted in the usufructuary’s
name, for being the owner of the usufruct, he is
properly deemed a real party in interest (Rules of
Court, Sec. 2, Rule 3).
Obligations of the usufructuary over a
woodland
a.
In the enjoyment of the usufruct, the usufructuary:
a.
If there be no customs, the only time
the usufructuary can CUT DOWN
trees will be for REPAIR or
IMPROVEMENT, but here the owner
must fi rst be informed (the owner,
thus, does not need to consent).
Rights of usufructuary to recover the property
held in usufruct
This is not a common or frequent usufruct
because:
a.
In the cutting or felling of trees, he must —
1 Follow the owner’s habit or practices;
2. In default thereof, follow the customs
of the place (as to MANNER, AMOUNT
and SEASON) (NCC, Art. 577).
— All without prejudice to the
owner, for while he can USE, he
cannot ABUSE.
NOTE: The rule above is
applicable if the woodland:
i. Is a COPSE (thicket of small
trees); or
ii. Consists of timber for
BUILDING.
Must bear in mind that he is not the owner,
and therefore, in the exercise of the
diligence in caring for the property
(required under Art. 589 he must see to it
that the woodland is preserved, either by
b.
217
If the purpose is the recovery of the
property or right, he is still required
under Art. 578 to obtain the naked
owner’s authority.
If the purpose is to object to or prevent
disturbance over the property (once the
property is given him), no special
authority from the naked owner is
needed.
CIVIL LAW
Usufructuary of a part of common property
3.
The usufructuary of a part of a thing held in
common shall exercise all the rights pertaining to
the owner thereof with respect to the
administration and the collection of fruits or
interest. Should the co-ownership cease by reason
of the division of the thing held in common, the
usufruct of the part allotted to the co-owner shall
belong to the usufructuary (NCC, Art. 582).
1. Before the usufruct (NCC, Art. 583)
a. Make an inventory; and
b. Give security
This article speaks of two obligations (inventory
and security). They are not necessary however
before the right to the usufruct begins; they are
merely necessary before physical possession and
enjoyment of the property can be had, thus if the
usufructuary fails to give security (unless exempt)
the usufruct still begins but the naked owner will
have the rights granted him under Art. 586 (Paras,
2008).
A co-owner may give the usufruct of his share to
another, even without the consent of the others,
unless personal considerations are present. (NCC,
Art. 493).
The usufructuary in such a case takes the owner’s
place as to:
a.
b.
NOTE: The purpose of giving security is to insure
fulfillment by the usufruct of the obligation
imposed upon him.
Administration (management); and
Collection of fruits or interest (NCC, Art.
582). (BUT not as to alienation,
disposition, or creation of any real right
over the property, since these are strict
acts of ownership, unless of course he is
authorized by the naked owner) (Paras,
2008).
After the security has been given by the
usufructuary, he shall have a right to all the
proceeds and benefits from the day on which, in
accordance with the title constituting the usufruct,
he should have commenced to receive them
(retroactive effect of security) (NCC, Art. 588).
Rights of usufructuary at the expiration of the
usufruct
1.
2.
Requirements for the inventory
1.
The naked owner or representative must be
previously notified;
NOTE: The purpose is to enable him to correct
errors in the inventory if he desires. His absence is
a waiver for corrections. If there is nonnotification, the inventory can go on but the naked
owner may later on point out discrepancies and
omissions in the inventory.
To collect reimbursement from the owner:
a. For indispensable extraordinary repairs
made by the usufructuary (NCC, Art. 593);
b. For taxes on the capital advanced by the
usufructuary (NCC, Art. 597);
c. For damages caused by the naked owner;
d. For payment of increase in value of the
immovable by reason of repairs provided
the owner is notified of the urgency of
such repairs but the latter failed to make
said repairs despite the notification, and
the repair is necessary for the
preservation of the property (NCC, Art.
594).
2.
3.
When inventory is not required
OBLIGATIONS OF USUFRUCTUARY
a.
b.
The usufructuary has obligations:
2.
c.
Before the usufruct (like the making of
inventory);
During the usufruct (like taking due care
of property); and
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Conditions of immovables must be described;
and
Movables must be appraised.
NOTE: As a rule, no form is required, except
when there are real properties. Expenses are
to be borne by the usufructuary (Paras, 2008).
To retain the thing until reimbursement is
made (NCC, Art. 612).
1.
After the usufruct (like the duty to return
and indemnify in the proper cases).
d.
Waived;
No one will be injured by the lack of
inventory (NCC, Art. 585);
When the donor has reserved to himself
the usufruct of the property donated; or
Agreement of both parties.
Effects of failure to post a bond or security
218
PROPERTY
1.
2.
3.
The owner shall have the following options
(NCC, Art. 586):
a. Receivership of realty;
b. Sale of movables;
c. Deposit of securities;
d. Investment of money; or
e. Retention
of
the
property
as
administrator.
b.
Caucion juratoria – “by virtue of a promise
under oath”
The usufructuary, being unable to file the required
bond or security, may file a verified petition in the
proper court asking for the delivery of the house
and furniture necessary for himself and his family
so that he and his family be allowed to live in a
house included in the usufruct and retain it until
the termination of the usufruct without any bond
or security.
The net product shall be delivered to the
usufructuary;
The usufructuary cannot collect credit due or
make investments of the capital without the
consent of the owner or of the court until the
bond is given.
Effects of failure to give security
1.
2.
The same rule shall be observed with respect to
implements, tools and other movable property
necessary for an industry or vocation in which he
is engaged (NCC, Art. 587).
On the rights of the naked owner:
a. May deliver the property to the
usufructuary;
b. May choose retention of the property as
administrator; and
c. May
demand
receivership
or
administration of the real property, sale
of movable, conversion or deposit of
credit instruments or investment of cash
or profits.
a.
b.
c.
Requisites before the caucion juratoria is
allowed
a.
b.
On the rights of the usufructuary:
Cannot possess the property until he
gives security;
Cannot administer property;
Cannot collect credits that have matured
nor invest them; and
c.
d.
May alienate his right to usufruct.
Exemption of usufructuary from the obligation
to give security
Usufructuary may be exempt from the obligation
to give security when:
1.
2.
3.
4.
5.
Proper court petition;
Necessity for delivery of furniture,
implements or house included in the
usufruct;
Approval of the court; and
Sworn promise.
2. During the usufruct
a. Take care of property;
b. Replace the young of animals that die or
are lost or become prey when the
usufruct is constituted on a flock or herd
of livestock;
c. Make ordinary repairs;
d. Notify the owner of urgent extraordinary
repairs;
e. Permit works & improvements by the
naked owner not prejudicial to the
usufruct;
f. Pay annual taxes and charges on the
fruits;
g. Pay interest on taxes on capital paid by
the naked owner;
h. Pay debts when usufruct is constituted on
the whole patrimony;
i. Secure the naked owner’s/court's
approval to collect credits in certain
cases;
j. Notify the owner of any prejudicial act
committed by third persons; and
k. Pay for court expenses and costs.
XPN: if the court or naked owner
consents;
d.
previous state before the usufruct is
constituted: and
The property subject to such cannot be
alienated or encumbered or leased.
No one will be injured by the lack of the bond
(NCC, Art. 585);
The donor (or parent) reserved the usufruct
of the property donated (NCC, Art. 584);
When there is waiver by the naked owner;
When there is parental usufruct (FC, Art. 225);
The usufruct is subject to caucion juratoria
where:
a. The usufructuary takes an oath to take
care of the things and restore them to its
Usufructuary’s liability for ordinary repairs
219
CIVIL LAW
The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct. It
includes such as are required by the wear and tear
due to the natural use of the thing and are
indispensable for its preservation (NCC, Art. 592).
The usufructuary has a right of retention even
after the termination of the usufruct until he is
reimbursed for the increase in value of the
property caused by extraordinary repairs for
preservation.
NOTE: If the naked owner demanded the repair
and the usufructuary still fails to do so, the owner
may make them personally or thru another, at the
expense of the usufructuary (NCC, Art. 592).
Charges or taxes which the usufructuary must
pay
1. The annual charges (in the fruits);
2. The annual taxes on the fruits; and
Extraordinary repairs (NCC, Art. 593)
Taxes imposed directly on the capital
It includes:
1. Those required by the wear and tear due to
the natural use of the thing but not
indispensable for its preservation.
These shall be at the expense of the owner
provided they are not annual (Paras, 2008).
Rules:
a.
Liabilities:
a. The naked owner should be held liable,
whether or not he is notified by the
usufructuary; and
b. The law does not require the naked
owner to make them; what is important is
that he will bear the expenses made by
the usufructuary. (Paras, 2008)
2.
b.
3. After the usufruct/ at the termination
a. Return the thing in usufruct to the naked
owner unless there is a right of retention;
b. Pay legal interest for the time that the
usufruct lasts; and
c. Indemnify the naked owner for any losses
due to his negligence or of his transferees.
Those caused by exceptional circumstances
and are indispensable for its preservation.
Liabilities:
a. The naked owner shall be held liable;
and
b. The usufructuary is allowed to make
them with the right to get the increase
in value and the right of retention at the
termination of usufruct, provided there
was notification by the usufructuary
and failure to repair by the naked
owner (Paras, 2008).
3.
NOTE: The usufructuary may be liable
for the damages suffered by the naked
owner on account of fraud committed by
him or through his negligence.
XPN: the usufructuary is not liable for
deterioration due to:
Those caused by exceptional circumstances
but are not needed for its preservation.
1.
2.
Liabilities:
a. The naked owner is liable; and
b. The usufructuary cannot compel the
naked owner to make such repairs and he
is not allowed to make them even if the
naked owner has failed to make them
(Paras, 2008).
Wear and tear; or
Fortuitous event.
RIGHTS OF THE OWNER
Rights of a naked owner and the limitations
imposed upon him
RIGHTS
Alienation
NOTE: Extraordinary repairs shall be at the
expense of the owner. The usufructuary is obliged
to notify the owner when the need for such
repairs is urgent.
Alteration
Enjoyment
Right of retention of the usufructuary
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
If paid by the naked owner, he can
demand legal interest on the sum
paid; or
If advanced by the usufructuary, he
shall recover the amount thereof at
the termination of the usufruct [NCC,
Art. 597(2)].
Construction
220
LIMITATIONS
Can alienate the thing in
usufruct.
Cannot alter the form and
substance.
Cannot do anything prejudicial
to the usufructuary.
Can construct any works and
PROPERTY
and
Improvement
A purchaser of the property must respect the
usufruct in case it is registered or known to him
(NCC, Art. 709), otherwise, he can oust the
usufructuary, who can then look to the naked
owner for damages (NCC, Art. 581).
make
any
improvement
provided it does not diminish
the value or the usufruct or
prejudice the rights of the
usufructuary.
Alienation by naked owner
Effect of the death of the naked owner on the
usufruct
Since the jus disponendi and the title (dominium
directum) reside with the naked owner, he retains
the right to ALIENATE the property BUT —
The usufruct does not terminate the usufruct. The
naked owner’s rights are transmitted to his heirs.
a.
b.
OBLIGATIONS OF THE OWNER
He cannot alter its form or substance; or
Do
anything
prejudicial
to
the
usufructuary (as when he should illegally
lease the property to another, since this
right ordinarily pertains to the
usufructuary).
1.
2.
3.
Improper use of the thing by the usufructuary
The owner may demand the delivery of and
administration of the thing with responsibility to
deliver net fruits to usufructuary.
To make reimbursement for advances of
usufructuary (NCC, Art. 597);
To cancel the security, upon discharge of
usufructuary’s obligations (NCC, Art. 612);
To respect leases of rural lands by
usufructuary for the balance of
agricultural year (NCC, Art. 572).
the
the
the
the
EXTINCTION/TERMINATION
Usufruct is extinguished by: (PLDT-ERM)
Q: On 1 January 1980, Minerva, the owner of a
building granted Petronila a usufruct over the
property until 01 June 1998 when Manuel, a
son of Petronila, would have reached his 30th
birthday. Manuel, however, died on 1 June
1990 when he was only 26 years old.
1.
Acquisitive Prescription;
NOTE: The use by a third person and not the
non-use by the usufructuary. Mere non-use of
the usufructuary does not terminate the
usufruct
Minerva notified Petronila that the usufruct
had been extinguished by the death of Manuel
and demanded that the latter vacate the
premises and deliver the same to the former.
Petronila refused to vacate the place on the
ground that the usufruct in her favor would
expire only on 1 June 1998 when Manuel
would have reached his 30th birthday and that
the death of Manuel before his 30th birthday
did not extinguish the usufruct. Whose
contention should be accepted? (1997 Bar)
XPN: unless it is also a renunciation.
2.
Total Loss of the thing;
NOTE: If the loss is only partial, the usufruct
continues with the remaining part.
3.
Death of the usufructuary;
GR: Death of the usufructuary generally ends
the usufruct since a usufruct is constituted
essentially as a lifetime benefit for the
usufructuary or in consideration of his
person.
A: Petronila’s contention should be accepted. A
usufruct granted for the time that may elapse
before a third person reaches a certain age shall
subsist for the number of years specified even if
the third person should die unless there is an
express stipulation in the contract that states
otherwise (NCC, Art. 606). There is no express
stipulation that the consideration for the usufruct
is the existence of Petronila’s son. Thus, the
general rule and not the exception should apply in
this case.
XPNs:
a. In the case of multiple usufructs, it ends
on the death of the last survivor (NCC, Art.
611);
b. In case there is a period fixed based on
the number of years that would elapse
before a person would reach a certain
age, unless the period was expressly
granted only in consideration of the
existence of such person, in which case it
When buyer must respect the usufruct
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CIVIL LAW
c.
ends at the death of said person (NCC, Art.
606); or
In case the contrary intention clearly
appears.
4.
Termination of right
constituting the usufruct;
of
the
5.
Expiration of the period or fulfilment of the
resolutory condition;
association covers public land (NHA v. CA, G.R. No.
148830, April 13, 2005).
Usufruct on a building and/or land concerned
person
Rules:
1. If the usufruct is both on the building and the
land but the building is destroyed in any
manner whatsoever before the expiration of
the period of usufruct:
a. The usufruct on the building ends, but the
usufruct on the land continues
(usufructuary is still entitled to the use of
the land and remaining materials of the
building);
b. If the naked owner wants to rebuild but
the usufructuary refuses, the latter
prevails but the use of the land is still his
for the remainder of the period (Paras,
2008).
NOTE: If the usufructuary is a juridical
person, the term should not exceed 50 years.
6.
Renunciation by the usufructuary; and
NOTE: It partakes the nature of a condonation
or donation. It can be made expressly or
impliedly as long as done clearly. If done
expressly, it must conform with forms of
donation. Renunciation of usufructuary’s
rights is NOT an assignment of right. It is
really abandonment by the usufructuary of his
right and does not require the consent of the
naked owner but it is subject to the rights of
creditors. There can be a partial waiver except
if it is a universal usufruct.
7.
2.
Merger of the usufruct and ownership in the
same person who becomes the absolute
owner thereof (NCC, Art. 1275).
Other Causes of termination of usufruct
a.
b.
c.
d.
e.
f.
NOTE: While the usufruct on a building does not
expressly include the land on which it is
constructed, the land should be deemed included,
because there can be no building without land (De
Leon, 2006).
Annulment of the act or title constituting
the usufruct;
Rescission;
Expropriation;
Mutual withdrawal;
Legal causes for terminating legal
usufruct; or
Abandonment or dissolution of juridical
entity (e.g. corporation) granted with
usufruct before the lapse of the period.
Payment of insurance on a building held in
usufruct (NCC, Art. 608)
1. If the naked owner and usufructuary share in the
premiums and the property is destroyed:
a. If the owner constructs a new building,
the usufruct continues on the new
building.
i. If the cost of the new building is less
than the insurance indemnity, the
usufructuary should get legal
interests on the difference.
ii. If the cost is more than the insurance
indemnity, the usufructuary enjoys
the new building completely with no
obligation to give interest on the
additional cost of the naked owner.
Usufruct cannot be constituted in favor of a
town, corporation or association for more than
50 years
Any usufruct constituted in favor of a corporation
or association cannot be constituted for more than
fifty years (NCC, Art. 605). A usufruct is meant only
as a lifetime grant. Unlike a natural person, a
corporation or association's lifetime may be
extended indefinitely. The usufruct would then be
perpetual. This is especially invidious in cases
where the usufruct given to a corporation or
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
The usufruct is on the building alone (but the
building is destroyed before the termination
of the period):
a. The usufruct on the building ends,
but the usufructuary can still make
use of whatever materials of the
building remain;
b. The usufructuary is entitled to the
use of the land but the naked owner
enjoys preferential right to its use
(Paras, 2008).
222
PROPERTY
b.
If the naked owner does not construct a
new building or rebuild, the naked owner
gets the insurance indemnity but he
should pay the interest thereon to the
usufructuary (Paras, 2008).
NOTE: If the owner chooses the latter
alternative, he shall give security for the
payment of interest (NCC, Art. 609).
2.
2. If the naked owner alone pays the insurance
indemnity and the usufructuary refused to share:
a.
b.
c.
3.
The naked owner gets the whole
indemnity (with no obligation to give the
interest thereon to the usufructuary).
If the usufruct was on the building and
the land, the usufruct continues on the
land and the material.
If the usufruct was on the building alone,
the naked owner may rebuild, with or
without the approval of the usufructuary,
but he must pay interest on the value of
the land and the old materials that may
have been used (NCC, Art. 607).
Effect of bad use of the property held in
usufruct
GR: Usufruct is not extinguished by bad use of the
thing in usufruct.
XPN: If the abuse should cause considerable injury
to the owner, the latter may demand delivery to
and administration by him, but he will be obliged
to pay net proceeds to the usufructuary (NCC, Art.
610).
3. If the naked owner alone paid for the insurance
but there is failure or omission on the part of the
usufructuary to share:
The effect is the same as if there was a
sharing, but the usufructuary must
reimburse
the
owner
of
the
usufructuary’s share in the insurance
premium.
Rules in case of multiple usufructs
1.
4. If the usufructuary alone pays the insurance
premium:
a.
b.
If both the naked owner and the usufructuary
were separately given indemnity, each owns
the indemnity given to him, the usufruct being
totally extinguished.
If the usufructuary alone was given the
indemnity, he must give it to the naked owner
and compel the latter to return either the
interest or to replace the property. He may
deduct the interest himself if the naked owner
fails to object (Paras, 2008).
2.
The insurance indemnity goes to the
usufructuary alone, with no obligation to
share it with, nor to give legal interest
thereon to, the naked owner.
The usufruct continues on the land for the
remaining period (unless usufruct has
been constituted on the building alone).
3.
If constituted simultaneously, all the
usufructuaries must be alive at the time of the
constitution. The death of the last survivor
extinguishes the usufruct (NCC, Art. 611);
If constituted successively by virtue of a
donation, all the donee-usufructuaries must
be living at the time of the constitutiondonation of the usufruct (NCC, Art. 756); and
If constituted successively by virtue of a last
will, there should only be two successive
usufructuaries, and both must have been alive
at the time of testator’s death.
Rule in case of expropriation of the property
(NCC, Art. 609)
EASEMENT OR SERVITUDE
In case the property held in usufruct is
expropriated for public use:
It is an encumbrance imposed upon an immovable
for the benefit of:
1.
1.
If the naked owner alone was given the
indemnity, he has the option to:
a. Replace it with another thing of the same
value and of similar condition; or
b. Pay legal interest to usufructuary on the
amount of indemnity for the whole period
of the usufruct, not just the unexpired
period.
2.
223
Another immovable belonging to a different
owner; or
For the benefit of a community or one or more
persons to whom the encumbered estate does
not belong by virtue of which the owner is
obliged to abstain from doing or to permit a
certain thing to be done on his estate (NCC,
Articles 613 and 614).
CIVIL LAW
Where the easement may be established on any of
several tenements surrounding the dominant
estate, the one where the way is shortest and will
cause the least damage should be chosen.
However, if these two circumstances do not
concur in a single tenement, the way which will
cause the least damage should be used, even if it
will not be the shortest.
5.
6.
Easement v. Usufruct
BASIS
Real
The right enjoyed.
2.
3.
4.
5.
6.
7.
8.
SERVITUDE
Used in civil law
countries.
Real or personal
Burden imposed upon
another.
A right limited by the Needs of the dominant
owner or estate, without possession;
Inseparable from the estate to which it is
attached – cannot be alienated independently
of the estate (NCC, Art. 617) (2001, 2010
Bar);
Cannot consist in the doing of an act unless
the act is accessory in relation to a real
easement;
Involves two (2) neighboring Estates: the
dominant estate to which the right belongs
and the servient estate upon which an
obligation rests;
A Limitation on the servient owner’s rights of
ownership;
Indivisible – not affected by the division of the
estate between two or more persons (NCC,
Art. 618);
It is enjoyed over Another immovable never
on one’s own property; and
A Real right but will affect third persons only
when registered.
4.
As to
Transmissible
transmissibility
May be
constituted in
favor, or,
How it may be burdening, a
constituted
piece of land
held in
usufruct.
Transmissible
Real right
whether or not
registered.
Cannot be
constituted on
an easement
but it may be
constituted on
the land
burdened by
an easement.
A: There can be no easement over a usufruct.
Since an easement may be constituted only on a
corporeal immovable property, no easement may
be constituted on a usufruct which is not a
corporeal right.
Q: Can there be a usufruct over an easement?
A: There can be no usufruct over an easement.
While a usufruct may be created over a right, such
right must have an existence of its own
independent of the property. A servitude cannot
be the object of a usufruct because it has no
existence independent of the property to which it
attaches.
Incorporeal;
Imposed upon corporeal property;
Confers no right to a participation in the
profits arising from it;
Imposed for the benefit of corporeal property;
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Extinguished
by death of
usufructuary.
Involves a
right of
possession in
an immovable
or movable.
Q: Can there be an easement over a usufruct?
Essential qualities of easements
1.
2.
3.
Not
extinguished
As to effect of
by death of
death
dominant
owner.
Real right
Nature of right whether or not
registered.
As to right of
possession
Characteristics of easement (NICE LIAR)
1.
USUFRUCT
Real or
personal
Includes all
uses and
fruits.
Use granted
Easement v. Servitude
An English law term.
EASEMENT
On real
property
Limited to a
particular or
specific use of
the servient
estate.
No possessory
right over an
immovable
Constituted on
There can be no easement over another easement
for the reason that an easement may be
constituted only on a corporeal immovable
property. An easement, although it is real right
over an immovable, is not a corporeal right.
(1995 Bar)
EASEMENT
Has two distinct tenements: dominant and
servient estate; and
Cause must be perpetual.
224
PROPERTY
Q: Is there such thing as judicial easement?
2.
A: NO. When the court says that an easement
exists, it is not creating one. For, even an
injunction cannot be used to create one as there is
no such thing as a judicial easement. The court
merely declares the existence of an easement
created by the parties (La Vista Association v. CA,
G.R. No. 95252, September 5, 1997).
3.
4.
Obligations of the dominant owner (CANECO)
PARTIES TO AN EASEMENT
1.
2.
1.
Dominant estate – refers to the immovable for
which the easement was established; and
Servient estate – the estate which provides the
service or benefit.
2.
3.
Dominant Estate v. Servient Estate
DOMINANT ESTATE
Immovable in favor of
which, the easement is
established.
Which
the
right
belongs.
4.
SERVIENT ESTATE
That property or estate
which is subject to the
dominant estate.
Upon which an
obligation rests.
5.
RIGHTS AND OBLIGATION OF THE OWNERS OF
THE DOMINANT AND SERVIENT ESTATES
6.
The owner of the dominant estate may make, at
his own expense, on the servient state any works
necessary for the use and preservation of the
servitude, but without altering it or rendering it
more burdensome.
He cannot Exercise the easement in any other
manner than that previously established
(NCC, Art. 626);
He cannot Alter the easement or render it
more burdensome [NCC, Art. 627(1)];
He shall Notify the servient owner of works
necessary for the use and preservation of the
servitude [NCC, Art. 627(2)];
He must Choose the most convenient time and
manner of making the necessary works as to
cause the least inconvenience to the servient
owner; and
If there are several dominant estates he must
Contribute to the necessary expenses in
proportion to the benefits derived from the
works [NCC, Art. 628(1)].
He can may make, at his Own expense, on the
servient estate, any works necessary for the
use of servitute, Provided it will not alter or
make it more burdensome.(NCC,Art.627(1));
Servient owner
The owner of the immovable whose property is
subject to easement for the benefit of the
dominant owner.
For this purpose he shall notify the owner of the
servient estate, and shall choose the most
convenient time and manner so as to cause the
least inconvenience to the owner of the servient
estate (NCC, Art. 627)
Rights of the servient owner (RMC)
1.
NOTE: The necessity of the works for the use and
preservation of the easement is the basis and the
determining factor for the extent of such works.
2.
3.
The works must be executed in the manner least
inconvenient to the servient owner, who cannot
recover indemnity for the inevitable damages or
inconveniences which may be caused thereby.
Retain the ownership of the portion of the
estate on which easement is imposed;
Make use of the easement unless there is an
agreement to the contrary [NCC, Art. 628(2)];
and
Change the place or manner of the use of the
easement, provided it be equally convenient
[NCC, Art. 629(2)].
Obligations or limitations imposed on the
servient owner (IC)
But if the work is done badly, the dominant owner
will be liable for damages that may be suffered by
the servient owner.
Rights of the dominant owner (MARE)
1.
Ask for mandatory injunction to prevent
impairment of his right (Resolme v. Lazo, G.R.
No. L-8654, March 30, 1914);
Renounce the easement if he desires to be
exempt from contributing necessary expenses
(NCC, Art. 628); and
Exercise all rights necessary for the use of the
easement (NCC, Art. 625).
1. He cannot Impair the use of the easement.
XPN: (1) When the easement has become very
inconvenient to the said servient owner; and (2) If
it prevents him from making any important
works, repairs, or improvements thereon.
Make on the servient estate all works
necessary for the use and preservation of the
servitude (NCC, Art. 627);
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CIVIL LAW
2.
He must Contribute to the necessary expenses
in case he uses the easement, unless
otherwise agreed upon [NCC, Art. 628(2)].
4.
CLASSIFICATIONS OF EASEMENT
1. As to recipient of the benefit
a. Real (or predial) – The easement is in
favor of another immovable (NCC, Art.
613); and
5. As to source
a. Legal – Those created by law for public
use or private interests;
b. Voluntary - constituted by will or
agreement of the parties or by testator;
and
NOTE: It requires two distinct immovable
belonging to different owners to which it
relates.
b.
Personal – The easement is in favor of a
community, or of one or more persons to
whom the encumbered estate does not
belong e.g. easement of right of way for
passage of livestock (NCC, Art. 614).
NOTE: Like any other contract, a
voluntary easement (of right-of-way)
could be extinguished only by mutual
agreement or by renunciation of the
owner of the dominant estate (La Vista
Association v. CA, G.R. No. 95252,
September 5, 1997).
NOTE: In personal servitude the person
whose in favor the easement is
constituted need not to b ethe owner of
any estate and does not require a
dominant estate because the person in
whose favor the easement is constituted
need not to be the property owner.
c.
Continuous – Their use may or may not be
incessant, without the intervention of any
act of man. Eg. Easement of drainage (NCC,
Art. 615); and
e.g. Right of way – imposes the duty to
allow the use of said way.
NOTE: For acquisitive prescription, the
easement of aqueduct and easement of
light and view are considered continuous.
b.
3.
b.
Discontinuous – Used at intervals and
depend upon the acts of man. Eg.
Easement of right of way
Apparent – Made known and continually
kept in view by external signs that reveal
the use and enjoyment of the same (NCC,
Art. 615); and
MODES OF ACQUIRING EASEMENT
1.
NOTE: By way of exception the easement
of aqueduct is always apparent, whether
or not it can be seen (NCC, Art. 646).
b.
Non-apparent – They show no external
indication of their existence (NCC, Art.
615).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Negative – Prohibits the owner of the
servient estate from doing something
which he could lawfully do if the
easement did not exist.
e.g. Easement of light and view – where
the owner is prohibited from obstructing
the passage of light.
As to whether their existence is indicated
a.
Mixed – Created partly by agreement and
partly by law.
6. As to the duty of the servient owner:
a. Positive – Imposes upon the owner of the
servient estate the obligation of allowing
something to be done or doing it himself;
and
2. As to the manner of exercise
a.
As to the right given
a. Right to partially use the servient estate;
b. Right to get specific materials or objects
from the servient estate;
c. Right to participate in ownership; and
d. Right to impede or prevent the
neighboring estate from performing a
specific act of ownership (Paras, 2008).
By Title – the following easements may be
acquired only by title:
a. Continuous non-apparent easements;
b. Discontinuous apparent easements;
and
c. Discontinuous
non-apparent
easements (NCC, Art. 622) (2005 Bar).
NOTE: Title means:
226
PROPERTY
a.

It does not necessarily mean
document.
 It means a juridical act or law
sufficient to create the encumbrance.
 E.g. law, donation, testamentary
succession, contract.
a.
b.
2.
b.
Negative easement cannot be acquired by
prescription since they are non-apparent.
However, for purposes of prescription, there
are negative easement that can be considered
“apparent”not because there are visible signs
or their existence but because of the making
of the NOTARIAL PROHIBITION which makes
it apparent.
Intestate succession does not
create an easement, for no act is
involved. Hence, instead of
creating an easement, it transmits
merely an easement already
existing.
Prescription is a mode of
acquisition, and is generally and
ordinarily a title, but is not
considered as such under Art. 620
which
expressly
makes
it
DISTINCT from title.
NOTE: In negative easement there is a need
of a formal act.
Doctrine of Apparent Sign
Easements are inseparable from the estate to
which they actively or passively pertain. The
existence of apparent sign under Art. 624 is
equivalent to a title. It is as if there is an implied
contract between the two new owners that the
easement should be constituted, since no one
objected to the continued existence of the
windows.
By Prescription of 10 years (2009 Bar)
NOTE: Prescription runs irrespective of good
faith or bad faith of the possessor and
whether or not he has just title. The only
requirement is adverse possession. Only
continuous and apparent easements can be
acquired by prescription (NCC, Art. 620).
3.
By deed of Recognition
4.
By Final judgment
NOTE: It is understood that there is an exterior
sign contrary to the easement of party wall
whenever:
1.
NO JUDICIAL EASEMENTS. Resultantly, when
the court says that an easement exists, it is not
creating one. For, even an injunction cannot
be used to create one as there is no such thing
as a judicial easement. The court merely
declares the existence of an easement created
by the parties (La Vista Association, Inc. v. CA,
G.R. No. 95252, September 5, 1997).
2.
3.
4.
NOTE: If the owner of the servient estate
refuses to execute the deed of recognition, the
court may, in its judgment, declare the
existence of the easement.
5.
Positive easement – The 10 year period is
counted from the day when the owner of the
dominant estate begins to exercise it; and
Negative easement – from the day a notarial
prohibition is made on the servient estate.
There is a window or opening in the dividing
wall of buildings;
Entire wall is built within the boundaries of
one of the estates;
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; or
The lands enclosed by fences or live hedges
adjoin others which are not enclosed.
In all these cases, ownership is deemed to belong
exclusively to the owner of the property which has
in its favor the presumption based on any of these
signs.
By Apparent sign established by the owner of
the two adjoining estates
Acknowledgement of an easement in one who
owns property
XPN: unless at the time the ownership of the
two estates is divided:
a. There are contrary stipulations; or
b. The sign is removed before the execution
of the deed (NCC, Art. 624).
An acknowledgement of the easement is an
admission that the property belongs to another
(BOMEDCO v. Heirs of Valdez, G.R. No. 124669).
MODES OF EXTINGUISHMENT OF EASEMENTS
Computation of prescriptive period
227
CIVIL LAW
Easements are extinguished (MEN-CRR) (2001,
2010 Bar):
1.
2.
3.
4.
5.
6.
because the basis of this cause of extinguishment
is a presumptive renunciation.
By Merger in the same person of the
ownership of the dominant and servient
estates;
By Non-user for 10 years; with respect to
discontinuous easements, this period
shall be computed from the day on which
they ceased to be used; and, with respect
to continuous easements from the day on
which an act contrary to the same took
place;
When either or both of the estates fall
into such condition that the easement
Cannot be used; but it shall revive if the
subsequent condition of the estates or
either of them should again permit its use,
unless when the use becomes possible,
sufficient time for prescription has
elapsed, in accordance with the
provisions of the preceding number;
By the Expiration of the term or the
fulfillment of the condition, if the
easement is temporary or conditional;
By the Renunciation of the owner of the
dominant estate; and
By the Redemption agreed upon between
the owners of the dominant and servient
estates (NCC, Art. 631).
NOTE: Reckoning point:
1. Discontinuous – counted from the day
they ceased to be used.
2. Continuous – counted from the day an
act adverse to the exercise takes place.
Non-user presupposes that the easement has been
used before but it was abandoned for 10 years.
Thus it cannot apply to easements which have not
been used.
Impossibility of use
The impossibility of use only suspends the
servitude until such time when it can be used
again.
Expiration
e.g. An easement was agreed upon to last till the
owner of the dominant easement becomes a
lawyer. When the condition is fulfilled, the
easement ceases.
Renunciation
Renunciation must be express, definite, clear,
specific (otherwise it might be confused with nonuser). This is particularly true for discontinuous
easements. Renunciation of a real right must be
reflected in a public instrument.
NOTE: The grounds under Article 631 are not
exclusive
In addition to the foregoing causes enumerated in
Article 631 of the New Civil Code the following
may be added: (1) annulment or rescission of title
constituting easement; (2) termination of the right
of the grantor; and (3) abandonment of the
servient estate; and (4) eminent domain. (4
Manresa, 5th ed., 590)
Redemption
This is voluntary redemption, existing because of
an express stipulation. The stipulation may
provide conditions under which the easement
would be extinguished (Paras, 2008).
Merger
LEGAL EASEMENT
It is enough that the merger be with respect to the
portion of the tenement that is affected by the
servitude, or the part for the benefit of which it
was established.
Legal easements are those imposed by law having
for their object either public use of the interest of
private persons. They shall be governed by the
special laws and regulations relating thereto, and
in the absence thereof, by the Civil Code.
Where the merger is temporary or under
resolutory condition, there is at most a
suspension, but not an extinguishment of the
servitude.
Public legal easement
Public legal easement is for public or communal
use.
Non-user
Private legal easement
Non-use must be due to voluntary abstention by
the dominant owner, and not to fortuitous event,
Private legal easement is for the interest of private
persons or for private use. It shall be governed by:
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
228
PROPERTY
1.
2.
3.
Agreement of the parties provided they are
neither prohibited by law nor prejudicial to
third persons;
In default, general or local laws and
ordinances for the general welfare; or
In default, title VII of Articles 613-687 of the
NCC.
Kinds of legal easements (WIND – PLWS)
1.
Easement relating to Waters;
2.
Easement relating to right of Way;
3.
4.
6.
Intermediate distances and works for certain
construction and plantings;
7.
Easement against Nuisance; and
8.
Easement relating to lateral and Subjacent
support.
Easement of Party wall;
Lateral Support
Easement of Light and view;
Subjacent Support
5.
Drainage of Building;
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CIVIL LAW
EASEMENTS RELATING TO WATERS
Different easements
(NBREWAC)
relating
to
The banks of rivers and streams and the
shores of the seas and lakes throughout their
entire length and within a zone of three
meters in urban areas,
20 meters in
agricultural areas, and 40 meters in forest
areas along their margins are subject to the
easement of public use in the interest of
recreation, navigation, floatage, fishing and
salvage.
waters:
A. Natural drainage (NCC, Art. 637);
Scope of easement of natural drainage
Lower estates are obliged to receive the
waters which naturally and without the
intervention of man descend from higher
estates, as well as the stones or earth which
they carry with them (NCC, Art. 637) (2002
Bar).
No person shall be allowed to stay in this zone
bigger than what is necessary for recreation,
navigation, floatage, fishing or salvage or to
build structures of any kind (Art. 51, PD 1067)
D. Easement of a Dam (NCC, Artsicles 639 and
647);
NOTE: Art. 637 has already been superseded
by Art. 50 of P.D. 1067 (Water Code of the
Philippines).
A person may establish the easement of
abutment or of a dam provided that:
Duties of Servient Estate
1.
The owner cannot construct works that would
impede the easement BUT he may regulate or
control the descent of water.
2.
3.
Duties of Dominant Estate
1. He cannot construct works which will increase
the burden, but he may construct works
preventing erosion;
2. They must compensate the owners of the
servient estates if the waters are result of an
overflow from irrigation dams, or the result of
artificial descent done by man and damages
caused by reason thereof,
4.
He must seek the permission of the owner
and in case of latter’s refusal, he must
secure authority from the proper
administrative agency.
E. Easement for drawing Water or for watering
animals (NCC, Arts. 640-641);
Prescription of easement of natural drainage
This is a combined easement for drawing of water
and right of way.
The easement of natural drainage prescribes by
non-use for 10 years (Paras, 2008).
Requisites for easement for watering cattle
Indemnity in easement of natural drainage
1.
Art. 637 of the New Civil Code, which provides for
the easement of natural drainage, does not speak
of any indemnity. It follows that no indemnity is
required as long as the conditions laid down in the
article are complied with (Paras, 2008).
2.
3.
Easement on Riparian banks for navigation,
floatage, fishing, salvage, and tow path (NCC,
Art. 638);
Requisites for drawing water or for watering
of animals
Easement on Riparian Property
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
It must be imposed for reasons of public
use;
It must be in favor of a town or village;
and
Indemnity must be paid (NCC, Art. 640).
NOTE: The right to make the water flow
thru or under intervening or lower
estates.
B. Drainage of Buildings (NCC, Art. 674);
C.
The purpose is to divert or take water
from a river or brook, or to use any other
continuous or discontinuous stream;
It is necessary to build a dam;
The person to construct it is not the
owner of the banks or lots which must
support it; and
Payment of proper indemnity is made.
1.
230
Owner of the dominant estate has the
capacity to dispose of the water;
PROPERTY
2.
3.
4.
F.
The water is sufficient for the use
intended;
Proposed right of way is the most
convenient and the least onerous to third
persons; and
Pay indemnity to the owner of the
servient estate (NCC, Art. 643).
c. That the proposed course is the most
convenient and least onerous to third
persons and the servient estate; and
d. That
a
proper
administrative
permission has been obtained (Paras,
2008).
Right of the owner of the servient estate to
fence
Easement of Aqueduct (NCC, Articles 642- 646);
and
The easement of aqueduct does not prevent
the owner of the servient estate from closing
or fencing it, or from building over the
aqueduct in such manner as not to cause the
owner of the dominant estate any damage, or
render necessary repairs and cleanings
impossible (NCC, Art. 645).
The easement of aqueduct, for legal purposes,
is considered continuous and apparent even
though the flow of water may not be
continuous or its use depends upon the needs
of the dominant estate or upon a schedule of
alternate days or hours (NCC, Art. 646).
NOTE: Easement of aqueduct is not
acquirable by prescription after 10 years
because although it is continuous and
apparent in character, under the Water Code
of the Philippines (P.D. 1067), all waters
belong to the State; therefore, they cannot be
the subject of acquisitive prescription (Jurado,
2011).
G. Easement for the Construction of a Stop Lock or
Sluice Gate (NCC, Art. 647)
To make these structures in the bed of a
stream from which they needed water for
irrigation or improvement of the dominant
estate will be drawn, it is required that the
dominant owner pays the riparian owners
where the structures will be constructed for
the damages caused to the latter and to other
irrigators who may sustain damages also.
It is an easement which gives right to make
water flow thru intervening estates in order
that one may make use of said water.
However, unlike the easement for drawing
water or for watering animals, the existence
of the latter does not necessarily includes the
easement of aqueduct.
Q: The original developer of Happy Glen Loop
(HGL) loaned from T. P. Marcelo Realty
Corporation. HGL failed to settle its debts so he
assigned all his rights to Marcelo over several
parcels of land in the subdivision. Marcelo
represented to lot buyers that a water facility
is available in the subdivision. Marcelo sold
the lot to Liwag who subsequently died. The
wife of Liwag demanded the removal of the
overhead water tank over the parcel of land
contending that its existence is merely
tolerated. HGL
Homeowners
Association
refused the demand contending that they have
used continuously the facility for more than 30
years. Is there an established easement for
water facility in the lot?
Requisites for easement of aqueduct
1.
Indemnity must be paid to the owners of
intervening estates and to the owners of
lower estates upon which waters may
filter or descend.
NOTE: The amount usually depends on
duration and inconvenience caused.
2.
3.
If for private interests, the easement
cannot be imposed on existing buildings,
courtyards, annexes, out-houses, orchards
or gardens but can be on other things, like
road, provided no injury is caused to said
properties.
A: YES. The water facility is an encumbrance on
the lot of the Subdivision for the benefit of the
community. It is continuous and apparent,
because it is used incessantly without human
intervention, and because it is continually kept in
view by the overhead water tank, which reveals its
use to the public. The easement of water facility
has been voluntarily established either by
Marcelo, the Subdivision owner and the original
developer of the Subdivision. For more than 30
years, the facility was continuously used as the
There must be a proof:
a. That the owner of the dominant estate
can dispose of the water ;
b. That the water is sufficient for the use
which it is intended ;
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CIVIL LAW
residents’ sole source of water (Liwag vs Happy
Glen Loop Homeowners Association, Inc., G.R. No.
136897, July 4, 2012).
3.
EASEMENT OF RIGHT OF WAY
1996, 2005, 2010 Bar
5.
4.
6.
Easement of right of way is the right granted to a
person or class of persons to pass over the land of
another by using a particular pathway therein, to
reach the former’s estates, which have no
adequate outlet to a public highway subject,
however to payment of indemnity to the owner of
the land burdened bu the right. (Pineda, 2009)
Least prejudicial to the servient estate (1996,
2000, 2005, 2010 Bar)
“Least prejudicial” in determining the right of way
means it is the shortest way and the one which
will cause the least damage to the property to the
servient estate in favor of the dominant estate.
Right of way
Q: Lots A and B are owned by Demit while Lot C
is owned by Dayum. Lot C has an existing right
of way. After inspection of the area, it has been
found out that a fence and portion of the
residential house owned by Demit have
encroached a part of Dayum’s right of way.
Dayum demanded that Demit pay for the area
encroached or demolish the wall fence and
portion of the house which have been
encroaching. Demit contends that as owner of
Lot A and B, he is equally entitled to the road of
right of way and proposed to buy the portion.
Is the contention of Demit correct?
It may refer either to the easement itself, or
simply, to the strip of land over which passage can
be done (Paras, 2008).
Q: May the easement of right of way be
acquired by prescription?
A: Easement of right of way cannot be acquired
by prescription because it is discontinuous or
intermittent (Ronquillo, et al. v. Roco, G.R. No. L10619, February 28, 1958).
Q: What kind of servitude in favor of the
government is a private owner required to
recognize?
A: NO. As the owner of the servient estate, Dayum
retained ownership of the road right of way even
assuming that said encumbrance was for the
benefit of Lots of Demit. The latter could not claim
to own even a portion of the road right of way
because Art. 630 of the Civil Code expressly
provides that "[t]he owner of the servient estate
retains ownership of the portion on which the
easement is established, and may use the same in
such manner as not to affect the exercise of the
easement." (Sps. Mercader v. Sps. Bardilas, G.R. No.
163157, June 27, 2016).
A: The only servitude which he is required to
recognize in favor of the government are:
1.
2.
3.
The easement of a public highway;
Private way established by law; or
Any government canal or lateral that has
been pre-existing at the time of the
registration of the land.
NOTE: If the easement is not pre-existing and is
sought to be imposed only after the land has been
registered under the Land Registration Act,
proper expropriation proceedings should be had,
and just compensation paid to the registered
owner (Eslaban v. Vda De Onorio, G.R. No. 146062,
June 28, 2001).
Q: What if the property is not the shortest way
but will cause the least damage to the servient
estate?
A: The way which will cause the least damage
should be used even if it will not be the shortest.
Requisites for easement on right of way
(POON-D) (1996, 2005, 2010 Bar)
1.
2.
The easement of right of way shall be established
at the point least prejudicial to the servient estate
and where the distance from the dominant estate
to a public highway is the shortest. In case of
conflict, the criterion of least prejudice prevails
over the criterion of shortest distance.
The easement must be established at the
point least Prejudicial to the servient estate
(NCC, Art. 649);
Claimant must be an Owner of enclosed
immovable or with real right;
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
There must be no adequate Outlet to a public
highway [NCC, Art. 649, (1)];
The right of way must be absolutely
Necessary not mere convenience;
The isolation must not be Due to the
claimant’s own act (NCC, Art. 649); and
There must be payment of proper Indemnity.
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PROPERTY
Claimant must be an owner of enclosed
immovable or with real right
other adequate outlet to a public highway. Also,
under Art. 649, it is the owner or any person who
by virtue of a real right may cultivate or use any
immovable surrounded by other immovable
pertaining to other persons, who is entitled to
demand a right of way through the neighboring
estates. Here, the spouses fell short of proving that
they are the owners of the supposed dominant
estate (Eslaban v. Vda De Onorio, G.R. No. 146062,
June 28, 2001).
Adequate outlet
The convenience of the dominant estate has never
been the gauge for the grant of compulsory right
of way. To be sure, the true standard for the grant
of the legal right is "adequacy." Hence, when there
is already an existing adequate outlet from the
dominant estate to a public highway, as in this
case, even when the said outlet, for one reason or
another, be inconvenient, the need to open up
another servitude is entirely unjustified (Dichoso
v. Marcos, G.R. No. 180282, April 11, 2011; Alicia B.
Reyes v. Spouses Francisco S. Valentin and Anatalia
Ramos, G.R. No. 194488, February 11, 2015).
Q: David owns a subdivision which does not
have an access to the highway. When he
applied for a license to establish the
subdivision, he represented that he will
purchase a rice field located between his land
and the highway, and develop it into an access
road. However, when the license was granted,
he did not buy the rice field, which remained
unutilized. Instead, he chose to connect his
subdivision with the neighboring subdivision
of Nestor, which has an access to the highway.
When Nestor and David failed to arrive at an
agreement as to compensation, Nestor built a
wall across the road connecting with David’s
subdivision. Is David entitled to an easement
of right of way through the subdivision of
Nestor which he claims to be the most
adequate and practical outlet to the highway?
Q: The coconut farm of Federico is surrounded
by the lands of Romulo. Federico seeks a right
of way through a portion of the land of Romulo
to bring his coconut products to the market.
He has chosen a point where he will pass
through a housing project of Romulo. The
latter wants him to pass another way which is
1km longer. Who should prevail? (2000 Bar)
A: ROMULO will prevail. Under Art. 650, the
easement of right of way shall be established at
the point least prejudicial to the servient estate
and where the distance from the dominant estate
to a public highway is the shortest. In case of
conflict, the criterion of least prejudice prevails
over the criterion of shortest distance. Since the
route chosen by Federico will prejudice the
housing project of Romulo, Romulo has the right
to demand that Federico pass another way even
though it will be longer.
A: NO, David is not entitled to the right of way
being claimed. The isolation of his subdivision was
due to his own act or omission because he did not
develop an access road to the rice fields which he
was supposed to purchase according to his own
representation when he applied for a license to
establish the subdivision (Floro v. Llenado, G.R. No.
75723, June 2, 1995).
Q: Spouses dela Cruz are occupants of a parcel
of land located at the back of Ramiscal’s
property. They use as their pathway, to and
from the nearest public highway from their
property, a long strip of land owned by
Ramiscal. They also enclosed such strip of land
with a gate, fence, and roof. Ramiscal
demanded that the spouses demolish the
same. The spouses refused. Are the spouses
entitled to a right of way?
Determination of proper indemnity to the
servient estate
A: NO. There is no voluntary nor legal easement
established. The spouses failed to show that they
entered into an agreement with Ramiscal to use
the pathway. Art 649 provides that the easement
of right of way is not compulsory if the isolation of
the immovable is due to the proprietor’s own acts.
Mere convenience for the dominant estate is not
enough to serve as its basis. There should be no
Two instances
required
If the passage is:
a. Continuous and permanent – The indemnity
consists of the value of the land occupied plus
the amount of damages caused to the servient
estate; and
b. Temporary – Indemnity consists in the
payment of the damage caused.
1.
233
where
indemnity
is
not
When a piece of land acquired by sale,
exchange or partition is surrounded by other
estates of the vendor, exchanger or co-owner.
In such case he shall be obliged to grant a
CIVIL LAW
2.
right of way without indemnity (NCC, Art.
652); or
When a piece of land acquired by donation
surround the estate of the donor or grantor.
In such case, the donee or grantee shall be
obliged to grant a right of way without
indemnity (NCC, Art. 653).
Emma discovered that Felisa had granted a
right of way over the land in favor of the land
of Georgina, which had no outlet to a public
highway, but the easement was not annotated
when the servient estate was registered under
the Torrens system. Emma then filed a
complaint for cancellation of the right of way,
on the ground that it had been extinguished by
such failure to annotate. How would you
decide the controversy? (2001 Bar)
NOTE: If it is the land donated that is
surrounded by the estate of the donor or
gantor, although the latter is obliged to grant
a right of way, he can demand the required
indemnity (NCC, Art. 652).
A: The complaint for cancellation of easement of
right of way must fail. The failure to annotate the
easement upon the title of the servient estate is
not among the grounds for extinguishing an
easement under Art. 631 of the NCC. Under Art.
617, easements are inseparable from the estate to
which they actively or passively belong. Once it
attaches, it can only be extinguished under Art.
631, and they exist even if they are not stated or
annotated as an encumbrance on the Torrens title
of the servient estate.
Measurement for the easement of right of way
The width of the easement shall be that which is
sufficient for the needs of the dominant estate
(NCC, Art. 651).
Q: Can a dominant owner demand a driveway
for his automobile?
A: YES, due to necessity of motor vehicles in the
present age.
Temporary easement of right of way
If it be indispensable for the construction, repair,
improvement, alteration or beautification of a
building, to carry materials through the estate of
another, or to raise thereon scaffolding or other
objects necessary for the work, the owner of such
estate shall be obliged to permit the act, after
receiving payment of the proper indemnity for the
damage caused him (NCC, Art. 656).
Liability for repairs and taxes
1.
2.
As to repairs, the dominant owner is liable for
necessary repairs;
As to proportionate share of the taxes, it shall
be reimbursed by said owner to the
proprietor of the servient estate. This applies
only to permanent easements (NCC, Art. 654).
Easement of right of way for the passage of
livestock or sevidumbres pecurias
Special causes of extinguishment of right of
way
1.
2.
Governed by the ordinances and regulations
relating thereto and in their absence, by the
usages and customs of the place.
The opening of a public road giving access to
isolated estate; or
When the dominant estate is joined to another
estate (such as when the dominant owner
bought an adjacent estate) which is abutting a
public rode, the access being adequate and
convenient (NCC, Art. 655).
Maximum width:
1. Animal path – 75 meters;
2. Animal trail – 37 meters and 50 centimeters;
and
3. Cattle – 10 meters (unless prior to the old
Civil Code, vested rights has been acquired to
a greater width) (Paras, 2008).
Both cases must substantially meet the needs
of the dominant estate. Otherwise, the
easement may not be extinguished.
EASEMENTS OF PARTY WALL
NOTE: Said extinguishment is NOT automatic.
There must be a demand for extinguishment
coupled with tender of indemnity by the servient
owner.
Easement of party wall
The easement of party wall is also called
servidumbre de
medianera.
Q: Emma bought a parcel of land from
Equitable-PCI Bank, which acquired the same
from Felisa, the original owner. Thereafter,
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Party wall defined
234
PROPERTY
Is a wall erected on the line between the adjoining
properties belonging to different persons, for the
use of both estates. (Pineda, 2009)
7.
Governed by:
1.
2.
3.
The Civil Code;
Local ordinances and customs; and
The rules co-ownership.
In all these cases, the ownership is deemed to
belong exclusively to the owner of the
property which has in its favor the
presumption based on any of these signs.
Q: Is the easement of party wall really an
easement or is it a case of co-ownership?
Right to Increase Height of Party Wall
A: While it is called an easement by the law, the
law in some articles refers to it as a case of coownership or part-ownership (NCC, Articles 662,
665, 666). The truth is that, it is a compulsory kind
of co-ownership (FORGED INDIVISION) where the
shares of each owner cannot be separated
physically (otherwise the wall would be
destroyed), although said shares may in a sense be
materially pointed out. Thus, each co-owner owns
the half nearest to him (Paras, 2008).
The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign,
or proof to the contrary:
1.
2.
3.
Every part-owner of a party has the right to
increase the height of the party wall subject to the
following conditions:
1. The same shall be done at his expense;
2. He shall pay for any damage which may be
caused by his work, even though such damage
may be temporary; and
3. If the party wall cannot bear the increased
height, the owner desiring to raise it shall be
obliged to reconstruct it at his own expense, If it
be necessary to make it thicker, he shall give space
required from his own land.
In dividing walls of adjoining buildings up
to the point of common elevation;
In dividing walls of gardens or yards
situated in cities, towns, or in rural
communities; or
In fences, walls and live hedges dividing
rural lands (NCC, Art. 659).
Repairs and Maintenance of a Party Wall
GR: The expenses for construction and repairs of
party walls shall be shouldered by all the owners
of the party wall.
XPN: If a part owner renounces his part
ownership on the party wall. The renunciation
must be absolute and total because the easement
of party wall is indivisible.
It is understood that there is an exterior sign,
contrary to the easement of party wall
whenever:
1.
2.
3.
4.
5.
6.
intervals project from the surface of one
side only, but not on the other; or
The lands enclosed by fences or live
hedges adjoin others which are not
enclosed.
NOTE: The owner of the building or structure
supported by a party wall who desires to demolish
such building or structure, may RENOUNCE his
part ownership of the wall. Cost of all repairs and
works necessary to prevent any damage which the
demolition may cause to the party wall on this
occasion shall be borne by him.
There is a window or opening in the
dividing wall of the buildings;
Dividing wall is on one side straight and
plumb on all its facement, and on the
other, it has similar conditions on the
upper part but the lower part slants or
projects outward;
Entire wall is built within the boundaries
of one of the estates;
The dividing walls bears the burden of the
binding beams, floors and roof frame of
one of the buildings, but not those of the
others;
The dividing wall between courtyards,
gardens and tenements is constructed in
such a way that the coping sheds the
water upon only one of the estates;
The dividing wall, being built by masonry,
had stepping stones, which at certain
Q: Petitioners-spouses Fernando Vergara and
Herminia Vergara (Sps. Vergara) and Spouses
Ronald Mark Sonkin and Erlinda Torrecampo
Sonkin
(Sps.
Sonkin)
are
adjoining
landowners. Sps. Vergara levelled the uneven
portion of the Vergara Property by filling it
with gravel, earth, and soil. As a result, the
level of the Vergara Property became even
higher than that of the Sonkin Property by a
third of a meter. Eventually, Sps. Sonkin began
to complain that water coming from the
Vergara Property was leaking into their
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CIVIL LAW
bedroom through the partition wall, causing
cracks, as well as damage, to the paint and the
wooden parquet floor. Sps. Sonkin repeatedly
demanded that Sps. Vergara build a retaining
wall on their property in order to contain the
landfill that they had dumped thereon, but the
same went unheeded. Should moral damages
and attorney’s fees be awarded?
easement of light is necessarily included, as well as
the easement of altius non tollendi [not to build
higher for the purpose of obstruction (Paras,
2008).
When easement of light and view is positive
and when negative
Positive — If the window is thru a party wall (NCC,
Art. 668, par. 1). Therefore, the period of
prescription commences from the time the
window is opened.
A: No. It is undisputed that the Sonkin property is
lower in elevation than the Vergara property, and
thus, it is legally obliged to receive the waters that
flow from the latter, pursuant to Article 637 of the
Civil Code. The proximate cause of the damage
sustained by the house of Sps. Sonkin was the act
of Sps. Vergara in dumping gravel and soil onto
their property, thus, pushing the perimeter wall
back and causing cracks thereon, as well as water
seepage, the former is nevertheless guilty of
contributory negligence for not only failing to
observe the two (2)-meter setback rule under the
National Building Code, but also for disregarding
the legal easement constituted over their
property. As such, Sps. Sonkin must necessarily
and equally bear their own loss. In view of Sps.
Sonkin’s contributory negligence, the Court deems
it appropriate to delete the award of moral
damages in their favor. No attorney’s fees shall
also be awarded because there is no bad faith
involved herein(Sps. Sonkin v Erlinda Vergara, G.R.
No. 193659, June 15, 2015)
NOTE: The mere opening of the window does
not create the easement; it is only when after
a sufficient lapse of time the window still
remains open, that the easement of light and
view is created (NCC, Art. 668, par. 1).
Moreover, even if the window is on one’s own
wall, still the easement would be positive if
the window is on a balcony or projection
extending over into the adjoining land (Paras,
2008).
Negative — If the window is thru one’s own wall,
that is, thru a wall of the dominant estate (NCC,
Art. 668, par. 2). Therefore, the time for the period
of prescription should begin from the time of
notarial prohibition upon the adjoining owner.
“Formal prohibition’’ or “formal act’’ (under the
old Civil Code, Art. 538) means not merely any
writing, but one executed in due form and/or with
solemnity — a public instrument (Laureana A. Cid
v. Irene P. Javier, et al., L-14116, June 30, 1960).
EASEMENT OF LIGHT AND VIEW
No part-owner may, without the consent of the
others, open through the party wall any window
or aperture of any kind (NCC, Art. 667).
XPN: Even if the window is on the wall of the
dominant estate, still easement of light and view
would be POSITIVE if the window is on the
balcony or extension extending over the land of
the servient estate.
A window or opening in the dividing wall of
buildings is an exterior sign which rebuts the
presumption that the wall is a party wall; one part
owner may not, therefore, make any window or
opening of any kind thru a party wall without the
consent of others.
Thus, the period of prescription for the
acquisition shall be counted from the time of:
1.
The easement of LIGHT — “Jus luminum” The
opening is for the purpose of admitting light and
not for viewing.
(as in the case of small windows, not more than
30 cm. square, at the height of the ceiling joist, the
purpose of which is to admit light, and a little air,
but not VIEW) (Paras. 2008).
2.
Openings at height of ceiling joints to admit
light (NCC, Art. 669)
When the distances in Art. 670 are not observed,
the owner of a wall which is not a party wall can
make an opening for the purpose of admitting
light and air, but NOT for view.
The easement of VIEW — “Servidumbre
prospectus” The opening is for the purpose of
viewing. (as in the case of full or regular windows
overlooking the adjoining estate) (Incidentally,
although the principal purpose here is VIEW, the
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Opening of the window, if through a party
wall; or
The formal prohibition upon the
proprietor of the adjoining land, if window
is through a wall on the dominant estate.
236
PROPERTY
Restrictions for making an opening for light
and air
and the owner who opened them may be ordered
by the court to close them.
1. The size must not exceed 30 centimeter
square;
2. The opening must be at the height of the
ceiling joists or immediately under the
ceiling;
3. There must be an iron grating imbedded
in the wall; and
4. There must be a wire screen.
Prescription may still be acquired as a negative
easement after ten years from the time of notarial
prohibition.
The distance referred to in Art. 670 shall be
measured in cases of direct views from the outer
line of the wall when the openings do not project,
from the outer line of the latter when they do, and
in cases of oblique view from the dividing line
between the two properties (NCC, Art. 671).
If the wall becomes a party wall – A part owner can
order the closure of the opening because no part
owner may make an opening through a party wall
without the consent of the others; it can also
obstruct the opening unless an easement.
Where buildings are separated by a public way
or alley (NCC, Art. 672)
The distance provided in Art. 670 is not
compulsory where there is a public way or alley
provided that it is not less than three meters wide,
the minimum width is necessary for the sake of
privacy and safety.
The openings allowed by Art. 669 are for the
purpose of admitting light; hence they can be
made only in the walls of buildings.
NOTE: Art. 669 refers to restricted windows.
NOTE: The width of the alley is subject to special
regulations and ordinances.
A private alley opened to the use of the general
public falls within the provision of Art. 672.
Direct and oblique views (NCC, Articles 670671)
Articles 670 and 671 deal with regular, full
windows.
Where easement of direct view had been
acquired (NCC, Art. 673)
Direct view - It is that which is obtained from a
wall parallel to the boundary line, such that from
the opening in such wall it is possible to see the
adjoining tenement without the necessity of
putting out or turning one's head side.
Whenever the easement of direct view has been
acquired by any such title, there is created a true
easement. The owner of the servient estate cannot
build thereon at less than a distance of three
meters from the boundary line.
Oblique view - It is obtained from a wall at an
angle with the boundary line; in order to see the
adjoining tenement, it is necessary to turn one's
head to the left or to the right.
NOTE: The title used in Art. 673 refers to any
modes of acquiring easements:
1. Contract;
2. Will;
3. Donation; or
4. Prescription.
Restrictions as to easement of views
1.
2.
Direct Views: The distance of two (2)
meters between the wall and the
boundary must be observed; and
Oblique Views: (Walls perpendicular or
at an angle to the boundary line) must not
be 60 cm to the nearest edge of the
window (NCC, Art. 670).
The distance may be increased or decreased by
stipulation of the parties provided that in case of
decrease, the minimum distance of two meters or
sixty centimeters prescribed in Art. 670 must be
observed, otherwise it is void. The said distances
involve considerations of public policy and the
general welfare; hence, they should not be
rendered ineffective by stipulation.
Any stipulation to the contrary is void (NCC,
Art. 673).
EASEMENT OF DRAINAGE OF BUILDINGS
NOTE: When windows are opened at a distance
less than that prescribed by Art. 670 from the
boundary lines, they constitute unlawful openings,
The owner of a building shall be obliged to
construct its roof or covering in such manner that
the rain water shall fall on his own land or on a
237
CIVIL LAW
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 (NCC, Art. 674).
No person shall build any aqueduct, well, sewer,
furnace, forge, chimney, stable, depository of
corrosive substances, machinery, or factory which
by reason of its nature or products is dangerous or
noxious, without observing the distances
prescribed by the regulations and customs of the
place, and without making 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 (NCC, Art. 678).
NOTE: Art. 674 does not establish servitude but
merely regulates the use of one's property.
Easement to receive falling rain waters (NCC,
Art. 675)
NOTE: The owner must take necessary protective
works or other neighboring estates.
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 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.
Planting of trees
Art. 679 establishes a negative easement. It
provides the minimum distances of trees and
shrubs from the boundary line. They shall be
regulated by the local ordinances and in the
absence thereof, by the customs of the place, and
in default thereof, by art, 679.
Easement giving outlet to rain water where
house surrounded by other houses
Requisites:
1. There must be no adequate outlet to the
rain water because the yard or court of a
house is surrounded by other houses;
2. The outlet to the water must be at the
point where egress is easiest, and
establishing a conduit for drainage; and
3. There must be payment of proper
indemnity (NCC, Art. 676).
Distance in Planting of Trees under Article 679
of the New Civil Code.
1. The distance authorized by local ordinaces or
customs of the place, if any; or
2. If there are no ordinance or custom:
(a.) Atleast two (2) meters from the dividing line
of the estate in case of tall trees; and
Ownership of Rain Water
(b.) At a distance of atleast 50 centimeters in case
of shrubs or small trees.
Pursuant to the provision of the Water Code of the
Philippines, the, rain waters falling on private
lands shall belong to the State.
Intrusions of branches
neighboring estate
INTERMEDIATE DISTANCES AND WORKS FOR
CERTAIN CONSTRUCTIONS AND PLANTINGS
roots
into
Q: Can the adjoining estate cut the roots and
the branches without the consent of the owner
of the tree?
Construction and plantings near fortified
places
A: Right to cut roots can be exercised without
notice to the owner of the trees. BUT as to the
branches, it is necessary to ask that they be cut,
and if the owner of the tree does not do so
voluntarily, the court may authorize the
neighboring owner to cut them.
No constructions can be built or plantings made
near fortified places or fortresses without
compliance with the conditions required in special
laws, ordinances, and regulations relating thereto
(NCC, Art. 677).
Q: Does this right prescribe?
NOTE: Art. 677 establishes an easement in favor
of the State. The general prohibition is dictated by
the demands of national security.
Construction of aqueduct, well, sewer, etc.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
or
A: The right to cut does not prescribe so long as
the owner tolerates the branches and roots
invading his tenement. BUT the moment the
owner of the tenement demanded that the
238
PROPERTY
branches be cut off and the owner of the tree
refuses to do so, the prescription starts to run.
SAME PLANE; when the supported land is ABOVE
the supporting land, the support is subjacent
(Paras, 2008).
Fruits naturally falling upon adjacent land
Remedies for violation of Art. 684
Q: Who owns the fruits which fall from the
adjacent land?
1. Claim for damages for injuries sustained;
or
2. Injunction.
A: Such fruits belong to the owner of the adjacent
land to compensate him for the inconvenience
causes by the branches of trees extending over his
land. Note however that for the adjacent owner to
be entitled to the fruits they must not only fall
upon his land but the falling must occur naturally.
NOTE: Any stipulation or testamentary provision
allowing excavations that cause danger to an
adjacent land or building shall be void (NCC, Art.
685).
NOTE: If the fruits fall on public property, the
owner of the tree retains ownership.
Notice to owners of adjacent lands
Any proprietor intending to make any excavation
contemplated in Articles 684-686 shall notify all
owners of adjacent lands.
EASEMENT AGAINST NUISANCE
Easement against nuisance is a negative easement
because the proprietor or possessor is prohibited
to do something which he could lawfully do were
it not for the existence of the easement. However,
a nuisance involves any act or omission which is
unlawful.
The notice is mandatory except where there is
actual knowledge of the proposed excavation.
NOTE: The legal easement of lateral and subjacent
support are NOT only applicable for buildings
already constructed at the time of the excavations
but also to future buildings that may be
constructed on the adjoining lands.
NOTE: The easement against nuisance is not an
easement at all but a restriction upon the
ownership and not every limitation on the right of
ownership is an easement.
VOLUNTARY EASEMENT
LATERAL AND SUBJACENT SUPPORT
An easement is voluntary when it is established by
the will of the owners.
Proprietor prohibited from making dangerous
excavations
Persons who
easement
No proprietor shall make such excavations upon
his land as to deprive any adjacent land or
building of sufficient lateral or subjacent support
(NCC, Art. 684).
may
constitute
voluntary
Voluntary easements may be constituted by the
owner possessing capacity to encumber property.
If there are various owners, all must consent; but
consent once given is not revocable.
Lateral Support
NOTE: Third persons are not bound by a
voluntary easement unless the same is duly
recorded with the proper authorities.
This is the support on the vertical side of a land,
the removal of which may cause the land to
crumble or slide.
Q: For whose favor are voluntary easements
established?
Subjacent Support
This is the horizontal support underneath a land
or building the removal of which may cause the
sinking or crumbling of the land or building.
A:
1. Predial servitudes:
a. For the owner of the dominant estate; and
b. For any other person having any juridical
relation with the dominant estate, if the
owner ratifies it.
‘Lateral’ Distinguished from ‘Subjacent’
The support is lateral when both the land being
supported and the supporting land are on the
239
CIVIL LAW
2. Personal servitudes: for anyone capacitated to
accept.
existence of an easement before the Regional
Trial Court (RTC) of Pasig City and prayed that
the easement be annotated in the title of the
property foreclosed by NB. FMI further
claimed that when Mr. Bong installed the
pumps in his adjoining property, a voluntary
easement was constituted in favor of FMI.
Q: How are voluntary easements created and
what are the governing rules for such?
A:
1. If created by title (contract, will, etc.), the title
governs; and
2. If acquired by prescription, it is governed by
the manner or form of possession.
Will the action prosper? (2014 Bar)
A: NO, the action will not prosper. The essence of
a mortgage is that it immediately subjects the
property upon which it is imposed, and whoever
the possessor may be, to the fulfillment of the
obligation for whose security it was constituted.
There was no voluntary easement in this case
because at the time the water pumps were
constructed, the subject lot where the water
pumps were constructed and the condominium
belong to the same person. No one can have an
easement over his own property (Bogo- Medellin v.
CA, G.R. No. 124699, July 31, 2003). Even of the
assumption that an easement was created in favor
of FMI that alone will not defeat the right of the
mortgagee to enforce the security if the debtor
defaults.
NOTE: In both cases, the Civil Code will only
apply suppletorily.
When consent is necessary
The owner of a property in usufruct may create
easements thereon without the consent of the
usufructuary provided the rights of the latter are
not impaired (NCC, Art. 689).
NOTE: Consent of both the naked owner and the
beneficial owner is necessary for the creation of
perpetual voluntary easement (NCC, Art. 690).
Expenses for work reuired for use and
preservation of the easement.
If the owner of the servient estate has bound
himself to pay for the cost of the work needed for
the use and preservation of he easement, and
wants to free himself from such obligations, he
may simply renounce or abandon his property in
favor of the owner of the dominant state.
NUISANCE
A nuisance is any act, omission, establishment,
business, condition of property, or anything else
which:
1. Injures or endangers the health or safety of
others;
2. Annoys or offends the senses;
3. Shocks, defies or disregards decency or
morality;
4. Obstructs or interferes with the free passage
of any public highway or street, or any body of
water; or
5. Hinders or impairs the use of property (NCC,
Art. 694) (2005, 2006 Bar)
Q: Mr. Bong owns several properties in Pasig
City. He decided to build a condominium
named Flores de Manila in one of his lots. To
fund the project, he obtained a loan from the
National Bank (NB) secured by a real estate
mortgage over the adjoining property which
he also owned.
During construction, he built three pumps on
the mortgaged property to supply water to the
condominium. After one year, the project was
completed and the condominium was turned
over to the buyers. However, Mr. Bong failed to
pay his loan obligation to NB. Thus, NB
foreclosed the mortgaged property where the
pumps were installed. During the sale on
public auction of the mortgaged property, Mr.
Simon won in the bidding. When Mr. Simon
attempted to take possession of the property,
the condominium owners, who in the
meantime constituted themselves into Flores
de Manila Inc. (FMI), claimed that they have
earlier filed a case for the declaration of the
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Nuisance v. Trespass
Nuisance
Trespass
Use of one’s own Direct infringement of
property which causes another’s
right
or
injury to another.
property.
Injury is consequential.
Injury is direct and
immediate.
Nuisance v. Negligence
Negligence
240
Nuisance
PROPERTY
Basis
Condition
of the act
Abatement
Liability is based
on lack of
proper care or
diligence.
Act complained
of is already
done which
caused the
injury to the
plaintiff.
Abatement is
not available as
a remedy. The
remedy is action
for damages.
f.
Liability
attaches
regardless of
the degree of
care or skill
exercised to
avoid the
injury.
There is a
continuing
harm being
suffered by the
aggrieved party
by the
maintenance of
the act or thing
which
constitutes the
nuisance.
Abatement
without judicial
proceedings is
allowed to
suppress the
nuisance.
g.
Intermittent – That kind which recurs off
and on and may be discontinued anytime;
Attractive Nuisance – One who maintains
on
his
premises
dangerous
instrumentalities or appliances of a
character likely to attract children in play,
and who fails to exercise ordinary care to
prevent children from playing therewith
or resorting thereto, is liable to a child of
tender years who is injured thereby, even
if the child is technically a trespasser in
the premises.
Nuisance per se v. Nuisance per accidens
Kinds of Nuisance
1. As to the number of persons affected:
(2005 Bar)
a. Public (or common) – One that affects a
community or neighborhood or any
considerable number of persons although
the extent of the annoyance, danger or
damage upon individuals may be unequal
(Suarez, 2011); and
b. Private – one which affects an individual
or few persons only.
PER SE
As a matter of law.
PER ACCIDENS
As a matter of fact.
Need only be proved in
any locality.
Depends
upon
its
location
and
surroundings,
the
manner of its conduct
or other circumstances.
May be summarily
abated under the law of
necessity.
May be abated only
with reasonable notice
to the person alleged to
be maintaining or doing
such nuisance.
Q: Boracay West Cove, applied for a zoning
compliance covering the construction of a
three-storey hotel over a parcel of land in
Malay. The Zoning Administrator denied the
application on the ground that the proposed
construction site was within the “no build
zone”. The Office of the Mayor issued EO 10,
ordering the closure and demolition of
Boracay West Cove’s hotel. Boracay West Cove
countered that the hotel cannot summarily be
abated because it is not a nuisance per se. Is
the hotel classified as a nuisance per se?
2. Other classification:
a. Nuisance per se – That kind of nuisance
which is always a nuisance. By its nature,
it is always a nuisance all the time under
any circumstances regardless of location
or surroundings;
b. Nuisance per accidens – That kind of
nuisance by reason of location,
surrounding or in a manner it is
conducted or managed;
c. Temporary – That kind which if properly
attended does not constitute a nuisance;
d. Permanent – That kind which by nature of
structure
creates
a
permanent
inconvenience;
e. Continuing – That kind which by its
nature will continue to exist indefinitely
unless abated;
A: NO. The litmus test in determining if it’s a
nuisance is the property’s nature and conditions.
The hotel cannot be considered as a nuisance per
se since this type of nuisance is generally defined
as an act, occupation, or structure, which is a
nuisance at all
times and
under
any
circumstances, regardless
of
location or
surrounding. Here, it is merely the hotel’s
particular incident––its location––and not its
inherent qualities that rendered it a nuisance.
Otherwise stated, had it not been constructed in
the no build zone, Boracay West Cove could have
secured the necessary permits without issue
(Aquino v. Mun.of Malay Aklan, G.R. No. 211356,
September 29, 2014).
241
CIVIL LAW
ATTRACTIVE NUISANCE
2.
One who maintains on his premises dangerous
instrumentalities or appliances of a character
likely to attract children in play, and who fails to
exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable to
a child of tender years who is injured thereby,
even if the child is technically a trespasser in the
premises (Jarco Marketing Corp. v. CA, G.R. No.
129792, December 21, 1999).
Abatement, without
(NCC, Art. 705).
judicial
proceedings
NOTE: Any person injured by a private nuisance
may abate it by removing, or if necessary, by
destroying the thing which constitutes the
nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is
indispensable that the procedure for extra-judicial
abatement of a public nuisance by a private
person be followed (NCC, Art. 706).
Basis for liability
The attractiveness is an invitation to children.
Safeguards to prevent danger must therefore be
set up.
Every successive owner or possessor of property
who fails or refuses to abate a nuisance in that
property started by a former owner or possessor
is liable therefor in the same manner as the one
who created it (NCC, Art. 696).
Elements of attractive nuisance
Extra-judicial abatement (2002 Bar)
1.
2.
Requisites of extra-judicial abatement (BAR VID)
1. The nuisance must be specially Injurious to
the person affected;
2. No Breach of peace or unnecessary injury
must be committed;
3. Demand must first be made upon the owner
or possessor of the property to abate the
nuisance;
4. Demand is Rejected;
5. Abatement is Approved by the district health
officer and executed with the assistance of the
local police; and
6. Value of destruction does not exceed P3,000
It must be attractive;
Dangerous to children of tender years.
Q: Is a swimming pool an attractive nuisance?
A:
GR: A swimming pool or water tank is not an
attractive nuisance, for while it is attractive, it is
merely an imitation of the work of nature. Hence,
if small children are drowned in an attractive
water tank of another, the owner is not liable even
if there be no guards in the premises (Hidalgo
Enterprises v. Balandan, et. al, G.R. No. L-3422 June
13, 1952).
NOTE: An extra-judicial abatement can only be
applied for if what is abated is a nuisance per se
and not nuisance per accidens.
XPN: Swimming pool with dangerous slide
characteristics
NOTE: The doctrine of attractive nuisance does
not generally apply to bodies of water, artificial as
well as natural in the absence of some unusual
condition or artificial feature other than the mere
water and its location.
Liability for damages in case of extrajudicial
abatement of nuisance
The private person or a public official
extrajudicially abating a nuisance is liable for
damages to the owner of the thing abated, if he
causes unnecessary injury or if an alleged
nuisance is later declared by courts to be not a
real nuisance (NCC, Art. 707).
PUBLIC NUISANCE AND PRIVATE NUISANCE
Remedies against public nuisances
1.
2.
3.
Prosecution under the RPC or any local
ordinance;
Civil action; or
Abatement, without judicial proceeding (NCC,
Art. 699)
The right to question the existence of a nuisance
DOES NOT prescribe; it is imprescriptible.
Q: Respondent Ernesto Lardizabal (Ernesto)
filed a complaint for demolition, before the
City Engineer's Office of Baguio City (City
Engineer's Office), questioning the ongoing
construction of a residential structure and
garage extension by petitioners on a parcel of
land. Upon investigation, the City Engineer's
Remedies against private nuisances
1.
Civil action; or
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
242
PROPERTY
Office found out that the construction had no
building permit. Consequently, the City Mayor
issued Demolition Order No. 5. Aggrieved,
petitioners moved for a reconsideration of DO
No. 05, but was denied by the City Mayor. Thus,
they were prompted to file a complaint for
injunction and prohibition with the RTC. Shall
DO No. 5 be enjoined?
2.
3.
4.
5.
6.
7.
NOTE: Registration of a property does is not a
mode of acquiring ownership. It merely confirms
the existence of one’s ownership over a property
with notice to the whole world. (Bautista v Dy Bun
Chin, 49 O.G. 179)
A: Yes. The following shall be subject for summary
Eviction: (1) New squatter families whose
structures were built after the affectivity of RA
7279; and (2) Squatter families identified by the
LGU in cooperation with the Presidential
Commission of the Urban Poor (PCUP), Philippine
National Police (PNP) and accredited Urban Poor
Organization (UPO) as professional squatters or
members of squatting syndicates as defined in the
Act. In this case, petitioners cannot be considered
as new squatters, since, although their structures
were built after March 28, 1992, they or their
predecessors-in-interest had occupied, and were
claimants of the subject property long before the
said date. Neither have they been identified by the
LGU as professional squatters nor members of a
squatting syndicate. Thus, since petitioners do not
fall under the coverage of the said IRR, the
issuance of DO No. 05 had no legal basis at the
onset.
Classification of modes of acquiring ownership
1.
Original – Those which do not arise or depend
upon any pre-existing right or title of another
person:
a. Occupation (NCC, Art. 713);
b. Intellectual Creation (NCC, Art. 721);
and
c. Acquisitive Prescription (NCC, Art.
1106).
2.
Derivative – Are those which arise or depend
upon a pre-existing or preceding right or title
of another person:
a. Law; e.g. hidden treasure (NCC, Art.
438), improvements on the land of
another (NCC, Art. 445), alluvium
(NCC, Art. 447), abandoned river beds
(NCC, Art. 461), falling fruits into the
tenement of another (NCC, Art. 681)
b. Donation (Art. 725)
c. Succession mortis causa (NCC, Art.
774); and
d. “Tradition
(delivery)
as
a
consequence of certain contracts” like
sale, agency, partnership, mutuum,
assignment barter. Pure tradition
does not transfer ownership such as
in deposit or commodatum (Pineda,
2009).
MODES OF ACQUIRING OWNERSHIP
Mode v. Title
MODE
TITLE
Directly and
Serves merely to give
immediately produces a
the occasion for its
real right.
acquisition or existence.
Cause
Means
Proximate cause
Remote cause
Essence of the right
Means whereby that
which is to be created or essence is transmitted.
transmitted.
OCCUPATION
Occupation is the acquisition of ownership by
seizing corporeal thing that have no owner, made
with the intention of acquiring them, and
accomplished according to legal rules (Paras,
2008) (1997, 2007 Bar).
Requisites of occupation
Mode – it is a way or process of acquiring or
transferring ownership. The process may either
be original or derivative.
Title – is a jural act or deed which is not sufficient
by itself to transfer ownership.
1.
2.
3.
Modes of acquiring ownership (OLD TIPS)
(2007 Bar)
1.
Law;
Donation;
Tradition;
Intellectual creation;
Prescription; or
Succession;
4.
Occupation;
243
There must be Seizure of a thing;
Which must be a Corporeal personal property;
Which must be Susceptible of appropriation
by nature;
The thing must be Without an owner; and
CIVIL LAW
5.
There must be an Intention to acquire
ownership.
5.
Occupation v. Possession
BASIS
6.
OCCUPATION
As regards
acquisition
of
ownership
As to
property
involved
Mode
acquiring
ownership.
7.
of Merely raises
the
presumption of
ownership
when exercised
in the concept
of owner.
Involves
only
corporeal
personal
property.
Requires that the
object be without
an owner.
As regards
ownership
of the thing
by another
As regards There must be an
the intent to intent to acquire
acquire
ownership.
May not take
As regards place w/o some
possession form
of
possession.
Short duration.
As to period
As to
leading to
another
mode of
acquisition
POSSESSION
Any kind
property.
8.
Acquisition of ownership over a wild animal by
occupation
of
Wild animals are considered res nullius when not
yet captured. After its capture, animals that
escaped become res nullius again.
Straying Domesticated Animals
The property
may be owned
by somebody.
Domesticated animals, if they got strayed and
were caught by another, the owner may still claim
them from the captor within 20 days reckoned
from the date of occupation by the latter. Failure
to do so, they shall belong to the captor who kept
them.
May be had in
the concept of a
mere holder.
May exist w/o
occupation.
Domesticated as distinguish from Domestic
Animals
Generally
longer.
Cannot lead to May lead to
another mode of another modeacquisition.
prescription.
Domesticated animals are wild animals but after
capture had been tamed and become accustomed
and friendly to people. On the other hand,
Domestic Animals or tame animals are those born,
bred and raised under the care of men.
Q: When can land be the object of occupation?
A: It depends.
1. If without an owner, it pertains to the State
(Regalian Doctrine).
2. If abandoned and the property is private, it
can be the object of occupation.
3. And if the land does not belong to anyone, it is
presumed to be public.
Things susceptible of occupation
1.
Things that are without an owner – Res
nullius; abandoned;
NOTE: Stolen property cannot be subject of
occupation.
2.
3.
4.
Ownership of land cannot be acquired by
occupation
Animals that are the object of hunting and
fishing (NCC, Art. 715);
Hidden treasures – Only if the there is no
known owner thereof. This is possible only if
the treasure is found in places or things
without owners (NCC, Art 718)
Abandoned movables – A thing is abandoned
when:
a. The expectation to recover is gone (spes
recuperandi); and
b. The intent to return or have it returned is
given up (spes rivertandi).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Swarm of bees that has escaped from its
owner, under certain conditions (NCC, Art.
716);
Domesticated animals that have escaped from
their owners, under certain conditions (NCC,
Art. 716);
Transfer of pigeons to another breeding place
without fraud or artifice (NCC, Art. 717); and
Transfer of fish to another breeding place
without fraud or artifice (NCC, Art. 717).
When the land is without owner, it pertains to the
State. The State need not acquire abandoned lands
by occupation because once the requisites of
abandonment had been fulfilled; automatically,
the reversion operates (Pineda, 2009).
Abandoned land (one with an owner before)
becomes patrimonial land of the State susceptible
244
PROPERTY
of acquisition thru acquisitive prescription (Paras,
2008).
Future properties as subject of donation (2003
Bar)
Prescription v. Occupation
Future properties cannot be subject of donations.
Donations cannot comprehend future properties.
PRESCRIPTION
Derivative mode –
somebody else was
the owner.
Longer
period
of
possession is required.
OCCUPATION
Original mode – no
previous owner.
NOTE: Future property means anything which the
donor cannot dispose of at the time of the
donation (NCC, Art. 751) (2009 Bar).
Shorter period.
XPN: In donation propter nuptias, however, the
Family Code allows a donation of future property
between future spouses.
DONATION
Donation of future inheritance or the inchoate
right to inherit
Donation is an act of pure liberality whereby a
person disposes gratuitously of a thing or right in
favor of another who accepts it (NCC, Art. 725).
Future inheritance or the inchoate right to inherit
cannot be donated because it is future property.
Requisites of donation (ACID)
Q: May a property, the acquisition of which is
subject to suspensive condition, be donated?
1.
2.
3.
4.
Donor must have Capacity to make the
donation;
He must have donative Intent (animus
donandi);
There must be Delivery in certain cases; and
Donee must Accept or consent to the donation
during the lifetime of the donor and of the
donee in case of donation inter vivos (NCC, Art.
746); whereas in case of donation mortis
causa, acceptance is made after donor’s death
because they partake of a will (NCC, Art. 728).
A: YES, because once the condition is fulfilled, it
retroacts to the day the contract is constituted
[NCC, Art. 1187(1)].
Donation of ownership and usufruct
Ownership and usufruct of a property may be
donated to different persons separately. However,
all the donees are however required to be living at
the time of donation (NCC, Art. 756).
Limitation on the amount that can be donated
Essential features or elements of a true
donation
1.
2.
3.
4.
1.
Alienation of property by the donor during his
lifetime, which is accepted;
Irrevocability by the donor of the donation;
Animus Donandi (donative intent); and
Consequent impoverishment of the donor
(diminution of his assets).
2.
CHARACTERISTICS
EXTENT TO WHICH DONOR MAY DONATE
PROPERTY
If the donor has forced heirs, he cannot give
or receive by donation more than what he can
give or receive by will;
If the donor has no forced heirs, donation may
include all present property provided he
reserves in full ownership or in usufruct:
a. The amount necessary to support him
and those relatives entitled to support
from him;
b. Property sufficient to pay the donor’s
debt contracted prior to the donation.
NOTE: The limitation applies only to simple,
remunerative, and modal donations but not to
onerous ones, which are governed by the law on
contracts (De Leon, 2006).
It may comprehend all the present property of the
donor, or part thereof, provided he reserves, in
full ownership or in usufruct, sufficient means for
the support of himself, and of all relatives who, at
the time of the acceptance of the donation, are by
law entitled to be supported by the donor (NCC,
Art. 750).
RESERVATIONS AND REVERSIONS
Effect if the donor violates the requirement for
reservation under NCC, Art. 750
245
CIVIL LAW
A donation where the donor did not reserve
property or assets for himself in full ownership or
in usufruct sufficient for his support and all
relatives legally dependent upon him is not void. It
is merely reducible to the extent that the support
to himself and his relatives is impaired or
prejudiced (Pineda, 1999).
certain
conditions, 2. Gratuitous – Same
limitations or charges
form of that of
upon the donee,
donations.
whose
value
is
inferior
to
the
donation given.
Onerous
Imposes
upon
the Same as that of
donee a reciprocal contracts.
obligation;
Burdens,
charges or services are
equal or greater in
value to that of the
donation.
Reversion in donation
It is a condition established in the deed of
donation which has for its effect the restoration or
return of the property donated to the donor or his
estate or in favor of other persons who must be
living at the time of the donation for any cause or
circumstances (NCC, Art. 757).
Kinds of donation according to perfection or
extinguishment
NOTE: If the reversion is in favor of other persons
who are not all living at the time of the donation,
the reversion stipulated shall be void, but the
donation shall remain valid.
1.
2.
KINDS OF DONATION
1.
Pure donation – It is one which is not subject
to any condition;
Conditional –It is one wherein the donor
imposes on the donee a condition dependent
on the happening of a future event or past
event unknown to the parties; and
With a Term – It is one wherein the donor
imposes on the donee a condition dependent
upon the happening of a future and certain
event.
According to motive or cause:
a. Simple;
b. Remuneratory (1st kind);
c. Remuneratory (2nd kind): Conditional or
Modal donations; or
d. Onerous donations.
3.
2.
As to perfection or extinguishment:
1. Pure;
2. With a condition; or
3. With a term.
Like in testamentary dispositions (Art. 873), only
the illegal or impossible conditions are
disregarded. The donation itself remains valid.
3.
According to effectivity:
a. Inter vivos ( NCC, Art. 729);
b. Mortis causa (NCC, Art. 728); or
c. Propter nuptials.
Effect of illegal or impossible conditions
DONATION INTERVIVOS
It is a donation which takes effect during the
lifetime of the donor.
Limitations imposed by law in making
donations inter vivos
Kinds of donation according to motive or cause
PURPOSE
FORM
Simple (2007 Bar)
Pure liberality
Same to that of forms in
donations.
Remuneratory (First kind) (2007 Bar)
To reward past merits, Same to that of forms in
services rendered by donations.
the donee to the donor
provided the same do
not
constitute
a
demandable debt.
Remuneratory (Second kind)
1. Consideration
for 1. Onerous – Same
future services; or
form of that of
2. Donor
imposes
contracts.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
1.
2.
3.
Donor must Reserve sufficient means for his
support and for his relatives who are entitled
to be supported by him (NCC, Art. 750);
Donation
cannot
comprehend
Future
property except donations between future
husband and wife (FC, Art. 84); and
No person may give by way of donation More
than he may give by will.
Some inter vivos donations
The following donations have been held to be inter
vivos:
246
PROPERTY
a.
b.
c.
d.
e.
f.
A donation where the causes of
revocation have been specified;
A donation where the donor reserved for
himself a lifetime usufruct of the
property, for if he were still the owner,
there would be no need of said
reservation;
A donation where the donor warrants the
title to the thing which he is donating —
there would be no need of warranty were
he not be transferring the title;
Where the donor immediately transferred
the
ownership,
possession
and
administration of the property to the
donee, but stipulated that the right of the
donee to harvest and alienate the fruits
would begin only after the donor’s death.
(But if what had been transferred in the
meantime was only the administration of
the property, the donation is mortis
causa);
Where the donor stated that while he is
alive he would not dispose of the property
or take away the land “because I am
reserving it to him (the donee) upon my
death.” (The Court held this to be inter
vivos because in effect, he had already
renounced the right to dispose of his
property); and
A donation where the donees “should not
as yet get the possession until our
demise,” the administration remaining
with the donor spouses, or either one
surviving.
officer or court that the deed or act is his own. On
the other hand, the attestation of a will refers to
the act of the instrumental witnesses themselves
who certify to the execution of the instrument
before them and to the manner of its execution
(Echavez v. DCDC, G.R. No. 192916, October 11,
2010).
Some mortis causa Donations
The following have been held to be mortis causa:
a. Where the donor has reserved (expressly
or impliedly) the option to revoke the
donation at any time before death, even
without the consent of the done;
b. Where the donation will be void if the
transferee dies ahead of the transferor.
c. If before the donor’s death, it is revocable
at his will;
d. If the donor retains full or naked
ownership and control over the property
while he is still alive;
e. If what was in the meantime transferred
to the done was merely the
administration of the property; and
f. If title will pass only after donor’s death.
Donation inter vivos v. Donation mortis causa
BASIS
As to when it
takes effect
DONATION MORTIS CAUSA
These are donations which are to take effect upon
the death of the donor.
NOTE: It partakes of the nature of testamentary
provisions and governed by the rules on
succession (NCC, Art. 728).
As to cause or
consideration
Donation mortis causa must comply with the
formalities prescribed by law for the validity
of wills
On
predecease
Donation mortis causa must comply with the
formalities prescribed by law for the validity of
wills, otherwise, the donation is void and would
produce no effect. That the requirements of
attestation and acknowledgment are embodied in
two separate provisions of the Civil Code (Articles
805 and 806, respectively) indicates that the law
contemplates two distinct acts that serve different
purposes. An acknowledgment is made by one
executing a deed, declaring before a competent
On
revocability
247
INTER VIVOS
Takes effect
during
the
lifetime of the
donor,
independently
of his death.
Cause
is
donor’s pure
generosity.
Valid if donor
survives the
done.
Generally
irrevocable
except
for
grounds
provided for
by law.
MORTIS
CAUSA
Takes effect
upon donor’s
death.
In
contemplation
of
donor’s
death without
intention
to
dispose of the
thing in case
of survival.
Void if donor
survives.
Always
revocable at
any time and
for any reason
before
the
donor’s death.
CIVIL LAW
On
formalities
On when
acceptance is
made
On when
property is
conveyed to
the done
On tax
payable
Must comply
with
the
formalities of
donations.
Must comply
with
the
formalities of
a will.
2.
Acceptance
during donor’s
lifetime.
Property
completely
conveyed to
the done.
After donor’s
death.
1.
2.
Donor’s tax
Laws that apply to onerous donations
Property
retained
by
the
donor
while he is still
alive.
Estate tax
What is controlling is the nature of the act and its
effectivity. If the act is one of disposition, and
effective independently of the donor’s death, it is a
donation inter vivos. If it is one of deposition, but
its effectivity is dependent upon the death of the
donor, it is a mortis causa donation.
NOTE: The title given to a deed of donation is NOT
a determinative factor which makes the donation
inter vivos or mortis causa what is controlling is
the provision stated in the deed and must be read
in its entirety.
HOW MADE AND ACCEPTED
Persons who must accept the donation
If there is doubt on the nature of the donation, the
doubt should be resolved in favour of donation
inter vivos, rather than mortis causa to avoid
uncertainty as to the ownership of the property
subject of the deedof donation.
The donee must accept the donation personally, or
through an authorized person with a special
power for the purpose, or with a general and
sufficient power, otherwise, the donation shall be
void (NCC, Art. 745) (2010 Bar).
ONEROUS DONATIONS (2007 Bar)
Reason for the need for an acceptance
Onerous donation is a donation given for which
the donor received a valuable consideration which
is the equivalent of the property so donated.
(Pineda, 2009)
Because the donee may not want to accept the
donor’s liberality or if donation is onerous, he may
not agree with the burden imposed.
Rule prior to knowledge of acceptance
Samples of Onerous Donations
Prior to learning of the acceptance, there is as yet
no perfected donation (no donation at all), hence,
the donor may give the property to somebody
else, for he has not really parted with the
disposition of the property.
Where the condition is to take care of the donor’s
family in the future (Carlos v. Ramil, G.R. No.
6736, September 5, 1911); or where the done must
take care of the donor’s funeral expenses. Thus,
even if real property is involved, it is not essential
to have a public instrument (Manalo v. De Mesa,
G.R. No. L-9449, February 12, 1915).
Kinds of onerous donations
When the donation and the acceptance are in
the same instrument
If the donation and the acceptance are in the same
instrument, containing the signatures of both
donor and donee, it is understood that there is
Totally onerous – When the burden is equal to
or greater than the value of the property
donated; and
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Totally onerous – Rules on contracts.
Partially onerous
a. Portion exceeding the value of the burden
– simple donations; and
b. Portion equivalent to the burden – law on
contracts (Pineda, 1999).
Rules of contract govern the onerous portion of
donation; rules of donation only apply to the
excess, if any. Since the donation imposed on the
donee the burden of redeeming the property
for value, the donation was onerous. As an
endowment for a valuable consideration, it
partakes of the nature of an ordinary contract;
hence, the rules of contract will govern and Art.
765 of the New Civil Code finds no application
with respect to the onerous portion of the
donation. Insofar as the value of the land exceeds
the redemption price paid for by the donee, a
donation exists, and the legal provisions on
donation apply (Calanasan v. Sps. Dolorito, G.R. No.
171937, November 15, 2013).
Test in Determining Whether the Donation is
Mortis Cuasa or Inter Vivos
1.
Partially onerous – When the burden is lesser
than the value of the donation (Pineda, 1999).
248
PROPERTY
already knowledge of the acceptance, hence, the
donation is already perfected.
ii.
b.
Donations made to incapacitated persons
Donations made to incapacitated persons shall be
void, though simulated under the guise of another
contract or through a person who is interposed
(NCC, Art. 743).
If the donation is pure and simple and does not
require written acceptance, the minors can accept
the donation by themselves.
If the donation needs written acceptance, it may
be accepted by their guardian or legal
representatives.
A: The donation is VOID. The donation of an
immovable property must be in a public
instrument in order for it to be valid. In this case,
the donor died even before the notarization of the
deed of donation. Hence, it does not satisfy the
requirement of being in a public instrument for
the donation to be valid.
PERFECTION OF DONATION
Donation is perfected from the moment the donor
knows of the acceptance by the donee (NCC, Art.
734).
QUALIFICATIONS OF DONOR/DONEE
The donation is perfected, not from the time of
acceptance but from the time of knowledge by the
donor that the donee has accepted (the knowledge
may of course be actual or constructive). If there is
no acceptance, the donation will be null and void.
DONOR
Any person who has capacity to contract and
capacity to dispose of his property may make a
donation (NCC, Art. 735). His capacity shall be
determined as of the time of the making of
donation (NCC, Art. 737).
FORMALITIES FOR DONATION OF
REAL/PERSONAL PROPERTIES
The term “person” who could make donations
refers to natural and artificial persons with legal
personalities. With respect to artificial persons,
they must be authorized by their Articles to
donate.
Formalities required for donation
As regards movable property: (1998, 2000,
2007 Bar)
a. With simultaneous delivery of property
donated:
i. For P5,000 or less – May be
oral/written
ii. For more than P5,000 – Written in
public or private document
b.
2.
Acceptance may be made:
i. In the same instrument; or
ii. In another public instrument, notified
to the donor in authentic form, and
noted in both deeds. Otherwise,
donation is void.
Q: The Roman Catholic Church accepted a
donation of a real property located in Lipa
City. A deed of donation was executed, signed
by the donor, Don Mariano, and the donee, the
Church, as represented by Fr. Damian. Before
the deed could be notarized, Don Mariano
died. Is the donation valid? (2014 Bar)
Persons who must accept the donation made
in favor of a minor
1.
The burdens assumed by the done.
NOTE: “Making of donation” shall be construed to
mean perfection of the donation, otherwise if
“making” means “giving,” Art. 737 would in some
cases be inconsistent with Art. 734 which states
that “the donation is perfected from the moment
the donor knows of the acceptance by the donee.”
To avoid a contradiction, the rule may be stated
thus: “at the time the donation is perfected, both
the donor and the donee must be capacitated.”
Without simultaneous delivery:
i. The donation and acceptance must be
written in a public or private
instrument (Statute of Frauds),
regardless of value. Otherwise,
donation is unenforceable.
Status of a donation made by an incapacitated
person
As regards immovable property: (1993,
2000, 2010 Bar)
a. Must be in a public instrument specifying
i. The property donated; and
Following the laws in contracts (which are of
suppletory application to simple donations) said
donations should be merely considered voidable.
The same answer should be given in case there
249
CIVIL LAW
was vitiated consent (as in the case of fraud or
intimidation).
unsound mind, but to people such as those
mentioned in Art. 739 and husbands and wives
with respect to immoderate donations from each
other (donations of spouses inter se).
Q: May an emancipated minor by himself
make donation mortis causa?
Natural and juridical persons may be donees
A: YES, because at the age of 17, a person of sound
mind can already make a valid will.
Since the law does not distinguish, both natural
and juridical persons may become donees. An
unregistered partnership may become a donee
because it is a juridical or artificial person despite
its non-registration. But the conjugal partnership
itself, not being natural or juridical, cannot be a
donee. Instead, the donation should be given by
the stranger to the husband and wife, the share of
the husband being credited to his capital, and that
of the wife being considered part of her
paraphernal property.
Donation by a guardian or trustee
Guardians and trustees may of course donate their
own properties, unless they are otherwise
disqualified by the law, but not the property
entrusted to them, for the simple reason that they
are not the owners thereof.
Status of a donation of ward’s property by a
guardian
EFFECT OF DONATION/LIMITATIONS
It is believed that such a donation, if made in the
guardian’s name is null and void. On the other
hand, if made by the guardian in the name of, and
with the consent of the ward, it would be valid
provided judicial permission is obtained. This is
particularly true if the donation benefits, in some
way, the ward.
Rights and actions the donee acquires
NOTE: When the donation is clearly in the interest
of the beneficiaries, it would be contrary to the
spirit and intent of the law to say it cannot be
done.
Liability of donors for eviction of hidden
defects
IN GENERAL
The donee is subrogated to the rights and actions
which in case of eviction would pertain to the
donor.
1.
DONEE
All those who are not specially disqualified by law.
2.
Q: May an unborn child be a donee or a donor?
A: An unborn child may be a donee but not a
donor.
Rules regarding the liability of the donee to
pay the debts of donor
As a donee, donations made to conceived and
unborn children may be accepted by those
persons who would legally represent them if they
were already born (NCC, Art. 742).
1.
NOTE: If the conceived child did not become a
person, the donation is null and void. An unborn
child cannot be a donor because it is essential for a
person to be able to make a donation, he must
have full civil capacity.
Where donor imposes obligation upon the
donee, (NCC, Art. 758) the donee is liable:
a. To pay only debts previously contracted;
and
b. For debts subsequently contracted only
when there is an agreement to that effect.
NOTE: But he is not liable for debts in excess
of the value of donation received, unless the
contrary is intended.
When a person is “specially disqualified’’ to
accept a donation
2.
“Specially disqualified’’ does not refer to those
incapacitated to contract like minors or those of
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
If the donation is simple or remunerative,
donor is not liable for eviction or hidden
defects because the donation is gratuitous,
unless the donor acted in bad faith; and
If the donation is onerous, the donor is liable
on his warranty against eviction and hidden
defects but only to the extent of the burden.
250
Where there is no stipulation regarding the
payment of debts (NCC, Art. 759):
a. Donee is generally not liable to pay
donor’s debts;
PROPERTY
b.
Donee is responsible only if donation has
been made in fraud of creditors; and
The creditors may rescind the donation to the
extent of their credits. The action is known as
accion pauliana (NCC, Art. 381).
NOTE: The presumption that the
donations was made in fraud of creditors
arises when the donor has not left
sufficient assets to pay his debts, at the
time of donation.
c.
NOTE: If the donor did not reserve enough assets
to pay his creditors whom he owed before the
donation, the donation is presumed to be in fraud
of creditors.
The donee shall not be liable beyond the
value of donation received.
VOID DONATIONS
Donations prohibited by law (1990, 2000 Bar)
(LAW SCRA POP)
DOUBLE DONATIONS
There is double donation when the same thing has
been donated to two or more persons.
Prohibition on donation inter vivos
1. By persons guilty of Adultery or concubinage
at the time of donation (NCC, Art. 739);
The rule on double sale under Art. 1544 of NCC
shall be applicable.
Rule: First in time, stronger in right
1. If movable, one who first take possession in
good faith.
2. If immovable, one who recorded in registry of
property in good faith.
The action for declaration of nullity may be
brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be
proved by preponderance of evidence. (NCC,
Art. 739)
2.
If no inscription, one who first took
possession in good faith.
In absence thereof, one who can present
oldest title.
NOTE: The phrase “found guilty of same
offense” does NOT refer only to concubinage
and adultery.
EXCESSIVE/INOFFICIOUS
3.
Rule in case of an excessive or inofficious
donation
1.
2.
Those made between persons found guilty of
the same Criminal offense, in consideration
thereof (NCC, Art. 739);
A donor may not donate more than what he
can give by will. If he donates more than what
he cannot give by will, the donation will
become excessive and to insist on it, the
legitime of the compulsory heirs will be
impaired. Legitime is reserved for the
compulsory heirs and the same cannot be
impaired or disposed of by the testator; and
The donee cannot receive by way of donation
more than what he may receive by will. If the
donee can receive by donation (devise or
legacy) more than what the testator is allowed
by law to give, the donation is inofficious and
it may be suppressed totally or reduced as to
its excess.
Those made to a public Officer or his wife,
descendants and ascendants, by reason of his
office;
Relative Incapacity to Succeed:
4.
5.
6.
7.
8.
IN FRAUD OF CREDITORS
9.
Remedy in case of donations executed in fraud
of creditors
251
By individuals, associations or corporations
not permitted by Law to make donations
(NCC, Art. 1027);
By a Ward to the guardian before the
approval of accounts (NCC, Art. 1027);
By Spouses to each other during the marriage
or to persons of whom the other spouse is a
presumptive heir (FC, Art. 87);
To Relatives of such priest, etc. within the
fourth degree, or to the church to which such
priest belongs (NCC, Art. 1027);
To an Attesting witness to the execution of
donation, if there is any, or to the spouse,
parents or children or anyone claiming under
them (NCC, Art. 1027);
To the Priest who heard the confession of the
donor during the latter’s last illness, or the
minister of the gospel who extended spiritual
aid to him during the same period (NCC, Art.
1027); or
CIVIL LAW
10. To a Physician, surgeon, nurse, health officer
or druggist who took care of the donor during
his/her last illness (NCC, Art. 1027).
grounds provided by law (NCC, Articles 760, 764
and 765).
Revocation or reduction is NOT automatic.
REVOCATION OR REDUCTION
(1991, 2003, 2006 Bar)
The emergence of the circumstances enumerated
in Art. 760 do not automatically revoke or reduce
the donation. The revocation or reduction is
authorized only if the amount or value of the
property donated exceeds the disposable free
portion.
GROUNDS FOR REVOCATION AND REDUCTION
Grounds for revocation of donation
1.
Under Art. 760
a. Birth of a donor’s child or children
(legitimate, legitimated, or illegitimate)
after the donation, even though born after
his death;
b. Appearance of a donor’s child who is
missing and thought to be dead by the
donor; or
c. Subsequent adoption by the donor of a
minor child.
2.
Under Art. 764 – When the donee fails to
comply with any of the conditions which the
donor imposed upon the donee.
3.
Under Art. 765 – By reason of ingratitude
a. If the donee should commit some offense
against the person, the honor or the
property of the donor, or of his wife or
children under his parental authority;
b. If the donee imputes to the donor any
criminal offense, or any act involving
moral turpitude, even though he should
prove it, unless the crime or act has been
committed against the donee himself, his
wife or children under his authority; or
c. If he unduly refuses him support when
the donee is legally or morally bound to
give support to the donor.
Q: For purposes of prescription of action, what
is the rule in case of concurrence of two or
more grounds for revocation or reduction?
A: In the event that two or more causes are
present, the earliest among them shall be the
starting point in the reckoning of the period of
prescription of the action.
Execution of a donation subject to a condition
A donor may execute a donation subject to a
condition, the non-fulfilment of which authorizes
the donor to go to court to seek its revocation (not
reduction).
Revocation of donation in a conditional
donation
A donor cannot revoke a conditional donation
unilaterally, that is, without going to court, even if
the donee had breached any of the obligations
imposed in the donation. A judicial action is
essential if the donee refuses to return the
property, or pay its value to the donor, or to
latter’s heirs or assigns. However, the action must
be filed within the prescriptive period fixed by
law, otherwise, it will be barred (Ongsiako v.
Ongsiako, G.R. No. 7510, March 30, 1957).
NOTE: The list of grounds for revocation by
reason of ingratitude under Art. 765 is
exclusive.
Q: Can the creditors of the deceased file an
action for reduction of inofficious donation?
Grounds for reduction of donation
A: NO. Only compulsory heirs or their heirs and
successors in interest may sue for reduction of
inofficious donations. The remedy of the creditor
is to sue, during the lifetime of the donor, for the
annulment of inofficious donation made in fraud
of creditors (NCC, Art. 1387); or they can go
against the estate of the deceased and not against
the donees.
The same grounds for revocation under Art. 760.
The donation shall be reduced insofar as it
exceeds the portion that may be freely disposed of
by will, taking into account the whole estate of the
donor at the time of the birth, appearance, or
adoption of a child (NCC, Art. 761).
Revocation of perfected donations
EFFECTS OF REVOCATION OR REDUCTION OF
DONATION
Once a donation is perfected, it cannot be revoked
without the consent of the donee except on
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
252
PROPERTY
Obligations of the donee upon the revocation
or reduction of donation
1.
2.
3.
Return the thing or the object of the donation;
If the property had already been alienated and
could not be recovered anymore, its value
shall be paid to the donor. The value shall be
the price of the property estimated at the time
of the perfection of the donation;
If the property had been mortgaged, the
donor may pay the mortgage obligations,
subject to reimbursement by the done (NCC,
Art. 762).
Appearance of
a child
believed to be
dead
Four years
Noncompliance
with any
condition
imposed
Four years
Obligation of the donee to return the fruits
1.
2.
If due to non-compliance with any condition
imposed on the donation – Fruits acquired
after non-compliance shall be returned; and
If due to causes stated under Art. 760,
ingratitude, or inofficious donations – fruits
acquired from the time the complaint is filed
shall be returned (NCC, Art. 768).
Act of
ingratitude
One year
From the date
an information
was received as
to the existence
or survival of
the child
believed to be
dead.
From the noncompliance
with the
condition.
From the time
the donor had
learned of the
donee’s act of
ingratitude,
provided it was
possible for
him to file an
action.
PRESCRIPTION
Q: What if the donor dies within the four-year
prescriptive period?
Period of prescription of action for revocation
or reduction of donation
A: The right of action to revoke or reduce is
transmitted to his heirs (Pineda, 1999).
BASIS
PRESCIPTIVE
PERIOD
Birth of child
Four years
Legitimation
Four years
Recognition of
an
illegitimate
child
Four years
Adoption
Four years
RECKONING
PERIOD
From the birth
of the first
child.
From birth of
the legitimated
child, not from
the date of
marriage of the
parents.
From the date
the recognition
of the child by
any means
enumerated in
Art. 712 of the
Family Code.
From the date
of filing of the
original
petition for
adoption,
provided a
decree of
adoption is
issued
thereafter.
Q: Jose, single, donated a house and lot to his
only niece, Maria, who was of legal age and
who accepted the donation. The donation and
Maria's acceptance thereof were evidenced by
a Deed of Donation. Maria then lived in the
house and lot donated to her, religiously
paying real estate taxes thereon. Twelve years
later, when Jose had already passed away, a
woman claiming to be an illegitimate daughter
of Jose filed a complaint against Maria.
Claiming rights as an heir, the woman prayed
that Maria be ordered to reconvey the house
and lot to Jose's estate. In her complaint she
alleged that the notary public who notarized
the Deed of Donation had an expired notarial
commission when the Deed of Donation was
executed by Jose. Can Maria be made to
reconvey the property? What can she put up as
a defense? (2015 Bar)
A: NO. Maria cannot be compelled to reconvey the
property. The Deed of Donation was void because
it was not considered a public document.
However, a void donation can trigger acquisitive
prescription (Solis v. CA, G.R. Nos. 46753-54, August
25, 1989; Doliendo v. Biarnesa, G.R. No. 2765,
December 27, 1906). The void donation has a
quality of titulo colorado enough for acquisitive
253
CIVIL LAW
prescription especially since 12 years had lapsed
from the deed of donation.
Waiver of actions to revoke donations
The donor CANNOT make a renunciation of
actions to revoke in advance. Such waiver is void.
However, the donor may renounce an action to
revoke if the act of ingratitude had already been
done.
Maria can set up the defense that the action has
prescribed. An action for revocation of the
donation on the ground that it impaired the
legitime of a compulsory heir may only be filed
within ten (10) years from the time the cause of
action accrues which is at the time of the death of
Jose. The facts are not clear as to when Jose died
but on the assumption that he died ten years prior
to the filing of the action, the same has clearly
prescribed.
PRESCRIPTION
DEFINITION
INGRATITUDE
It is the means of acquiring ownership and other
real rights or losing rights or action to enforce
such rights through lapse of time in the manner
and under the conditions laid down by law.
NOTE: The applicability of prescription is a
question of fact. It is evidentiary and has to be
established by clear and convincing evidence.
Q: Are there any other grounds for revocation
of donation by reason of ingratitude other
than those enumerated under Art. 765 of NCC?
A: NONE. The grounds under Art. 765 are
exclusive.
NOTE: The rationale behind the article is that a
person who has been favoured with kindness and
generosity has the moral obligation to be and
remain grateful to the befactor. It is a matter of
tradition that generosoity must not be
reciprocated with ungratefulness.
Two concepts of prescription
1.
Q: Suppose the husband of the donee had
maligned the donor, is there a ground for
revocation by reason of ingratitude?
Acquisitive prescription/ Adverse Possession It is the acquisition of ownership and other
real rights through possession of a thing in
the manner and under the conditions
provided for by law.
a.
A: None. The act must be imputable to the donee
himself and not to another (Pineda, 1999).
b.
Mortgages and alienations effected before the
notation of the action for revocation
Ordinary acquisitive prescription- requires
possession of things in good faith and
with just title for the time fixed by law
which is 10 years; and
Extraordinary acquisitive prescription- the
acquisition of ownership and other real
rights without the need of title or of good
faith or any other condition and would
prescribe in 30 years (De Leon, 2011).
If there are mortgages and alienations effected
before the notation of the complaint for
revocation in the Registry of Property, such
alienations and mortgages shall remain valid and
must be respected (NCC, Art. 766).
Requisites of prescription as a mode of
acquiring ownership
NOTE: Alienations and mortgages after the
registration of the pendency of the complaint shall
be void.
3.
1.
2.
4.
Remedy of the donor
Mere possession with a juridical title, such as
by a usufructuary, a trustee, a lessee, an
agent, or a pledge, not being in the concept of
an owner cannot ripern into ownership by
acquisitive prescription unless the juridical
relation is just expressly repudiated ans such
repudiation hase been communicated to the
If the property is already transferred in the name
of the buyer or mortgagee, the remedy of the
donor is to recover the value of the property
determined as of the time of the donation (NCC,
Art. 767).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Capacity to acquire by prescription;
A thing capable of acquisition by
prescription;
Possession of the thing under certain
conditions; and
Lapse of time provided by law.
254
PROPERTY
other party. (Esguerra v Manantan, G.R. No.
158328, February 23, 2007)
2.
NOTE: The first two requisites apply to both
ordinary and extraordinary prescription, but
the last two requisites vary for each kind.
Extinctive prescription or limitation of actions
– It involves loss of property rights or actions
through the possession by another of a thing
for the period provided by law or failure to
bring the necessary action to enforce one’s
right with in the period fixed by law. Rights
and actions are lost by the lapse of time
(NCC, Articles 1106 and 1139).
NOTE: It is also referred to as prescription of
actions, statute of limitations, and statute of
repose.
255
CIVIL LAW
TIME OF FILING OF
THE ACTION
TRANSMISSIBILITY OF
ACTION
EXTENT OF
REDUCTION
RIGHTS TO THE
FRUITS
1. Failure of the donor to reserve sufficient means for support (Art. 750)
Any time by the donor
or by relatives entitled
to support during the
donor’s lifetime (NCC,
Art. 750).
Not transmissible.
NOTE: the duty to give
and right to receive
support are personal (FC,
Art. 195).
Donation reduced to
extent necessary to
provide support (NCC,
Art. 750).
Donee is entitled to the
fruits as owner of the
property donated (NCC,
Art. 441)
2. Inofficiousness for being in excess of what the donor can give by will (NCC, Art. 750, 771)
Within five years after
the donor’s death (NCC,
Articles 771 and 1149)
Transmissible to donor’s
heirs as donation shall
be reduced as regards
the excess at donor’s
death (NCC, Art. 771).
Donation
effective
during
the
donor’s
lifetime
subject
to
reduction only upon his
death with regard to the
excess (NCC, Art. 771).
Donee
appropriates
fruits (NCC, Art. 441).
3. Birth, appearance or adoption of a child (NCC, Art. 760)
[Same as in
Revocation]
no.
1 [Same as in
Revocation]
no.
1
Within four years from To
children
&
birth of first child, descendants of donor
legitimation
upon his death
(recognition), adoption, [NCC, Art. 763(2)].
judicial declaration of
filiation or receipt of info
of existence of the child
believed to be dead
(NCC, Art. 763).
[Same as
Reduction]
in
no.
1
Donation reduced to
extent necessary to
provide support (NCC,
Art. 750).
Donee
appropriates
fruits not affected by
reduction (NCC, Art.
441). When donation is
revoked for any of the
cause mentioned in Art.
760, the donee shall not
return the fruits except
from the filing of the
complaint (NCC, Art.
768).
4. Fraud against creditors (NCC, Art. 759)
Within four years from
perfection of donation
or from knowledge by
the creditor of the
donation (NCC, Art.
1389).
To creditor’s heirs or
successors-in-interest
(NCC, Art. 1178).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Property returned for
the benefit of creditors
subject to the rights of
innocent third persons
(NCC, Art. 1387).
256
Fruits shall be returned
in case donee acted in
bad faith; if impossible
to return, indemnify the
donor’s creditor for
damages
(NCC, Art.
1388).
PROPERTY
Acquisitive prescription v. Extinctive
prescription
it
either
has
abandoned
it
or
declined to assert it. It
applies
even
to
imprescriptible actions
e.g. an action to annul a
void contract may be
barred by laches.
As to creation
Prescription is purely A creation of equity
statutory in origin and is which, as such, is
founded on ground of applied not really to
public policy. Time limit penalize neglect or
is imposed for a party to sleeping upon one's
enforce his claim so that right, but rather to
title to property and avoid recognizing a
other rights will be right when to do so
stabilized.
It protects would result in a
the person who is clearly
inequitable
diligent and vigilant in situation (Chavez v.
asserting his right, and Bonto-Perez, G.R. No.
conversely punishes the 109808,
March
1,
person who sleeps on 1995).
his right (Fernandez v.
Cuerva, G.R. No. L21114 November 28,
1967).
As a defense
GR:
Evidentiary
in Evidentiary in nature
nature and requires full and
cannot
be
blown trial.
established by mere
allegations
in
the
XPNs:
pleadings. The party
1) When the plaintiff’s alleging laches must
complaint on its adduce
in
court
face or the evidence evidence proving such
he presented shows allegation (Apo v. Sps.
clearly that indeed Roberto,
G.R.
No.
the
action
has 198356,
April
20,
prescribed at the 2015).
time it was filed; or
2) If, before trial, a
party has no means
of knowing that
opponent’s
claim
has already lapsed,
prescription as a
defense may be
pleaded later as
soon as the true
nature of the claim
is discovered (De
Leon, 2011).
ACQUISITIVE
EXTINCTIVE
PRESCRIPTION PRESCRIPTION
Applicable
to Applicable to all
ownership and kinds of rights,
Applicability
other real rights. whether real or
personal.
Expressly vests Produces
the
property extinction
of
and raised a rights or bars a
new title in the right of action.
occupant.
Results in the
The relationship loss of a real or
between
the personal right
occupant and he or bars the
Legal effect
land in terms of cause of action
possession
is to enforce said
capable
of right. One does
producing legal not look to the
consequences. It act
of
the
is the possessor possessor but to
who is the actor. the neglect of
the owner.
Possession of a Inaction by the
claimant who is owner
or
As to
not the owner.
neglect of one
requisite
with a right to
bring his action.
Can be proven Should
be
under
the affirmatively
general
issue pleaded
and
As a defense without
its proved to bar
being
the action or
affirmatively
claim of the
pleaded.
adverse party.
Prescription v. Laches
PRESCRIPTION
LACHES
Concept
One acquires ownership The failure or neglect,
and other real rights for an unreasonable
through the lapse of and
unexplained
time in the manner and length of time, to do
under the action laid that
which
by
down by law.
exercising
due
diligence could or
should have been done
earlier; it is negligence
or omission to assert a
right
within
a
reasonable
time,
warranting
a
presumption that the
party entitled to assert
The burden of proof
rests on the part
claiming it. Failure to
plead constitutes as a
257
CIVIL LAW
1.
2.
3.
4.
5.
6.
waiver of defense and
cannot be raised for the
first time on trial or
appeal.
Who may acquire by prescription (PSM)
1. Persons who are capable of acquiring property
by other legal modes;
2. State; and
3. Minors – through guardians of personally.
Demand right of way;
Abate public /private nuisance;
Declare contract void;
Recover property subject to expressed trust;
Probate of a will; and
Quiet title.
ACQUISITIVE PRESCRIPTION
CHARACTERISTICS
Persons against whom prescription may run
1.
2.
3.
4.
5.
Basis of acquisitive prescription
Minors and other incapacitated persons who
have
parents,
guardians
or
other
legal representatives;
Absentees who have administrators, either
appointed
by
them
before
their
disappearance, or appointed by the courts;
Persons living abroad, who have managers or
administrators;
Juridical persons, except the State and its
subdivisions (NCC, Art. 1108); and
Prescription, acquisitive and extinctive, runs
in favor of, or against a married woman (NCC,
Art. 1110). This presupposes a situation
where the parties involved are a married
woman and another person not her husband.
It is based on the assertion of a usurper of an
adverse right for such a long period of time,
uncontested by the true owner of the right, as to
give rise to the presumption that the latter has
given up such right in favour of the former
(Tolentino, Civil Code of the Philippines, Vol. IV, p.
2).
Q: What are the basic requirements of
prescription as a mode of acquiring
ownership?
A:
1. Actual possession of a property, which is
susceptible of prescription;
2. Possession must be in the concept of an
owner and not that of a mere holder (NCC, Art.
1118);
3. Possession must be public or open (NCC, Art.
1118);
4. Possession must be peaceful (NCC, Art. 1118);
5. Possession must be continuous and not
interrupted (NCC, Art. 1118);
6. Possession must be adverse, that is, exclusive
and not merely tolerated;
7. Possession must satisfy the full period
required by law (Pineda Succession and
Prescription, p. 606, 2009);
Prescription may be in favor of or against the
married woman. Persons who are disqualified
from administering their property have a
right to claim damages from their legal
representatives whose negligence has been
the cause of prescription.
Things subject to prescription
All things within the commerce of men;
a. Private property; and
b. Patrimonial property of the state
Note: Patrimonial property of the state is the
property it owns but which is not devoted to
public use, public service, or the development of
national wealth. It is wealth owned by the state in
its private, as distinguished from its public,
capacity (Paras, 2008).
ORDINARY PRESCRIPTION
It requires possession of things in good faith and
with just title for the time fixed by law.
Good faith
Things not subject to prescription
1.
2.
3.
4.
Q: When is a possessor in good faith?
Public domain;
Intransmissible rights;
Movables possessed through a crime; and
Registered land.
A: If he is not aware of the existence of any flaw or
defect in his title or mode of acquisition which
invalidates it (NCC, Art. 526 in relation to Art.
1128) and has reasonable belief that the person
from whom he received the thing was the owner
Rights not extinguished by prescription
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
258
PROPERTY
thereof, and could transmit his ownership (NCC,
Art. 1127).
5.
Good faith of possessor or proof of just title.
PERIOD
Q: When must good faith exist?
Q: What are the periods as regards
prescription as a mode of acquisition of
ownership?
A: It must exist not only from the beginning but
throughout the entire period of possession fixed
by law (Pineda Succession and Prescription, p. 643,
2009 ed).
A:
1. Movables
a. 4 years ‐ If in good faith; and
b. 8 years ‐ If in bad faith.
Just title
It means that the possessor obtained the
possession of the property through one of the
modes recognized by law for acquiring ownership
but the transferor or grantor was not the owner of
the property or he has no power to transmit the
right (NCC, Art. 1129).
2.
Note: Just title is never presumed, it must be
proved (NCC, Art. 1130).
Immovables
a. 10 years ‐ If in good faith; and
b. 30 years ‐ If in bad faith.
Q: How does ownership of personal property
prescribe?
A: Through uninterrupted possession for 8 years,
without need of any other condition (NCC, Art.
1132).
Note: The title for prescription must be true and
valid (NCC, Art. 1130).
Q: How about ownership and other real rights
over immovables?
True title
A: They prescribe through uninterrupted adverse
possession for 30 years, without need of title or of
good faith (NCC, Art. 1137).
One which actually exists and is not just a
pretended one.
Q: What are the rules for the computation of
time necessary for prescription?
A:
1. The present possessor may complete the
period necessary for prescription by tacking
his possession to that of his grantor or
predecessor in interest;
2. It is presumed that the present possessor who
was also the possessor at a previous time, has
continued to be in possession during the
intervening time, unless there is proof to the
contrary; and
3. The first day shall be excluded and and the
last day included (NCC, Art 1138).
Note: An absolutely simulated or fictitious title is
void and cannot be a basis for ordinary
prescription (Pineda Succession and Prescription,
p. 646, 2009).
Valid title
A title which is sufficient to transmit ownership of
the property or right being conveyed had the
transferor or grantor been the real owner thereof.
EXTRAORDINARY PRESCRIPTION
Prescription where the possessor is in bad faith. It
does not require good faith or just title but
possession for a period longer than ordinary
acquisitive prescription (Pineda Succession and
Prescription, p. 607, 2009).
Requisites
(CLAS-G)
1.
2.
3.
4.
of
extraordinary
Q: Emilio died, leaving 8 children. In 1960, His
eldest child, Flores, took possession of and
cultivated the land, caused the cancellation of
the tax declaration in Emilio’s name covering a
parcel of land and caused the issuance of
another in his own name. The co‐heirs of
Flores discovered the cancellation. Upon
Flores’ death, the heirs of his sisters together
with his surviving sisters filed a complaint in
1999 against the heirs of Flores for partition of
the lot and declaration of nullity of the
documents. Did the heirs of Flores acquire
ownership over the lot by extraordinary
acquisitive prescription?
prescription
Capacity of the possessor to acquire by
prescription;
Susceptibility of object to prescription;
Adverse possession of the character
prescribed by law;
Lapse of time required by law; and
259
CIVIL LAW
A: YES. While the action to demand partition of a
co‐owned property does not prescribe, a co‐owner
may acquire ownership thereof by prescription,
where there exists a clear repudiation of the co‐
ownership, and the co‐owners are apprised of the
claim of adverse and exclusive ownership. In this
case, the respondents never possessed the lot,
much less asserted their claim thereto until 1999
when they filed the complaint for partition. In
contrast, Flores took possession of the lot after
Emilio’s death and exercised acts of dominion
thereon‐ tilling and cultivating the land,
introducing improvements, and enjoying the
produce thereof. The statutory period of
prescription commenced in 1960 when Flores,
who had neither title nor good faith, secured a tax
declaration in his name and may, therefore, be
said to have adversely claimed ownership of the
lot. On said date, respondents were also deemed
to have become aware of the adverse claim.
Flores’s possession thus ripened into ownership
through acquisitive prescription after the lapse of
30 years (Heirs of Restar v. Heirs of Cichon, G.R. No.
161720, November. 22, 2005).
Q: Anthony bought a piece of untitled
agricultural land from Bert. Bert, in turn,
acquired the property by forging Carlo’s
signature in a deed of sale over the property.
Carlo had been in possession of the property
for eight years, declared it for tax purposes,
and religiously paid all taxes due on the
property. Anthony is not aware of the defect in
Bert’s title, but has been in actual physical
possession of the property from the time he
bought it from Bert, who had never been in
possession. Anthony has since then been in
possession of the property for one year.
Can Anthony acquire ownership of the
property by acquisitive prescription? How
many more years does he have to possess it to
acquire ownership?
A: YES Anthony can acquire ownership of the
property by ordinary acquisitive prescription
which requires just title and good faith (NCC, Art.
1117). There was just title because a deed of sale
was issued in his favor even though it was forged,
which fact he was not aware of. He needs to
possess the land in good faith and in the concept
of owner for a total of ten years in order to acquire
ownership. Since Anthony possessed the land for
only one year, he has not completed the ten‐year
period. Even if Anthony tacks the 8‐year period of
possession by Carlo who in the deed of sale is
supposed to be his grantor or predecessor in
interest [NCC, Art. 1138(1)], the period is still short
of ten years.
Q: Sixto, owner of a parcel of land, died. He was
survived by his wife and three children. The
subject land was donated by his wife to
Silverio, who immediately entered into
possession of the land, built a fence around it,
constructed a residential house, declared it for
tax purposes and paid the taxes thereon, and
resided there until his death. After 45 years
from the time of donation, Soledad, one of
Sixto’s children, filed a complaint for recovery
of ownership, and possession against Silverio.
Who is the rightful owner of the land?
If Carlo is able to legally recover his property,
can he require Anthony to account for all the
fruits he has harvested from the property
while in possession?
A: Silverio became the rightful owner of the land
by extraordinary acquisitive prescription. In
extraordinary prescription ownership and other
real rights over immovable property are acquired
through uninterrupted adverse possession thereof
for 30 years without need of title or of good faith.
When Soledad filed the case, Silverio was in
possession of the land for 45 years counted from
the time of the donation. This is more than the
required 30 years of uninterrupted adverse
possession without just title and good faith. Such
possession was public, adverse and in the concept
of an owner. He declared the land for taxation
purposes and religiously paid the realty taxes
thereon. Together with his actual possession of
the land, these tax declarations constitute strong
evidence of ownership of the land occupied by
him (Calicdan v. Cendeña, G.R. No. 155080,
February. 5, 2004).
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
A: Since Anthony is a possessor in good faith,
Anthony cannot be made to account for the fruits
he gathered before he was served with summons.
A possessor in good faith is entitled to the fruits
received before the possession was legally
interrupted by the service of summons (NCC, Art.
544). After Anthony was served with summons, he
became a possessor in bad faith and a builder,
planter, sower in bad faith. He can also be made to
account for the fruits but he may deduct expenses
for the production gathering and preservation of
the fruits (NCC, Art. 443).
Q: If there are standing crops on the property
when Carlo recovers possession, can Carlo
appropriate them? (2008 Bar)
A: The value of the standing crops must be
prorated depending upon the period of possession
260
PROPERTY
and the period of growing and producing the
fruits. Anthony is entitled to a part of the net
harvest and a part of the expenses of cultivation in
proportion to his period of possession. However,
Carlo may allow Anthony to gather these growing
fruits as an indemnity for the expenses of
cultivation. If Anthony refuses to accept this
concession, he shall lose the right to indemnity
under Art. 443 (NCC, Art. 545, par. 3).
a crime such as robbery, theft,
or estafa.
NOTE: The person who
cannot invoke the right of
prescription is the offender or
person who committed the
crime or offense, not a
subsequent transferee who
did not participate in the
crime or offense, unless the
latter knew the criminal
nature of the acquisition of
the property by the transferor
(NCC, Art. 1133, Pineda
Succession and Prescription, p.
651, 2009).
1. An action to recover a
registered land by the
owner; and
2. Right to petition for the
issuance for the issuance of
a Writ of Possession filed
by the applicant for
registered land.
By Offender
EXTINCTIVE PRESCRIPTION
CHARACTERISTICS
Basis of extinctive prescription
It based on the probability, born of experience,
that the alleged right which accrued in the past
never existed or has already been extinguished; or
if it exists, the inconvenience caused by the lapse
of time should be borne by the party negligent in
the assertion of his right (Tolentino, Civil Code of
the Philippines, Vol. IV, p. 2).
Registered
Lands (P.D.
1529)
NOTE: Similarly, an action to
recover possession of a
registered
land
never
prescribes.
Requisites:
1.
2.
3.
4.
Capacity to acquire by prescription;
A thing capable of acquisition by prescription;
Possession of the thing under certain
conditions; and
Lapse of time provided by law.
1. Action legal
to demand a
right of way
2. To abate a
nuisance
Action to quiet
title if plaintiff
in possession
PERIODS
Q: What are the periods as regards
prescription of actions to recover movables
and immovables?
Imprescriptible
Applies to both action and
defense.
A:
1. Movables
a. 4 years ‐ If in good faith; and
b. 8 years ‐ If in bad faith (NCC, Art. 1140 in
relation to Art. 1132).
2.
Imprescriptible
Void contracts
Action
demand
partition
Immovables
a. 10 years ‐ If in good faith
b. 30 years ‐ If in bad faith
to
Note: However, an action to
annul a voidable contract
prescribes after four years.
As long as the co‐ownership is
recognized
expressly
or
impliedly (NCC, Art. 494).
Note:
Distinguished
from laches
INSTANCES WHEN PRESCRIPTION IS NOT
ALLOWED
NO PRESCRIPTION
APPLICABLE
When it is possessed through
Property of
261
Right
of
reversion
or
reconveyance to the State of
the
public
properties
registered and which are not
capable
of
private
appropriation or private
CIVIL LAW
public dominion
acquisition
prescribe.
does
not
Based on judgment
NOTE: In contrast, where
private property is taken by
the Government for public use
without first acquiring title
thereto
either
through
expropriation or negotiated
sale , the owner’s action to
recover the land or the value
thereof does not prescribe.
Based upon an injury
to the rights of
plaintiff
Based on quasi‐
delicts
Forcible entry and
detainer
Defamation
Prescription and laches cannot apply to registered
land covered by the Torrens system" because
"under the Property Registration Decree, no title
to registered land in derogation to that of the
registered owner shall be acquired by
prescription or adverse possession" (Jakosalem vs.
Barangan, G.R. No. 175025, February 15, 2012)
(Del Castillo, J.)
All other actions not
specified
Recover Movables
Recover Immovables
Mortgage Action
Based on written
contract
Note: If contract is oral
or quasi, prescriptive
period is six years (NCC,
Art. 1145)
Based on obligation
created by law
One year
One year (NCC, Art.
1147)
Five years (NCC, Art.
1149)
Q: What are the grounds for interruption of
prescriptive period?
A:
1. When they are filed before the court;
2. When there is a written extrajudicial demand
by the creditors; or
3. When there is any written acknowledgment of
the debt by the debtor (NCC, Art. 1155)
PRESCRIPTIVE
PERIOD
Eight
years
(good
faith)or Four years
(bad faith) from the
time the possession is
lost (NCC, Art. 1140,
Pineda Succession and
Prescription, p. 666,
2009).
30 years (Recover
ownership) (NCC, Art.
1141).
Prescription where possession in Good Faith is
converted into possession in Bad Faith.
If the possession in good faith is later converted in
to bad faith the prescriptibve period shall be
computed in the following manner:
Movables – The period of ordinary period is four
(4) years, while that of extraordinary prescription
is eight (8) years. Since the period of
extraordinary prescription is two (2) times longer
than the ordinary prescription, the number of
years in ordinary period will be multiplied by 2 to
get the period for extraordinary prescription.
10 years (Recover real
right of possession)
(NCC, Art. 555(4); and
Pineda Succession and
Prescription, p. 667,
2009).
10 years from default of
mortgagor (NCC, Art.
1142).
10 years
Eg. If after two (2) years of possession in good faith
of a movable property, the possession was
converted in bad faith. The 2 years would be
equivalent to 4 years possession in bad faith.
Immovable – The period for ordinary
prescription in good faith is 10 years and 30 years
for extraordinary or in bad faith. Since the
extraordinary prescription is three (3) times
longer than the ordinary prescription it shall be
multiplied by 3.
10 years from the time
the right of action
accrues
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Four years (NCC, Art.
1146)
INTERRUPTION
PRESCRIPTION OR LIMITATION OF ACTIONS
ACTIONS
10 years from the day
judgment became final
and executory (NCC,
Art. 1144)
Four years
262
PROPERTY
Eg. If after six (6) years of possession in good faith
of a real property, the possession was converted in
bad faith, the six (6) years of possession in good
faith would be equivalent to 18 years possession in
bad faith.
263
CIVIL LAW
Rules on properties acquired after the
execution of a will
SUCCESSION
GENERAL PROVISIONS
GR: Property acquired during the period between
the execution of the will and the death of the
testator will not pass under the provisions of the
will but by the rules on legal succession.
Otherwise stated, the property will NOT form part
of the estate of the testator that will pass on to his
instituted heirs.
Succession is a mode of acquisition by virtue of
which the property, rights and obligations to the
extent of the value of the inheritance of a person,
are transmitted through his death to another or
others either by his will or by operation of law
(NCC, Art. 774).
XPNs:
1. When a contrary intention expressly appears
in the will (NCC, Art. 793), in which case the
property will be included in that portion of
the estate that will pass to the instituted heirs
by way of testamentary succession; and
2. If the property acquired after the execution of
the will is one which the testator has disposed
of under his will as a legacy or device, i.e., the
property did not belong to the testator at the
time he disposed of it as a device or as a
legacy and he only acquired the same after
making his will (NCC, Art. 930). In this case,
the legacy or device will be given effect even if
the will is silent with regard to such an
intention on the part of the testator.
Requisites of succession (DATE)
1.
2.
3.
4.
Death of decedent;
Acceptance of the inheritance by the
successor;
Transmissible estate; and
Existence and capacity of successor,
designated by decedent or law.
A decedent is a person whose property is
transmitted through succession whether or not he
left a will. If the decedent left a will, he is also
called a testator (NCC, Art. 775).
Inheritance includes all the property, rights and
obligations of a person which are not extinguished
by his death (NCC, Art. 776).
Liability of the heirs for the obligations of the
decedent
The inheritance of a person includes not only the
property and the transmissible rights and
obligations existing at the time of his death, but
also those which have accrued thereto since the
opening of the succession (NCC, Art. 781).
The heirs CANNOT be held personally liable with
their own individual properties for the debts or
obligations left by the decedent. The responsibility
of the heirs for the debts of their decedent cannot
exceed the value of the inheritance they receive
from him. (Estate of K.H. Hemady v. Luzon Surety
Co., G.R. No. L-8437, November 28, 1956) It is only
after the debts are paid that the residue of the
estate is distributed among the successors.
Purely personal rights are extinguished by death.
Hence, they are not transmitted to the heirs.
The heirs succeed not only to the rights of the
deceased but also to his obligations.
Q: Before his death, A borrowed from X P1, 000
as evidenced by a promissory note. A died
without paying the debt. A left no property but
he is survived by his son, B, who is making
good in the buy and sell business.
Subsequently, X brought an action against B
for the collection of P1,000 plus legal interest
thereon on the ground that, since B is the only
heir of A, he inherited from the latter not only
the latter’s property, but also all his rights and
obligations. Will the action prosper? Reason.
GR: Rights and obligations arising from contracts
are binding upon the heirs.
XPNs: When the rights and obligations arising are
not transmissible by:
1. Their nature
2. Stipulation
3. Provision of law. (NCC, Art. 1311)
Inheritance
Succession
It is the objective
element of succession, It is the legal mode by
to the mass or totality of which inheritance is
the estate of a deceased transmitted.
person.
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
A: NO. The heirs are not personally liable with
their own individual properties for the monetary
obligations/debts left by the decedent. As a rule,
the party’s contractual rights and obligations are
transmissible to the successors except when the
264
SUCCESSION
nature of the obligation, stipulation of the parties,
or by operation of law prevents transmissibility.
(Art. 1311 of Civil Code as explained in the Estate of
K.H. Hemady v. Luzon Surety Co., G.R. No. L-8437,
November 28, 1956)
the settlement proceedings to determine the
rights and definite portions of the estate
pertaining to the vendees, assignees, or creditors.
A contract of guaranty is NOT extinguished by
death
GR: No contract may be entered into upon future
inheritance [NCC, Art. 1347, (2)].
It is not extinguished by death because a contract
of guaranty is not one of the exceptions under Art.
1311 of NCC (Relativity of Contracts). A
guarantor’s obligation is basically to pay the
creditor if the principal debtor cannot pay.
Payment does not require any personal
qualifications. The personal qualifications become
relevant only at the time the obligation is incurred
but not so at the time of discharge or fulfillment of
the obligation (Estate of K.H. Hemady v. Luzon
Surety Co., Inc., G.R. No. L-8437, November 28,
1956).
XPNs:
1. Partition inter vivos (NCC, Art. 1080)
2. Donations propter nuptias by future spouses
to each other of future property
Future inheritance
Requisites for the contract to be classified as
one upon future inheritance:
1.
2.
3.
Q: Fortunata died while her action for quieting
of title of parcels of land was pending. Does
her death result in the extinguishment of the
action or may her heirs substitute her in the
case?
The succession has not yet been opened.
The object of the contract forms part of the
inheritance.
The promissory has an expectancy of a right
which is purely hereditary in nature with
respect to the object.
An heir CANNOT enter into a compromise
agreement to renounce his rights over a future
inheritance. (NCC, Art. 2035 par. 6)
A: Her heirs may substitute her because the action
is not extinguished by her death. Since the rights
to the succession are transmitted from the
moment of the deathof the decedent, the heirs
become the absolute owners of his property,
subject to the rights and obligations of the
decedent, and they cannot be deprived of their
rights thereto except by the methods provided for
by law. The right of the heirs to the property of the
deceased vests in them upon such death even before
judicial declaration of their being heirs in the
testate or intestate proceedings.
Every renunciation or compromise as regards a
future legitime between the person owing it and
his compulsory heirs is void, and the latter may
claim the same upon the death of the former; but
they must bring to collation whatever they may
have received by virtue of the renunciation or
compromise (NCC, Art. 905).
A future legitime is merely an expectancy, and the
heir does not acquire any right over the same until
the death of the testator. Hence, juridically, there
is nothing on which to compromise. Furthermore,
Art. 1347 of NCC expressly provides that, “no
contract may be entered into upon future
inheritance except in cases expressly authorized
by law.”
When she died, her claim or right to the parcels of
land in litigation was not extinguished by her
death but was transmitted to her heirs upon her
death. Her heirs have thus acquired interest in the
properties in litigation and became parties in
interest in the case (Bonilla v. Barcena, et al., G.R.
No. L-41715, June 18, 1976).
Actual delivery is NOT necessary for an heir to
acquire ownership over an inherited property
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 transmitted.
Q: Can the heir enter into a contract of sale,
conveyance or any disposition pertaining to
his interest in the inheritance even pending
the settlement of the estate?
Pending a proceeding determining the rightful
heirs, the prospective heirs can demand delivery
of their supposed inheritance because ownership
passes to the heir at the very moment of death.
A: YES, because his hereditary share/interest in
the decedent’s estate is transmitted or vested
immediately from the moment of decedent’s
death. This is, however, subject to the outcome of
265
CIVIL LAW
This is the basis of the heirs’ rights to the fruits is
the Right of Accession.
NOTE: If there is a doubt, as between two or more
persons who are called to succeed each other, as
to which of them died first, whoever alleges the
death of one prior to the other, shall prove the
same; in the absence of proof, it is presumed that
they died at the same time and there shall be no
transmission of rights from one to the other (NCC,
Art. 43).
SUCCESSION OCCURS AT THE MOMENT OF
DEATH
The rights to the succession are transmitted from
the moment of the death of the decedent (NCC, Art.
777). (2000 BAR)
KINDS OF SUCCESSION AND SUCCESSORS
The moment of death is the determining point
when the heirs acquire a definite right to the
inheritance, whether such right is pure or
conditional. The possession of hereditary property
is therefore deemed transmitted to the heir
without interruption and from the moment of
death of the decedent.
Kinds of succession
a.
b.
The interest of the heir over the inheritance prior
to the death of the decedent is merely inchoate or
a mere expectancy.
c.
It is immaterial whether a short or long period of
time elapses between the death of the predecessor
and the entry in the possession of the properties
of the inheritance, because the right is always
deemed to retroact to the moment of death.
Kinds of Heirs
1. Voluntary or Testamentary Heirs – called to
succeed by virtue of the will of the testator:
The law in force at the time of the decedent’s
death will determine who the heirs should be
(Uson v. Del Rosario, G.R. No. L-4963, January 29,
1953).
a.
b.
Presumptive Death
The absentee shall not be presumed dead for the
purpose of opening his succession till after an
absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may
be opened (NCC, Art. 390).
2.
3.
Devisee - persons to whom gifts of real
property are given by virtue of a will
Legatee - persons to whom gifts of
personal property are given by virtue of a
will
NOTE: An heir is one who succeeds to the
whole (universal) or aliquot part of the estate.
Devisee or legatee is one who succeeds to
definite,
specific,
and
individualized
properties.
2. Compulsory Heir – called by law to succeed to a
portion of the testator’s estate known as legitime.
They succeed by force of law to some portion of
the inheritance, in an amount predetermined by
law, of which they cannot be deprived by the
testator, except by a valid disinheritance.
The following shall be presumed dead for all
purposes, including the division of the estate
among the heirs:
1.
Testamentary Succession - that which results
from the designation of an heir, made in a will
executed in the form prescribed by law (NCC,
Art. 779).
Legal or Intestate Succession - that which
takes place if a person dies without a will, or
with a void will, or one which has
subsequently lost its validity.
Mixed Succession - that effected partly by will
and partly by operation of law (NCC, Art. 780).
A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
A person in the armed forces who has taken
part in war, and has been missing for four
years;
A person who has been in danger of death
under other circumstances and his existence
has not been known for four years (NCC, Art.
391).
3. Legal or Intestate Heir – those who succeed by
operation of law through intestate succession.
Those who succeed to the estate of the decedent
who dies without a valid will, or to the portion of
such estate not disposed of by will.
Distinctions
between
legatees/devisees
BASIS
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
266
HEIRS
heirs
and
DEVISEES OR
SUCCESSION
a.
LEGATEES
As to
representation
of decedent’s
juridical
person
Determination
of amount of
inheritance
Extent of
successional
right
b.
Represent the
juridical
personality of
the deceased
and
acquire
their
rights,
with certain
exceptions to
his
obligations.
Never
represent the
personality of
the deceased
no matter how
big the legacy
or the devise
is.
Inherit
an
undetermined
quantity
whose exact
amount
cannot
be
known
and
which cannot
be fixed until
the
inheritance is
liquidated.
Are
always
given
a
determinate
thing or a fixed
amount
Succeed to the
remainder of
the properties
after all the
debts and all
the
legacies
and
devices
have
been
paid or given
Only succeed
to
the
determinate
thing
or
quantity which
is mentioned
in the legacy or
devise
2.
Imperfect/defective disinheritance (NCC, Art.
918)
The effect is:
a. to annul the institution of heirs insofar
as it may prejudice the person
disinherited, but
b. the devises and legacies and other
testamentary dispositions shall be valid
to such extent as will not impair the
legitime.
TESTAMENTARY SUCCESSION
A will is an act whereby a person is permitted,
with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to
take effect after his death (NCC, Art. 783).
A will has been defined as “a personal, solemn,
revocable and free act by which a capacitated
person disposes of his property and rights and
declares or complies with duties to take effect
after his death” (Vitug v. Court of Appeals, G.R. No.
82027, March 29, 1990).
Characteristics of a Will
1.
Can
exist
As to when they whether the Only
in
exist
succession be testamentary
testate
or succession
intestate
2.
Q: Suppose a person is named to succeed to an
entire estate. The estate, however, consists of
only one parcel of land. Is he an heir or a
devisee?
4.
A: It depends on the manner of his designation in
the will. Here, because he is called to inherit the
entire estate, he is an heir.
5.
3.
6.
Instances where the distinctions between
heirs
and
devisees/legatees
become
significant
1.
to annul entirely the institution of heirs,
but
the legacies and devises shall be valid
insofar as they are not inofficious.
Preterition (NCC, Art. 854)
Statutory right – The making of a will is only
a statutory not a natural right. The testator
must comply with the provisions of law
establishing the formalities of a will.
Unilateral act – No acceptance by the
transferees is needed during the lifetime of
the testator.
Strictly personal act – The disposition of
property is solely dependent upon the
testator.
Ambulatory – A will is essentially revocable
during the lifetime of the testator. The
testator can alter, revise, or revoke it at any
time before his death.
Free from vices of consent – It must be
executed freely, knowingly and voluntarily,
otherwise, it will be disallowed.
Individual act – A will must be executed only
by one person. A joint will executed by
Filipinos even abroad is not allowed in the
Philippines.
NOTE: Mutual wills – Separate wills although
containing reciprocal provisions are not
The effect is:
267
CIVIL LAW
prohibited, subject to the rule on disposicion
captatoria.
7.
8.
depend upon the determination of the third
person is the one that cannot be made. Hence, the
disposition itself is void.
Solemn or formal act – A will is executed in
accordance with formalities prescribed by
law.
Dispositive of property – disposition of the
testator’s estate mortis causa.
The following, however may be entrusted to a
third person:
1.
Q: The document, a holographic one, contained
only a clause of disinheritance of one of the
testator’s son. Does the document meet the
definition of the will under Art. 783 of NCC
although it does not contain any disposition of
the estate of the deceased?
2.
Distribution of specific property or sums of
money that the testator may leave in general
to specified classes or causes.
Designation of the persons, institutions or
establishments to which such property or
sums are to be given or applied (NCC, Art.
786).
NOTE: Should the testator dispose of the whole or
part of his property for prayers and pious works
for the benefit of his soul, in general terms and
without specifying its application, the executor,
with the court's approval shall deliver one-half
thereof or its proceeds to the church or
denomination to which the testator may belong, to
be used for such prayers and pious works, and the
other half to the State, for the purposes mentioned
in article 1013 (NCC, Art. 1029).
A: The document, although it may initially come
across as mere disinheritance instrument,
conforms to the formalities of holographic will.
The disinheritance results in the disposition of the
property of the testator in favor of those who
would succeed in the absence of the disinherited
heir (Seangio v. Reyes, G.R. Nos. 140371–72,
November 27, 2006).
PERSONAL ACT;
NON-DELEGABILITY OF WILL-MAKING
The making of a will is a strictly personal act; it
cannot be left in whole or in part to the discretion
of a third person, or accomplished through the
instrumentality of an agent or attorney (NCC, Art.
784).
Testamentary provisions in favor of the poor in
general, without designation of particular persons
or of any community, shall be deemed limited to
the poor living in the domicile of the testator at
the time of his death, unless it should clearly
appear that his intention was otherwise (NCC, Art.
1030).
Rule on non-delegability of will-making
Construction of a Will’s Provision
The exercise of the disposing power is the act that
cannot be delegated. But the mere mechanical act
of drafting the will may be done by a third person
as it does not constitute a delegation of the will or
disposition.
If a testamentary disposition admits of different
interpretations, in case of doubt, that
interpretation by which the disposition is to be
operative shall be preferred (NCC, Art. 788).
Construing the provisions of a will, substance
rather than form must be regarded, and the
instrument should receive the most favorable
construction to accomplish the purpose intended
by the testator.
Doctrine of Prohibited Designation
The following cannot be left to the discretion of a
third person:
1.
2.
3.
Duration or efficacy of designation of heirs,
legatees, or devisees.
Determination of the portions which the heirs,
legatees or devisees are to receive when
referred to by name.
Determination as to whether or not a
disposition is to be operative (NCC, Art. 785
and 787).
The words of a will are to receive an
interpretation which will give to every expression
some effect, rather than one which will render any
of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which
will prevent intestacy (NCC, Art. 791).
Reason: Testacy is preferred over intestacy
because testacy is the express will of the decedent
whereas intestacy is only his implied will.
NOTE: It is not only the delegation which is void;
the testamentary disposition whose effectivity will
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
268
SUCCESSION
The invalidity of one of several dispositions
contained in a will does not result in the invalidity
of the other dispositions unless it is to be
presumed that the testator would not have made
such other dispositions if the first invalid
disposition had not been made (NCC, Art. 792).
3.
Every devise or legacy shall cover all the interest
which the testator could devise or bequeath in the
property disposed of, unless it clearly appears
from the will that he intended to convey a less
interest (NCC, Art. 794).
Law governing the validity of wills
Parol Evidence Rule in the interpretation of
wills
1. When there is an imperfect description, or when
no person or property exactly answers the
description – mistakes and omissions must be
corrected.
2. If the error appears from the context of the will
or from extrinsic evidence, excluding the oral
declarations of the testator as to his intention; and
when an uncertainty arises upon the face of the will,
as to the application of any of its provisions – the
testator's intention is to be ascertained from the
words of the will, taking into consideration the
circumstances under which it was made,
excluding such oral declarations (NCC, Art.789).
Kinds of Ambiguities in a Will
1.
Latent (Intrinsic) – Ambiguities which are
not apparent on the face of a will but to
circumstances outside the will at the time the
will was made. E.g. If it contains an imperfect
description of person or property; No person
or property exactly answers the description.
AS TO TIME
the law in
force at the
time of the
making of
the will
Intrinsic
Validity refers
to
the legality
of
provisions
in the will
the law in
force at the
time of the
decedent’s
death
PLACE OF
EXECUTION
Philippines
Testator
is a
Foreign
Filipino country
Philippines
Testator
is an
Foreign
alien
country
Patent (Extrinsic) – when an uncertainty
arises upon the face of the will as to the
application of any of its provisions (NCC, Art.
789).
AS TO PLACE
the will can be
executed
in
accordance with the
formalities of the
testator’s
nationality,
domicile, residence
or the place where
the
will
was
executed depending
on the place where it
is executed and the
nationality of the
testator
the national law of
the
testator
governs the intrinsic
validity of the will
regardless of the
place of execution.
APPLICABLE LAW(as
to form)
NCC
1. Law of the place of
execution
2. NCC
1. NCC; or
2. National law
1. National law;
2. Law of the place of
residence;
3. NCC
TESTAMENTARY CAPACITY AND INTENT
Example: Testator gives a devise “to some of
the eleven children of my only brother"
Testamentary capacity refers to the ability as
well as the power to make a will (2008 BAR).
Steps in Resolving Ambiguities
1.
2.
BASIS
Extrinsic
Validity refers
to
the forms
and
solemnities
required by
law
BASIS
Example: Testator gives a legacy “to my cousin
Anna” and it will turn out that the testator has
three cousins named “Anna”
2.
declarations of the testator as to his
intention); and
In the case of patent ambiguities, the
extrinsic evidence acceptable is limited to
those pertaining to the circumstances
under which the will was executed.
In American law, testamentary capacity is
concerned with the ability of the testator while the
testamentary power involves a privilege under the
law. Hence, although a person may have
Examine the will itself;
Refer to extrinsic evidence or the
surrounding circumstances, (except oral
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CIVIL LAW
testamentary capacity, it does not necessarily
follow that he has testamentary power.
1.
In the Philippines, such distinction is lost
altogether. The term testamentary power is
sometimes understood to refer to the power of the
testator to designate the person or persons who
are to succeed him in his property and
transmissible rights and obligations.
2.
NOTE: Mere weakness of mind or partial
imbecility from disease of body or from age does
not necessarily render a person incapable of
making a will.
Requisites of Testamentary Capacity
1.
2.
3.
All persons not expressly prohibited by law
(NCC, Art. 796)
At least 18 years of age; (NCC, Art. 797) and
Of sound mind (NCC, Art. 798)
SOUNDNESS OF MIND
It is not necessary that the testator be in full
possession of all his reasoning faculties, or that his
mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
NOTE: The ability as well as the power to make
a will must be present at the time of the execution
of the will.
It is sufficient if the testator was able to know at
the time of making the will to know the ff.:
It is not necessary that the testator be in full
possession of all his reasoning faculties or that his
mind be wholly unbroken, unimpaired or
unshattered by disease, injury or other cause.
1.
2.
3.
To be of sound mind, it shall be sufficient if the
testator was able at the time of making the will to
know the:
a.
b.
c.
Nature of the estate to be disposed of;
Proper objects of his bounty; and
Character of testamentary act. (NCC, Art.
799)
A person suffering from civil interdiction is
qualified to make a will. He is deprived of the
power to dispose of his properties through acts
inter vivos but not through acts mortis causa (RPC,
Art. 34).
nature of the estate to be disposed of;
proper objects of his bounty; and
character of the testamentary act
(NCC, Art. 799)
The burden of proving that the testator acted in
lucid interval lies on the person who maintains the
validity of the will (NCC, Art. 800, par. 2).
The requirement that the testator be of sound
mind is essential only at the time of the making of
the will (or execution).
Married woman
If he is not of sound mind at that time, the will is
invalid regardless of the state of mind before or
after such execution.
A married woman may make a will without the
consent of her husband, and without the authority
of the court (NCC, Art 802).
NOTE: If the testator was of sound mind at the
time of the making of the will, the will is valid even
if the testator should later on become insane and
die in that condition. Supervening incapacity does
not invalidate an effective will, nor is the will of an
incapable validated by the supervening capacity
(NCC, Art. 801).
A married woman may dispose by will all her
separate property as well as her share of the
conjugal partnership or absolute community
property (NCC, Art 803).
FORMAL VALIDITY OF WILLS
GR: The law presumes that every person is of
sound mind, in the absence of proof to the
contrary (NCC, Art. 800, par. 1).
Kinds of Wills allowed under the NCC:
(1) Ordinary or Notarial will - requires an
attestation clause, an acknowledgement before a
notary public;
XPNs: If the testator was:
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Publicly known to be insane, one
month or less, before making his
will; (NCC, Art. 800, par. 2)
Under guardianship at the time of
the making of the will (Torres v.
Lopez, G.R. No. L-25966, November 1,
1926).
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SUCCESSION
(2) Holographic will - must be entirely written,
dated and signed in the handwriting of the
testator.
3.
4.
Time criterion - law at the time of execution;
subsequent laws cannot apply retroactively.
Formal requirements common to both Notarial
and Holographic wills (2008 BAR)
Place criterion - Under Art 815-817 of NCC, five
(5) choices are available to the testator; the law of:
1.
2.
1. The testator's citizenship
2. Testator's domicile
3. Place of execution
4. Testator's residence
5. Philippines (Balane, 1996)
b.
c.
3.
In a language or dialect known to the testator.
The object of the solemnities surrounding the
execution of a will:
made with the formalities prescribed by the
law of the place in which he resides, or
b. according to the formalities observed in
his country, or
in conformity with those which the Civil
Code prescribes (NCC, Art. 816). (1990,
1998, 2009 BAR)
1.
2.
to close the door against bad faith and fraud,
to avoid substitution of wills and testaments
and
3. to guarantee their truth and authenticity.
NOTARIAL WILLS (1994, 2007, 2008 BAR)
A will made in the Philippines by a citizen or
subject of another country, which is executed in
accordance with the law of the country of which
he is a citizen or subject, and which might be
proved and allowed by the law of his own country,
shall have the same effect as if executed
according to the laws of the Philippines (NCC,
Art. 817). (2002 BAR)
Formalities in the Execution of a Notarial Will
(LaW-SPA2N2)
1.
In Writing;
Executed in a language or dialect known to
the testator;
This rule is mandatory. Otherwise, the will is
void (Suroza v. Honrado, Adm. Matter No.
2026-CFI, December 19, 1981). It is also
applicable even if the provisions of the will
are interpreted or explained to the testator.
A joint will executed by Filipinos in a foreign
country shall not be valid in the Philippines,
even though authorized by the laws of the country
where they may have been executed (NCC, Art.
819). A joint will is against the public policy of the
Philippines particularly the policy that the
execution of a will is a strictly personal act.
The fact that the will was executed in a
language known to the testator NEED NOT be
stated in the attestation clause. This fact can
be established by extrinsic evidence or
evidence aliunde (Lopez v. Liboro, G.R. No. L1787, August 27, 1948).
GOVERNING LAW AS TO SUBSTANTIVE
VALIDITY
Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are
binding upon citizens of the Philippines even
though living abroad (NCC, Art. 15).
This rule does NOT apply to witnesses in a
notarial or attested will because the witnesses
do not need to know the contents of the will.
The attestation clause, on the other hand,
must be understood by the witnesses even if it
is in a language not known to them. (Art. 805
of NCC states that the attestation clause need
not be in a language known to the witnesses).
Matters
pertaining
to
intestate
and
testamentary successions which are regulated
by the national law of the deceased: (CIAO)
1.
2.
Law governing extrinsic validity of wills;
In writing;
Noncupative wills are oral wills declared or
dictated by the testator and dependent merely
on oral testimony. Philippine laws do not
recognize the validity of “noncupative wills.”
The will of an alien who is abroad produces
effect in the Philippines if:
a.
Amount of successional rights
Order of succession (NCC, Art. 16; NCC, Art.
1039).
Capacity to succeed
Intrinsic validity of testamentary provisions
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CIVIL LAW
Presumption that the testator knew the
language in which the will was written is
present when:
a.
b.
3.
Two Requirements:
a.
b.
the will must be in a language or dialect
generally spoken in the place of execution
the testator must be a native or resident
of said locality (Abangan v. Abangan, G.R.
No. 13431, Nov. 12, 1919).
Test for the Determination of the Presence
of Witnesses
In order that the witnessese be deemed
present at the time of the execution of thewill,
it suffices that the witnesses were so situated
in a manner that they had the opportunity to
see the testator sign the will. It is not
necessary that they actually saw the testator
affix his/her signature o the will.
Subscribed at the end thereof by the testator
himself or by the testator’s name written by
some other person in his presence, and by his
express direction;
The signature of the testator of the will must be at
the end of the will, which may be at the logical end
(last testamentary disposition) or physical end
(non dispositive provisions).
The true test of presence of the testator and
the witnesses in the execution of a will is not
whether they actually saw each other sign, but
whether they might have seen each other sign
had they chosen to do so considering their
mental and physical condition and position
with relation to each other at the moment of
inscription of each signature.
NOTE: In notarial wills, subscription by
fingerprint is allowed as long as it is voluntarily
made (Matias v. Salud, G.R. No. L-10751) but not in
holographic wills given the explicit requirement
for a holographic will to be entirely written, dated
and signed with the hand of the testator.
The question whether the testator and the
subscribing witnesses to an alleged will sign
the instrument in the presence of each other
does not depend upon proof of the fact that
their eyes were actually cast upon the paper
at the moment of its subscription by each of
them, but whether at that moment existing
conditions and the position of the parties,
with relation to each other, were such that by
merely casting their eyes in the proper
direction they could have seen each other sign
(Nera v. Rimando, G.R. No. L-5971, February 27,
1911).
Cross as signature
GR: A cross is not a sufficient signature
XPNs: The cross appearing on the will is:
a. the customary, habitual signature of the
testator or
b. one of the ways the testator signs his
signature.
The one who alleges that it is the customary,
habitual or one of the ways he sign his signature
has the burden of proof (Garcia v. Lacuesta, G.R.
No. L-4067, November 29, 1951).
Actual seeing is not required, but the ability to
see each other by merely casting their eyes in
the proper direction and without any physical
obstruction to prevent his doing so (Jaboneta
v. Gustilo, G.R. No. 1641, January 19, 1906).
Signing by an Agent of the testator
a.
b.
must sign in testator’s presence, and
by the testator’s express direction
An attestation must state all the details the
third paragraph of Article 805 of NCC
requires. In the absence of the required
avowal by the witnesses themselves, no
attestation clause can be deemed embodied in
the Acknowledgement of the Deed of
Donation Mortis Causa (Echavez v. Dozen
Cons, G.R. No. 192916, October 11, 2010).
The important thing is that it should clearly
appear that the name of the testator was signed at
his express direction, in the presence of three
witnesses, and in the presence of the testator and
of each other (Barut v. Cabacungan, G.R. No. 6285,
February 15, 1912).
4.
Attested and subscribed by three or more
credible witnesses in the presence of the
testator and of one another;
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
Attesting – an act of witnessing
Subscribing–an act of signing their
names in the proper places of the will
The law is clear that the attestation must state
the number of pages used upon which the will
is written. The purpose of the law is to
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SUCCESSION
safeguard against possible interpolation or
omission of one or some of its pages and
prevent any increase or decrease in the pages
(Lopez v. Lopez, G.R. No. 189984, November 12,
2012).
attestation clause itself (Azuela v. CA, G.R. No.
122880, April 12, 2006).
Q: Clara, thinking of her mortality, drafted a
will and asked Roberta, Hannah, Luisa and
Benjamin to be witnesses. During the day of
the signing of the will, Clara fell down the
stairs and broke both her arms. Coming from
the hospital, Clara, insisted on signing her will
by thumbmark. Later Clara was run over by a
drunk driver while crossing the street in
Greenbelt. May the will of Clara be admitted to
probate? Give your reason briefly. (2007 BAR)
A: YES. Clara’s thumbmark in this case has all the
hallmarks of a valid signature. Clara clearly
intended to use her thumbmark as her signature
and the circumstances justified her use of her
thumbmark (Garcia v. La Cuesta, G.R. No. L-4067,
November 29, 1951).
5.
The testator or the person requested by him to
write his name must also sign every page,
except the last, on the left margin in the
presence of the witnesses;
PURPOSE: to prevent the disappearance of the
pages.
a.
b.
6.
All the pages shall be Numbered correlatively in
letters on the upper part of each page;
a. Mandatory – pagination by means of a
conventional system purpose of which is
to prevent insertion or removal of pages.
b. Directory – pagination in letters on the
upper part of each page (Balane, 2010).
The pages may be expressed either in
words (e.g. “Page One of Seven”) or in
figures (e.g. “Page 1 of 7”)
7.
Must contain an Attestation clause which
expressly states the following:
a. The number of pages used upon which
the will is written;
b. The fact that the testator signed the will
and every page thereof, or caused some
other person to write his name, under
his express direction, in the presence of
the instrumental witnesses;
c. The fact that the witnesses witnessed
and signed the will and all the pages
thereof in the presence of the testator
and of one another (NCC, Art. 805, par.
3).
The signature of the witnesses must be at the
bottom of the attestation clause. An unsigned
attestation clause cannot be considered as an act
of the witnesses, since the omission of their
signatures at the bottom thereof negatives their
participation (Cagro v. Cagro, G.R. No. L-5826, April
29, 1953).
Mandatory – the signing on every page in
the witnesses’ presence
Directory – the place of the signing (on
the left margin). The signature can be
affixed anywhere on the page (Balane,
2016).
Inasmuch as the signatures of the three witnesses
to the will do not appear at the bottom of the
attestation clause, although the page containing
the same is signed by the witnesses on the left
hand margin, the will is fatally defective. The
attestation clause is "a memorandum of the facts
attending the execution of the will" required by
law to be made by the attesting witnesses, and it
must necessarily bear their signatures.
If the entire document consists only of two sheets,
the first containing the will and the second, the
attestation clause, there need not be any marginal
signatures at all (Abangan v. Abangan, G.R. No.
13431, November 12, 1919).
A will was declared void which contained the
necessary signatures on the margin of each leaf
(folio), but not in the margin of each page
containing written matter (In the Matter of the
Estate of Saguinsin. In the Matter of the Estate of
Saguinsin., G.R. No. L-15025, March 15, 1920).
The petitioner and appellee contends that
signatures of the three witnesses on the left hand
margin conform substantially to the law and may
be deemed as their signatures to the attestation
clause. This is untenable, because said signatures
are in compliance with the legal mandate that the
will be signed on the left hand margin of all its
pages. If an attestation clause not signed by the
three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add
such clause to a will on a subsequent occasion
The signatures on the left-hand corner of every
page signify, among others, that the witnesses are
aware that the page they are signing forms part of
the will. On the other hand, the signatures to the
attestation clause establish that the witnesses
are referring to the statements contained in the
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CIVIL LAW
and in the absence of the testator and any or
all of the witnesses (Cagro vs. Cagro, GR. No. L5826 April 29, 1953).
from being presented as evidence (Gabucan v.
Manta, G.R. No. L-51546, January 28, 1980).
SPECIAL RULES FOR HANDICAPPED
TESTATORS
NOTE: An attested will need not be dated, but a
holographic will must be dated (NCC, Art. 810).
8.
Rules if the Testator is Deaf or Mute
Must be acknowledged before a Notary public
by the testator and the witnesses (NCC, Art.
806). (2008 BAR)
1. If the testator is able to read, he must
personally read the will; or
2. If the testator is unable to read, he must
designate two persons to read it and
communicate to him, in some practicable
manner, the contents thereof (NCC, Art. 807).
The certification of acknowledgement need not be
signed by the notary public in the presence of the
testator and the witnesses (Javellana v. Ledesma,
G.R. No. L-7179, June 30, 1955).
Rules if the testator is blind
A jurat is insufficient as the law requires an
acknowledgment executed by the party before a
notary public, not a declaration of the notary
public.
The will shall be read to him twice, once by one of
the subscribing witnesses, and another time by
the notary public before whom the will is
acknowledged (NCC, Art. 808). (2008 BAR)
The notary public before whom the will was
acknowledged cannot be considered as the third
instrumental
witness
since
he
cannot
acknowledge before himself having signed the
will. He cannot split his personality into two so
that one will appear before the other to
acknowledge his participation in the making of the
will. To permit such a situation to obtain would be
sanctioning a sheer absurdity (Cruz v. Villasor, G.R.
No. L-32213, November 26, 1973).
Purpose: The reading is mandatory for the
purpose of making known to the testator the
provision of the will so that he may object if it is
not in accordance with his wishes.
Art. 808 of the NCC applies not only to blind
testators but also to those who, for one reason or
another, are incapable of reading their wills, either
because of poor or defective eye sight or because
of illiteracy.
An acknowledgment is the act of one who has
executed a deed in going before some competent
officer or court and declaring it to be his act or
deed. It involves an extra step undertaken
whereby the signatory actually declares to the
notary public that the same is his or her own free
act and deed. The acknowledgment in a notarial
will has a two-fold purpose: (1) to safeguard the
testator’s wishes long after his demise and (2) to
assure that his estate is administered in the
manner that he intends it to be done (Lee v.
Tambago, A.C. No. 5281, 12 February 2008).
SUBSTANTIAL COMPLIANCE
A will is not rendered invalid by reason of
defects or imperfections in the form of
attestation or in the language used therein. In
the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence,
defects and imperfections in the form of
attestation or in the language used therein shall
not render the will invalid if it is proved that the
will was in fact executed and attested in
substantial compliance with all the requirements
of Article 805 (NCC, Art 809).
The issue in this case is whether or not the will
“acknowledged” by the testatrix and the
instrumental witnesses before a notary public
acting outside the place of his commission
satisfies the requirement under Article 806 of the
NCC. Outside the place of his commission, he is
bereft of power to perform any notarial act; he is
not notary public. Any notarial act outside the
limits of his jurisdiction has no force and effect
(Guerrero v. Bihis, G.R. No. 174144, April 17, 2007).
In cases of omissions in the will, if it can be
supplied by an examination of the will itself,
without the need of resorting to extrinsic evidence
it will not be fatal and, correspondingly, would be
allowed for probate.
However, evidence aliunde are not allowed to fill a
void in any part of the document or supply
missing details that should appear in the will
itself. Those omissions which cannot be supplied
except by evidence aliunde would result in the
The absence of the documentary stamp does not
affect the validity of the will. It merely prevent it
UNIVERSITY OF SANTO TOMAS
2019 GOLDEN NOTES
274
SUCCESSION
invalidation of the will itself (Cañeda v. CA, G.R. No.
103554, May 28, 1993).
WITNESSES
Qualifications of witnesses (S18-ABCD) (2008
BAR)
1.
2.
3.
4.
b.
Of Sound mind.
At least 18 years of age.
Able to read and write
Not Blind, deaf or dumb
c.
NOTE: While a blind or deaf may not be a
witness, he could be a testator in a notarial
will
5.
6.
provides for an additional formality when the
testator is blind. Stevie however, may not
make a holographic will in Braille because the
writing in Braille is not handwriting. A
holographic will to be