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PROPERTY MIDTERMS NOTES

TITLE III CO-OWNERSHIP

Co-ownership
-

occurs when the ownership of an undivided thing or right


belongs to two or more persons
not a juridical person, cannot sue in court
right of a common dominion which two or more persons
have in a spiritual part of a thing, not materially or
physically divided

Possession of a co-owner is like that of a trustee shall not be


regarded as adverse to the co-owners.
There is no co-ownership when the different portions owned by
different people are already concretely determined and identifiable,
even if not yet technically described.
A co-owner can only alienate his pro indiviso share in the coowned property. He does not lose his part ownership of a co-owned
property when his share is mortgaged by another co-owner with the
formers knowledge and consent.
A co-owner can validly lease his undivided interest to a third
party, independently of the other co-owners.
Any co-owner may file an action under Art. 487 not only against a
third person but also against another co-owner who takes exclusive
possession and asserts exclusive ownership of the property.
What governs co-ownership?
a.
b.
c.

Contracts
Special legal provisions
Provisions of the Title on Co-ownership

Sources of co-ownership (how it arises)


a.

b.
c.
d.
e.

By law (party walls, party ditches, co-ownership of


earnings by man and woman living together without
benefit of marriage)
By contract
By chance (commixtion, confusion, hidden treasure)
By occupation or occupancy
By succession or will (intestate heirs before partition)

From the viewpoint of subject matter:


Co-ownership of an undivided thing
Co-ownership of an undivided right

Contractual co-ownership
Non-contractual co-ownership

From the viewpoint of rights of co-owners:


1.
2.

Tenancy in common
Joint tenancy

Tenancy in Common distinguished from Joint Tenancy


TENANCY IN COMMON
(Co-ownership)
Involves a physical whole but
there is an ideal (abstract)
division each co-owner being
the owner of his own ideal share
Each co-owner may dispose of
his ideal or undivided share
without the others consent
If co-owner dies, his share goes
to his own heirs

If co-owner is a minor, this does


not benefit the others for the
purpose of prescription, and

runs

JOINT TENANCY
Involves a physical whole no
ideal (abstract) division each
and all of them own the whole
thing
Each co-owner may not dispose
of his own share without
consent of all the rest
If joint-tenant dies, share goes
by accretion to other jointtenants by virtue of their
survivorship
If one joint-tenant is under a
legal disability, this benefits the
other against whom prescription

will not run

Characteristics of Co-ownership
a.
b.
c.
d.
e.

f.
g.

Must be more than one subject or owner


One physical whole divided into ideal (undivided) shares
Each ideal share is definite in amount, but not physically
segregated from the rest
Each co-owner must respect each other in the common
use, enjoyment, or preservation of the physical whole
Regarding the ideal share, each co-owner holds almost
absolute control over the same he is full owner of his
part, and of the fruits and benefits thereof; and he may
alienate, assign, or mortgage it, but he cannot substitute
another person in its enjoyment, when personal rights are
involved
Not a juridical person
In a sense a co-owner is a trustee for the other co-owners

Co-ownership distinguished from ordinary partnership


CO-OWNERSHIP
No legal personality
Created by contract or by other
things
Purpose collective enjoyment
Agreement for it to exist for 10
years valid (if more than 10
years excess is void)
NOTE: 20 years is the
maximum if imposed by the
testator or the donee of the
common property
As
a
rule,
no
mutual
representation
Not dissolved by death or
incapacity of co-owner
Can dispose of his share without
consent of others

PARTNERSHIP
Has legal/ juridical personality
Created by contract only
Purpose profit
No term limit set by law

As a rule, there is mutual


representation
Dissolved by death or incapacity
of partner
Cannot substitute another as
partner in his place without
consent of the others
Profits may be stipulated upon

Co-ownership distinguished from Conjugal Partnership


CO-OWNERSHIP
May arise by an ordinary
contract
Sex of co-owners immaterial

From the viewpoint of source:


1.
2.

therefore

Profits must always depend on


proportionate shares

Kinds of Co-ownership

1.
2.

prescription
against them

Co-owners may be two or more


Profits are proportional to
respective interests
Death of one does not dissolve
co-ownership
Generally
all
co-owners
administer
Discouraged by law

CONJUGAL PARTNERSHIP
Arises only because of the
marriage contract
One must be male, the other
female
Only two
Profits are generally 50-50
unless
there
is
contrary
stipulation
Death of either husband or wife
dissolves it
Generally husband is the
administrator
Encouraged by law

Shares in benefits and charges (Art. 485)

Proportional to the interest of each


Contrary stipulation is VOID
Each co-owner shares proportionately in the accretion or
alluvium increase in area benefits all

If a co-owner has paid the taxes of the common property, he could


compel contribution from his co-owners.

Right to use property owned in common (Art. 486)

Right to use the property for the purpose intended


Interest of co-ownership must not be injured/ prejudiced
Other co-owners must not be prevented from using it

A and B owned in common a two-story house. Upper floor was


used as dwelling; lower floor was available for rent by stores. If A
lives in a room of the upper floor and uses a room of the lower floor
as office, can B demand rent?

No rent for upper floor A was exercising right as coowner without prejudicing B B could also have lived in
another room of said floor.
Half-rental may be demanded for use of lower floor. Rent
could be asked because others could have rented the same,
but only half because A was co-owner.

Any one of the co-owners may bring an action in ejectment


which covers all kinds of actions for recovery of possession, without
the necessity of joining all other co-owners as co-plaintiffs, because
the said is deemed to be instituted for the benefit of all (Art. 487).
An attorney-in-fact of the plaintiff co-owner does not need
authority from all the co-owners because he needs authority only
from the co-owner instituting the ejectment suit.
If the co-owner expressly states that he is bringing the case only
for himself, the action should not be allowed to prosper.

Number of Co-owners who must consent:


a.
b.
c.

Can a co-owner go ahead with necessary repairs even against the


opposition of all the rest?

Forcible entry
Unlawful detainer
Accion publiciana
Accion reivindicatoria
Quieting of title
Replevin

YES negligence of the others should not prejudice him.


If he has money advance the funds, recover later from
others
If he has no money contract with the repairmen, all other
co-owners will be liable proportionately

Because of unjustified opposition of majority of co-owners,


necessary repairs urged by one where not undertaken and damage
resulted. Who is liable?

Those who made the unjustified opposition.

If no notification was made even if it was practicable to do so,


would the rest still be liable?

Actions covered by the term ejectment


a.
b.
c.
d.
e.
f.

Repairs, ejectment action ONE


Alterations or acts of ownership ALL
Others useful improvements, luxurious embellishments,
administration, better enjoyment FINANCIAL
MAJORITY

Yes, since the repairs were essential (Even if the rest


would expressly object, repairs can go on just the same).
In view of lack of notification, others may state that had
they been notified, they could have looked for cheaper
labor and materials, and therefore they should pay less
than what is being charged. Co-owner who did not notify
must take care of the difference.

Perpendicular Co-ownership (Art. 490)

CASES

Different stories belong to different persons


Still co-ownership in the use or ornamentation of the
property, particularly in the main and common walls, roof,
stairs, etc.

Rules:
Expenses for Preservation (Art. 488)

A co-owner has the right to compel the others to share in


the expenses of preservation, even if incurred without
prior notification to them (since expenses are necessary)
BUT he must notify them if practicable.

How co-owner may exempt himself: by RENOUNCING


(abandoning for the benefit of others) so much of his undivided
share as may be equivalent to his share of the expenses and taxes
The one renouncing DOES NOT necessarily renounce his entire
interest in the co-ownership.
The renouncing cannot be done if the co-ownership will be
prejudiced.
What the renouncing requires:
a.

b.

If in favor of creditor creditor must give consent (this is


a case of adjudicacion en pago or datio in solutum, where
debtor gives something else in payment of his debt)
If in favor of other co-owners novation (in the form of
substitution of debtor) would result needs consent of
other co-owners and creditor

Creditors consent needed only if expenses have already been


incurred.
What reimbursement covers: only NECESSARY EXPENSES
(preservation)
Renunciation cannot be implied by mere refusal to pay the
proportionate share creditors can collect from the delinquent coowner. Co-owners do not need to intervene they are not the ones
prejudiced.

a.

b.
c.

Proportionate contribution required for preservation of:


1. Main walls
2. Party walls
3. Roof
4. Other things used in common
Each floor owner must bear the expenses of his floor
Stairs are to be maintained from story to story, by the users
RA 4726: THE CONDOMINIUM ACT

Buyer of a unit in a condominium acquires ownership over the


unit only after he has paid in full its purchase price.
The ownership of a condominium unit is the separate interest of
the owner which makes him automatically a shareholder in the
condominium.
All incorporators of a condominium corporation must be an
owner of a condominium unit.
A unit is a part of the condominium property which is subject to
private ownership. Common areas and facilities are not included in
the units. That which is not considered a unit fall under common
areas and facilities (parking spaces).
Alteration (Art. 491)
An alteration is a change:
a.
b.
c.

Which is more or less permanent


Which changes the use of the thing
Which prejudices the condition of the thing or its
enjoyment by the others

Examples of alterations:
a.
Repairs for preservation, improvements (Art. 489)

Sale, donation, mortgage of whole property if entire


property is sold without consent of some co-owners, sale

b.

c.
d.

e.
f.
g.

would only be valid with respect to the share of the coowner seller
Sale, donation, mortgage of part of the property but with
definite boundaries this sale is not void but is subject to
the result of the subsequent partition
Voluntary easement
Lease of real property if
o Lease is recorded/ registered
o Lease is for more than one year (whether
recorded or not)
Construction of a house on a lot owned in common
Any other act of strict dominion or ownership
Contracts of long duration

Consent of other co-owners not essential if a co-owner desires to


cancel, with respect to his ideal share, a lease of the property owned
in common and then lease said share in favor of another.
R, S and T are co-owners. R is the administrator. S and T are in
Spain. May R convert the land to a memorial park without
knowledge and consent of T?

No. This conversion constitutes an ALTERATION which


by law requires UNANIMITY on the part of all the coowners, unless a judicial order to the contrary is obtained.

Consent can be given impliedly, but only for the purpose of


making the alteration legal. But it is not enough to make the other
co-owners liable for the expenses.
Conjugal property which is inherited by the surviving spouse and
the children is co-owned.

2.

3.
4.
5.

The court may appoint an administrator.


Right with respect to the ideal or proportionate share (Art. 493)
right to the IDEAL or metaphysical share of each co-owner
Rules regarding the ideal share
a.
b.

c.
d.

Partition is allowed at any time (Art. 494)

An alteration is illegal when made without the express or implied


consent of other co-owners.

e.

Co-owner responsible may lose what he has spent


Demolition can be compelled
He would be liable for losses and damages
Whatever benefits the co-ownership derives will belong to
it
In case a house is constructed on a common lot all coowners will be entitled to a proportionate share of the rent
(WRONG to give all to person who made the alteration
and just let her pay rent on the land)

In both cases, FINANCIAL MAJORITY is sufficient.

Exceptions:
a.

b.
c.
d.

e.

Acts of administration or management:


a.
b.
c.
d.
e.
f.

Do not involve an alteration


May be renewed from time to time
Have transitory effects do not bind the co-ownership for
a long time in the future
Do not give rise to a real right over the thing owned in
common
Those, which even if called an alteration, do not affect the
substance or nature of the thing
For the common benefit of all co-owners and not for only
one or some

a.
b.

Lease of one year or less provided it is not registered


Acts of management

b.

Before decision is made, there should first be a notice to


the minority so that they can be heard
o Majority would be justified in proceeding only
when the urgency of the case and difficulty of
meeting with minority render impracticable the
giving of such notice
Minority may APPEAL to the court when:
1. There is no real majority

Period must not exceed 10 years


If exceeds 10 years, valid only for the first 10 years
There can be an extension but only after the original
period has expired
A perpetual prohibition should be considered void (against
public policy) but first 10 years can be considered valid
Notwithstanding agreement to partition for 10 years,
parties may eventually rescind the agreement, provided
everybody consents

A, B, and C agreed that there will be no partition until A passes


the bar. At the end of 10 years, A has not yet passed. Is the coownership already ended?

Limitations on the right of the financial majority


a.

If by agreement (period not exceeding 10 years term


may be extended after expiration of original period),
partition is prohibited
If partition is prohibited by donor or testator (for period
not exceeding 20 years) from whom the property came
If partition is prohibited by law (conjugal partnership
property)
If physical partition would render the property
unserviceable in this case the property may be allotted to
one of the co-owners, who shall indemnify the others; or it
can be sold and the proceeds distributed)
If the legal nature of the common property does not allow
partition (party walls)

Prohibition to Partition because of an agreement

ALL REQUISITES MENTIONED MUST CONCUR.


Examples of acts of administration:

No co-owner, as a rule, is obliged to remain in the coownership


Right to demand partition never prescribes

General Rule: They can demand partition at any time.

Administration and Better Enjoyment (Art. 492)

He may SUBSTITUTE another person in its enjoyment


(EXCEPT if personal rights are involved)
He may exempt himself from necessary expenses and
taxes by renouncing part of his interest in the coownership

XXX

a.
b.
c.
d.

Each co-owner has FULL OWNERSHIP of his part, and


of his share in the fruits and benefits
He may ALIENATE, ASSIGN, or MORTGAGE his ideal
share

CASES

Replacement is not considered an alteration.

Effects of illegal alteration:

Resolution is seriously prejudicial to the rights of an


individual co-owner (examples: when loans are made
without sufficient security; encumbrance/ disposition
is made; abusive or inefficient administrator is not
replaced)
Majority refuses to correct abuse of administration or
maladministration
Minority is made victim of fraud
Alteration instead of administration is agreed upon

Yes, it should be considered ended, otherwise the law


would be indirectly violated.

Supposed A passed at the end of 3 years?

Co-ownership should be considered ended, since the


resolutory condition has arrived.

A, B, and C are co-owners. They agreed to subdivide the land into


small lots, and then divide the proceeds accordingly. A questioned
the validity of the stipulation on the ground that it virtually

compelled them to remain in the co-ownership till after all parcels


had been sold.

Stipulation is valid. Precise purpose of the agreement was


to eventually put an end to the co-ownership, after the
parcels had been sold.

Rules in the Case of Succession or Inheritance

Testator may state that property will not be partitioned for


20 years
Although testator may provide for an indivision of 20
years, heirs may still partition the property should any of
the grounds for dissolution of a partnership exist

Prescription in favor of a co-owner against the other co-owners


General Rule: One co-owner cannot acquire the whole property as
against the other co-owners.
Exception: If certain requirements are complied with, a co-owner
can become the exclusive owner of the others shares by
prescription.

4.
5.

The Law that Governs Partition


1.
2.

2.
3.

4.

He must make known to the others that he is definitely


repudiating the co-ownership and that he is claiming
complete ownership over the entire property.
Evidence of repudiation and knowledge on the part of the
others must be clear and convincing.
Other requirements of prescription continuous, open,
peaceful, public, adverse possession for the period of time
required under the law must be present
Period of prescription shall start to run only from such
repudiation of co-ownership

A constructive or implied trust can PRESCRIBE, while an


express trust CANNOT PRESCRIBE.
BAR p 366
No prescription runs in favor of a co-owner or co-heir against his
co-owners or co-heirs so long as he expressly or impliedly
recognizes the co-ownership.
Mere receiving of rents or profits, payment of land taxes, and the
construction of fences and buildings will not be considered
sufficient proof of exclusive or adverse possession because a coowner as such usually does these.

1.
2.
3.
4.

Cannot demand physical division if to do so with render


the thing unserviceable for the use for which it is intended
Co-ownership may be terminated under Art. 498 sold
and its proceeds distributed

PARTITION (Art. 496)

May be made by agreement between the parties


May be made by judicial proceedings

If co-owner is dead, administrator or heirs may bring the action.


Insufficiency of description may be cured during trial, but not
after.
There can be prescription if there was already partition.
What court must do if it finds that the plaintiff has the right to
demand partition:

b.
c.
d.

Cause
1. Extrajudicial (conventional)
2. Judicial (when court approval is sought or when
partition is made by the court)
Permanence
1. Provisional or temporary
2. Permanent
Subject matter
1. Partition of real property
2. Partition of personal property
Forms and solemnities
1. Partition in a judicial decree
2. Partition duly registered in the Registry of Property
3. Partition in a public instrument

Order the partition among all the parties in interest


Parties may, if able to agree, make the partition among
themselves by proper instruments of conveyance and the
court shall confirm it
Such partition, together with court order, shall be recorded
in the registry of deeds
Final order decreeing partition and accounting may be
appealed by any aggrieved party

The law does not require partition through a public instrument.

There is no change of ownership, but a mere designation


and segregation of the part that rightfully belongs to each
co-owner

What court must do if parties fail to agree on partition:

Court shall appoint not more than 3 competent and


disinterested persons as commissioners to make the
partition

A decision directing partition is not final but interlocutory.


Factors to be considered in making partition:

Classification of the Various Kinds of Partition:


a.

Set forth in his complaint the NATURE and EXTENT of


his TITLE
Adequate DESCRIPTION of the real estate
Join as DEFENDANTS all other persons interested in the
property

Action will not prosper if not all co-owners and interested persons
are made defendants.

Partition of an essentially indivisible object (Art. 495)

Decedent left no will


Decedent left no debts (or all debts already paid)
Heirs and liquidators are all of age (or if minors,
represented by judicial guardian or legal representatives)
Partition was made by means of a public instrument or
affidavit duly filed with the Register of Deeds

What a person desiring judicial partition of real estate must do:

Prescription of an action for partition does not lie except when the
co-ownership is properly repudiated by the co-owner.
Action to demand partition is imprescriptible or cannot be barred
by laches each co-owner may demand it at any time.

Civil Code
Rules of Court (suppletorily Rule 69)

For a partition to be valid, Rule 74, Sec. 1 of the Rules of Court


requires concurrence of the following:

Conditions:
1.

Partition in a private instrument


Oral partition

Commissioners shall view and examine the real estate


Hear the parties as to their preference in the portion of the
property to be set apart to them and the comparative value
thereof
Set apart the area in lots or parcels as will be most
advantageous and equitable, having due regard to
improvements, situation, and quality of the parts of the
land
Lands occupied adversely by strangers cannot be
examined by commissioners

Rule if a Physical Partition is Prejudicial:

Land will be given to one co-owner who should reimburse


the rest UNLESS one asks that a public sale be made.

Effectivity of partition by commissioners:

Not effective until approved by the court


Court can approve, amend or disapprove the report
New commissioners may be appointed

Who pays the costs:

Parties shall pay, including the compensation of


commissioners

Ordinary action for partition cannot be converted into a


proceeding for the settlement of the estate of a deceased person,
without compliance with the procedure in the Rules of Court
publication and notice to creditors.
Partition sales only become valid and binding upon confirmation
by the court.
Partition may be novated as long as all interested parties consent.
Validity of partition may be adjudged in a land registration case.

b.

Protection of Third Persons Rights (Art. 499)

Creditor must be allowed to take part in the partition proceeding.


If creditor did not participate, he is not allowed to impugn a partition
already executed unless:
a.
b.

Creditor was defrauded


Creditor previously presented a formal opposition to
prevent it

If co-owners believe that it was made validly, they have the right
to prove their contention.
Creditors must have become creditors during the existence of the
co-ownership, not before or after.
Partition of an Essentially Indivisible Object (Art. 498)

LEGAL or JURIDICAL DISSOLUTION

Procedure for the Legal Partition:


a.

Give the whole to one co-owner who will now be required


to indemnify the rest.

Third persons retain rights of mortgage, servitude, or any


other real or personal rights

Third persons all those who did not in any way participate or
intervene in the partition
Effects of Partition (Art. 500)
a.
b.
c.
d.

Action to declare nullity of a void extrajudicial partition does not


prescribe.
Rights of Creditors With Respect to the Partition (Art. 497)

If not agreed upon, there must be a sale (public or private).


Strangers are allowed to purchase.

e.

f.

Mutual accounting for benefits received


Mutual reimbursement for expenses
Indemnity for damages in case of negligence or fraud
Reciprocal warranty for:
1. Defects of title (or eviction)
2. Quality (or hidden defects)
Each co-owner deemed to have had exclusive possession
of the part allotted to him for the entire period during
which the co-possession lasted)
Exclusive title over respective share

Reciprocal Warranty (Art. 501)

Every co-owner shall, after partition, be liable for defects


of title and quality of the portion assigned to each of the
other co-owners.

How Co-ownership is Extinguished


a.
b.
c.

d.
e.
f.

g.

Judicial partition
Extrajudicial partition
Prescription one co-owner has acquired the whole
property by adverse possession as against all others, and
repudiating unequivocally the co-ownership of the other
When a stranger acquires by prescription the thing owned
in common
Merger in one co-owner
Loss or destruction
Expropriation here, indemnity will be distributed
accordingly

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