PROPERTY LAW

Arellano University School of Law

OWNERSHIP IN GENERAL

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RIGHTS OVER THINGS

PROPERTY
-

an economic concept, meaning a mass of

things or objects useful to human activity
and which are necessary to life, for which
reason they may in one way or another be
organized and distributed, but always for the
use of man

RIGHT TO PROPERTY
-

the juridical tie by virtue of which a person

has the exclusive power to receive or obtain
all the benefits from a thing, except those
prohibited or restricted by law or by the
rights of others
emphasizes the vinculum between man and
the thing

OWNERSHIP
-

PROPERTY
-

refers to the mass of rights over the thing

IS THIS PROPERTY? SHOULD WE TREAT THIS THING

AS PROPERTY?

THINGS AND PROPERTY DISTINGUISH

THINGS
-

all those that are already appropriated or are

in the possession of man
those that are already possessed and can be
found in mans patrimony
things are property in a juridical sense, not
only when they are useful to man, but when
they are appropriated
in order to constitute property it is not
necessary that the thing has an owner
it is enough that it has been appropriated,
even if it may later have no owner, such as
abandoned property
includes not only things which are already
possessed by man, but also those which are
susceptible of being possessed by him

RIGHTS AS PROPERTY

Art. 414. All things which are or may be the object of

appropriation are considered either:
1) Immovable or real property
2) Movable or personal property

object must be one that can be used for the

satisfaction of human needs, for pleasure or
comfort
something that can form part of mans
patrimony, even if it be intangible, such as a
right
only those susceptible of pecuniary
estimation enter into the concept of things

things, in a juridical sense, include not only

material objects, but also rights, although
these are relations and not objects
only rights which are patrimonial in
character can be considered as things
rights which are not patrimonial, such as
right to liberty, honor, family rights, etc.
cannot be considered property

REAL RIGHTS
all objects that exist, and can be of some use
to man
all those that can be possessed
more generic and extensive than the idea of
property
in a juridical sense, includes only objects
which can be of utility to man
cannot include any object whatsoever, but
only those that can give some good or utility
to man and which can be the objects of
juridical relations

the power belonging to a person over a

specific thing without a passive subject
individually determined against whom such
right may be personally exercised
gives right to a person a direct and
immediate juridical power over a thing,
which is susceptible of being exercised, not
only against a determinate person, but
against the whole world
jus in re
in rem rights, demandable to everyone, to
the whole world; everyone is expected to

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Arellano University School of Law

respect your right even without one

demanding it

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2) By the object of the juridical relation

a)

Real Rights object is generally a

corporeal thing
b) Personal Rights object is an intangible
thing, the prestation of the debtor

Characteristics:
1) a subject and an object connected by a
relation of ownership of the former over the
latter
2) a general obligation or duty of respect for
such relation, there being no particular
passive subject
3) effective actions recognized by law to
protect such relation against anyone who
may want to disturb it
PERSONAL RIGHTS
-

power belonging to one person to demand

of another, as a definite passive subject, the
fulfillment of a prestation to give, to do or
not to do
more properly called rights of obligation, or
simply obligation
jus ad rem

3) By the manner in which the will of the active

subject affects the thing related to it
a)

Real Rights generally affects the thing

directly
b) Personal Rights indirectly through the
prestation of the debtor
4) By the causes of creating the juridical
relation
a) Real Rights mode and title
b) Personal Rights by title alone
5) By the methods of extinguishment of the
juridical relation
a)

Real Rights extinguished by the loss or

destruction of the thing
b) Personal Rights not extinguished
through loss or destruction

Characteristics:
1) two subjects, active and passive, who are
determined and specified; the passive
subject being bound to perform a prestation
incumbent upon him, by reason of a juridical
tie which binds him to the active subject
2) a general obligation on the part of third
persons to respect the relation between the
active and passive subjects
3) effective actions in favor of the active
subject against the passive subject for the
performance of the prestation by the latter
or so that the relation between them may
produce its natural and juridical effects

6) By nature of actions arising from them

a)

Real Rights give rise to real actions

against third persons
b) Personal Rights produce only personal
actions against the definite debtor
KINDS OF PROPERTY OWNERSHIP
1) COMMON
-

DISTINCTIONS OF REAL AND PERSONAL RIGHTS

1) By the number of persons involved in the
juridical relation
a)

Real Rights one definite active subject

and the rest of the world as passive
subject
without
individual
determination
b) Personal Rights a definite active
subject and a definite passive subject

things which as a whole mass, which are not

susceptible of appropriation, but a limited
quantity of the whole mass may be
appropriated and thereby converted into
property
e.g. sun, stars, the core of the earth, the sea
those which do not belong to anyone in
particular, but are created by nature for the
use of all, such as the air, the sun, and the
open sea

2) RES NULLIUS

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Arellano University School of Law

things which have been intentionally

abandoned by their owners are still
considered in law as things, even if for the
moment they have no owners, because they
can still be the object of appropriation
those which do not belong to anyone and are
not enjoyed by anyone, such as abandoned
property and hidden treasure (Tolentino)

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bridges constructed by the State, banks,

shores, roadsteads, and others of similar
character
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
a) PROPERTY INTENDED FOR PUBLIC USE

3) PUBLIC DOMINION
-

does not carry the idea of ownership

not owned by the State, but pertains to the
State, which as territorial sovereign
exercises certain juridical prerogatives over
such property
has the special characteristics of collective
ownership for the general use and
enjoyment, by virtue of their application to
the satisfaction of the collective needs
their purpose is not to serve the State as a
juridical person, but the citizens; they are
intended for the common and public
welfare, and so they cannot be the object of
appropriation either by the State or by
private persons
the relation arises from the fact that the
State is the juridical representative of the
social group, and as such takes care of them,
preserves them and regulates their use for
the general welfare
outside of the commerce of man
those owned by the State but enjoyed by all
its inhabitants

Principles:
1) they cannot be alienated or leased or
otherwise be the subject of contracts
2) they cannot be acquired by prescription
against the State; even municipalities cannot
acquire them for use as communal lands as
against the State
3) they are not subject to attachment and
execution
4) they cannot be burdened by any voluntary
easement

b) PROPERTY FOR PUBLIC SERVICE

includes not only those used for the defense
of the territory
all property devoted to public service
public buildings constructed by the State for
its offices and functionaries
buildings belonging to private persons
rented by the State for such uses are not
property of public dominion
does not distinguish between immovable
and movables
battleships, which are floating fortresses,
are for public service
the land on which fortress is erected must
also be considered as for public service
c)

PROPERTY FOR THE DEVELOPMENT OF

NATIONAL WEALTH

public lands may be classified as private

property of the State, as soon as they are
available or alienation or disposition
before they have been declared so available
for disposition, they would partake of
property of public dominion

Art. 420. The following things are property of public

dominion:
1) Those intended for public use, such as
roads, canals, rivers, torrents, ports and

not subject to appropriation

shores; portion of land which is subject to
the ebb and flow of the waters of the sea
the accretions or additions to the shores of
the sea by action of the water or because of
having been reclaimed from the sea
navigable and non-navigable streams with
their channels and their branches
creeks and esteros
streets, even if the putting of telephone
posts or the planting of coconut trees
thereon have been tolerated
beds of rivers
can be used by everybody, even by strangers
or aliens, in accordance with its nature
nobody can exercise over it the rights of a
private owner

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Arellano University School of Law

mines before their concessions have been

granted
alienable or disposable public lands destined
for agricultural, residential, commercial,
industrial, or other similar productive
purposes
for educational, charitable, or other similar
purposes
for reservations of town sites and for public
and quasi-public uses

Art. 421. All other property of the State, which is not

of the character stated in the preceding article, is
patrimonial property.

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and municipalities, consists of all property belonging

to private persons, either individually or collectively.
4)

PRIVATE PROPERTY
-

a) ALL PROPERTIES BELONGING TO PRIVATE

PERSONS EITHER INDIVIDUALLY OR
COLLECTIVELY
-

d) PATRIMONIAL PROPERTY
-

property over which the State has the same

rights, and of which it may dispose, to the
same extent as private individuals in relation
to their own property, subject only to the
administrative laws and regulations on the
procedure of exercising such rights
exist for the State for attaining its economic
ends, as a means for its subsistence, and the
preservation of its natural organism
private property of the State
property acquired by the government in
execution sales, in tax sales, and escheats of
estates of persons who die intestate without
legal heirs, and the income or rents of the
State
subject to prescription
can be the objects of ordinary contracts
property of public dominion ceases to be
such and becomes private property of the
State only upon a declaration by the
government, through the executive or
legislative departments, to the effect that it
is no longer needed for public use or service
if the government has not devoted it to
other uses, or adopted any measure which
amounted to a withdrawal thereof from
public use or service, the same remains
property for public use or service,
notwithstanding the fact that it is not
actually devoted for public use or service
those which are not enjoyed in common by
the people, but whose products are applied
to the expenses of the municipality

Art. 425. Property of private ownership, besides the

patrimonial property of the State, provinces, cities,

those which are owned and enjoyed by one

or more determinate persons

where a person has proved his right of

ownership over a piece of land, and it is not
shown that the State has a superior right
thereto, the former must be recognized as
owner even as against the State
where the private ownership has been
established, a piece of land will not be held
property of public dominion
the fact that at no time was an expense
incurred by the government with respect to
a road, claimed to be private, tends strongly
to support the contention that it is a private
way

MOVABLE AND IMMOVABLE PROPERTY

-

the classification of things into movables and

immovable is the most important in law

1) IMMOVABLE PROPERTY
-

when they cannot be transferred from place

to place
real property
presupposes stability or the impossibility of
transfer from place to place, although the
law may give the character of immovability
to things which can be moved
objects which cannot be moved from place
to place without injury

Art. 415. The following are immovable property:

1) Land, buildings, roads and constructions of
all kinds adhered to the soil;
2) Trees, plants, and growing fruits, while they
are attached to the land or form an integral
part of an immovable;
3) Everything attached to an immovable in a
fixed manner, in such a way that it cannot

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Arellano University School of Law

4)

5)

6)

7)
8)

9)

10)

be separated therefrom without breaking

the material or deterioration of the object;
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;
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, and which tend directly to meet the
needs of the said industry or works;
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;
Fertilizer actually used on a piece of land;
Mines, quarries, and slag dumps, while the
matter thereof forms part of the bed, and
waters either running or stagnant;
Docks and structures which, though
floating, are intended by their nature and
object to remain at a fixed place on a river,
lake, or coast;
Contracts for public works, and servitudes
and other real rights over immovable
property

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2) IMMOVABLE BY INCORPORATION
-

a) ENUMERATION OF IMMOVABLE PROPERTY

CLASSES OF IMMOVABLES
1) IMMOVABLE BY NATURE
-

those which cannot be moved from place to

place, such as land, mines, quarries, and slag
dumps
land, buildings, roads and constructions of
all kinds adhered to the soil (Paragraph 1)
mines, quarries, and slag dumps, while the
matter thereof forms part of the bed, and
waters either running or stagnant
(Paragraph 8)
covers property which are immovable by
their nature
buildings are always immovable under the
Code

separate treatment of the parties of a

building from the land on which it stands,
does not change the immovable character of
the building
buildings or constructions placed on land by
a lessee do not become immovable, where
the lease agreement gives the lessee the
right to remove the buildings and
improvements at the end of the lease

those which are essentially movables, but

are attached to an immovable in such
manner as to be an integral part thereof
constructions of all kinds adhered to the soil
(Paragraph 1)
trees, plants, and growing fruits, while they
are attached to the land or form an integral
part of an immovable (Paragraph 2)
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
(Paragraph 3)
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 (Paragraph 4)
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 (Paragraph 6)
trees and plants are immovable only when
they are attached to the land
rex vinta
although temporarily separated from the
immovable, they retain their immovable
character, if there is an intent to replace
them
the material fact of incorporation or
separation is what determines the condition
of these objects, so that, as soon as they are
separated from the tenement, they recover
their condition as movables, irrespective of
the intention of the owner

3) IMMOVABLES BY DESTINATION

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Arellano University School of Law

those which are essentially movables, but by

the purpose for which they have been placed
in an immovable, partake of the nature of
the latter because of the added utility
derived therefrom
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 (Paragraph 4)
they are immovable both by incorporation
and by destination
they can generally be separated from the
immovable without breaking the matter or
injuring the object
it is indispensable that the objects must be
placed in the immovable by the owner of the
latter
it is enough that the owner orders the
placement of the object or even just ratifies
it subsequently
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, and which tend directly to meet the
needs of the said industry or works
(Paragraph 5)
the immovable condition of these objects
depends upon their being destined for use in
the industry or work in the tenement
the moment they are separated, not
necessarily from the immovable, but from
the industry or work in which they are
utilized, they recover their condition as
movables
work animals or beasts of burden are not
included
excludes those which are merely for
decorative purposes, and even those which
are necessary for the other purposes distinct
from the requirements of the industry or
works being carried on in the tenement
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 (Paragraph 6)
refer to the animals themselves living in
these breeding places and not to the

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structures, which are already included in

Paragraphs 1 and 3
fertilizer actually used on a piece of land
(Paragraph 7)
fertilizers should be on the land where they
are to be utilized, because it is only then that
the intention of the owner to use them on
the tenement is beyond doubt
fertilizers kept in the farmhouse are not
immovable
docks and structures which, though floating,
are intended by their nature and object to
remain at a fixed place on a river, lake, or
coast (Paragraph 9)

4) IMMOVABLES BY ANALOGY OR BY LAW

-

contracts for public works, and servitudes

and other real rights over immovable
property (Paragraph 10)

b) EXTENT OF OWNERSHIP
Art. 437. 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.
-

the right of the owner in the space over his

land extends only as far as he has some
interest, that is, only to the point necessary
for the use or enjoyment of the land itself
aerial space is not juridically a thing
susceptible of private appropriation, and
must be considered as a common thing
the infinite space above a piece of land
cannot be considered as property of the
landowner
same principle applies to the subsoil below
the point which the landowner may utilize
for the use of the tenement
in both cases, the owner of the land has a
right which does not extend beyond what is
necessary to enable him to obtain from his
property all the utility and convenience that
it can normally give
the right of the landowner extends to the
space and subsoil as far as necessary for his
practical interests, or to the point where it is

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Arellano University School of Law

possible to assert his dominion; beyond

these limits, he would have no legal interest
his right extends to such height or depth
where it is possible for him to obtain some
benefit or enjoyment, and it is extinguished
beyond such limit because there would be
no more interest to be protected by the law
to give the owner of the land unlimited right
over the space and subsoil would hinder
aerial navigation, and tunnels for railways
cannot be made through mountains where
the surface is owned privately

2)

MOVABLE PROPERTY

personal property
transfer and movement in space is possible,
whether by itself as in the case of animals, or
by some external act
those which can by their nature be moved
from place to place without injury
forces of nature are considered movable
(e.g. electricity, gas, heat, oxygen, light, rays)
semi-movables: now classified as movables;
they include all those which are susceptible
of moving by themselves without assistance
from any outside force, such as animals
intellectual property: the right of the author,
artist, or inventor over his work is personal
property; it consists in the pecuniary benefit
which the owner can get by the reproduction
or manufacture of his work

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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.
MOVABLE PROPERTY
1)

2)

3)

4)

5)

6)
a) ENUMERATION OF MOVABLE PROPERTY
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
personality;
3) Forces of nature which are brought 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.
Art. 417. The following are also considered as
personal property:

those
movables
susceptible
of
appropriation which are not included in
the preceding article
real property which by any special
provision of law is considered as
personality
forces of nature which are brought
under control by science
in general, all things which can be
transported from place to place without
impairment of the real property to
which they are fixed
obligations and actions which have for
their object movables or demandable
sums
obligations really means credits
includes all kinds of credits
includes
bonds,
which
are
technically obligations of the entity
issuing them
whether the credit is matured or
not, it is personal property

shares of stock of agricultural,

commercial, and industrial entities,
although they may have real estate
-

all juridical persons are deemed

included
the interests of the members of
partnership and the shares of stock
in any corporation are movable or
personal property

b) CONSUMABLES OR NON-CONSUMABLES
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 the others.
Classification according to the nature of the thing

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Arellano University School of Law

CONSUMABLES
-

those which cannot be used in a manner

appropriate to their nature without being
consumed
those whose use according to their nature
destroys the substance of the thing or causes
their loss to the owner
food is an example

NON-CONSUMABLES
-

those not consumed by use

money in coin is an example

Classification according to purpose, depending on

whether they can be substituted by other things of
the same kind, quality, and quantity
c)

FUNGIBLE OR NON-FUNGIBLE

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2) Whether the change of location can be

effected without injury to an immovable to
which the object may be attached
3) Whether the object is not included in any of
the ten paragraphs of Article 415
OWNERSHIP
1) IN GENERAL
a) DEFINITION
-

1) IN ITS STRICT SENSE

-

FUNGIBLES
-

those which belong to a common genus

which includes several species of the same
kind, perfectly permitting substitution of one
by the others, such as grain, wine, oil, etc.
the quality of being fungible depends upon
their possibility, because of their nature or
the will of the parties, or being substituted
by others of the same kind, not having a
distinct individuality
generally the things whose individuality can
be determined by counting, weighing or
measuring

NON-FUNGIBLES
-

those specifically determined and cannot be

substituted by others, such as lands,
buildings, a horse, etc.
those which have their own individuality and
do not admit of substitution

the independent and general

power of a person over a thing for
purposes recognized by law and
within the limits established
thereby

a relation in private law by virtue of

which a thing pertaining to one
person is completely subjected to
his will in everything not prohibited
by public law or the concurrence
with rights of another

2) MEANING OF TITLE
-

the right of the owner or the extent

of his interest and by means of
which he can maintain control, and
as a rule, assert his right to the
exclusive
possession
and
enjoyment of the property

b) INCIDENTS OF OWNERSHIP
1) POSSESSION AND CONTROL
-

jus possidendi: the right to possess

and control the thing

d) TEST

2) RIGHT TO
INCREASE

There are three tests applied successively

to determine whether an object is movable
or immovable:

1) Whether it can be carried from place to

place

ITS

PRODUCT

OR

jus abutendi: the right to consume

the thing by its use / right to abuse
jus utendi: the right to receive from
the thing what it produces / right to
use and enjoy

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Arellano University School of Law

jus fruendi: the right to enjoy the

fruits of the thing owned

action to recover possession based on

ownership

4) REPLEVIN

jus disponendi
the right to dispose, is the power of
the owner to alienate, encumber,
transform, and even destroy the
thing owned
the right to dispose includes the
right not to dispose

4) RIGHT TO VINDICATE
-

jus vindicandi
the right to exclude from the
possession of the thing owned by
any other person to whom the
owner has not transmitted such
thing, by the proper action for
restitution, with the fruits,
accessions, and indemnification of
damages

ACTIONS FOR POSSESSION

Three actions for the recovery of possession of
immovable property:
1) FORCIBLE
ENTRY
AND
UNLAWFUL
DETAINER / ACCION INTERDICTAL

3) RIGHT TO TRANSFER

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within the exclusive original jurisdiction of

municipal and justice of the peace courts
at any time within one year after such
unlawful deprivation or withholding of
possession

possession of personal property may be

recovered
for manual delivery of such property

c)

LIMITATIONS ON OWNERSHIP

The limitations on ownership may be

classified as follows:
1) GENERAL LIMITATIONS
BENEFIT OF THE STATE
-

such as legal servitudes

easements,
extravagance,
restrictions on land grants
partition / alienation of donor

4) LIMITATIONS IMPOSED BY THE OWNER

HIMSELF
-

3) ACCION REINVINDICATORIA

includes the power of eminent

domain, police power and power of
taxation

3) LIMITATIONS IMPOSED BY THE PARTY

TRANSMITTING PROPERTY, EITHER BY
CONTRACT OR BY LAST WILL

plenary action to recover possession

which must be instituted in the Court of First
Instance
not necessary for him to wait until the
expiration of one year before commencing
such action
if no action had been instituted for forcible
entry and detainer during that time in the
inferior court
ejectment

THE

2) SPECIFIC LIMITATIONS IMPOSED BY

LAW

2) ACCION PUBLICIANA
-

FOR

such as voluntary servitudes,

mortgages, pledges, and lease
rights
at the time he transmits the
property
at the time he continues to be the
owner of the property
partition / alienation of donor
easements,
extravagance,
restrictions on land grants
owner may impose limitations
upon his right of ownership by any
voluntary act permissible under the
law
limitation on ownership may affect
the thing even after it has ceased to

PROPERTY LAW
Arellano University School of Law

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belong to the person imposing the

limitation
in the law of donations, sales, and
of succession, the law prohibits
certain conditions to prevent
limitations imposed by the owner
that are arbitrary and capricious

7)
8)
9)
10)

d) Under the Civil Code

Art. 427. Ownership may be exercised over
things or rights.

5) INHERENT
LIMITATIONS
ARISING
FROM CONFLICTS WITH OTHER
SIMILAR RIGHTS
-

such as those caused by contiguity

of property

6) INJURIOUS USE
-

the owner of a thing cannot make

use of his property in such manner
that will injure the rights of a third
person
every person must, in the exercise
of his due, act with justice, honesty,
and good faith (Article 19, Civil
Code)

7) INTERFERENCE
-

the law permits the injury or

destruction of things belonging to
others provided this is necessary to
avert a greater danger
state of necessity is an exception as
long as there is an actual or
imminent danger, the interference
is necessary to avert such danger,
and the threatened damage
compared to the attending
interference is much greater

PUBLIC HEALTH AND SAFETY

PUBLIC EASEMENTS
POLICE POWER
TAXATION

1) Over Things property

2) Over Rights real and personal rights
2)

PRESUMPTIONS
a) RULE ON ACCESSION
1) ALL WORKS, SOWING, AND PLANTING ARE
PRESUMED MADE BY THE OWNER AT HIS
EXPENSE

Art. 446. All works, sowing, and planting are

presumed made by the owner and at his expense,
unless the contrary is proved.
-

LIMITATIONS FOR PUBLIC INTEREST

all works should be understood in its broad

meaning
include not only the construction,
improvement, or repair of buildings but also
all analogous works, such as the placing of
industrial machinery therein
when a construction exists upon a piece of
land, it is logical to presume that it was made
by the owner of the land and at his expense
even if a third person does so, it is to be
supposed that it was with the consent of the
owner
common sense may give rise to the
consideration that buildings constructed on
a land belong to the one same owner, but in
actual law, such presumption cannot be
admitted because it is contrary to the
principles of accession
exception to the rule are buildings
constructed during marriage on a separate
property of one of the spouses; such
construction will be presumed to be conjugal
property

Many limitations for public interest may be

imposed or private ownership.

1) EXPROPRIATION FOR PUBLIC USE (Eminent

Domain)
2) MILITARY REQUISITIONS
3) ZONIFICATION LAWS AND REGULATIONS
4) PUBLIC OR GOVERNMENT MONOPOLIES
5) LAWS ON WATERS AND MINES
6) LAWS ON PUBLIC SERVICES

b) THE LAW FAVORS ACTUAL POSSESSORS

1) OWNERSHIP IS PRESUMED IN FAVOR OF
ACTUAL POSSESSORS

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Arellano University School of Law

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.
-

if a person believes that he is entitled to the

possession of a thing which is in the
possession of another, he may ask the latter
to deliver possession
if demand is refused, the person seeking to
obtain possession should never use force or
violence; he should not take the law into his
own hands but must invoke the aid of the
competent court by filing the proper
complaint for the recovery of possession

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be considered as a mere consequence of

community life
when a person makes an exceptional or
extraordinary use of his property, thereby
causing injury to third persons, he should be
made liable for the damages caused
when the use of the property constitutes a
nuisance, owner is liable for damages and
the injurious use may be stopped
an owner cannot be debarred from the
legitimate use of his property simply
because it may cause a real damage to his
neighbor

b) 1987 Constitution, National Economy and

Patrimony

3) RIGHT TO USE
a) Under Article 428 of the Civil Code
Art. 428. The owner has the right to enjoy and
dispose of a thing, without other limitations than
those established by law. The owner has also a right
of action against the holder and possessor of the
thing in order to recover it.
1) The owner has the right to enjoy subject to
limitations established by law
-

an owner is recognized as the owner of a

lands surface and everything under it, and
he can construct thereon any works which
he may deem proper, and that anything
found in his property belongs to him
his ownership of the thing also gives him the
right by accession to everything which is
produced thereby or which is incorporated
thereto
unless prevented by contract or by some
special law, the owner cannot be deprived of
the enjoyment of his property

2) Injurious Use
Art. 431. The owner of the thing cannot make use
thereof in such manner as to injure the rights of a
third person.

Article XII. Section 6. The use of property bears a

social function, and all economic agents shall
contribute to the common good. Individuals and
private
groups,
including
corporations,
cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate
economic enterprises, subject to the duty of the
State to promote distributive justice and to
intervene when the common good so demands.
1) Use of Property
-

bears a social function

all economic agents shall contribute to the
common good
the State shall apply the principles of
agrarian reform or stewardship whenever
applicable in accordance with law, in the
disposition or utilization of other natural
resources including lands of the public
domain under lease or concession suitable
to agriculture, subject to prior rights,
homestead rights of small settlers, and the
rights of indigenous communities to their
ancestral lands; the State may resettle
landless farmers and farm workers in its own
agricultural estates which shall be
distributed to them in the manner provided
by law (Nachura)

4) RIGHT TO TRANSFER
-

when the owner of property makes use

thereof in the general and ordinary manner
in which such property is used, nobody can
complain as having been injured, because
the inconvenience arising from such use can

a) Under Article 428 of the Civil Code

Art. 428. The owner has the right to enjoy and
dispose of a thing, without other limitations than

PROPERTY LAW
Arellano University School of Law

those established by law. The owner has also a right

of action against the holder and possessor of the
thing in order to recover it.

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1) The owner has the right to dispose property

subject to limitations established by law
-

the right to dispose includes the right not to

dispose
jus disponendi
the power of the owner to alienate,
encumber, transform and even destroy the
thing owned
only the owner can dispose of his property,
subject to the limitations imposed by law
one who is not the owner of the thing cannot
validly sell the property, nor convey any right
of dominion to any other party

b) Kinds of Transfers
1) Assignment of ownership
2) Assignment of use only

1) Enclosure and Fences

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.
-

5) RIGHT TO EXCLUDE
a) The owner or lawful possessor of a thing has
the right to exclude any person from the
enjoyment and disposal of the thing
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.
-

an act impelled by legitimate necessity shall

not be unlawful; legitimate necessity
consists in the defense indispensable to
repel, personally or through another, an
actual and unjust aggression
actual invasion of property may consist of a
mere disturbance of possession or of a real
dispossession
if it is a mere disturbance of possession,
force may be used against it at any time as
long as it continues, even beyond the
prescriptive period for an action of forcible
entry
if the invasion consists of a real
dispossession, force to regain possession can

be used only immediately after the

dispossession
if the property is immovable, there should be
no delay in the use of force to recover it; a
delay even if excusable, such as when due to
the ignorance of the dispossession, will bar
the right to the use of force
once the usurpers possession has become
firm by the lapse of time, the lawful
possessor must resort to the competent
authority to recover his property

subject to servitudes
right of the owner to enclose his tenement is
limited by the servitudes existing thereon
a person cannot enclose his tenement and
construct a fish pond thereon, as to obstruct
the natural flow of waters from upper
tenements, to the injury of the owners of
such tenements

2) Self-help
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.
-

the principle of self-help authorizes the

lawful possessor to use force, not only to
prevent a threatened unlawful invasion or
usurpation thereof

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.
b) Resort to judicial process if possession is lost
Art. 433. Actual possession under claim of ownership
raises a disputable presumption of ownership. The

PROPERTY LAW
Arellano University School of Law

true owner must resort to judicial process for the

recovery of the property.
-

if a person believes that he is entitled to the

possession of a thing which is in the
possession of another, he may ask the latter
to deliver possession
if demand is refused, the person seeking to
obtain possession should never use force or
violence; he should not take the law into his
own hands but must invoke the aid of the
competent court by filing the proper
complaint for the recovery of possession

c)

Self-help

this is a qualification to the rule that a person

should not take the law in his own hands; it
is a sort of self-defense
it is lawful to repel force by force
he who merely uses force to protect his
possession does not possess by force
the use of such necessary force to protect
proprietary or possessory rights constitute a
justifying circumstance under our Penal
Code
the person possessing in the name of
another would not be entitled to self-help
against the real possessor, but the latter
would have a right against the former
there must be a real aggression, an
imminent violation of the law
preventive force to forestall aggression is
not authorized
a third person may take the necessary
measure to repel the aggression
(negotiorum gestor) and if he suffers injury
in the defense, the possessor must
indemnify him
when there are several means available, the
possessor must choose that which shall
cause the least damage to the aggressor
if he uses more force than necessary, he
becomes liable for damages

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