Coownership Flashcards
What is co-ownership?
the right of common dominion, which two or more persons have in a spiritual part of a thing, not materially or physically divided.
What are the requisites of co-ownership?
1) Plurality of subjects – co-owners
2) Unity of the object - there is a single object which is not materially divided, and which is the element which binds the subjects 3) Recognition of ideal share
Effect of division or partition
Once partition is effected or once the property is subdivided and distributed among the co-owners, the co-ownership is terminated.
When is there partial partition?
There is partial partitim where thetransferees of an undivided portion of the land allowed a co-owner of a property tooccupy a definite port there of and has not disturbed the same
Sources of co-ownership
1) by law 2)by contract 3) by succession 4)by fortuitous event 5) by occupancy
True or false. All co-owners must agree to bring an action for ejectment
False Any one of them can do so
True or false. A co-owner may demand at any time the partition of the property owned in common
True
Give the requirements for consent in co-ownership in case of: 5%
a) Acts of Preservation
b) Acts of Administration
c) Acts of Alteration
a) Acts of Preservation ——Even 1 co-owner
b) Acts of Administration ———-Financial majority
c) Acts of Alteration ————– All the co-owners
How is ideal share determined?
1) based on the agreement in the contract
2) proportional to their respective interests
3) shall be presumed equal unless the contrary is
proved
ToF. Ownership is one of the attributes of possession
False
ToF. A co-owner of an undivided parcel of land is an owner of the whole, and over the whole he exercises the right of dominion.
True
True o false.
There is still co-ownership even if the different portions owned by different people have already been concretely determined and separately identified if they have not yet been technically described.
False
True or false. An action to demand partition is imprescriptible and not subject to laches.
True
What is the remedy available to the coowners whose shares were alienated without
their consent?
The appropriate remedy is not a nullification of
the sale or for the recovery of the thing owned in common but a division of the common property.
Neither recovery of possession nor restitution can be granted since the defendant buyers are
legitimate proprietors and possessors in joint
ownership of the common properly claimed. (Reyes v. Spouses Garcia, G.R. No. 225159, 21 Mar. 2022, as penned by J. Hernando)
Is there such a thing as perpetual coownership?
NO. Any of the co-owners may demand partition
any time. No co-owner ought to be compelled to stay in a co-ownership 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, 20 Nov. 2006)
True or False.
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.
True
True or False.
In a property co-owned by the compulsory heirs, any act tantamount to partition such as identifying their shares and constructing their respective houses is not ground for termination of the co-ownership.
False. 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.
Can A donor or testator prohibit partition for a
period which shall not exceed 20 years.
Yes.
How may a co-owner use the thing owned in common?
Article 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.
True or False.
The purpose of the co-ownership may be changed by express agreement only
The purpose of the co-ownership may be changed by agreement, express or implied
What is the requirement for consent for expenses in co-ownership?
Article 489
Repairs for preservation may be made at the will of one of the co-owners, but he must, if practicable, first notify his co-owners of the necessity for such repairs. Expenses to improve or embellish the thing shall be decided upon by a majority as determined in article 492.
necessary expense - 1 of the owner with notification
useful or ornamental expense - majority
Rules governing necessary expenses in houses with several storeys and each storey is owned by a different person
1) if the manner of contribution is specified in
the title of ownership, the same shall govern
2) in the absence of such provision in the title of
ownership, the agreement of the parties shall
control
3) in the absence of such agreement, Article 490
What are acts of alteration?
the act by virtue of which a co-owner, in
opposition to the express agreement, if there is
any, or, in default thereof, to the tacit
agreement of all the co-owners, and violating
their will, changes the thing from that state in
which the others believe it should remain or
withdraws it from the use to which they wish it
to be intended.
Include any act of strict dominion or
ownership and any encumbrance or
disposition (Arambulo v. Nolasco)
When the enjoyment of the thing does not
require its modification, whatever modification
or change that is done will be considered an
alteration within the terms of Article 491
True or false.
A co-owner can give valid consent to a third
person to build a house on the co-owned property because this is not an act of alteration
False. A co-owner cannot give valid consent to a third person to build a house on the co-owned property because the construction of a house on the coowned property is an act of dominion which requires unanimous consent of all co-owners
True or False.
For acts of alteration the consent of all coowners shall only be given expressly and previous to the act.
False. The consent of all coowners may be given expressly or tacitly, previous
to the act or even after its commission.
Distinguish acts of administration from acts of alteration.
Administration refer to the enjoyment of the thing and are of a transitory character
Alteration have permanent result and relate to the substance or form of the thing
What are the rights of a co-owner?
Article 493
Rights over the ideal share
1) right to the full ownership of his part
2) right to the fruits and benefits pertaining to his part
3) right to alienate, assign or mortgage it, and even substitute another person in its enjoyment,
even without the consent of other co-owners
XPN: personal right
ToF
A co-owner cannot be compelled
by the court to give his/her consent to the sale
of his/her share in a co-owned property.
True
Effects of alienation or mortgage
1) The sale will only affect the portion which may
be allotted to him in the division upon the
termination of the co-ownership.
2) The buyers become the co-owners of the
property
3) The co-ownership subsists
4) If there is a sale of the whole property, it is not null and void but only the rights of the co-owner seller are transferred. An implied
trust is created by force of law.
5) Action for annulment of sale and recovery of
possession are not proper remedies. The
proper remedy would be action for partition
under Rule 69 of the Rules of Court.
6) In mortgage, the creditor-mortgagee who
acquired the co-owned property at a public
auction merely held the property in trust for
the co-owner who did not mortgage his share
7) When the purchaser knew of, could have
known, the existence of the co-ownership and
yet did not seek the consent or authorization of
the other co-owners in the sale of the entire
property, he may not be considered a purchaser
in good faith.
Registered land – not required to go
behind the register to determine the
condition of the property
Unregistered land – required to go
beyond what was presented as title
The rule that persons dealing with
registered lands can rely solely on the
certificate of title does not apply to
banks
ToF
A co-owner may sell a definite portion of unpartitioned land without consent from his co-owners.
A contract of sale which purports to sell a specific or definite portion of unpartitioned land is null and void ab initio because a co-owner cannot sell a definite portion of the land without consent from his or her co-owners if the alienation precedes the partition. (Cabrera v. Ysaac)
what happens to the vendee then?
In other words, the vendee steps into the shoes of the vendor as co-owner and acquires a proportionate abstract share in the property held in common. (Del Campo v. CA)
Sale of ACOP or CPOG property without the consent of the other spouse is valid
False. sale is void
May the co-owners exercise the right of preemption?
In this jurisdiction, the legal provisions on coownership do not grant to any of the owners of a property held in common a pre-emptive right to purchase the pro indiviso shares of his co-owners.
Can the right of legal redemption be exercised when the co-ownership has ceased?
The exercise of a right of legal redemption
thereunder presupposes the existence of coownership at the time the conveyance is made by a co-owner and when it is demanded by the other co-owner or co-owners. (Avila v. Barabat
what is partition?
is the separation, division and assignment
of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value
Two issues in an action for partition
1) whether the plaintiff is indeed a co-owner of
the property sought to be partitioned
2) how the property is to be divided
When may partition not take place?
Contracts - An agreement to keep the thing
undivided for a certain period of time
>10 years – VOID only as to the
period beyond such maximum*
*the remedy is to extend the period in a new agreement
< or = 10 years – VALID
This term may be extended by a new
agreement
3) Donation or succession - A donor or testator
may prohibit partition for a period which shall
not exceed twenty years
4) When partition is prohibited by law
5) When there is no repudiation of the coownership - No prescription shall run 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.
6) When partition would render the thing
unserviceable for the use for which it is
intended
How is co-ownership extiinguished?
1) By the merger in one person of all the interest
of the co-ownership;
2) By prescription of the thing or right in favor
of third persons or a co-owner;
3) By destruction of the thing or loss of the
right which is owned in common; and
4) By partition of the property owned in
common.
what are the prerequisites for prescription?
1) The co-owner has performed unequivocal
acts of repudiation amounting to an
ouster of the other co-owners
2) Such positive acts of repudiation have been
made known to the other co-owners
3) The evidence thereof is clear and
convincing
4) He has been in possession through open,
continuous, exclusive, notorious
possession of the property for the period
required by law
Effects of clear repudiation
1) such co-owner may acquire the entire
property by virtue of acquisitive
prescription if his possession meets all the
requirements of the law, and after the
expiration of the prescriptive period; or
2) the other co-owners who were deprived of
their share may lose their right to seek a
declaration of the existence of the co-ownership and of their rights thereunder because the same may already be barred under the statute of limitations (or extinctive prescription)
When should the co-owned property be converted to monetary considerations
1) The right to partition the property among the
co-owners is invoked by any of them but the
thing is essentially indivisible
2) Co-owners cannot agree that it be allotted to
one of them who shall indemnify the others
ToF
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.
True
Legal effects of partition
1) The co-ownership is terminated
2) Each co-owner becomes the absolute and
exclusive owner of the share allotted to him
3) It shall not prejudice the rights of third
persons, who shall retain the rights of
mortgage, servitude, or any other real rights
belonging to them before the division was
made. (Art 499)
4) Personal rights pertaining to third persons
against the ownership shall also remain in
force. (Art 499)
5) there shall be a mutual accounting for benefitsreceived and reimbursements for expensesmade. Likewise, each co-owner shall pay for damages caused by reason of his negligence orfraud. (Art 500)
6) They shall reimburse one another for the
income and fruits which each one of them may
have received from any property of the estate,
for any useful and necessary expenses made
upon such property, and for any damage
thereto through malice or neglect.
7) Every co-owner shall be liable for defects of
title and quality of the portion assigned to each
of the other co-owners. (Art 501)
Distinguish tenancy in common from joint tenancy.
TENANCY IN COMMON
(CO-OWNERSHIP)
1. This involves a physical whole. But there is an ideal (abstract) division; each co-owner being the owner of his own ideal share.
2. Each co-owner may dispose of his ideal or undivided share (without boundaries) without the other’s consent.
3. If a co-owner dies, his share goes to his own heirs.
4. If a co-owner is a minor, this does not benefit the others for the purpose of prescription, and prescription therefore runs against them.
JOINT TENANCY
1. This also involves a physical whole. But there is no ideal division; each and all of them own the whole thing.
2. Each co-owner may not dispose of his own share without the consent of all the rest, because he really has no ideal share.
3. If a joint-tenant dies, his share goes by accretion to the other joint- tenants by virtue of their survivorship or jus accrecendi.
4. If one joint-tenant is under a legal disability (like minority), this benefits the other against whom prescription will not run.
Distinguish co-ownership from ordinary partnership.
CO-OWNERSHP
1. No legal personality.
2. Created by contract or by other things.
3. Purpose is for collective enjoyment
4. Agreement for it to exist is valid: only for 10 years.
5. As a rule, there is no mutual representation.
6. Not dissolved by death or incapacity of co-owner
7. Can dispose of his share without consent of others
8. Profits must always depend on proportionate shares.
ORDINARY PARTNERSHIP
1. Has legal or juridical personality.
2. Created by contract only, express or implied.
- Purpose is profit.
. 4. There is no term limit set by law. - As a rule, there is mutual representation. 6. Is dissolved by the death or incapacity of a partner. 7. Cannot substitute another as partner in his place without the consent of the others. 8. Profits may be
What is the relationship of each co-owner to the other co- owners?
In co-ownership, the relationship of such co-owner to the other co-
owners is fiduciary in character and attribute. Whether established of law or by agreement of the co-owners, the property or thing por-indiviso is impressed with a fiduciary nature so that each co-owner becomes a trustee for the benefit of his co-owners and he may not do any act prejudicial to the interest of his co-owners.
’
How is the share of the co-owners in the benefits and charges arising from the co-ownership determined?
Remedies available to co-owners where the co-
owned property cannot be physically divided without rendering it useless or unserviceable (NCC, Art. 498)
Agree on the allotment of the entire
property to one of them who in turn will indemnify the others for their respective interests; or
2. Sell the property and distribute the
proceeds to the co-owners (Pineda, 2009).
What are the rights of a third person which are not affected by partition?
① 1. Rights of:
a. Mortgage;
b. Servitude; and
c. Any other Real rights existing before partition.
2. Personal rights pertaining to third persons against the co-ownership (NCC, Art. 499).
Rights of third persons in case of partition (NCC, Art. 499)
- The partition of a thing owned in common
shall not prejudice third persons, who shall WAIVER retain the rights of mortgage, servitude or any other real rights belonging to them A co-owner may opt not to contribute to the
before the division was made; and - Personal rights pertaining to them against
the co-ownership shall also remain in force, notwithstanding the partition.
Acts requiring the majority consent of the co- owners
- Management;
- Enjoyment; and
- Improvement or embellishment.
Expenses which the co-owners can be compelled to contribute
Only necessary expenses. Useful expenses and those for pure luxury are not included.
What are Necessary expenses?
Necessary expenses are those made for the preservation of the thing, or those without which the thing would deteriorate or be XPNs: lost, or those that augment the income of 1. In case of fraud, regardless of notification the things upon which are expended, or and opposition; or those incurred for cultivation, production, 2. In case partition was made over their upkeep, etc. (Mendoza v. De Guzman, G.R. objection even in absence of fraud (NCC,
No. L-28721, October 5, 1928).
What ave useful expenses?
Useful expenses incurred for the preservation of the realty in order that it may produce the natural, industrial, and civil fruits it ordinarily produce
What are ornamental expense?
Ornamental expenses add value to the thing only for certain persons in view of their particular whims, neither essential for preservation nor useful to everybody in general.
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).
