Co-Owner has the right:
PAGE 115 OF 574 (2) To alienate, mortgage or encumber and
dispose of his ideal share—but other owners can exercise right of redemption (3) To substitute another person in the
enjoyment of the thing
(4) To renounce part of his interest to reimburse necessary expenses incurred by another co-owner (NCC 488)
EFFECT OF TRANSACTION BY EACH CO- OWNER
(1) Limited to his share in the partition (2) Transferee does not acquire any specific
portion of whole property until partition (3) Creditors of co-owners may intervene in
partition or attack the same if prejudicial [NCC 499], except that creditors cannot ask for rescission even if not notified in the absence of fraud. [NCC 497]
G. RULES
G.1. ON RENUNCIATION OF SHARE (DIFFERENT FROM RENUNCIATION OF CO-OWNERSHIP)
Other co-owners may choose not to contribute to the expenses by renouncing so much of his undivided interest as may be equivalent to his share of the necessary expenses and taxes.
Renunciation must be express; thus, failure to pay is nota renunciation of the right. Requires the consent of other co-owners because it is a case of dacion en pago (cessation of rights) involving expenses and taxes already paid. [J.B.L. Reyes]
Cannot renounce his share if it will be prejudicial to another co-owner.
G.2. REPAIRS FOR PRESERVATION First, notify other co-owners, as far as practicable.
Co-owner may advance expenses for preservation even without prior consent; he is entitled to reimbursement.
G.3. EMBELLISHMENTS OR
IMPROVEMENTS
(1) Notify co-owners of improvements and embellishments to be made.
If no notification is made, the co-owner who advanced the expenses will only have the right to be reimbursed if he proves the necessity of such repairs and the reasonableness of the expenses.
Exception: If proven that had there been a notification, they could have hired another who would charge lessor that they know of a store that sells the needed material at a cheaper price. The reimbursement will be limited to the amount that should have been spent had he notified the others, and the difference shall be borne by him alone. (2) Decisions by the majority must be
followed.
Act of Co-Owner Consent Needed
Preservation May be made at will by any co- owner but must first notify other co-owners if practicable Alterations Consensus of
Majority Lease for more
than 1 year Consensus of Majority Acts of
administration Majority of co-owners Improvement/ Embellishing the Thing/ Useful expenses Majority of co- owners
H. TERMINATION OR
EXTINGUISHMENT
H.1. TOTAL DESTRUCTION OF THING OR LOSS OF THE PROPERTY CO-OWNED Is there still co-ownership if a building is destroyed? Yes, over the land and the debris.
PAGE 116 OF 574 H.2. MERGER OF ALL INTERESTS IN ONE
PERSON
H.3. ACQUISITIVE PRESCRIPTION By whom
(1) A third person. [NCC 1106]
(2) A co-owner against the other co-owners. Requisites for acquisitive prescription against co-owners [Adille v CA (1988)]: (1) A co-owner repudiates the co-ownership
by executing unequivocal acts of repudiation leading to ouster of other co- owners;
(2) The act of repudiation is clearly made known to other co-owners;
(3) The evidence thereon is clear and conclusive; and
(4) The co-owner has been in possession thru open, continuous, exclusive and notorious possession of the property for the period required by law.
N.B.: there is a presumption that
possession of a co-owner is not adverse Registration under the Torrens system is constructive notice of title but is not sufficient notice of the act of repudiation.
[Adille v CA (1988)]
H.4. PARTITION OR DIVISION Procedure for Partition
Governing rule: Rule 69 of the Rules of Court.
How: By agreement of parties or by judicial decree.
Form: Oral or Written (Statute of Frauds does not operate here because it is not a conveyance of property but a mere segregation or designation of which parts belong to whom)
The Rules of Court do not preclude agreements or settlements.
Action for partition will determine:
(1) Whether or not the plaintiff is indeed a co-owner of the property
(2) How the property will be divided between the plaintiff and defendant. Effects of Partition
(1) Confers exclusive ownership of the property adjudicated to a co-heir.
(2) Co-heirs shall be reciprocally bound to warrant the title to and the quality of each property adjudicated.
(3) Reciprocal obligation of warranty shall be proportionate to the respective hereditary shares of co-heirs.
(4) An action to enforce warranty must be brought within 10 years from the date the right accrues.
(5) The co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate.
Rights against individual co-owners in case of partition [NCC 497]
The creditors are allowed to take part in the partition.
Reason for the rule: They own part of the interest of the co-owners who made the assignment or alienation.
Intervention of creditors and assignees General Rule: Creditors may take part in the division. They need to establish the existence of the credit during co-ownership. Exception: If the partition was already executed, they cannot impugn partitiion Exception to the exception: If there was fraud, or a previous formal opposition to prevent the partition, without prejudice to right of debtor/assignor to maintain its validity.
PAGE 117 OF 574 Rules on notice to creditors and
assignees:
(1) The law does not expressly require previous notice to the creditors and assignees before a partition, but the latter have the right of creditors and assignees to take part in the division. (2) If notice is not given, the partition may
be impugned by creditor/assignee if made in fraud of creditors.
(3) Once notice has been given, it is the duty of creditors and assignees to intervene and make known their stand.
(a) If they fail, they cannot question the division made, except in cases of fraud.
(b) If they formulate a formal question, they can contest such partition Partition of an indivisible thing (NCC 498)
1st option: The co-owners can agree that one
of them shall be the sole owner by paying the value of other co-owners’ shares
2nd option: If they cannot agree who among
them shall be sole owner, the property will be sold to a 3rd person and the proceeds
distributed among them.
VII. Possession
The holding of a thing or the enjoyment of a right. [NCC 523]