Report on Art 448

8/22/2019 Report on Art 448

1/19

Bens Land

Khalils

House


2/19

Art 448

Rule When On the Land of aPerson in Good Faith, Another

Builds, Sows, or Plants in Bad

Faith


3/19

Art. 448.

The owner of the land on which anything has

been built, sown or planted in good faith, shall have the right

to appropriate as his own the works, sowing or planting,

after payment of the indemnity provided for in articles 546

and 548, or to oblige the one who built or planted to pay the

price of the land, and the one who sowed, the proper rent.However, the 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,

if the owner of the land does not choose to appropriate the

building or trees after proper indemnity. The parties shallagree upon the terms of the lease and in case of disagreement,

the court shall fi x the terms thereof.


4/19

Bens Land

Khalils

House


5/19

Bens Remedies

B is entitled to an option. He is

therefore allowed:

(a) to appropriate for himself the

house upon payment of the proper

indemnity;(b) or to compel the builder B to buy the land upon

which the house has been built, unless the valueof

the land be considerably more than the value of

the

house. (In the latter case, rent should be paid.)


6/19

Inter-Regional Development Corporation

v. Court of Appeals

L-89677, July 22, 1975

FACTS: On the land of someone, a person planted

certain crops. Does the landowner automatically or ipso

facto become the owner of said planted crops?

HELD: No, the owner of the land does not ipso factobecome the owner of what had been planted on his

land

by another. Firstly, we have to determine whether the

planter was in good faith or bad faith. Secondly,

assuming

that the planter was in good faith, the landowner, shouldhe desire to get the crops, must fi rst give the proper

indemnifi cation to the planter.


7/19

Tan Queto v. CA, et al.

GR 35648, Feb. 27, 1987

(Resolution on a Motion for Reconsideration,

setting aside the S.C. decision dated May 19,1983)

The net result of mutual bad faith between the

owner and the builder entitles the builder to the rights

of a builder in good faith. (Art. 448, Civil Code). Ergo, reimbursement should be

given to the builder if the owner

decides to appropriate the building for herself.

The Chapter on Possession (jus possessionis, not jus

possidendi) in the new Civil Code refers to a possessor

other than the owner. The difference between a builder (or possessor) in good

faith and one in bad faith is that

the former is NOT AWARE of the defect orfl aw in his

title or mode of acquisition while the latter is AWARE of

such defect orfl aw. (Art. 526, Civil Code). But in eithercase, there is a fl aw or defect.

A person who builds in his own property is not

merely a possessor or builder in good faith (this phrase

presupposes ownership in another) much less is he a

builder in bad faith. He is a builder-possessor (jus possidendi) because he is the

owner himself.


8/19

Fernandez Del Campo v. Abeisa

L-49219, Apr. 15, 1988

Plaintiffs and defendant are co-owners pro indiviso

of a lot in the proportion of 2/3 and 1/3 each, respectively.

An appointed commissioner submitted a partition. The

house built by defendants, however, happened to be in

the portion given to plaintiffs. Plaintiffs contended and

were upheld by lower court that defendant is not entitledto reimbursement of cost of house built because as a coowner he is not

a third person in contemplation of Art.

448 defi ning builder in good faith.

However, when as in this case, the co-ownership is

terminated by the partition and it appears that the house

of defendants overlaps or occupies a portion of 5 sq.m. of

the land pertaining to plaintiffs which defendants obviously built in good

faith, then the provisions of Art. 448

of the new Civil Code should apply.


9/19

Reason for the Provision It is true as a rule that whatever is built, planted, or

sown on the land of another should, by the principle of

accession, belong to him (landowner). However, when

the planter, builder, or sower has acted in good faith, a

conflict of rights arises between the owners, and it

becomes necessary to protect the owners of both

without causing injustice to either. In view of theimpracticability of creating what Manresa calls a state

of forced co-ownership (Vol. 3, 4th Ed., p. 213), the law

has provided a just and equitable solution. (Bernardo v.

Bataclan, 37 O.G. No. 74, p. 1382; see also Co Tao v.

Chan Chico, L-49167, Apr. 30, 1949). [NOTE: Thebuilder is considered in good faith if he thought that the

land was his: the landowner is in good faith if he did not

know that somebody was building on his land, or even

if he did know, if he expressed his objection. (See Co

Tao v. Chan Chico, Ibid.).].


10/19

Spouses Rafael Benitez and

Avelina Benitez v. CA

77 SCAD 793, GR 104828, Jan. 16, 1997

The advantage in Art. 448 is accorded the landowner

because his right is older, and because, by the

principle of accession,

he is entitled to the ownership of the accessory thing.

There can be no preemptive right to buy even as acompromise, as this prerogative belongs solely to the

landowner.

No compensation can be legally forced on him, contrary

to what

petitioners ask from this Court. Such an order would

certainly

be invalid and illegal.


11/19

Why Option Is Given to the

Landowner and Not to the

Planter or BuilderIt is the owner of the land who is allowed to

exercise the

option because:

(a) his right is older;

(b) and because, by the principle of

accession, he is

entitled to the ownership of the accessory

thing. (3

Manresa, p. 213, cited in the case of

Bernardo v.


12/19

Indemnity in Case of

AppropriationIn case the owner chooses to appropriate the thing built,

or sown, or planted, how much indemnity should be paid by

him?

ANS.: The indemnity provided for in Arts. 546 and 548 of

the new Civil Code. (Mendoza and Enriquez v. De Guzman, 52

Phil. 1641). Please note, however, that ownership over the thingbuilt or sown or planted does not pass to the landowner till after

payment therefor has been given. (TS, Jan. 2, 1928). Payment

is to be made either on the date fi xed by agreement or the date

fi xed by the Court. (Bataclan v. CFI, 61 Phil. 428).

[NOTE: After the owner of the land has given to the

builder or possessor in good faith the proper indemnities, the

builder or possessor may be ordered to VACATE the land.

(People v. Repato, L-17985, Sep. 29, 1962).].


13/19

Fernandez v. Abeisa

GR 49219, Apr. 15, 1988

FACTS: In an action for partition of a 45-square meter

lot, Concepcion got 2/3 or 30 square meters of the lot while

Bernarda got 1/3 or 15 square meters. After the houses of

Concepcion and Bernarda were surveyed, it was found that

the house of Bernarda occupied the portion of 5 squaremeters

of the lot alloted to Concepcion. Concepcion and Bernarda

manifested their conformity to the report of the

Commissioners

and asked the trial court to settle and adjudicate who

between

them should take possession of the 5 square meters of the


14/19

land in question. The trial court held that Art. 448 of the Civil

Code does not apply to a case where the builder is a co-owner.

Hence, it ordered Bernarda to remove part of the house which

encroached on the lot of Concepcion and to deliver the 5-meter

portion to the latter.

The Supreme Court modifi ed the decision of the trial courtby ordering Concepcion to indemnify Bernarda for the value of

the portion of the latters house in accordance with Art. 549 of

the Civil Code, if Concepcion elects to appropriate it. Otherwise,

Bernarda shall pay the value of the 5 square meters of land

occupied by her house at such price as may be agreed upon

with Concepcion. If its value exceeds the portion of the house

that Bernarda built, the latter may choose not to buy the land

but must pay a reasonable rental for the use of the portion of

Concepcions land as may be agreed upon by them. The Court

thus

Fernandez v. Abeisa

GR 49219, Apr. 15, 1988


15/19

HELD: Applying Article 448 of the Civil Code, Concepcion has

the right to appropriate said portion of the house of

Bernarda upon payment of indemnity to the latter as provided

for in Article 546 of the Civil Code. Otherwise, Concepcion may

oblige Bernarda to pay the price of the land occupied by her

house, but if the price asked for is considerably much more

than the value of the portion of Bernardas house built thereon,

then the latter cannot be obliged to buy the land. Bernarda

shall then pay the reasonable rent to Concepcion upon such

terms and conditions that they may agree. If they disagree,

the trial court shall fi x the terms thereof. Of course, Bernarda

may demolish or remove the portion of her house, at her own

expense if she so decides.

Fernandez v. Abeisa

GR 49219, Apr. 15, 1988


16/19

The Indemnities to be

Given(a) Necessary Expenses. (Art. 546,

par. 1).

(b) Useful Expenses. (Art. 546, par.

2).

(c) Luxurious Expenses if he

desires to appropriate them

for himself. (Art. 548).


17/19

Pecson v. CA

61 SCAD 385

(1995)

It is the current market value of

the improvementswhich should be made the

basis of reimbursement to the

builder in good faith.


18/19

Ballatan v. CA

304 SCRA 34

(1999)The right to choose between appropriating

the improvement or selling the land on

which the improvement of the builder,

planter, or sower stands is GIVEN to theOWNER of the land.

In the event that the owner elects to SELL

to the builder, planter, or sower the land or

which the improvement stands, the pricemust be FIXED at the prevailing

MARKET VALUE at the time of payment.


19/19

Rights of Landowner Before

He Makes the Choice

Before the landowner exercises the option, it is

evident

that he is not yet the owner of what ever has

been built, planted, or sown, for his only

right in the meantime is to exercise theoption. (TS, May 21, 1928). Neither builder

nor landowner can oust each other, for until

indemnity is paid, the builder has the right of

retention. (See Martinez v. Baganus, 28Phil. 500). It has been held by the Spanish

Supreme Court that ownership over the

accessory passes only after payment of the

indemnity.(TS, Jan. 2, 1928).

Documents

Report on Art 448