Spouses Del Campo vs. Abesia

Article 448 of the Civil Code does not apply between co-owners during the existence of the co-ownership, but becomes applicable when the co-ownership is terminated by partition and one co-owner has built in good faith on the portion subsequently allotted to another co-owner.

The dispute arose from a small parcel of urban land (45 sqm) co-owned by relatives in Cebu City. The conflict centered on whether the special rules governing builders in good faith (accession) or the rules governing co-ownership should apply when a co-owner’s building encroaches on another co-owner’s share after partition.

• Filed in the Court of First Instance (CFI) of Cebu as an action for partition.
• The CFI appointed a commissioner who subdivided the lot, allotting Lot 1161-A (30 sqm) to plaintiffs (Del Campo) and Lot 1161-B (15 sqm) to defendant (Abesia).
• The CFI rendered judgment ordering Abesia to remove and demolish the portion of her house encroaching on the Del Campos’ land, holding that Article 448 does not apply between co-owners.
• Abesia appealed to the Court of Appeals (CA).
• The CA certified the case to the SC on account of the pure question of law involved (applicability of Article 448 to co-owners).

• Nature of Action: Civil action for partition of a parcel of land (Lot No. 1161, Cadastral Survey of Cebu, covered by TCT No. 61850).
• Parties:
  • Plaintiffs-Appellees: Spouses Concepcion Fernandez del Campo and Estanislao del Campo (2/3 share).
  • Defendant-Appellant: Bernarda Fernandez Abesia (1/3 share).
  • Partition Scheme: The commissioner’s report, approved by the parties, subdivided the lot into Lot 1161-A (30 sqm for Del Campos) and Lot 1161-B (15 sqm for Abesia).
  • Encroachment: Abesia’s house occupied 5 square meters of Lot 1161-A (the Del Campos’ portion), which she had built while the property was still undivided and held in common.
  • Good Faith: Abesia built the encroaching portion in good faith, believing she had the right to build on the land as a co-owner.

• Abesia (Defendant-Appellant) argued that she is a builder in good faith under Article 448, having built the encroaching portion while the land was still co-owned and undivided.
• She contended that the trial court erred in ordering her to demolish the encroaching portion instead of applying Article 448, which would allow her to either pay the price of the land or pay reasonable rent if the land value exceeds the building value.
• She maintained that the rights of a builder in good faith should protect her from demolition.

• The Del Campo spouses (Plaintiffs-Appellees) argued that Article 448 does not apply to co-owners building on land held in common.
• They cited authorities (Manresa, Planiol and Ripert, Tolentino) and the case of Viuda de Arias vs. Aguilar holding that a co-owner is not a "third person" under Article 448, and the situation is governed by the rules of co-ownership, not accession.
• They asserted that since Abesia built on land she co-owned (not land exclusively belonging to another), she cannot invoke Article 448 and must remove the encroachment.

• Procedural Issues: N/A
• Substantive Issues:
  • Whether Article 448 of the Civil Code applies to a co-owner who builds, plants, or sows on land owned in common, specifically after the co-ownership is terminated by partition.
  • Whether the trial court erred in ordering the defendant to remove and demolish the encroaching portion of her house.

• Procedural: N/A
• Substantive:
  • General Rule: Article 448 does not apply where a co-owner builds on land owned in common because the builder is not a "third person" and the matter is governed by the rules of co-ownership (e.g., Article 486, Civil Code).
  • Exception: Article 448 applies when the co-ownership is terminated by partition and it appears that the house of one co-owner overlaps or occupies a portion of the land pertaining to another co-owner, provided the builder acted in good faith.
  • Application: Since Abesia built the encroaching portion in good faith, and the co-ownership had been terminated by the partition, Article 448 applies.
• Modified Relief: The Del Campo spouses have the right to:
  1. Appropriate the encroaching portion of the house upon payment of indemnity to Abesia as provided in Article 546 of the Civil Code; or
  2. Oblige Abesia to pay the price of the 5 square meters of land; but
  3. If the price of the land is considerably more than the value of the portion of the house built thereon, Abesia cannot be obliged to buy the land but must pay reasonable rent to the Del Campos, with the terms to be fixed by agreement or by the trial court in case of disagreement; or
  4. Abesia may choose to remove or demolish the encroaching portion at her own expense.

• Builder in Good Faith (Article 448) — A builder in good faith is one who builds on the land of another believing himself to be the owner thereof or having some claim of title thereto. The SC applied the general rule that a co-owner building on the common property is not a "third person" under Article 448 because he builds on his own undivided share, and the situation is governed by co-ownership rules, not accession.
• Applicability of Article 448 upon Termination of Co-ownership — The SC established that while Article 448 does not apply during the subsistence of co-ownership, it becomes applicable once the co-ownership is terminated by partition. At that point, the builder who encroaches on the portion allotted to another co-owner is treated as a builder on the land of another (a "third person"), and the rights under Article 448 govern the relationship.
• Rights of the Landowner under Article 448 — The landowner has the right to: (1) appropriate the works after payment of indemnity; or (2) oblige the builder to pay the price of the land. However, if the land value is considerably more than the building, the builder cannot be obliged to buy but must pay reasonable rent. The builder retains the right to remove the works if he so chooses.

• "The court a quo correctly held that Article 448 of the Civil Code cannot apply where a co-owner builds, plants or sows on the land owned in common for then he did not build, plant or sow upon land that exclusively belongs to another but of which he is a co-owner. The co-owner is not a third person under the circumstances, and the situation is governed by the rules of co-ownership."
• "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 square meters of the land pertaining to plaintiffs which the defendants obviously built in good faith, then the provisions of Article 448 of the new Civil Code should apply."

• Viuda de Arias vs. Aguilar (CA) — Cited by the trial court and parties for the general rule that Article 448 cannot be invoked by one co-owner against another who builds on their common land, since the latter does not build on land not belonging to him.

• Article 448, Civil Code — Governs the rights of the landowner and the builder, planter, or sower in good faith when something is built, planted, or sown on the land of another.
• Article 546, Civil Code — Provides for the indemnity for useful expenses and improvements made by a possessor in good faith, which the landowner must pay if he appropriates the building under Article 448.

• N/A (Chief Justice Teehankee, and Justices Narvasa, Cruz, and Griño-Aquino concurred without separate opinions).