Define partition
Partition
is the process of dividing and assigning property owned in common among the
various co-owners thereof in proportion to their respective interests in the
property.
Partition is the separation, division and assignment of a thing held in
common among those to whom it may belong (Cruz vs. CA, 456 SCRA 165).
● It presupposes the existence of a co-ownership over a property between
two or more persons. The rule allowing partition originates from a
well-known principle embodied in the Civil Code, that no co-owner shall be
obliged to remain the co-ownership. Because of this rule, he may demand at any
time the partition of the property owned in common (Art. 494, Civil Code).
Kinds of
partition
1.
Judicial - governed by Rule 69
2.
Extrajudicial -no court intervention is required
Who may file complaint?
The action shall be brought by the person who has a right to compel the
partition of real estate (Rule 69,
Sec. 1) or of an
estate composed of personal property, or both real and personal property (Sec. 13).
The plaintiff is a person who is supposed to be a co-owner of the
property or estate sought to be partitioned.
Who
should be made defendants?
The defendants are all the co-owners. All the co-owners must be joined.
Accordingly, an action will not lie without the joinder of all co-owners and
other persons having interest in the property (Reyes vs. Cordero, 46 Phil. 658). All the co-owners, therefore,
are indispensable parties. Creditors or assignees of co-owners may
intervene and object to a partition effected without their concurrence. But
they cannot impugn a partition already executed, unless there has been fraud,
or in case it was made notwithstanding a formal opposition presented to prevent
it. (Art. 497, Civil Code)
Matters
to allege in the complaint for partition
The plaintiff shall state in his complaint:
1. the nature and extent of his title;
2. an adequate description of the real estate of which partition
is demanded;
3. joining as defendants all other persons interested in the
property (Rule 69,
Sec. 1).
4. He must also include a demand for the accounting of the rents,
profits and other income from the property which he may be entitled to (Rule 69, Sec. 8). These cannot be demanded in another action
because they are parts of the cause of action for partition. They will be
barred if not set up in the same action pursuant to the rule against splitting
a single cause of action.
Two
stages in every action for partition
1. First stage - determination of the propriety of partition (EXISTENCE OF
CO-OWNERSHIP)
▪ Determination of whether or not co-ownership in
fact exists and a partition is proper and may be made by voluntary agreement of
all the parties interested in the property. This phase may end either (a) with
a declaration that plaintiff is not entitled to have a partition or (b) with
judgment that a co-ownership exists, and that partition and accounting of rents
and profits received by the defendant in question is in order. (Municipality
of Biñan vs. Garcia, 180 SCRA 576, 1989)
▪ This involves a determination of whether the
subject property is owned in common and whether all the co-owners are made
parties in the case. The order may also require an accounting of rents and
profits recovered by the defendant. This order of partition is APPEALABLE. If
not appealed, then the parties may partition the common property in the way
they want. If they cannot agree, then the case goes into the second stage.
However, the order of accounting may in the meantime be executed.
2. Second stage - the actual partitioning of the subject property (ACCOUNTING)
▪ Commences when the parties are
unable to agree upon the partition directed by the court. In that event, partition
shall be done for the parties by the court with the assistance of not more than
3 commissioners. This second stage may well also deal with the rendition of the
accounting itself and its approval by the court after the parties have been
accorded opportunity to be heard thereon, and an award for the recovery by the
party or parties thereto entitled of their just share in the rents and profits
of the real estate in question. (Municipality
of Biñan vs. Garcia, supra.)
● A reading of the Rules will reveal that there are actually three (3)
stages in the action, each of which could be the subject of appeal: a) the
order of partition where the property of the partition is determined; b)
the judgment as to the accounting of the fruits and income of the property;
and c) the judgment of partition (Riano, Civil Procedure (A Restatement for the Bar), 2007).
Issues
1. Whether plaintiff is indeed a
co-owner of the property sought to be partitioned.
2. How the property is to be
divided between plaintiff and defendant, that is, what portion should go to
each co-owner.
Order of partition and partition
by agreement
(1) During the trial, the court shall determine whether or not the
plaintiff is truly a co-owner of the property, that there is indeed a
co-ownership among the parties, and that a partition is not legally proscribed
thus may be allowed. If the court so finds that the facts are such that a
partition would be in order, and that the plaintiff has a right to demand
partition, the court will issue an order of partition.
(2) The court shall order the partition of the property among all
the parties in interest, if after trial it finds that the plaintiff has the
right to partition (Rule 69, Sec. 2). It was held that this order of
partition including an order directing an accounting is final and not
interlocutory and hence, APPEALABLE;
thus, revoking previous contrary rulings on the matter. A final order decreeing
partition and accounting may be appealed by any party aggrieved thereby. (Rule 69, Sec. 2)
▪ The period to
appeal in partition proceedings is 30 days because of the requirement of the
submission of a record on appeal.
(3) Partition by agreement.
The order of partition is one that directs the parties or co-owners to
partition the property and the parties may make the partition among themselves
by proper instruments of conveyance, if they agree among themselves. If they do
agree, the court shall then confirm the partition so agreed upon by all of the
parties, and such partition, together with the order of the court confirming
the same, shall be recorded in the registry of deeds of the place in which the
property is situated(Sec. 2). There always exists the
possibility that the co-owners are unable to agree on the partition. If they
cannot partition the property among themselves, the next stage in the action
will follow the appointment of commissioners.
What must the court do if the
parties fail to agree on a partition?
If the parties are unable to agree upon the partition, the court shall
appoint not more than three (3) competent and disinterested persons as
commissioners to make the partition, commanding them to set off to the
plaintiff and to each party in interest such part and proportion of the
property as the court shall direct. (Rule
69, Sec 3)
What shall the commissioners do
before they enter into performance?
Before making such partition, the commissioners shall take and subscribe
an oath that they will faithfully perform their duties as commissioners, which
oath shall be filed in court with the other proceedings in the case.
In making the partition, the commissioners shall view and examine the
real estate, after due notice to the parties to attend at such view and
examination, and shall hear the parties as to their preference in the portion
of the property to be set apart to them and the comparative value thereof, and
shall set apart the same to the parties in lots or parcels as will be most
advantageous and equitable, having due regard to the improvements, situation
and quality of the different parts thereof. (Rule
69, Sec 4)
Assignment or Sale
If the real estate cannot be divided without prejudice to the parties’
interests, the court may
1. Assign it to one of the parties willing to take the same, PROVIDED he
pays to the other parties an amount deemed equitable by the commissioners
2. SELL it if one of the parties asks that the property be sold instead
of being so assigned, in which case the court shall order the commissioners to
sell the real estate at public sale under such conditions and within such time
as the court may determine. (Rule 69, Sec
5)
Report of commissioners;
proceedings not binding until confirmed
The commissioners shall make a full and accurate report to the court of
all their proceedings as to the partition, or the assignment of real estate to
one of the parties, or the sale of the same. Upon the filing of such report,
the clerk of court shall serve copies thereof on all the interested parties
with notice that they are allowed ten (10) days within which to file objections
to the findings of the report, if they so desire. No proceeding had before or
conducted by the commissioners shall pass the title to the property or bind the
parties until the court shall have accepted the report of the commissioners and
rendered judgment thereon. (Rule 69, Sec
6)
What may the court do with the commissioners’ report?
Upon the expiration of the period of ten (10) days referred to in the
preceding section, or even before the expiration of such period but after the
interested parties have filed their objections to the report or their statement
of agreement therewith, the court may, upon hearing,
1. ACCEPT the report and
render judgment in accordance therewith; or,
2. for cause shown, RECOMMIT the
same to the commissioners for further report of facts; or
3. SET ASIDE the report and appoint
new commissioners; or
4. ACCEPT the report in part
and reject it in part; and may
5. MAKE such order and render
such judgment as shall effectuate a fair and just partition of the real estate,
or of its value, if assigned or sold as above provided, between the several
owners thereof. (Rule 69, Sec 7)
What
shall the judgment in partition states?
1) If actual partition is made, the judgment shall state
definitely, by metes and bounds and adequate description, the particular
portion of the real estate assigned to each party, and the effect of the
judgment shall be to vest in each party to the action in severalty the portion
of the real estate assigned to him.
2) If the whole property is assigned to one of the parties upon
his paying to the others the sum or sums ordered by the court, the judgment
shall state the fact of such payment and of the assignment of the real estate
to the party making the payment, and the effect of the judgment shall be to
vest in the party making the payment the whole of the real estate free from any
interest on the part of the other parties to the action.
3) If the property is sold and the sale confirmed by the court,
the judgment shall state the name of the purchaser or purchasers and a definite
description of the parcels of real estate sold to each purchaser, and the
effect of the judgment shall be to vest the real estate in the purchaser or
purchasers making the payment or payments, free from the claims of any of the
parties to the action.
4) A certified copy of the judgment shall in either case be recorded
in the registry of deeds of the place in which the real estate is situated,
and the expenses of such recording shall be taxed as part of the costs of the
action (Rule 69, Sec. 11).
Partition of personal property
The provisions
of this Rule shall apply to partitions of estates composed of personal
property, or of both real and personal property, in so far as the same may be
applicable (Rule
69, Sec. 13).
Prescription of action
1) Action for partition is does not prescribe for as
long as the co-owners expressly or impliedly recognize the co-ownership (Art.
494, CC). However, if a co-owner repudiates the co-ownership and makes
known such repudiation to the other co-owners, then partition is no longer a
proper remedy of the aggrieved co-owner. He should file an accion reivindicatoria which is
prescriptible.
2) The action
for partition cannot be barred by prescription as long as the co-ownership
exists (Aguirre vs. CA, 421 SCRA 310).
3) But while the action to demand partition of a
co-owned property does not prescribe, a co-owner may acquire ownership thereof
by prescription where there exists a clear repudiation of the co-ownership and
the co-owners are apprised of the claim of adverse and exclusive ownership.
Instances
when a co-owner may not demand partition at any time:
a)
There is an agreement among the co-owners to keep the property undivided for a
certain period of time but not exceeding ten years (Art. 494, CC);
b)
When partition is prohibited by the donor or testator for a period not
exceeding 20 years (Art. 494, CC);
c)
When partition is prohibited by law (Art. 494, CC);
d)
When the property is not subject to a physical division and to do so would
render it unserviceable for the use for which it is intended (Art. 495, CC);
e)
When the condition imposed upon voluntary heirs before they can demand
partition has not yet been fulfilled (Art. 1084, CC).
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