Rule 69
Partition
Section 1. Complaint in action for partition of real estate. — A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. (1a)
Section 2. Order for partition and partition by agreement thereunder. — If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all 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. (2a)
A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (n)
Section 3. Commissioners to make partition when parties fail to agree. — 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. (3a)
Section 4. Oath and duties of commissioners. — 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. (4a)
Section 5. Assignment or sale of real estate by commissioners. — When it is made to appear to the commissioners that the real state, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amount as the commissioners deem equitable, unless one of the interested 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. (5a)
Section 6. 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 title to the party or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment thereon. (6a)
Section 7. Action of the court upon 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, accept the report and render judgment in accordance therewith, or, for cause shown recommit the same to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part; and may 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. (7)
Section 8. Accounting for rent and profits in action for partition. — In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. (8a)
Section 9. Power of guardian in such proceedings. — The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent. (9a)
Section 10. Costs and expenses to be taxed and collected. — The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the action, including the compensation of the commissioners, having regard to the interests of the parties, and execution may issue therefor as in other cases. (10a)
Section 11. The judgment and its effect; copy to be recorded in registry of deeds. — If actual partition of property 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. 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. 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. 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. (11a)
Section 12. Neither paramount rights nor amicable partition affected by this Rule. — Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made, nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action. (12a)
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What is partition?
Partition is the separation, division and assignment of a thing held in common among those to whom it may belong.
Partition 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 of the Philippines that no co-owner shall be obliged to remain in 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).
What are the instances when a co-owner may not demand partition?
1. There is an agreement among the co-owners to keep the property undivided for a certain period of time but not exceeding 10 years (Art. 494, Civil Code).
2. When partition is prohibited by the donor or testator for a period not exceeding 20 years (Art. 494, Art. 1083, Civil Code).
3. When partition is prohibited by law [ex. ACP, party wall] (Art. 494, Civil Code).
4. 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, Civil Code).; or
5. When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled (Art. 1084, Civil Code).
Who may file an action for partition?
The action shall be brought by the person who has a right to compel the partition of real estate (Sec 1, Rule 69) 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 in actions for partition?
All persons considered as co-owners and interested in the property to be partitioned are indispensable parties to the action and must be impleaded. [Sepulveda v. Pelaez (2005)]
Where should an action for partition be filed?
● Actions for partition should be filed in the RTC of the province where the property or part thereof is situated. If several distinct parcels of land are situated in different provinces, venue may be laid in the RTC of any of said provinces. [Pancho v. Villanueva,(1956)]
● Because the issues to be determined by the court are incapable of pecuniary estimation, the action shall be filed in the RTC and since it is an action which involves interest in real property, it shall be brought in the place where the property is situated.
When should an action for partition be filed?
No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. (Art. 494, Civil Code)
Does an action for partition prescribe?
● The rule is that the action for partition does not prescribe so long as the co-ownership is expressly or impliedly recognized (Art. 494, Civil Code).
● The right of action to demand partition does not prescribe [De Castro v. Echarri (1911)], EXCEPT where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership [Cordova v. Cordova (1958)] in which case, acquisitive prescription may set in.
● 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. [Roque v. IAC (1988)]
What must be alleged in the complaint?
1. The plaintiff shall state in his complaint, the nature and extent of his title, an adequate description of the real estate of which partition is demanded, and shall join as defendants all other persons interested in the property (Sec. 1, Rule 69).
2. 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 (Sec. 8, Rule 69). 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.
● When the allegations of the complaint allege that the plaintiff asserts exclusive ownership of the party sought to be partitioned, the nature of the action is not one for partition. It is an action for the recovery of property.
How shall partition be made?
Partition may be made in either of two ways:
1. By agreement of the parties; or
2. By judicial proceedings under the Rules of Court (Art. 496, Civil Code).
● If the co-owners cannot agree on the partition of the property, the only recourse is the filing of an action for partition.
What are the two stages in every action for partition?
1. Determination of the propriety of partition - 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. [Miranda v. Court of Appeals(1976)]
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. [De Mesa v. CA (1994)]
2. The actual partitioning of the subject property - This is also a complete proceeding and the order or decision is appealable.
When there was a prior partition, the fact that the share of each co-heir has not been technically described and the title over the whole lot remains uncancelled does not negate such partition. There can be no partition again because there is no more common property. [Noceda v. CA (1999)]
Order of partition
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.
Partition by agreement
1. After the issuance of the order of partition, the parties will then be asked if they agree to make partition of the property among themselves.
2. If they agree, proper instruments of conveyance will be executed to effect the partition.
3. After the execution of instruments of conveyance, the court shall confirm the partition through a final order.
4. The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. (Sec. 2, Rule 69)
5. If they do not agree, there will be a partition by commissioners.
Partition by court-appointed commissioners
1. 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. (Sec. 3, Rule 69)
2. If the commissioners determine that the property cannot be divided without prejudice to the interests of the parties, the court may order that the property be assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as the commissioners deem equitable. Instead of being so assigned, an interested party may ask that the property be sold, in which case the court shall order the commissioners to sell the property at a public sale (Sec. 5, Rule 69)
3. The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition. Upon the filing of such report, copies thereof shall be served by the clerk of court upon all 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 (Sec. 6, Rule 69).
4. The court, may, upon hearing, accept the report and render judgment in accordance with the same. The court may, instead of accepting the report, recommit the same to the commissioners for further report of facts. It may also accept the report in part or reject the report in part or it may render such judgment that shall effectuate a fair and just partition of the real estate (Sec. 7, Rule 69). Under Sec. 7, the court cannot render judgment on the report forthwith upon its receipt of the same. The rule mandates that a hearing must be conducted before a rendition of a judgment.
5. The proceedings had before the commissioners shall not bind the parties or pass title to property until the court shall have accepted the report of the commissioners and rendered judgment thereon (Sec. 6, Rule 69).
6. A certified copy of the judgment shall be recorded in the registry of deeds of the place in which the real estate is situated (Sec. 11, Rule 69)
Subject of appeal
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, to wit: (a) the order of partition where the propriety 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. The action hence, admits multiple appeals and would require a record on appeal.
Can there be partition if there are expenses to be paid from the estate?
In a situation where there remains an issue as to the expenses chargeable to the estate, partition is inappropriate. The determination of the expenses like those related to the deceased's final illness and burial which are chargeable to the estate cannot be done in an action in partition. Thus, the heirs have to first submit their father's estate to settlement because in estate settlement proceedings, there is a proper procedure for the accounting of all expenses for which the estate must answer. If it is any consolation at all to petitioner, the heirs or distributees of the properties may take possession thereof even before the settlement of accounts, as long as they first file a bond conditioned on the payment of the estate's obligations.
