I. Partition (Rule 69)

G. Partition (Rule 69)

> 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 estate, 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 amounts 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 the title to the property 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) Section 13. 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, insofar as the same may be applicable. (13)

Partition

It is the separation, division, and assignment of property held in common among co-owners in proportion to their respective interests in the said property. (Civil Code, Art. 1079).

Note: The procedure for judicial partition is provided under Rule 69. For extrajudicial partition, no court intervention is required. This is recognized in Rule 69, Sec. 12.

G. Partition (Rule 69)

WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE DEFENDANTS

Plaintiff

The action shall be brought by the person who has a right to compel the partition of real estate (Sec. 1, Rule 69) or of an estate composed of personal property, or both real and personal property (Sec. 13, Rule 69), i.e. a co-owner

The plaintiff is a person who is the supposed coowner of the property or estate sought to be partitioned.

General Rule: Plaintiff is allowed to file a petition for partition ANY TIME as the Civil Code provides that NO co-owner shall be obliged to remain in the coownership. It can be made any time as the right to demand partition is imprescriptible. (Bautista v. Grino-Aquino, G.R. No. 79958, 1988).

Exceptions:

• If a co-owner asserts adverse title to the property, in which case the period of prescription runs from such time of assertion of adverse title;
• Existence of an agreement among co-owners to retain the property undivided for not exceeding ten (10) years (Civil Code, Art. 494);
• When co-owners are prohibited by the donor or testator for a period not exceeding twenty (20) years (Civil Code, Arts. 494 & 1083);
• When partition is prohibited by law (Civil Code, Art. 494);
• When the property is NOT subject to a physical division and to do so would render it unserviceable for the use which it is unintended; (Civil Code, Art. 495); and
• When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled (Civil Code, Art. 1084)

G. Partition (Rule 69)

MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION

Complaint for Partition

• Nature and extent of petitioner’s title;
• Adequate description of the real estate of which partition is demanded; and
• A demand for the accounting of the rents, profits, and other income from the property which he may be entitled to.

Petitioner MUST join as defendants all other persons interested in the property. (Sec. 1, Rule 69)

A demand for the accounting MUST be included as they are parts of the cause of action for partition. They cannot be demanded in another action and will be BARRED if not set up in the same action. (Sec. 8, Rule 69)

ORDER OF PARTITION AND PARTITION BY AGREEMENT

For an order of partition to issue, the court must determine

• Whether the plaintiff is truly a co-owner of the property;
• Whether there is indeed a co-ownership among the parties; and
• That a partition is not legally proscribed, thus may be allowed.

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. (Sec. 2, Rule 69).

A final order decreeing PARTITION and ACCOUNTING may be APPEALED by any party aggrieved thereby. (see Miranda v. CA, G.R. No. L33007, 1976)

Partition by Agreement

The parties may also make the partition among themselves by proper instruments of conveyance.

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, Rule 69)

If the parties CANNOT AGREE to the partition, the appointment of commissioners shall be had to preside over the partition proceedings.

In a situation where there remains an issue as to the expenses chargeable to the estate, partition is inappropriate. In this case, petitioner does not dispute the findings that “certain expenses” including those related to her father’s final illness and burial have not been properly settled. Thus, the heirs have to submit their father’s estate to settlement because the determination of these expenses cannot be done in an action for partition. But, 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. (Figuracion-Gerilla v. Vda. de Figuracion, G.R. 154322, 2005)

TWO STAGES IN EVERY ACTION FOR PARTITION

PARTITION BY COMMISSIONERS; APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON COMMISSIONER’S REPORT

Partition by Commissioners

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)

Commissioners are NOT ALLOWED to adjudicate on questions of title or ownership of the property. It is merely their duty to make OR effect the partition.

Commissioners are required to take an OATH that they will faithfully perform their duties as commissioners. Such oath shall be FILED in court.

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. (Id.)

Commissioner’s Report:

• The commissioners shall make a full and accurate report to the court of:
• Partition proceedings;
• Assignment of real estate to one of the parties; or
• The sale of the same. (Sec. 6, Rule 69)

Copies of the report shall be SERVED on ALL INTERESTED PARTIES. Opposition to such partition must be commenced by filing an objection within ten (10) days from receipt of report.

Court action upon commissioner’s report

After an objection has been filed OR the expiration of the ten (10) day period allowed for such objection, 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
• 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. (Sec. 8, Rule 69)

JUDGMENT AND ITS EFFECTS

The judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party.

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 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. (Sec. 11, Rule 69)

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. (Sec. 13, Rule 69)

PRESCRIPTION OF ACTION

General Rule: The right of action to demand partition does not prescribe (De Castro v. Echarri, G.R. No. 5609, 1911)

Exception: Where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership (Cordova v. Cordova, G.R. No. L-9936,1958) in which case, acquisitive prescription may set in.

If a co-owner repudiates the co-ownership and makes known such repudiation to the other coowners, 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, G.R. No. 75886, 1988)