Dear PAO,

My siblings and I own a piece of property in Laguna. We inherited it from our parents. We
decided to establish a family corporation so that we can build a subdivision and develop the
property. However, it has already been 15 years since we inherited the property. It appears that
my siblings are not all that serious to develop the property, and it is now being occupied by
illegal settlers. I would like to just claim my share of the property. How can I go about this
process? Can I do this even if my siblings are not willing?
Diana

Dear Diana,
At present, you and your siblings are co-owners of the property you inherited from your parents.
According to Article 494 of the Civil Code, “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.”

The law provides, however, that if you and your siblings entered into an agreement to keep the
thing undivided for a certain period of time not exceeding ten years, then you cannot demand
partition. Likewise, partition of the thing cannot be demanded if it will render the thing
unserviceable (Article 495, Civil Code).

If none of these conditions apply to your co-ownership, then you may demand partition either by
agreement, if your siblings agree to divide the property, or by judicial proceeding. If you and
your siblings cannot agree on the partition, you may file an Action for Partition under Rule 69 of
our Rules of Court. Under Section 1 of the said Rule, “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 prescription of the real estate of which partition is
demanded and joining as defendants all other persons interested in the property.”

In judicial partition, it does not matter if your siblings are willing or not to divide the property.
During such partition, they may either buy you out (if you are amenable to this or if partition of
the property is impossible, as when the property is too small) or give your share in the property.

We hope that we were able to enlighten you on the matter. Please be reminded that this advice is
based solely on the facts you have narrated and our appreciation of the same. Our opinion may
vary when other facts are changed or elaborated.
Dear PAO,

We are five siblings, all of legal age. Our parents are already deceased leaving no will. We have
an ancestral property in La Union still registered under the name of our parents. My siblings and
I are planning to have the property partitioned under extrajudicial process.

Our ancestral home is still intact in that land. How do we go about dividing the land? Do we
have to tear down the house before we can proceed with the partition process? Or can we
proceed with the partition of the land with the house intact? The problem is that one of my nieces
and her family live in the ancestral house. We have asked them to vacate, but they don’t want to.
In fact, her father, one of our siblings, doesn’t want them to leave either. The house is the
sticking point in our quest for a fair, just and equal distribution of our ancestral land property.
Please advice us on how to deal with this issue.
M.L.

Dear M.L.,
Partition, in general, is the separation, division and assignment of a thing held in common among
those to whom it may belong (Article 1079, Civil Code). The heirs of a deceased who are all of
age or minors who are re-presented by their judicial or legal representatives duly authorized for
the purpose may divide the estate among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds. This process of division is called
extrajudicial partition and governed under Section 1, Rule 74, Rules of Court.

Before partition, the ow-nership over an undivided thing or right is owned in common by all
heirs (Article 1078, Civil Code). But, a co-owner may demand at any time the partition of the
said thing owned in common, insofar as his share is con-cerned (Article 494, Civil Code). In the
partition thereof, equality shall be observed as far as possible, dividing the property into lots, or
assigning to each of the co-heirs things of same nature, quality and kind (Article 1085, Civil
Code), However, should a thing be indivisible or would be much impaired by its being divided, it
may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash
(Article 1086, Civil Code). If the co-heirs could not agree that it be allotted to one of them who
shall indemnify the others, it shall be sold and its proceeds distributed (Article 498, Civil Code).

Clearly, the ancestral house and lot cannot be physically divided to you and your siblings
because the physical division of the house would make it worthless. The house cannot be
demolished in order to partition the land because the house is part of the estate, unless all of your
siblings would agree to this. Con-sidering that one of your nieces stays in the house with the
consent of her father who is your sibling, you may assign the ancestral house and land to that
sibling after he pays the other siblings with their respective shares in cash. If you or one of your
other siblings refuses to allot the property to that sibling whose daughter is staying in the house,
the said property may be sold and the proceeds distributed equally to all children. Nevertheless,
since there is already a disagreement as to the division of the an-cestral property, it would be best
to file a petition for partition in court in order to resolve the manner of its partition.

Please be reminded that the above legal opinion is solely based on our appreciation of the
problem that you have stated. The opinion may vary when other facts are elaborated therein.