Dear PAO,

My four siblings and I owned a parcel of land located in our home province. With the consent of our youngest brother, our second cousin built a house on a lot adjacent to our land. However, the house encroached on our co-owned land. When I learned of the newly built house, I demanded that the intruding structure be demolished, but the same was not heeded. On the other hand, our cousin argued that he was allowed to do so by our brother. Can a structure be validly constructed on our land without the consent of all of us/ owners?

Joj

Dear Joj,

In the case of Leonor B. Cruz v. Teofila M. Catapang (GR 164110, Feb. 12, 2008), penned by Associate Justice Leonardo Quisumbing, the Supreme Court has held that a co-owner cannot give valid consent to another to build a house on the co-owned property without the consent of all other co-owners, viz:

“x x x, [W]e have held that a co-owner cannot devote common property to his or her exclusive use to the prejudice of the co-ownership. In our view, a co-owner cannot give valid consent to another to build a house on the co-owned property, which is an act tantamount to devoting the property to his or her exclusive use.”

Furthermore, Articles 486 and 491 of the Civil Code provide:

“Art. 486. Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. The purpose of the co-ownership may be changed by agreement, express or implied.

“Art. 491. None of the co-owners shall, without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom. However, if the withholding of the consent by one or more of the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief. xxx

“xxx It necessarily follows that none of the co-owners can, without the consent of the other co-owners, validly consent to the making of an alteration by another person, such as respondent, in the thing owned in common. Alterations include any act of strict dominion or ownership and any encumbrance or disposition has been held implicitly to be an act of alteration. The construction of a house on the co-owned property is an act of dominion. Therefore, it is an alteration falling under Article 491 of the Civil Code. There being no consent from all co-owners, respondent had no right to construct her house on the co-owned property.” (Emphasis and underscoring supplied)

In accordance therewith, none of the co-owners can, without the consent of all the other co-owners, validly consent to any alteration by a third person on the co-owned property. As such, the consent given by your youngest brother did not vest in your cousin any right to encroach on the subject co-owned property. Simply put, because there was no consent from all co-owners, your cousin had no right to construct a house on the co-owned property.

We hope that we were able to answer your queries. 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.