“Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.” (Emphases supplied)
Further, the Supreme Court in the case of Extraordinary Development Corporation vs. Herminia F. Samson-Bico and Ely B. Flestado (GR 191090, Oct. 13, 2014), through Associate Justice Jose Perez discussed the following:
“We are not unaware of the principle that a co-owner cannot rightfully dispose of a particular portion of a co-owned property prior to partition among all the co-owners.
However, this should not signify that the vendee does not acquire anything at all in case a physically segregated area of the co-owned lot is in fact sold to him. Since the co-owner/vendor’s undivided interest could properly be the object of the contract of sale between the parties, what the vendee obtains by virtue of such a sale are the same rights as the vendor had as co-owner, in an ideal share equivalent to the consideration given under their transaction. In other words, the vendee steps into the shoes of the vendor as co-owner and acquires a proportionate abstract share in the property held in common.” (Emphases supplied)
Clearly, your brother can alienate and dispose of only his proportionate share on the leased property and not the entire property. He is only entitled to one half share in the property. Your cousin, as the buyer, only steps into the shoes of your brother as a co-owner and can only acquire the share of your brother.
We hope that we were able to answer your queries. 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.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org
By: Chief Public Attorney Persida Acosta