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Prohibition on partition is valid

Dear PAO,

My father left a huge tract of land and stated in his last will and testament that he forbade the partition and sale of the said property for 10 years. We are in dire need of money and would like to partition and sell the property already. Is the prohibition valid?


Dear Ana,

For your information, under Article 494 of the New Civil Code of the Philippines, it is stated that:

«Art. 494. 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.

»Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement.

«A donor or testator may prohibit partition for a period which shall not exceed twenty years.

»Neither shall there be any partition when it is prohibited by law.

«No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.» (Emphasis supplied)

Based on the foregoing, a provision in a contract prohibiting the partition of a property is recognized by law. It is valid provided it complies with the requirements, particularly on the period. For a contract of donation or testamentary disposition, the prohibition may last up to 20 years. Thus, in your case, the prohibition stated under the last will and testament made by your father is valid and binding as it is well within the twenty-year limit. Hence, you and the other heirs would have to wait for 10 years before you can partition and sell the 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 on.

Editor's note: Dear PAO is a daily column of the Public Attorney's Office. Questions for Chief Acosta may be sent to [email protected]