Rights of a landowner in case of encroachment

Dear PAO,

My friend and I purchased a 300-square-meter (sqm) lot. Based on our agreement, we will divide the property equally; she will be entitled to 150 sqm, and I will be entitled to the other 150 sqm. Before the partition, she asked for permission to begin the construction of her house on our co-owned lot, which I granted. When we finally decided to partition the lot, we discovered that her house encroached on my part of the lot. My friend strongly insisted that she should only pay me the value of the specific portion of the lot because she did not know of the encroachment. What are the options or remedies available to me as co-owner of the lot? Can my friend insist on purchasing the encroached portion of my land?

Katrin

Dear Katrin,

There are several remedies provided by law to landowners, in case there is an encroachment on their property. Art. 448 of the New Civil Code provides that:

«ARTICLE 448. The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof.»

Before discussing the available remedies, it is crucial to determine if the provision of law applies. The remedies provided under Art. 448 of the New Civil Code is applicable when someone builds, sows, or plants in good faith, on another's land. Hence, it is important to determine whether or not the builder could be considered as a builder in good faith.

Based on the case of Heirs of the Late Joaquin Limense, namely: Concesa Limense, Surviving Spouse; and Danilo and Joselito, both surnamed Limense, children, v. Rita