Overview

When a person dies leaving property to multiple heirs, the heirs generally become co-owners of the hereditary property in undivided shares until the estate is settled and the property is partitioned. This “co-heir co-ownership” is a common flashpoint for conflict—especially when one heir builds, expands, fences, or “claims” a portion of the land without the consent of the others.

This article discusses (1) how co-ownership among heirs works in Philippine law, (2) how partition is done (voluntary or judicial), and (3) the remedies available when a co-heir undertakes unauthorized construction on the co-owned property.

I. Co-Ownership Among Co-Heirs: What It Means in Law

A. The nature of a co-heir’s right (an “ideal” or undivided share)

Under the Civil Code rules on co-ownership (Articles 484–501), co-ownership exists when ownership of an undivided thing or right belongs to different persons. For heirs, this means:

Each heir owns an undivided ideal share (e.g., 1/3, 1/5) of the entire property.
Until partition, no heir can point to a specific corner and say “this exact portion is mine” as a matter of right—unless there has been a valid partition or a binding agreement allocating specific portions.

A co-heir’s share is conceptually “everywhere and nowhere”: it attaches to the whole property in proportion to the heir’s fractional interest.

B. Key rights of a co-owner (co-heir) before partition

Philippine co-ownership doctrine recognizes these core rights:

Right to use and possess the property A co-owner may use the property consistent with its purpose and without:
- injuring the co-ownership, or
- preventing other co-owners from using it.
Right to share in fruits and benefits Rentals, produce, and other benefits belong to the co-owners in proportion to their shares, subject to rules on expenses and accounting.
Right to protect the property A co-owner may bring actions necessary to preserve the property and, in many contexts, may sue third parties to recover possession or stop interference.
Right to alienate or encumber one’s ideal share A co-owner may sell, assign, or mortgage only the ideal share, but the buyer or mortgagee steps into the same co-ownership position (still undivided; still subject to partition).
Right to demand partition As a rule, no co-owner can be compelled to remain in co-ownership indefinitely.

C. Key limits on a co-owner’s powers (where disputes usually arise)

No unilateral “alterations” As a general rule, no co-owner may make alterations in the thing owned in common without the consent of the others, even if the change appears useful or beneficial.
Acts of administration vs. acts of ownership/disposition
- Administration (routine management) may often be decided by a majority in interest (not merely majority in headcount), subject to court intervention if prejudicial.
- Disposition of the property itself (selling the whole, permanently allocating parts, major alterations) generally requires broader consent consistent with co-ownership principles and the nature of the act.
No exclusion (no “ousting” co-heirs) A co-owner cannot lawfully exclude other co-owners from enjoying the property. Exclusive possession can be lawful only if:
- others consent, or
- there has been a partition, or
- a court order authorizes it.

II. Partition: The Primary Long-Term Solution

Unauthorized construction disputes often happen because the co-ownership has remained unresolved. Partition converts undivided shares into definite, exclusive ownership over specific portions (or an equivalent value).

A. What partition does—and does not do

Partition does:

identify who the co-owners are,
determine each share,
physically divide the property (when feasible), or
allocate the property to one with payment to others, or
order a sale and divide proceeds.

Partition does not:

automatically settle all claims for damages, rentals, or improvements—unless these are raised and resolved alongside the partition.
erase third-party rights (e.g., registered liens) that validly attach, though it can reallocate burdens.

B. The right to demand partition: general rule and exceptions

General rule: Any co-owner may demand partition at any time.

Common exceptions/qualifications:

Agreement not to partition: Co-owners may agree not to partition for a period (commonly up to 10 years, renewable by a new agreement).
Indivisibility or serious prejudice: If physical division is impracticable or would substantially impair the property’s value or utility, partition may be done through:
- allotment to one with indemnity to others, or
- sale and division of proceeds.
Legal restrictions: Certain property regimes (easements, party walls, condominiums, or zoning realities) can affect how partition is implemented.

III. Modes of Partition in the Philippine Setting

Partition involving heirs commonly appears in two pathways:

A. Voluntary partition / extrajudicial settlement (common in family property)

When heirs are in agreement (and conditions are met), they may execute a deed dividing property among themselves.

Typical features and safeguards:

Often done as part of extrajudicial settlement of estate under Rule 74 of the Rules of Court (especially for intestate estates).
Publication requirements commonly apply for extrajudicial settlement.
The deed is registered to effect transfer/issuance of titles where the land is titled.
Rights of creditors and omitted heirs must be respected; certain challenges and time-bound remedies exist under procedural rules.

Important practical constraint: Even if heirs agree on paper, land titling and tax compliance often control whether the partition can be fully implemented (e.g., issuance of new TCTs).

B. Judicial partition (when agreement fails)

If heirs cannot agree, partition may be filed as a court action—often under Rule 69 (Partition), or as part of estate settlement proceedings where partition/distribution is supervised.

General structure (two-stage logic):

Stage 1: Determination of rights The court determines:
- who the co-owners/heirs are,
- the property covered,
- each party’s share.
Stage 2: Actual partition The court may appoint commissioners to propose a fair division, or if division is not feasible, order:
- allotment with compensation, or
- judicial sale and division of proceeds.

Why judicial partition matters for unauthorized construction: The court can address, in one proceeding (if properly pleaded), related issues such as:

accounting for rentals/fruits,
reimbursement or valuation of improvements,
injunction against continued construction,
allocation of the improved portion to the builder with equalization, where equitable.

IV. Unauthorized Construction by a Co-Heir: Legal Characterization

A. Why “building” is different from “using”

A co-heir may have a right to use the property, but constructing a house, extension, perimeter fence, commercial structure, or permanent improvement is typically treated as an alteration—a change to the property’s physical condition and long-term use.

Under co-ownership rules, such alterations generally require consent of the other co-owners.

B. Consent can be express, implied, or ratified—but silence is risky

Express consent: written or clearly proven verbal agreement.
Implied consent: conduct showing acceptance (e.g., participation in planning, sharing costs, allowing construction with clear knowledge and no timely objection).
Ratification: later approval after the fact.

Caution: Courts examine context closely. Long silence may be argued as acquiescence, but it is not automatically consent—especially if the non-building heirs were unaware of the full facts, were absent, or objected when they learned.

C. Unauthorized construction can also signal “repudiation” (but not automatically)

A crucial doctrine in co-heir disputes is that prescription and adverse ownership between co-owners generally do not run unless there is a clear repudiation of the co-ownership that is communicated to the other co-owners. Construction may be evidence of an intent to appropriate, but repudiation usually requires something more definite, such as:

asserting exclusive ownership,
refusing entry or use,
selling/encumbering as if sole owner,
explicit notice that others have no rights.

V. Civil Remedies Against Unauthorized Construction by a Co-Heir

Remedies depend on timing (ongoing vs. completed), severity (minor improvement vs. substantial building), and whether other heirs are being excluded.

A. Injunction: stopping ongoing construction

When construction is ongoing or imminent, the primary court remedy is injunction:

Temporary restraining order (TRO) and/or writ of preliminary injunction Sought to stop construction while the main case proceeds. Courts typically look for:
- a clear and unmistakable right needing protection (co-ownership rights),
- a material and substantial invasion of that right (unauthorized alteration/exclusion),
- urgent necessity to prevent serious damage.
Permanent injunction Issued after full trial if the act is found unlawful.
Mandatory injunction (more demanding) Can compel the defendant to undo acts already done (e.g., remove a structure) in exceptional circumstances where:
- the right is clear,
- the urgency and gravity justify immediate relief,
- and restoration is necessary to prevent continuing injury.

Strategic note: Where construction is fast-moving, injunction is often the only practical way to prevent a fait accompli that later becomes expensive and socially complicated to undo.

B. Action for partition with ancillary reliefs (often the most complete remedy)

A party may file partition and include related claims, such as:

Injunction to stop further construction;
Accounting of rentals, income, or profits (if property is being commercialized or leased);
Damages for exclusion, bad faith, or impairment of the property;
Valuation and allocation of improvements, seeking:
- assignment of the improved portion to the builder with offsetting equalization, or
- removal/restoration if legally and equitably justified.

Courts generally prefer resolving the ownership structure (partition) rather than leaving parties trapped in perpetual conflict.

C. Restoration/demolition and damages (when construction is unauthorized)

Where a co-heir builds without the required consent, other heirs may seek:

Restoration to original condition Anchored on the rule against unilateral alterations in co-ownership.
Demolition/removal More likely when:
- the building clearly prevents others from using the property,
- it was done in bad faith (despite objections),
- it violates setbacks/zoning/permits,
- it creates continuing harm not compensable by money.
Damages Potential bases include:
- abuse of rights and bad faith (Civil Code principles on good faith and the duty to act with justice),
- actual damages (documented losses),
- loss of use/opportunity (provable),
- attorney’s fees in proper cases,
- moral/exemplary damages in egregious bad-faith scenarios (fact-specific and judicially controlled).

D. Accounting and “rent” from an occupying co-heir

A recurring misconception: “If one heir lives on the property, they automatically owe rent to the others.” The more accurate co-ownership approach is:

Mere occupation by one co-owner is not automatically wrongful if it does not exclude the others and is consistent with the property’s purpose.
Liability to account or pay reasonable compensation tends to arise when there is:
- ouster/exclusion, or
- repudiation of co-ownership, or
- appropriation of fruits/income without sharing, especially after demand.

Thus, if the builder co-heir fences off the land, bars entry, or treats it as solely theirs, claims for accounting and compensation become stronger.

E. Ejectment and recovery of possession: when it works (and when it doesn’t)

A co-owner may sue third parties (non-owners) to recover possession or eject intruders.
Against a fellow co-owner, ejectment-type relief is generally tied to proof of repudiation/ouster—because, absent repudiation, each co-owner has a right to possess.

When a building co-heir brings in tenants or caretakers who exclude other heirs, other heirs may have a stronger basis to proceed against the non-owner occupants and, depending on circumstances, against the co-heir who authorized them.

VI. Treatment of Improvements: Who Pays, Who Keeps, Who Removes?

Unauthorized construction disputes often turn on money: “Do we have to pay them for what they built?” The answer depends on classification of expenses and good/bad faith.

A. Necessary vs. useful vs. luxurious expenses (core categories)

Necessary expenses Those required to preserve the property (e.g., urgent repairs to prevent ruin, essential structural reinforcement). Co-owners are generally obliged to contribute proportionally, subject to proper notice and proof.
Useful expenses Improvements that increase value or utility (e.g., building a structure, adding facilities). If done without authority, reimbursement is not automatic; equity and co-ownership rules control outcomes.
Luxurious expenses Purely for pleasure/ornament. Reimbursement is generally disfavored.

B. Co-ownership principle: unilateral improvement does not automatically bind others

Because co-ownership limits unilateral alterations, an improving co-heir who proceeds without consent assumes legal risk. Equitable outcomes often include one or more of the following, depending on facts:

Allocation of the improved portion to the builder in partition, with equalization (the builder receives that portion but may owe the others the difference to match shares).
Appropriation by the co-ownership with indemnity, if the other heirs elect to keep the improvement and pay a fair value consistent with equitable principles.
Removal of improvements if feasible without damaging the property and if justice requires, especially where bad faith is shown.
Set-off against fruits or exclusive benefits enjoyed by the builder (e.g., the builder used the property exclusively for years).

C. “Good faith” and “bad faith” in co-heir construction

In practice:

A co-heir who knows the property is co-owned and builds despite objections risks being treated as acting in bad faith.
A co-heir may attempt to claim good faith if they genuinely believed they had exclusive rights (e.g., due to a mistaken belief in a completed partition), but this is fact-sensitive and harder to sustain among close heirs where ownership is commonly known to be shared.

VII. Administrative and Regulatory Remedies (Non-Court Options That Still Matter)

A. Building permit and local enforcement (National Building Code and local ordinances)

Unauthorized construction may also violate:

permitting requirements,
zoning, easements, setbacks,
occupancy and safety regulations.

Local government offices (through the building official) may issue enforcement actions such as:

notices of violation,
stop-work directives,
non-issuance or revocation consequences for permits,
and, in serious cases, demolition processes under applicable rules.

Important: Regulatory enforcement is distinct from ownership rights. Even if a co-heir claims ownership rights, lack of compliance with building rules can still trigger administrative sanctions.

B. Barangay conciliation (Katarungang Pambarangay)

Many disputes between individuals residing in the same city/municipality (including family property disputes) are subject to barangay conciliation as a precondition before filing certain court actions, unless an exception applies (e.g., urgent relief such as injunction, or parties residing in different localities, among other statutory exceptions).

Barangay proceedings can also create a paper trail of:

objections,
demands to stop construction,
refusal to share use or access, which may become relevant later in court.

VIII. Property Titling, Registration, and Litigation Tools That Commonly Accompany These Disputes

A. Lis pendens and adverse claims (to warn third parties)

When a partition or ownership-related case is filed involving titled property, a party may seek annotation of:

lis pendens (notice of pending litigation affecting title), or
other appropriate annotations under land registration practice,

to prevent third parties from claiming they bought in good faith without notice.

B. Evidence that usually becomes decisive

Disputes are often won or lost on documentation and credibility. Commonly important:

title documents (TCT/OCT), tax declarations, tax payments,
proof of heirship and shares (birth certificates, marriage certificates, settlement documents),
written objections/demand letters, barangay records,
photos/videos showing timing and extent of construction,
permit applications and declarations made to government offices,
surveys, subdivision plans, relocation surveys to determine encroachment and feasibility of physical partition.

IX. Prescription, Laches, and Strategic Timing

A. Partition is generally not defeated by mere passage of time

The right to demand partition is traditionally treated as a continuing right of a co-owner, subject to narrow exceptions (e.g., valid agreement not to partition for a set period).

B. Acquisitive prescription between co-heirs: repudiation is key

One co-heir does not typically become exclusive owner merely by long possession unless there is:

a clear repudiation of the co-ownership, and
knowledge of that repudiation by the other co-heirs, followed by possession consistent with adverse ownership for the required period under law.

Construction may contribute to the factual picture, but repudiation usually demands clearer proof than mere improvement.

C. Damages claims can prescribe even if partition does not

Even where partition remains available, claims for damages (e.g., for past exclusion or losses) can be subject to prescriptive periods depending on the legal basis (contract, quasi-delict, etc.). Delay can also weaken equitable claims through laches, depending on circumstances.

X. Putting It Together: Typical Legal Theories in an Unauthorized Construction Dispute

A co-heir opposing unauthorized construction commonly frames claims around:

Violation of co-ownership limits (no unilateral alterations; no exclusion)
Injunction (to stop or undo construction)
Partition (to end the co-ownership and definitively allocate property)
Accounting (for fruits, rentals, profits)
Damages (for bad faith, exclusion, impairment)
Equitable adjustment for improvements (allocation, reimbursement rules, set-off)

Meanwhile, the building co-heir commonly defends by asserting:

implied consent/ratification,
necessity or benefit to the family,
long acquiescence,
feasibility of awarding them the improved portion in partition with equalization,
good faith (fact-dependent),
or that the structure is removable and did not prejudice co-heirs’ rights.

Conclusion

Co-ownership among heirs is a legally recognized but inherently unstable arrangement: it allows shared ownership while simultaneously limiting unilateral action. Permanent construction by a co-heir without consent typically crosses the line from permissible use into prohibited alteration, exposing the builder to injunction, restoration/demolition risks, accounting, damages, and—most decisively—partition proceedings that may reallocate the improved area and financially adjust the parties’ shares. The law’s center of gravity is to protect each co-heir’s equal right to the whole before partition, while using partition and equitable accounting to reach a workable, final allocation of property and value.