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Ad Majorem Dei Gloriam

PROPERTY NOTES

PRELIMINARY PROVISIONS Right or interest belong to a person over a

Art 414 All things which are or may be the specific thing
object of appropriation are considered Without a definite passive subject against
either: whom such right may be personally
1. Immovable or real property; or enforced
2. Movable or personal property. Jus in re
The res of a real right may be
Whats a thing? o Personal property (as in pledge
any object that exists and is capable of and chattel mortgage)
satisfying some human needs o Real property (easement, real
includes both objects that are already mortgage)
possessed or owned and those that are o Either personal or real (as in
susceptible of appropriation ownership, possession, usufruct)
more comprehensive term (than property), If the res of a real right is real property, the
as there are things which are not right itself is real property; otherwise it is
susceptible of appropriation and they are personal property
not included in the concept of property
Classification of real rights based upon
Whats property? dominion
refers to any thing which is already the 1. Domino pleno powers to enjoy and to
object of appropriation or found in the dispose are united
possession of man a. Dominion, civil possession,
hereditary right
Requisites of property 2. Domino menos pleno powers to enjoy
1. Utility and dispose are separated
Capacity to satisfy some human wants a. Surface right, usufruct
2. Substantivity 3. Domino limitado powers to enjoy and to
Quality of having existence apart from any dispose, though united, are limited
other thing a. By a guaranty (mortgage, pledge)
3. Appropriability b. By a charge (easement)
Susceptibility of being possessed by man c. By a privilege (pre-emption,
Res communes or common things are not redemption)
capable of appropriation in their entirety,
although they may be appropriated under What is a personal right?
certain conditions in a limited way, and Right or power of a person
thereby become property in law To demand from another as a definite
o Electricity, oxygen, etc subject
Res nullius or a thing may have no owner The fulfillment of the latters obligation.
because it has not yet been appropriated, Jus in personam or jus ad rem
or because it has been lost or abandoned Personal right, or right of obligation, has
by the owner. it constitutes property as the following elements:
long as it is susceptible of being 1. Active subject (person in whom the
possessed for the use of man right resides)
o Wild animals, hidden treasure 2. Passive subject (person against whom
Things cannot be considered as property the right is available)
when they are not susceptible of 3. Object or prestation or the conduct (to
appropriation because of give, to do, or not to do)
o legal impossibility (you cant sell 4. Juridical or legal tie which binds the
your body while youre alive, at parties to the obligation
least not legally) or
o physical impossibility (you cant Real Right Personal Right
own the moon, at least not yet) Definite active Definite active
subject who has subject and a
Rights as property a right against all definite passive
property is sometimes used to denote the persons generally subject
thing with respect to which legal relations as an indefinite
between persons exist the res over passive subject
which rights (particularly ownership) may Object is Object always an
be exercised and sometimes to the generally a incorporeal thing
rights with respect to the thing corporeal thing Created by title
either real or property Created by
mode and title Personal right
What is a real right? Extinguished by survives the
the loss or subject matter

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
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Ad Majorem Dei Gloriam
PROPERTY NOTES
destruction of the
thing which it is Directed against
exercised a particular
Directed against person (actio in
the whole world personam)
(actio in rem
against 3rd
persons)
Whats the importance of the classification into
movables or immovables?
In private international law, general rule is
that immovables are governed by the law
of the country in which they are located,
whereas movables are governed by the
personal law of the owner which in cases
is the law of his nationality or his domicile
In criminal law, usurpation of property can
take place only with real property. On the
other hand, robbery and theft can be
committed only against personal property
In procedural law, actions concerning real
property are brought in the RTC where the
property is located, whereas actions
involving personal property are brought in
the court where either the defendant or
plaintiff resides.
o Forcible entry and unlawful
detainer for REAL property
o Replevin or manual delivery for
PERSONAL
In contracts, only real property can be the
subject matter of real mortgage and
antichresis, while only personal property
can be the subject matter of mutuum,
voluntary deposit, pledge
In order that the donation of an immovable
may be valid, it must be made in a public
instrument. For movables, may be oral or
in writing (if more than P5000, need only to
be in a private instrument)
For prescription (4 and 8 years for
movables; 10 and 30 years for
immovables)
Transactions involving real property must
be recorded in the Registry of property to
affect 3rd parties. Not required with
personal property, except for chattel
mortgage cases.
Art 415 The following are immovable
property:
1. Land, buildings, roads, and
constructions of all kinds adhered to
the soil;
2. Trees, plants, and growing fruits, while
they are attached to the land or form an
integral part of an immovable;
3. Everything attached to an immovable in
a fixed manner, in such a way that it
cannot be separated therefrom without
breaking the material or deterioration of
the object;
4. Statues, reliefs, paintings or other
objects for use or ornamentation,
placed in buildings or on lands by the
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
owner of the immovable in such a
manner that it reveals the intention to
attach them permanently to the
tenements;
5. Machinery, receptacles, instruments or
implements intended by the owner of
the tenement for an industry or works
which may be carried on ina building
or on a piece of land, and which tend
directly to meet the needs of said
industry or works;
6. Animal houses, pigeon-houses,
beehives, fish ponds or breeding places
of similar nature, in cases their owner
has placed htem or preserves them with
the intention to have them permanently
attached to the land, and forming a
permanent part of it; the animals in
these places are included;
7. Fertilizer actually used on a piece of
land;
8. Mines, quarries, and slag dumps, while
the matter thereof forms part of the bed,
and waters either running or stagnant;
9. Docks and structures which, though
floating, are intended by their nature
and object to remain at a fixed place on
a river, lake, or coast;
10. Contracts for public works, and
servitudes and other real rights over
immovable property.
Classes of immovable or real property (NIDA)
1. By nature (cannot be carried from place to
place)
2. By incorporation (attached to an
immovable in a fixed manner to be an
integral part thereof)
3. By destination (placed in an immovable for
the utility it gives)
4. By analogy (by express provision of law
because it is regarded as united to the
immovable property)
Lands, buildings, roads and constructions of all
kinds
Must adhere to the soil
Buildings must be more or less of a
permanent structure independent of and
regardless of the ownership of the land on
which it is erected since the law makes no
distinction (so possible to mortgage
building even if in the land of another,
since its separate from the land
Roads, whether public or private, are
immovable
Real property treated by the parties as
personal property
o A building is by itself an immovable
property irrespective of whether or
not said structure and the land on
which it is adhere to belong to the
same owner
o A valid real estate mortgate can be
constituted only on the building
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erected on the land belonging to
another
o The parties to a contract of chattel
mortgage may, by agreement, treat
as personal property that which by
nature would be real property
(estopped! So they can be subject
to a writ of replevin between parties)
However, the chattel
mortgage is not binding on
third persons.
Trees, plants and growing fruits
Immovable while they are:
o Attached to the land, or
o Form an integral part of an
immovable
Once cut or uprooted, they become
movable
Growing crops or fruits, or ungathered
products or fruits, may be treated as
personal property for the purposes of
attachment, execution and the chattel
mortgage law (Sibal v Valdez)
When growing crops are sold and before
they are even harvested, the transaction is
considered as sale of movables because it
is a given that they are to be gathered or
harvested for delivery
Everything attached to an immovable in a fixed
manner
Attachment must be such that
o It cannot be separated from the
immovable
o Without breaking the material, or
o Deterioration of the object
If temporarily separated, will still be
regarded as immovable if there is an intent
to put them back (but there are different
opinions to this)
Intent to attach permanently is essential
objects placed by humans with intention to
permanent annexation lose their identity
as movables
Statues, reliefs, paintings, or other objects for
use or ornamentation
Immovable when:
o Placed on the immovable by the
owner of the latter, and
o In such a manner that it reveals
the intention to attach them
permanently to the tenements
Not necessarily by him personally, can be
by his agent
If placed by a person not the owner like a
lessee, the object will not attain the
character of immovable unless such
person acts as an agent of the owner
Machinery, receptacles, instruments, or
implements for an industry or works
Immovable only when:
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
o Placed by the owner of the
tenement or his agent
o Industry or works must be carried
on in a building or on a piece of
land
o Machinery, etc must tend directly
to meet the needs of the said
industry or works
Machinery which is movable in its nature
only becomes immobilized when placed in
plant by the owner of the property or plant,
but not when so placed by a tenant, a
usufructuary, or any person having only a
temporary right (Davao Saw Mill v Castillo)
o Exception (becomes immovable):
1. Such person acted as the
agent of the owner, or
2. Lease agreement states that
the machines will pass over to the
lessor after the expiration of the
lease agreement (US Valdez
case)
Must be essential and be principal
elements of an industry or works to the
business, not merely incidental to business
(Mindanao Bus Company v City Assessor)
o Cash registers, typewriters for
hotels, restaurants, theaters are
merely incidental, these
businesses can continue on
without them
o Machineries of breweries used in
the manufacture of liquor, though
movable by nature, are
immobilized because they are
essential to said industries
For purposes of taxation, it doesnt matter
who placed the machines the owner or
mere lessee, as long as it is essential and
principal elements of an industry. The term
real property may include things which
should generally as personal property. It is
a familiar phenomenon to see things
classified as real property for purposes of
taxation which on general principle might
be considered personal property. (Meralco
v Central Board of Assessment Appeals
in this case, the storage tanks were placed
by Meralco, who wasnt the owner of the
land, but it was still considered
immovable)
Attachment or incorporation to immovable
not essential, since they become
immovable because of destination, what is
essential is their utility
Animal houses, pigeon houses, beehives, fish
ponds or breeding places of similar nature
Considered immovable:
o In case their owner has placed
them or preserves them
o With the intention to have them
permanently attached to the land
o And forming a permanent part of
it.
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PROPERTY NOTES
o The animals in these places are
included.
Must permanently form part of the land
and so intended by the owner
Fertilizers actually used on a piece of land
Immovable when
o Actually used on a piece of land
Fertilizers kept in a barn are not
immovable
Mines, quarries and slag dumps
Immovable when
o While the matter thereof forms
part of the bed
o Meaning, the matter thereof
remains unsevered from the soil
Waters, either running or stagnant, are
classified as immovables
Docks and structures, though floating
Immovable if
o Intended by their nature and
object
o To remain at a fixed place on
o A river, lake or coasts
Contracts for public works and servitudes and
other real rights over immovables
Where the res of a real right is real
property, the right itself is real property. So
ownership is real property if the thing
owned is immovable
o Loan is real property by analogy if
secured by a real estate
mortgage
Where it is personal property, the right
itself is personal property
o Exception: case of contracts for
public works which
considered real property
CHAPTER TWO: MOVABLE
PROPERTY
Art 416 The following things are deemed to
be personal property:
1. Those movables susceptible of
appropriation which are not included in
the preceding article;
2. Real property which by any special
provision of law is considered as
personalty;
3. Forces of nature which are brought
under control by science; and
4. In general, all things which can be
transported from place to place without
impairment of the real property to
which they are fixed.
Art 417 The following are also considered
as personal property:
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
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1. Obligations and actions which have for
their object movables or demandable sums;
2. Shares of stock of agricultural,
commercial and industrial entities, although
they may have real estate.
Classes of movable or personal property
1. Property not included in Art 415
2. Considered personal property by
special provision of law
3. Forces of nature brought under
control by science
4. In general, all movable things
a. Whether the property
can be transported or
carried from place to
place;
b. Whether such change of
lacation can be made
without injuring the
immovable to which the
object may be attached,
and
c. Whether the object does
not fall within any one of
the cases in Art 415
5. Obligations and actions (personal
rights, they having a definite
passive subject)
6. Shares of stock
7. Other incorporeal personal
property
a. Intellectual property
such as copyrights,
patents, etc
Art 418 Movable property is either
consumable or non-consumable. To the first
class belong those movables which cannot
be used in a manner appropriate to their
nature without their being consumed; to the
are second class belong all the others.
Importance of classification:
Consumable goods cannot be the subject
matter of a commodatum (unless for mere
exhibition)
In a mutuum, the subject matter is money
or other consumable thing
Consumable
Depends on nature of thing itself
Cant be used in a manner appropriate to
their nature without being consumed
Fungible
Depends on the intention or purpose of the
parties
Can be substitute by another thing of the
same kind, quantity and quality
Money, while characterized as a movable,
is generic and fungible. (BPI v Franco)
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PROPERTY NOTES

CHAPTER THREE: PROPERTY IN 1. Public streams, river channels, river beds,

RELATION TO WHOM IT BELONGS
Art 419 Property is either of public
dominion or of private ownership
Property is either of
1. Public dominion or property owned by the
State (or its subdivisions) in its public or
sovereign capacity and intended for public
use and not for the use of the State as a
juridical person
2. Private ownership or property owned by:
a. The state in its private capacity;
known as patrimonial property
b. Private persons, either
individually or collectively
Property is presumed to be State property in
the absence of any showing to the contrary.
(Regalian Doctrine)
Whats dominion?
1. Not owned by the State but simply under
its jurisdiction and administration for the
collective enjoyment of all the people of
the State
2. Purpose is to serve the citizens, not the
State as juridical person
3. Rises from the fact that the State is the
juridical representative of the social group
Art 420 The following things are property of
public dominion:
1. Those intended for public use,
such as roads, canals, rivers,
torrents, ports and bridges
constructed by the States, banks
shores, roadsteads and others of
similar character
2. Those which belong to the State,
without being for public use, and
are intended for some public
service or for the development of
the national wealth
Three kinds of public dominion property
1. Intended for public use
Can be used by everybody
2. Not for public use but intended for some
specific public service
Only be used by duly authorized
people, such as government
buildings, etc
3. Intended for the development of national
wealth, even if not employed for public use
or service
Minerals, coal, oil, forests
Charging of fees to the public does not affect
the public character of the road or its character
as property for public use.
What are other property of similar character to
those intended for public use?
etc
2. Accretions to the shores of the sea
3. Submerged lands or lands reclaimed from
the sea by the government
Mere reclamation of certain foreshore
land does not convert these
inalienable natural resources of the
state into alienable or disposable
lands of the public domain.
There must be a law or proclamation
officially classifying them such.
4. Lands that disappeared into the sea
5. Canals constructed on private lands of
private ownership but the owner loses his
proprietary right over said canal through
prescription by allowing the public to use it
for transportation
6. Foreshore lands when the sea moved
toward an estate and the tide invade it, the
invaded property becomes foreshore and
passes to the public realm
- Foreshore land is the strip of land that
lies between the high and low water
marks
7. Lot on which stairways were built for the
use of the people as passageway to the
highway
Roads refer to those constructed by the
national government
Canals constructed by private persons
over private lands are of private ownership
Roadstead is a place less sheltered or
enclosed than a harbor where ships may
ride at anchor
Properties of public dominion are outside of the
commerce of man. Again, their purpose is to
serve the citizens.
They can not be the object of appropriation
either by the State or private persons.
So
1. Cannot be sold, leased or be the subject of
contracts
2. Cannot be acquired by prescription, not
even by municipalities as against the State
3. Cannot be encumbered, attached, or be
subject to levy and sold at public auction.
4. Cannot be burdened with easements
5. Cannot be registered under the land
registration law and be the subject of a
Torrens title
Inclusion of public dominion property
does not confer title on the registrant
Public lands v Government lands
Public lands
Lands of the public domain
Does not include all lands of government
ownership but only so much of said lands
as are thrown open to private
appropriation and settlement by
homestead law

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
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PROPERTY NOTES
Government lands
Broader term
Includes not only public lands, but also
1. other lands of the government already
reserved or devoted to public use,
2. or subject to private rights,
3. and patrimonial lands
Alienation of public agricultural land
Unless pubic land is shown to have been
reclassified and alienated by the State to a
private person, it remains part of the
inalienable public domain
All other lands are presumed to belong to
the State
Art 421 All other property of the State,
which is not of the character stated in the
preceding article, is patrimonial property.
Patrimonial property
Property of the State owned by it in its
private or proprietary character
Not for public use, service or
development of the national
wealth
May be acquired by private individuals or
juridical persons through prescription; can
be the object of an ordinary contract
Art 422 Property of public dominion, when
no longer intended for public use or for
public service, shall form part of the
patrimonial property of the State.
Property of the National Government
Not self-executing
There must be a formal declaration by the
executive (exercised by the President) or
possibly legislative department that the
property is no longer needed for public use
or for public service before the same can
be classified as patrimonial property
A positive act declaring land as alienable
and disposable is required
1. Presidential proclamation or
executive order
2. Administrative action
3. Investigation reports of Bureau of
Lands investigators
4. Legislative act or a statute (Sec
of DENR v Yap)
Classification of public lands is the
exclusive prerogative of the Executive
Department courts have no authority
(Sec of DENR v Yap)
Abandonment cannot be inferred from
non-use. (Roponggi case)
Two requisites for judicial confirmation of
imperfect or incomplete title, under CA 141
1. open, continuous, exclusive and
notorious possession and
occupation of the subject land by
himself or through his
predecessors-in-interest under a
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
bona fide cliam of ownership
since time immemorial or from
June 12, 1945
2. classification of the land as
alienable and disposable land of
the public domain (Sec of DENR
v Yap)
Unclassified land? Considered as forest
land (Sec of DENR v Yap)
Property of Political Subdivisions
For provinces, cities and municipalities,
the conversion must be authorized by law
Municipal corporation has discretionary
power to withdraw a street from public use
and sell it. (Cebu Oxygen v Becilles)
Art 423 The property of provinces, cities,
and municipalities is divided into property
for public use and patrimonial property.
Art 424 Property for public use, in the
provinces, cities, and municipalities,
consist of the provincial roads, city streets,
municipal streets, the squares, fountains,
public waters, promenades, and public
works for public service paid for by said
provinces, cities or municipalities.
All other property possessed by any of
them is patrimonial and shall be governed
by this Code, without prejudice to the
provisions of special laws.
Property of Political Subdivisions
Note that the articles speak of property for
public use, indicating that properties for
public service are patrimonial. (ambulance
of the local government)
Political subdivisions cannot register as
their own any part of the public domain,
unless it is first shown that a grant thereof
has been made or possession has been
enjoyed during the period necessary to
establish a presumption of ownership.
If the property is owned by the municipality
in its public and governmental capacity, the
property is public and Congress has
absolute control over it.
If it is owned in its private or proprietary
capacity, then it is patrimonial and
Congress has no control over it. (page 63,
de Leon)
Case doctrines:
The use of subdivision roads by the
general public does not strip it of its private
character.
Transfer of ownership from the subdivision
owner-developer to the local government
is not automatic but requires a positive act
from the owner-developer before the city
or municipality can acquire dominion over
the subdivision roads. Until and unless the
roads are donated, ownership remains
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with the owner-developer. (Woodridge
School, Inc v ARB Construction Co, Inc)
Art 425 Property of private ownership,
besides the patrimonial property of the
State, provinces, cities, and municipalities,
consists of all property belonging to private
persons, either individually or collectively.
Private property
1. Belonging to private persons, either
individually or collectively
2. Belonging to the State and any of its
subdivisions which are patrimonial in
nature
There is nothing that will prohibit churches
from alienating things classified into
sacred, religious, and holy.
Art 426 Whenever by provision of law, or an
individual declaration, the expression
immovable things or property or
movable things or property is used, it
shall be deemed to include, respectively,
the things enumerated in Chapter 1 and
Chapter 2.
Whenever the word muebles or
furniture, is used alone, it shall not be
deemed to include money, credits,
commercial securities, stocks and bonds,
jewelry, scientific or aristic collections,
books, medals, arms, clothing, horses or
carriages and their accessories, grains,
liquids and merchandise, or other thing
which do no have as their principal object
the furnishing or ornamenting of a building,
except where from the context of the law, or
of the individual declaration, the contrary
clearly appears.
TITLE II OWNERSHIP
CHAPTER ONE: OWNERSHIP IN
GENERAL
Art 427 Ownership may be exercise over
things or rights
Ownership is the
Independent right of a person to the
exclusive enjoyment and control of a thing
Including its disposition and
recovery subject only to the
restrictions or limitations
established by law and the rights
of others
Beneficial Ownership
Ownership recognized by law and capable
of being enforced in court
Right to enjoyment in one person, legal
title is in another
Naked Ownership
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Enjoyment of all the benefits and privileges
of ownership
Ownership may be exercised over things or
rights
1. Thing usually refers to corporeal property
2. Rights whether real or personal, res of
rights may be corporeal or incorporeal
Art 428 The owner has the right to enjoy
and dispose of a thing, without other
limitations than those established by law.
The owner has also a right of action against
the holder and possessor of a thing in order
to recover it.
The seven jus-es
1. Possidendi
2. Utendi
3. Fruendi
4. Accessionis
5. Abutendi
6. Disponendi
7. Vindicandi
Right to possess or jus possidendi
right to hold a thing or enjoy a right (Art
523)
may be exercised in ones own name or in
that of another
1. Right to use not necessarily included
May be in the concept of an owner or
a mere holder with the ownership
pertaining to another
Right to possess does not always
include the right to use
2. Judgment of ownership may not include
possession
Person may be declared owner but he
may not be entitled to possession
which may be in the hands of another
such as a tenant
But! This doctrine may be invoked
only where the actual possessor has
some rights which must be respected
3. Where claim to possession based on claim
of ownership
Where the ownership of a property
was decided in a judgment, the
delivery of possession should be
considered included in the decision
where the defeated partys claim to
the possession is based on his claim
of ownership
4. Duty of vendor to deliver possession of
thing sold
Contract of sale, vendor bound not
only to transfer ownership, but also
deliver
Considered delivered only when
vendee has control and possession
Right to use and enjoy or jus utendi
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necessarily includes the right to transform his knowledge,

and the right to exclude any person from information and belief
the enjoyment and disposal thereof Applicant has burden of proving
he may use such force as may be his ownership or right of
reasonably necessary to repel or prevent possession over the property in
an actual or threatened unlawful physical question
invasion or usurpation (Art 429) Both a principal remedy (regain
he may enclose or fence his property (Art possession) and a provisional
430) remedy (allow the plaintiff to
limited because he cannot make use of retain the thing wrongfully
such property in a manner to injure the detained by another pendente
rights of a third person lite)
2. Recovery of real property:
Right to receive the fruits and accessories or Forcible entry and unlawful detainer ( accion
jus fruendi and accessionis interdictal)
ownership gives the right by accession to Forcible entry
everything which is produced thereby (see Requisites:
art 440) i. Instituted by person
deprived of possession
Right to consume or jus abutendi ii. Unlawful deprivation of
right of the owner to consume a thing by the possession of any
its use the use that extinguishes land or building, by
force, intimidation,
Right to dispose or alienate or jus disponendi threat, strategy or stealth
iii. Filed within 1 year from
either totally (sale or donation) or partially
date of actual entry (but
(pledge, mortgage, etc)
for cases of stealth and
includes right not to dispose strategy, from date of
duty of vendor to transfer ownership knowledge of actual
o vendor must be the owner or knowledge)
authorized to sell thing iv. At the MTC where
o sufficient that he be the owner at property is located
the time of the delivery of the
thing sold Unlawful detainer
only the absolute owner can pledge or Requisites:
mortgage ones property i. Instituted by landlord,
vendor, vendee or other
Right to recover possession and/or ownership person against who the
or jus vindicandi possession of any land
true owner must resort to judicial process or building is unlawfully
for the recovery of the property withheld
he cannot take the law into his own hands ii. Unlawful possession
after the expiration or
Actions available to recover possession and/or termination of the right to
ownership hold possession (by
virtue of contract, etc)
1. Recovery of personal property: Remedy of iii. Filed within 1 year from
Replevin or manual delivery of personal date of last demand to
property vacate
Requisites (Rule 60, Rules of Court): iv. at the MTC where
Applicant must show by his own affidavit or property is located
that of some other person who personally For unlawful detainer, it is essential that
knows the facts: the plaintiffs supposed acts of tolerance
i. That the applicant is the must have been present right from the
owner of the property start of the possession which is later
claimed, particularly sought to be recovered (Valdez, jr v CA)
describing it, OR is Only issue involved in both is mere
entitled to the physical or material possession
possession thereof (possession de facto), not juridical or civil
ii. That the property is possession (possession de jure)
wrongfully detained by Plaintiff need only to allege and prove prior
the adverse party, possession de facto and undue deprivation
alleging the cause of thereof
detention thereof Its a quieting process
according to the best of

8
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
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PROPERTY NOTES
Summary in nature (to solve the problem
quickly and to protect the rights of the
possessor)
Difference between the two is the time
when possession became unlawful
forcible entry: time of entry; unlawful
detainer: possession at first was legal,
then became illegal
If complaint fails to aver facts constitutive
of forcible entry or unlawful detainer as
when it does not state how entry was
effected or how and when the
dispossession started, the remedy should
either be accion publiciana or an accion
reinvindicatoria (Valdez, jr v CA)
o Must be apparent in the face
of the complaint (Sarmiento v
CA)
Jurisdictional facts what does a plaintiff
have to allege?
o For unlawful detainer
i. Plaintiffs right over property
(describing the property)
ii. Prior lawful possession
i. If by tolerance, acts of
tolerance must have
been present right from
the start of the
possession
ii. If by lease, contractual
agreement must be
shown
iii. Became unlawful (by termination
of lease contract or non-payment
of rents)
iv. Extrajudicial demand to vacate
i. If by non-payment,
demand letter to PAY
RENTS and VACATE
premises (bar question)
v. Within one year from last demand
Can the MTC rule on the issue of
ownership in an ejectment case? Yes! But
only provisionally.
The primal rule is that the principal
issue must be that of possession, and
that ownership is merely ancillary, in
which case the issue of ownership
may be resolved but only for the
purpose of determining the issue of
possession.
It must sufficiently appear from the
allegations in the complaint that what
the plaintiff really and primarily seeks
is the restoration of possession.
Inferior court cannot adjudicate on the
nature of ownership where the
relationship of lessor and lessee has
been sufficiently established in the
ejectment case, unless it is sufficiently
established that there has been a
subsequent change in or termination
of the relationship between the
parties.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
The rule in forcible entry cases, but
not in those for unlawful detainer, is
that a party who can prove prior
possession can recover such
possession even against the owner
himself. He has the security that
entitles him to remain on the property
until he is lawfully ejected by a person
having a better right through an
accion publiciana or accion
reinvindicatoria
Where the question of how has prior
possession hinges on the question of
who the real owner of the disputed
portion is, the inferior court may
resolve the issue of ownership and
make a declaration as to the owner.
But, it is merely provisional, and does
not bar nor prejudice an action
between the same parties involving
the title to the land. (Asis v Asis Vda
de Guevarra, 2008)
Plenary action to recover possession (accion
publiciana)
Requisites:
i. Must be within a period of ten
years otherwise the real right
of possession is lost
ii. One who claims to have a
better right must prove not
only his right but also the
identity of the property
claimed
iii. Filed in the RTC where the
property is located
Issue involved is possession de jure of
realty independently of title (as compared
to interdictal, possession de facto)
Judgment rendered here is conclusive only
on the question of possession, not that of
ownership
Jurisdictional facts?
1. Right of plaintiff over property
2. Period to bring interdictal has
expired
3. Dont know na.
Action to recover possession based on
ownership (accion reivindicatoria)
Requisites:
i. Right of plaintiff over property
ii. Filed at the RTC where the
property is located
Seeks recovery of possession based on
ownership, with claim of title
Issue involved is ownership which
ordinarily includes possession, although a
person may be declared owner but he may
not be entitled to possession because the
possessor has some rights which must be
respected
Action for reconveyance prescribes in 10
years from the point of the registration of
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PROPERTY NOTES
the deed or the date of issuance of the
certificate of title (check book!); 4 years in
cases of fraud counted therefrom on date
of issuance of the certificate of title over
the property
o Action for reconveyance based
on fraud and where plaintiff is in
possession of the property
subject of the acts does not
prescribe. (Leyson v Bontuyan)
o NB: Should not have passed to a
third person.
All three actions are actions in personam.
Injunction as a remedy for recovery of
possession
Injunction is a judicial process whereby a
person is required to do or refrain from
doing a particular thing.
General rule: Court should not by means
of a preliminary injunction transfer property
in litigation from the possession of one
party to another.
In order that a preliminary injunction may
be granted at any time after the
commencement of the action and before
judgment:
Requisites:
i. there must exist a clear and
positive right over the
property in question which
should be judicially protected
through the writ; and
ii. the acts against which the
injunction is to be directed
are violative of such right
What if there is someone actually
possessing the property sought to
recover?
o Person not ordinarily allowed to
avail of remedy of preliminary
preventive or mandatory
injunction but must bring the
necessary action for the recovery
of possession.
Injunctive relief will not be granted to take
property out of the possession or control of
one party and place it in that of another
whose title
o Has not been clearly established,
or
o Who did not have such
possession or control at the
inception of the case
Proper function is to maintain the status
quo
Injunction cannot be a substitute for other
suits for recovery of possession, hence, its
denial will not bar the institution of the
more appropriate remedy
Why? Well, a writ of injunction is an
equitable relief; determination of title is a
legal remedy thats why
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
When can injunction be allowed?
In actions for forcible entry, the
dispossessed plaintiff may file, within ten
days from filing of the complaint, a motion
for a writ of preliminary mandatory
injunction to restore him in possession.
o The court MAY grant In order to
prevent the defendant from
committing further acts of
dispossession during the
pendency of the case
o Issue of ownership may not be
put in issue
Ejectment cases where the appeal is
taken, the lessor is given the same remedy
granted above.
Where the actual possessor of the
property who is admittedly the owner,
seeks protection from repeated or further
intrusions into his property.
o Even if it turns out that he isnt the
owner, he may still avail of the
equitable remedy of injunction to
protect his possession.
When there is a clear finding of right of
ownership and possession of a land in
favor of the party who claims the subject
property in possession of another is the
undisputed owner as where the property is
covered by a Torrens title pointing to the
party as the owner. (Of course, check the
issuance of the title if it was in bad faith)
When urgency, expediency and necessity
require immediate possession as where
material and irreparable injury will be done
which cannot be compensated by
damages.
Writ of possession as a remedy
Writ of possession is an order whereby a
sheriff is commanded to place a person in
possession of a real or personal property,
such as when a property is extrajudicially
foreclosed.
Improper to eject another from possession,
unless sought in connection with a:
1. Land registration proceeding
2. Foreclosure of mortgage,
provided, that no third person has
intervened (PNB v CA in this
case, a third person was
occupying the lot subject to the
writ. The SC held that the an ex-
parte petition for issuance of a
possessory writ is not the judicial
process referred to in Art 433);
3. Execution sales
Limitations on the right of ownership
Limited by
1. by the States power to tax, police
power, and eminent domain
2. those imposed by law such as
legal easement
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PROPERTY NOTES

3. those imposed by the owner threatened damage to actor or a

himself, such as voluntary third person (but the damage
easement must be proportionate and
4. those imposed by the grantor of reasonable)
the property on the grantee ii. imminent danger or threatening
5. those arising from conflicts of damage must be much greater
private rights which take place in than the damage arising to the
accession continua owner of the property
6. prohibition against the acquisition
of private lands by aliens Art 433 Actual possession under claim of
ownership raises a disputable presumption
Art 429 The owner or lawful possessor of a of ownership. The true owner must resort to
thing has the right to exclude any person judicial process for the recovery of the
from the enjoyment and disposal thereof. property.
For this purpose, he may use such force as
ay be reasonably necessary to repel or Applies to both immovable and movable
prevent an actual or threatened unlawful property
physical invasion or usurpation of his Requisites to raise the disputable presumption
property. of ownership:
i. Actual (physical or material)
Principle of self-help possession of the property
Requisites: ii. Possession must be under claim of
i. Person defending must be the owner ownership
or lawful possessor
ii. Use of reasonable force Judicial process contemplated
iii. Only be exercised at the time of an Means ejectment suit or reinvidicatory
actual or threatened dispossession action
(no delay) Ex-parte petition for issuance of a
iv. Actual or threatened physical invasion possessory writ is not a judicial process,
or usurpation which is unlawful as it is non-litigious (PNB v CA)
Read with Art 19 of the Civil Code. Art 434 In an action to recover, the property
must be identified, and the plaintiff must
Art 430 Every owner may enclose or fence rely on the strength of his title and not on
his land or tenements by means of walls, the weakness of the defendants claim.
ditches, live or dead hedges, or by any
other means without detriment to Requisites:
servitudes constituted thereon. i. Person who claims that he has a
better right to the property must
Right to enclose or fence satisfactorily prove both ownership
Limited by existing servitudes imposed on and identity
the land or tenement ii. Burden of proof lies on the party who
substantially asserts the affirmative of
Art 431 The owner of a thing cannot make an issue
use thereof in such manner as to injure the iii. Reliance on strength of evidence and
rights of a third person. not upon the weakness of the
opposing party
Art 432 The owner of a thing has no right to
prohibit the interference of another with the Party who desires to recover must fix the
same, if the interference is necessary to identity of the land claimed by describing
avert an imminent danger and the the location, area and boundaries thereof
threatened damage, compared to the o If a party fails to identify
damage arising to the owner from the from
sufficiently and satisfactorily the
the interference, is much greater. The owner
land which he claims as his own,
may demand from the person benefited
his action must necessarily fail
indemnity for the damage to him.
o While the identity of the property
must be established, it is not
State of necessity
necessary for the plaintiff to
General rule: a person cannot interfere with the
establish the precise location and
right of ownership of another
extent of the lands claimed or
Exception: State of necessity, but of course,
occupied by the defendant
civil indemnification can be asked for
General rule: where there is a conflict
Requisites: between the area and boundaries of a
i. interference is necessary to avert land, the latter prevails.
an imminent danger and the o An area delimited by boundaries
properly identifies a parcel of land
11
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!

Ad Majorem Dei Gloriam
PROPERTY NOTES
Exception: where the boundaries
relied upon do not identify the land
beyond doubt
o In such cases where there
appears to be an overlapping of
boundaries, the actual size of the
property gains importance.
Equiponderance of evidence? Rule
defendant.
Evidence to prove ownership
1. A Torrens title
2. Title from the Spanish government
3. Patent duly registered in the Registry of
Property
4. Deed of sale
5. Operating a business for nine years in
defendants own name, without protest of
plaintiff
6. Occupation of a building for a long time
without payment of rent
7. Letter in which defendant recognized the
ownership of the property by the plaintiff
(estoppel)
8. Open, continuous, exclusive, adverse and
notorious actual possession and
occupation of parcels of land
Indicia of claim of ownership
1. Tax declarations and tax receipts only
prima facie evidence of ownership or
possession; but they are good indicia of
possession in the concept of owner
Conclusiveness of certificates of title
Indicates true and legal ownership of a
private land and should be accorded great
weight as against tax declarations
o but is not conclusive if the land had
already been previously registered
Art 435 No person shall be deprived of the
property except by competent authority and
for public use and always upon payment of
just compensation.
Should this requirement be not first
complied with, the courts shall protect, and
in a proper case, restore the owner in his
possession.
Power of eminent domain
Requisites:
i. Taking must be done by competent
authority
ii. Must be for public use
iii. Owner paid just compensation
iv. Requirement of due process of law
must be observed
Should the requirements be not first complied
with, restore the property to his possession.
But can be lost by estoppel or
acquiescence
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
+
Art 436 When any property is condemned or
seized by competent authority in the
interest of health, safety or security, the
owner thereof shall not be entitled to
compensation, unless he can show that
such condemnation or seizure is
unjustified.
for Condemnation or seizure of property in
exercise of police power
Relates to use and enjoyment not
ownership of property
No taking of property involved
Persons affected not entitled to
financial compensation
Art 437 The owner of a parcel of land is the
owner of its surface and of everything
under it, and he can construct thereon any
works or make any plantations and
excavations which he may deem proper,
without detriment to servitudes and subject
to special laws and ordinances. He cannot
complain of the reasonable requirements of
aerial navigation.
Surface rights of a landowner
Right of the owner of a parcel of land to
construct any works or make any plantations
and excavations on his land is subject to:
(SLERRt)
1. Special laws
2. Local ordinances
3. Existing servitudes or easements
4. Reasonable requirements of aerial
navigation
5. Rights of third persons
Limitations imposed by special laws
Includes the regalian doctrine
Ownership of said land does not give him
the right to extract or utilize the said
minerals without the permission of the
State to which said minerals belong
o For the loss sustained by such
owner, he is entitled to just
compensation under mining laws
or expropriation proceedings
Art 438 Hidden treasure belongs to the
owner of the land, building, or other
property on which it is found.
Nevertheless, when the discovery
is made on the property of another, or of the
state or any of its sub-divisions, and by
chance, one-half thereof shall be allowed to
the finder. If the finder is a trespasser, eh
shall not be entitled to any share of the
treasure.
If the things found be of interest to
science or the arts, the State may acquire
them at their just price, which shall be
divided in conformity with the rule stated.
Art 439 By treasure is understood, for legal
purposes, any hidden and unknown deposit
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of money, jewelry, or other precious Extension of the right of ownership of

objects, the lawful ownership of which does a person to the products of a thing
not appear. which belongs to such a person
Includes natural, industrial, and civil
Requisites: fruits (Art 441)
i. Deposit of money, jewelry or other 2. Accession continua
precious objects Extension of the right of ownership to
ii. Hidden and unknown that which is incorporated or attached
iii. Lawful ownership of which does not to a thing which belongs to such
appear person
May take place:
With respect to real property
CHAPTER TWO: RIGHT OF
Accession industrial
ACCESSION (building, planting,
GENERAL PROVISIONS sowing); or
SECTION I RIGHT OF ACCESSION Accession natural
WITH RESPECT TO WHAT IS (alluvion, avulsion,
PRODUCED BY PROPERTY change of river course,
and formation of islands)
Art 440 The ownership of property gives the With respect to personal property
right by accession to everything which is Conjunction
produced thereby, or which is incorporated (attachment,
or attached thereto, either naturally or engraftment)
artificially. Commixtion or confusion
Specification
Accession defined
Accession is the right of the owner of a thing, Art 441 To the owner belongs:
real or personal, to become the owner of o The natural fruits;
everything which is: o The industrial fruits;
1. produced thereby, o The civil fruits.
2. incorporated
3. attached thereto, Art 441 refers to accession discreta
either naturally or artificially.
Right of owner to the fruits
Accession Accessory General rule: All fruits belong to the owner of a
thing.
fruits of, things joined to, Exception: A person, other than the owner of a
additions to, included with the property, owns the fruits thereof:
improvements principal for the 1. possession in good faith by another
upon a thing latters (possessor entitled to the fruits received
includes building, embellishment, before possession is legally interrupted)
planting and better use or 2. usufruct (usufructuary entitled to all the
sowing completion fruits of the property on usufruct)
alluvion, necessary to 3. lease of rural lands (lessee gets fruits,
avulsion, change principal thing lessor gets rents)
of course of 4. pledge (pledgee gets fruits, etc but with
rivers, formation example: key of a the obligation to compensate what he
of islands house, bow of a violin receives with those which are owing him)
not necessary to 5. antichresis (creditor acquires the fruits of
the principal his debtors immovable, but with the
thing obligation to apply them first to the interest
and then to the principal amount of the
credit)
Accession, not a mode of acquiring ownership
Merely a consequence of ownership Art 442 Natural fruits are the spontaneous
products of the soil, and the young and
Exercise of the right of ownership
other products of animals.
Since the law itself gives the right, Industrial fruits are those produced
accession may, IN A SENSE, be by lands of any kind through cultivation or
considered as a mode of acquiring labor.
property under the law Civil fruits are the rents of
buildings, the price of leases of lands and
Kinds of accession other property and the amount of perpetual
1. Accession discreta or life annuities or other similar income.

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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PROPERTY NOTES
Natural fruits
Two kinds:
1. Spontaneous products of the soil (not
through human cultivation or labor), and
2. Young and other products of animals
(chicks, eggs, wool, milk)
The second kind is considered as natural
fruits whatever care or management,
scientific or otherwise, may have been
given by man since the law makes no
distinction.
Puppies, while cute, bred by a
professional breeder are still
natural fruits
Industrial fruits
Those products which are borne through
the cultivation or labor of humans
Usually cultivated for a purpose
Civil fruits
1. Rents of buildings
2. Prices of leases (rents) of lands and other
property (including movables)
3. Amount of perpetual or life annuities or
other similar income
Art 443 He who receives the fruits has the
obligation to pay the expenses made by a
third person in their production, gathering,
and preservation.
Art 443 applies when:
1. Owner of property recovers the
property from a possessor and the
possessor has not yet received the
fruits although they may have already
been gathered or harvested; or
2. The possessor has already received
the fruits but is ordered to return the
same to the owner
In both cases, the owner is obliged to
reimburse the previous possessor for the
expenses incurred by the latter.
What if the possessor is in bad faith?
The owner cannot excuse himself from his
obligation by alleging bad faith on the part
of the possessor because the law makes
no distinction
When does good faith/bad faith come into
play?
When the goods have yet to be gathered.
Under 449, a BPS in bad faith has no right
of reimbursement for expenses, nor to the
fruits. Only for the necessary expenses of
preservation of land.
What if the expenses exceed the fruits?
The owner must pay the expenses just the
same because the law makes no
distinction
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
But keep in mind that the owner only pays
for the expenses for production, gathering
and preservation not improvement.
Art 444 Only such as are manifest or born
are considered as natural or industrial
fruits.
With respect to animals, it is
sufficient that they are in the womb of the
mother, although unborn.
When natural fruits and industrial fruits deemed
to exist
1. Plants which produce only one crop and
then perish (rice, corn, sugar): from the
time the seedlings appear from the ground
2. Plants and trees which live for years and
give periodic fruits (mangoes, oranges,
epols): deemed existing until they actually
appear on the plants or trees
3. Animals: beginning of the maximum
ordinary period of gestation (when there
can be no doubt that they are already in
the womb of the mum)
4. Fowls: the fact of appearance of chicks
should retroact to the beginning of
incubation
SECTION II RIGHT OF
ACCESSION WITH RESPECT TO
IMMOVABLE PROPERTY
Section 2 deals with one kind of accession
continua, that of immovables. It comprehends
accession industrial (445-456) and accession
natural (457-465).
Certain basic principles must be kept in mind:
1. Accession follows the principal
Owner of the principal acquires the
ownership of the accession
2. Incorporation or union must be intimate
Removal or separation cannot be
effected without substantial injury to
either or both
3. Effect of good faith and bad faith
Good faith exonerates a person from
punitive liability but bad faith may give
rise to dire consequences
General rule: person who acts in bad
faith has no rights
Exception: person who is in good faith
or bad faith is entitled to
reimbursement for necessary
expenses or preservation (452) as
well as expenses for cultivation,
gathering and preservation (443)
4. Effect of both parties in bad faith
Bad faith of one neutralizes bad faith
of the other
Neither party may demand as a
matter of right the removal of the
improvements against the will of the
other for such right is available only to
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a party in good faith where the other is there is no

in bad faith substantial injury
5. Unjust enrichment to work done
Bad faith Good faith
General rule on accession industrial Acquire the materials Entitled to full
Art 445 and 446 give the general rule that the provided he pays full payment for value
accessory follows the principal. payment plus damages of materials plus
Exception: Art 120 of the Family Code damages, or
Remove materials
Definitions: even if there will
1. Building generic term for all architectural be substantial
work with roof built for the purpose of injury to work
being used as mans dwelling, or for done plus
offices, clubs, theaters, etc. damages
2. Repairs putting of something back into Good faith Bad faith
the condition in which it was originally in Acquire materials without Loses materials
(not an improvement) paying for the value without indemnity
thereof and entitled to and will be liable
Art 445 Whatever is built, planted or sown damages due to defects for damages due
on the land of another and the or inferior quality of to defects or
improvements or repairs made thereon, materials inferior quality of
belong to the owner of the land, subject to materials
the provisions of the following articles. Bad faith Bad faith
Same as when both are in
Owner of land must be known for this good faith.
article to apply

Art 446 All works, sowing, and planting are
presumed made by the owner and at his
expense, unless the contrary is proved.
Disputable presumptions as to improvements:
1. The works, sowing, and planting were
made by the owner. and
2. They were made at the owners expense.
He who alleges the contrary of these
presumptions has the burden of proof.
Art 447 The owner of the land who makes
thereon, personally or through another,
paintings, constructions or works with the
materials of another, shall pay their value;
and if he acted in bad faith, he shall also be
obliged to the reparation of damages. The
owner of the materials shall have the right
to remove them only incase he can do so
without injury to the work constructed, or
without the plantings, constructions or
works being destroyed. However, if the
landowner acted in bad faith, the owner of
the materials may remove them in any
event, with a right to be indemnified for
damages.
Applies when the owner of the property uses
the materials of another.
Landowner- Owner of
Builder/Planter/Sower Materials
Good faith Good faith
LO-BPS can acquire the Entitled to full
materials provided there payment for value
is full payment of materials, or
May remove
materials provided
Art 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 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.
Art 449 He who builds, plants or sows in
bad faith on the land of another, loses what
is built, planted or sown without right to
indemnity.
Art 450 The owner of the land on which
anything has been built, planted or sown in
bad faith may demand the demolition of the
work, or that the planting or sowing be
removed, in order to replace things in their
former condition at the expense of the
person who built, planted or sowed; or he
may compel the builder or planter to pay the
price of the land, and the sower the proper
rent.
Art 451 In case of the two preceding
articles, the landowner is entitled to
damages from the builder, planter or sower.

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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compensating the
Art 452 The builder, planter or sower in bad necessary and If LO does not
faith is entitled to reimbursement for the useful expense appropriate luxurious
necessary expenses of preservation of the with the fruits improvements, BPS can
land. received by the BP remove the same
in good faith provided there is no
Art 453 If there was bad faith, not only on (Nuguid case) injury to the principal
the part of the person who built, planted or thing (land or building)
sowed on the land of another, but also on
the part of the owner of such land, the Right of retention only
rights of one and the other shall be the applies when LO
same as though both had acted in bad faith. chooses to appropriate
It is understood that there is bad (but does not apply if
faith on the part of the landowner whenever property of public
the act was done with his knowledge and dominion)
without opposition on his part. Option 2: To oblige To purchase land at fair
the BP to buy the market value at time of
Art 454 When the landowner acted in bad land or the S to pay payment when value is
faith and the builder, planter or sower the proper rent not considerably more
proceeded in good faith, the provisions of unless the value of than that of the building
article 447 shall apply. the land is or trees
considerably more
Whats good faith? than that of the To pay rent until the
Consists in the: building or trees purchase has been
1. Honest belief that the land he is building, made (Technogas case)
planting, sowing on is his or that by some Legal implication of
title, he has a right to build, plant, sow on planter v sower: If BP cannot pay
it; and Owner cant purchase price of the
2. Ignorance of any defect or flaw in his title compel sower to land, LO can require BP
buy, only rent. to remove whatever has
Abrenica definition: State of mind at the time he been built, planted, or
built the improvements (Pleasantville case) sown.

Usually, it applies to building, planting, sowing If the value of the land is

in the concept of ownership. considerably more than
But the Supreme Court has expanded its that of the building or
coverage to trees, BP cannot be
1. Cases wherein a builder had constructed compelled to buy the
improvements with the consent of the land. In such case, BP
owner will pay reasonable rent
2. Builders in good faith who relied on the if LO does not choose
consent of another whom they have option 1.
mistakenly believed to be the owner of the
land If BPS cannot pay the
3. To children who built improvement on a rent, LO can eject BPS
land belonging to their parents with their from the land.
parents consent (Macasaet case)
Note: Rental period of
sower is only until he
Landowner Builder/planter/sower gathers what he sowed.
Good faith Good faith He doesnt have the
Option 1: Purchase Receive indemnity for remedy of removal.
whatever has been necessary, useful and (Sarmiento)
built, planted, or luxurious expenses Good faith Bad Faith
sown after paying (depends on landowner) Option 1: To Loses whatever has
indemnity which with right of retention acquire whatever been built, planted or
includes necessary, over the land without has been built, sown without indemnity
useful and obligation to pay rent planted or sown and liable to pay
luxurious expenses until full payment of without paying damages
(if he wishes to indemnity indemnity except
appropriate the necessary Entitled to
luxurious Remove useful expenses for reimbursement for
expenses) improvement provided it preservation of necessary expenses for
does not cause any land and luxurious preservation of land but
Prohibited from injury (part of right of expenses (should no right to retention (and
offsetting or retention) LO want to acquire also 443)

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PROPERTY NOTES

luxurious Those which seek to prevent the waste,

improvement) plus NOT Entitled to deterioration, or loss of the thing
damages reimbursement for useful
expenses and cannot
remove useful Useful expenses
improvements even if Expenses which add value to a thing or
removal will not cause Augment is income
injury (MWSS case)

Not entitled to luxurious When does good faith cease?

expenses except when From the moment defects in the title are
LO wants to acquire
made known to the possessor by
(value of which will be
extraneous evidence or by suit for
the one at the time LO
recovery of the property by the true owner
enters into possession)
What happens if good faith ceases? (Rosales
Entitled to remove
case)
luxurious improvements
LO can acquire improvements built PRIOR
if it will not cause injury
and LO does not want to to the notice to BPS (when good faith
acquire them. If it will ceased), and indemnify BPS of current
cause injury and LO market value at time of payment
doesnt want to acquire, LO entitled to rent from the time BPS good
he gets it for free (Dean faith ceased
Del)
Option 2: To oblige Obliged to pay for land When will these rules not apply?
BP to buy land or S or proper rent and pay 1. When other provisions of law govern
to pay proper rent damages (agency, co-ownership, lease, usufruct)
plus damages, 2. Improvement constructed on ones own
regardless of land subsequently sold (person constructs
valuation a house on his own land and later sold
Option 3: To Obliged to remove or land to another)
compel BPS to demolish work done at But, the provision on indemnity in 448
remove or his expense and pay may be applied by analogy where the
demolish work damages owner-builder later lost ownership of
done plus damages the land by virtue of a court judgment,
Bad Faith Good Faith considering that the primary intent of
Acquire whatever Ball is in the court of the 448 is to avoid a state of forced co-
has been built, BPS. ownership especially where the
planted or sown by parties in the main agree that 448 and
paying indemnity BPS can remove 546 are applicable and indemnity for
plus damages whatever has been built, the improvements may be paid
planted or sown although they differ as to basis of the
regardless of whether or indemnity - whut?! (Pecson v CA)
not it will cause injury 3. Builder is a belligerent occupant
and will be entitled to 4. Constructions not in the nature of buildings
damages 5. Property of public domain

If LO acquires whatever Art 455 If the materials, plants or seeds

has been built, planted
or sown, BPS must be
indemnified the value
thereof plus damages
If LO does not acquire,
BPS cannot insist on
purchasing land
Bad Faith Bad Faith
Both in good faith
belong to a third person who has not acted
in bad faith, the owner of the land shall
answer subsidiarily for their value and only
in the event that the one who made use of
them has no property with which to pay.
This provision shall not apply if the
owner makes use of the right granted by
Article 450. If the owner of the materials,
plants or seeds has been paid by the
builder, planter or sower, the latter may
demand from the land-owner the value of
the materials and labor.

Landowner Builder/Planter/S Owner of

Necessary expenses ower the
Made for the preservation of the thing, or Materials
Good Faith Good Faith Good Faith

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PROPERTY NOTES

Option 1: To To receive To receive planted or entitled to be both as if

acquire indemnity from indemnity sown indemnified for they are in
whatever LO with right of from BPS without necessary good faith.)
has been retention over who is paying expenses and
built, land until full primarily indemnity luxurious Whatever is
planted or payment liable for except for expenses (should the choice
sown materials; if necessary LO want to of the LO,
provided BPS is expenses acquire luxurious OM has
there is insolvent, to for improvements) right to
payment of proceed preservatio and has no right receive
indemnity against LO n of land of removal even indemnity
(which who is and if removal will not for value of
includes subsidiarily luxurious cause damage materials
value of liable with expenses from BPS
what has no right of (should LO only (LO
been built, retention want to has no
planter or acquire subsidiary
sown plus luxurious liability for
value of improveme value of
materials nts) plus materials
used) damages because
Option 2: To To buy land or to To receive OM is
oblige BP to pay proper rent indemnity considered
buy land or from BPS in good faith
S to pay only (LO is only insofar
rent unless not as BPS is
value of subsidiarily concerned)
land is liable) with
considerabl right of OM has no
y more than retention right to
that of until full remove
building or payment; or materials
trees even if
To remove there will be
materials if no injury or
there will be damage
no injury on Option 2: To To buy the land Get
building or oblige BP to or pay proper indemnificat
trees and buy the rent and liable to ion from the
will have land or S to pay damages to BPS
material lien pay proper LO
against rent plus
BPS for damages
payment of Option 3: To To demolish or Liable to
materials oblige BP to remove what has pay
Good Faith Good Faith Bad Faith demolish or been built, damages
Same Whatever is remove planted or sown due to
the choice what has and liable for defects or
of LO, the been built, damages inferior
OM: planted or quality of
1. loses the sown plus materials
materials in damages
favor of the Bad Faith Good Faith Good Faith
BPS and To acquire To receive TO receive
2. will have what has indemnity from indemnity of
no right to been built, LO plus damages materials
receive planted or principally
indemnity sown by from BPS
from BPS paying and in case
nor LO indemnity BPS is
Good Faith Bad Faith Bad Faith plus liable insolvent,
Option 1: To BPS loses what (Since both to pay subsidiarily
acquire has been built, BPS and damages from LO
whatever planted or sown OM are in Bad Faith Good Faith Bad Faith
has been plus liable for bad faith, Same Same No right to
built, damages but is treat them receive

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Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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PROPERTY NOTES
indemnity
for value of
materials
from BPS
nor LO
(who ends
up owning
buildings or
trees)
If OM in bad faith, he doesnt get anything
(unless BPS in bad faith as well)
Art 456 In the cases regulated in the
preceding articles, good faith does not
necessarily exclude negligence, which
gives right to damages under article 2176.
Art 457 To the owners of the lands adjoining
the banks of rivers belong the accretion
which they gradually receive from the
effects of the current of the waters.
Article treats of alluvion, a form of accession
natural.
Alluvion is
Accretion which the banks of rivers
gradually receive from the effects of the
current of the waters and
Which belong to the owners of lands
adjoining the said banks
Riparian owners are owners of lands
adjoining the banks of rivers.
Littoral owners are the owners of lands
bordering the shore of the sea or lake or
other tidal waters
Distinguished from accretion
Alluvion is applied to the deposit of soil or
to the soil itself
Accretion is the act or process by which a
riparian land gradually and imperceptively
receives addition made by the water to
which the land is contiguous
Requisites
i. Deposit or accumulation of soil or
sediment must be gradual and
imperceptive
ii. Accretion results from the effects or
action of the current of waters of the
river (exclusive work of nature)
iii. Land where accretion takes place must
be adjacent to the bank of a river
Instances when alluvion DOES NOT take place
1. Accretion because of sudden and forceful
action like that of flooding
2. Accretion caused by human intervention
(would still be part of public domain Vda
de Nazerno v CA)
3. Accretion caused by action of Manila Bay
(since Manila Bay is not a river, its part of
the sea)
Mickey Ingles
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4. Accretion on the bank of a lake (like
Laguna de Bay) have been held to belong
to the owners of the lands to which they
are added
Elements of river and their ownership
A river is a compound concept consisting of
three elements:
1. Running waters
2. The bed
3. The banks
Since a river is a compound concept, it
should have only one nature it should
either be totally public or completely
private. And since rivers, whether
navigable or not, are of public dominion
(Art 420), it is implicit that all the three
component elements be the same nature
also.
Reasons for alluvion
1. Compensate the riparian owner for
the danger of loss that he suffers
because of the location of his land
2. Compensate him for the
encumbrances and various kinds of
easements to which his property is
subject
3. Promote the interests of agriculture for
the riparian owner it in the best
position to utilize the accretion
Accretions affecting lands registered under the
Torrens system
In case of diminution of area
Registration does not protect the riparian
owner against diminution of the area of his
land through gradual changes in the
course of the adjoining stream
Accretions which the banks of rivers may
gradually receive from the effect of the
current become the property of the owners
of the banks
In case of increase of area
Although alluvion is automatically owned
by the riparian owner, it does not
automatically become registered land, just
because the lot which receives such
accretion is covered by a Torrens title
So, alluvial deposit acquired by a riparian
owner of registered land by accretion may
be subjected to acquisition through
prescription by a third person, by failure of
such owner to register such accretion
within the prescribed period
Art 458 The owners of estates adjoining
ponds or lagoons do not acquire the land
left dry by the natural decrease of the
waters, or lost that inundated by them in
extraordinary floods.
Refers only to ponds and lagoons
o No application when the estate
adjoins a creek, stream, river or
lake
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o For purposes of alluvion, lakes the sudden change of the course of the
are of the same category of river
creeks, streams and rivers
Pond Requisites
o a body of stagnant water without i. Segregation and transfer must be
an outlet caused by the current of a river, creek
o larger than a puddle and smaller or torrent
than a lake ii. Segregation and transfer must be
Lagoon sudden or abrupt
iii. Portion of land transported must be
o small lake, ordinarily of fresh
known or identifiable
water,
o and not very deep, fed by floods
Even if the detached portion be placed on
o the hollow bed of which is
top of another land instead of being
bounded by elevations of land adjoined to it, Art 459 still applies as long
Lake as it can be identified as coming form the
o Body of water formed in estate from which it was detached
depressions of the earth If only soil is removed by water and spread
o Ordinarily fresh water over anothers land such that no known
o Coming from rivers, brooks or portion can be said to exist which can be
springs removed, there is no avulsion
o Connected with the sea by them Current
o Hence, Laguna de Bay is a lake o Continuous movement of a body
of water, often horizontal, in a
certain direction
Art 459 Whenever the current of a river, River
creek or torrent segregates from an estate o Natural surface stream of water of
on its bank a known portion of land and considerable volume
transfers it to another estate, the owner of
o Permanent or seasonal flow
the land to which the segregated portion
o Emptying into an ocean, lake or
belonged retains the ownership of it,
provided that he removes the same within other body of water
two years. Creek
o Small islet extending further into
Avulsion is land
Also known as force of river o Natural stream of water normally
Defined as the accretion which takes place smaller than and ofter tributary to
when the current of a river, creek or torrent a river
segregates from an estate on its bank a Torrent
known portion and transfers it to another o Violent stream of water
estate o A flooded river or one suddenly
In which case, the owner of the estate to raised by a heavy rain and
which the segregated portion belonged, descending a steep incline
retains the ownership thereof o Raging flood or rushing stream of
Also refers to the segregation or transfer water
itself of a known portion of land to another
by the force of the current What if a portion of land is transferred, but not
by a current of water, but by a landslide?
Alluvion Avulsion You can apply Art 459, by analogy.
Deposit of soil is Deposit is sudden
gradual or abrupt Remove it within two years
Deposit of soil The owner of the The former owner preservers his
belongs to the property from ownership of the segregated portion
owner of the which a part was provided he removes (not merely claims)
property where detached retains the same within the period of 2 years
the same was the ownership It would seem that his failure to do so
deposited thereof would have the effect of automatically
The soil cannot Detached portion transferring ownership over it to the owner
be identified can be identified of the other estate
Law doesnt make a distinction between
Where there had been accretions to the private land and land of the public domain
land adjacent to the bank of a river, the Why two years?
riparian owner does not lose the o Segregated portion is usually very
ownership of such accretions even if they small and it is thus useless to the
are separated by avulsion from the land by original owner

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PROPERTY NOTES
o Similar to uprooted trees (but
there, 6 months)
o If the owner of the separated
portion retains his ownership
without any qualification, he
would have a right to enter the
other estate at any time, which
wouldnt be convenient to the
other estate
o After a long period, the detached
potion may become permanently
attached to the new land so itll be
hard to remove
Art 460 Trees uprooted and carried away by
the current of the waters belong to the
owner of the land upon which they may be
cast, if the owners do not claim them within
6 months. If such owners claim them, they
shall pay the expenses incurred in
gathering them or putting them in a safe
place.
Applies only to uprooted trees
If a known portion of land with trees
standing thereon is carried away by the
current to another land, Art 459 governs
The original owner claiming the trees is
liable to pay the expenses incurred by the
owner of the land upon which they have
been cast in gathering them or putting
them in a safe place
Claim must be done in 6 months
o If not, the trees will belong to the
owner of the land where the trees
have been cast to
o Six months is a condition
precedent and not a prescription
period
o After a claim is made within 6
months an action may be brought
within the period provided by law
for prescription of movables
NB: For trees, you need only CLAIM within the
period. For land (Art 459), you have to
REMOVE them within 2 years
Art 461 River beds which are abandoned
through the natural change in the course of
the waters ipso facto belong to the owners
whose lands are occupied by the new
course in proportion to the area lost.
However, the owners of the lands adjoining
the old bed shall have the right to acquire
the same by paying the value thereof, which
value shall not exceed the value of the area
occupied by the new bed.
River beds abandoned through natural change
in the course of waters
They belong to owners occupied by the
new course of the river
Mickey Ingles
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o In proportion to the area lost (if
only one owner lost a portion of
his land, the entire old bed should
belong to him. If more than two,
then in proportion to the area lost)
Abandoned? The words may be construed
to mean that where there is abandonment
by the government over the old bed, the
owner of the invaded land automatically
acquires ownership of the same without
any formal act on his part. (Remember that
rivers are property of public dominion)
o The change in the course of the
river does not ipso facto result in
the abandonment of the river but
must be the reason for its
abandonment, in other words, the
river is abandoned because of or
through the natural change of the
water
The owners of land adjoining the old bed
are given the preferential right to acquire
the old bed by paying the value thereof
o The indemnification shall not
exceed the value of the area
occupied by the new bed (in case
of disagreement, bring the case
to court.)
Requisites
i. There must be a natural change in the
course of the waters of the river
ii. Change must be abrupt or sudden
NB: Law speaks of change of river course. If a
river simply dries up or disappears, the bed left
dry will belong to public dominion (Art 502)
Art 462 Whenever a river, changing its
course by natural causes, opens a new bed
through a private estate, this bed shall
become of public dominion.
NB: This article talks of the new riverbed. Art
461 talked about the old riverbed.
The bed of a public river or stream is of
public ownership (Art 502)
If the river changes its course and opens a
new bed, this bed becomes of public
dominion even if its on private property
Just as the old had bed had been of public
dominion before the abandonment, the
new riverbed shall likewise be of public
dominion
No distinction whether a river is navigable
or floatable or not
Art 463 Whenever a current of a river
divides itself into branches, leaving a piece
of land or part thereof isolated, the owner of
the land retains his ownership. He also
retains it if a portion of land is separated
from the estate by the current.
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island is considered a riparian

NB: This article does not refer to the formation owner together with the owner of
of islands through accretion (thats in Art 464 the land adjoining the bank for
and 465). the purpose of determining
ownership of the island
This article refers to the formation of an island
caused by a river dividing itself into branches o He must of course register the
resulting in: land, else it be subject to adverse
1. The isolation of a piece of land or part possession of another
thereof, or
2. The separation of a portion of land from Navigable river
an estate by the current (see Art 459) o One which forms in its ordinary
condition by itself or by uniting
The owner preserves his ownership of the with other waters a continuous
isolated or separated property highway over which commerce is
or may be carried on
Art 464 Islands which may be formed on the o Test: whether it is navigable in
seas within the jurisdiction of the fact, if it is used or susceptible of
Philippines, on lakes, and on navigable or being used as a highway of
floatable rivers belong to the State. commerce, for trade and travel in
the usual and ordinary modes
Art 465 Islands which through successive o A navigable river is one that is
accumulation of alluvial deposits are floatable, that is, a river
formed in non-navigable and non-floatable admitting floats
rivers, belong to the owners of the margins i. Hence, a floatable
or banks nearest to each of them, or to the stream is a navigable
owners of both margins if the island is in stream (Macatangay v
the middle of the river, in which case it shall Secretary of Public
be divided longitudinally in halves. If a Works in this case,
single island thus formed be more distant natangay si
from one margin than from the other, the Macatangay. Hehehe!)
owner of the nearer margin shall be the sole
owner thereof.
SECTION THREE RIGHT OF
Rules of ownership of islands form through ACCESSION WITH RESPECT TO
alluvion MOVABLE PROPERTY
1. An island belongs to the State as part of its Art 466 Whenever two movable things
patrimonial property if it is formed: belonging to different owners are, without
a. On the seas within the jurisdiction bad faith, united in such a way that they
of the Philippines form a single object, the owner of the
b. On lakes principal thing acquires the accessory,
c. On navigable or floatable rivers indemnifying the former owner thereof for
its value.
2. If it is formed in non-navigable and non-
floatable rivers: Adjunction is
a. It belongs to the nearest riparian The union of two movable things belonging
owner or owner of the margin or to different owners
bank nearest to it as he is In such a way that they form a single
considered in the best position to
object
cultivate and develop the island
But one of the component things
(in other words, sa pinakamalapit
na may ari ng lupa) preserves its value
b. If it is in the middle of the river,
the island is divided longtitudinally Characteristics of adjunction
in halves In order that adjunction may take place, it is
c. If the island formed is longer than necessary that:
the property of the riparian owner, 1. There are two movables belonging to
the latter is deemed ipso jure to different owners
be the owner of that portion which 2. They are united in such a way that they
corresponds to the length of that form a single object; and
portion of his property along the 3. They are so inseparable that their
margin of the river separation would impair their nature or
d. If a new island is formed between result in substantial injury to either
an existing island and an opposite
bank, the owner of the older

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PROPERTY NOTES
In determining the right of the parties in
adjunction, regard is had only to the things
joined and not to the persons.
But where there is a mere change of form
or value which does not destroy the
identity of the component parts, the
original owners may demand their
separation (Art 469)
Kinds of adjunction
1. inclusion or engraftment (such as when a
diamond is set on a gold ring)
2. soldering or soldadura (when led is united
or fused to an object made of lead)
a. ferrumincaion (if both the
accessory and principal are of the
same metal)
b. plumbatura (if they are of different
metals)
3. writing or escritua (when a person writes
on paper belonging to another)
4. painting or pintura (when a person pains
on canvas of another)
5. weaving or tejido (when threads belonging
to different owners are used in making
textile)
Art 467 The principal thing, as between two
things incorporated, is deemed to be that to
which the other has been united as an
ornament, or for its use or perfection.
Art 468 If it cannot be determined by the
rule given in the preceding article which of
the two things incorporated is the principal
one, the thing of the greater value shall be
so considered, and as between two things
of equal value, that of greater volume.
In painting and sculpture, writings,
printed matter, engraving and lithographs,
the board, metal, stone, canvas, paper or
parchment shall be deemed the accessory
thing.
Tests to determine the principal in adjunction
In the order of application, the principal is that:
1. To which the other (accessory) has
been united as an ornament or for its
use or perfection. (rule of importance
and purpose)
2. Of greater value, if they are of
unequal values;
3. Of greater volume, if they are of an
equal value;
4. That of greater merits taking into
consideration all the pertinent legal
provisions (see Art 475) applicable as
well as the comparative merits, utility
and volume of their respective things
The special rule regarding paintings,
etc is based on the consideration that
what is painted is of greater value that
the board or canvas inasmuch as the
exceptions mentioned are specified,
its provision can not be applied by
analogy to cases of adjunction of
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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similar nature which are deemed
excluded. (See Art 467 and 468)
Art 469 Whenever the things united can be
separated without injury, their respective
owners may demand their separation.
Nevertheless, in case the thing
united for the use, embellishment or perfect
of the other, is much more precious than
the principal thing, the owner of the former
may demand its separation, even though
the thing to which is has been incorporated
may suffer some injury.
When separation of things united are allowed
1. Whenever the separation can be done
without injury
2. When the accessory much more precious,
the owner of the accessory may demand
its separation even though the principal
thing may suffer some injury
Owner who made or caused the union
or incorporation shall bear the
expenses for separation
3. When principal acted in bad faith, owner of
accessory may separate even if the
principal thing be destroyed
Art 470 Whenever the owner of the
accessory thing has made the incorporation
in bad faith, he shall lose the thing
incorporated and shall have the obligation
to indemnify the owner of the principal
thing for the damages he may have
suffered.
If the one who has acted in bad
faith is the owner of the principal thing, the
owner of the accessory thing shall have a
right to choose between the former paying
him its value or that the thing belonging to
him be separated, even though for this
purpose it be necessary to destroy the
principal thing; and in both cases,
furthermore, there shall be indemnity for
damages.
If either one of the owners has
made the incorporation with the knowledge
and without the objection of the other, their
respective rights shall be determined as
though both acted in good faith.
ADJUNCTION
(accessory follows principal)
Rights of Owner of Rights of Owner of
Principal Accessory
Good Faith Good Faith
Acquires the Loses the accessory
accessory, but has a right to
indemnifying the indemnity for the
owner of the value value of the
thereof accessory
Except: When value of Has a right to
accessory is much demand separation
more precious than even if it causes
the principal thing injury to the principal
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(469) thing (469) o Commixtion (for solids)

o Confusion (for liquids)
Except: When still May demand
separable, may separation (469( Rules governing mixture (co-ownership)
demand separation 1. If the mixture by will of owners, their rights
(no adjunction shall be governed by their stipulations. In
anyway) the absence of any stipulation, each owner
Good faith Bad faith acquires a right or interest in the mixture in
Acquires the Loses the thing and proportion to the value of his materials as
accessory and has a has liability for in co-ownership.
right to indemnity for damages MIXTURE
damages he may have Owner who caused Owner of the thing
suffered mixture mixed into
Bad faith Good faith Good faith or by Good faith or by
Pays for the accessory Option 1: Demand chance chance
plus damages the owner of the
principal to pay for Each owner acquires Each owner acquires
the value of the a right proportional to a right proportional to
Separate thing even if accessory plus the part belonging to the part belonging to
it is destroyed plus damages him, bearing in mind him, bearing in mind
pay damages the value of the things the value of the things
Option 2: Demand mixed or confused mixed or confused
separation even if it Bad faith Good faith
causes the Loses the thing mixed Acquires the thing
destruction of the or confused plus mixed plus entitled to
principal thing plus liable to pay damages damages
damages
Bad Faith Bad Faith
As if both are in good Art 474 One who in good faith employs the
faith material of another in whole or in part in
order to make thing of a different kind, shall
Art 471 Whenever the owner of the material appropriate the thing thus transformed as
employed without his consent has a right to his own, indemnifying the owner of the
indemnity, he may demand that this consist material for its value.
in the delivery of a thing equal in kind and If the material is more precious
value, and in all other respects, to that than the transformed thing or is of more
employed, or else in the price thereof, value, its owner, may, at his option,
according to expert appraisal. appropriate the new thing to himself, after
Art 472 if by the will of their owners two first paying indemnity for the value of the
things of the same or different kinds are thing, or demand indemnity for the material.
mixed, or if the mixture occurs by chance, If in the making of the thing bad
and in the latter case the things are not faith intervened, the owner of the material
separable without injury, each owner shall shall have the right to appropriate the work
acquire a right proportional to the part to himself without paying anything to the
belonging to him, bearing in mind the value maker, or to demand of the latter that he
of things mixed or confused. indemnify him for the value of the material
Art 473 if by the will of only one owner, but and the damages he may have suffered.
in good faith, two things of the same or However, the owner of the material cannot
different kinds are mixed or confused, the appropriate the work in case the value of
rights of the owners shall be determined by the latter, for artistic or scientific reasons, is
the provisions of the preceding article. considerably more than that of the material.
If by the one who caused the
mixture or confusion acted in bad faith, he Definition of specification
shall lose the thing belonging to him thus Takes place whenever the work of a
mixed or confused, besides being obliged person is done on the material of another
to pay indemnity for the damages caused to Such material, in a consequence of the
the owner of the thing with which his own work itself, undergoing a transformation.
was mixed Imparting of a new form to the material
belong to another, or making of the
Definition of mixture
material of another into a different kind
Takes place when two or more things o Flour made into bread, grapes
belonging to different owners are mixed or into wine, clay into bricks, love
combined into hate (joke. Putek, ang boring
With the respective identities of the ng Property. If youve made it this
component parts destroyed or lost far, good for you!)
Two kinds
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ART 476 Whenever there is a cloud on title

SPECIFICATION to real property or any interest therein, by
(accessory follows principal) reason of any instrument, record, claim,
Owner of material Builder encumbrance or proceeding which is
Good faith Good faith apparently valid or effective but it is in truth
Right to Shall appropriate the and in fact invalid, ineffective, voidable or
indemnification for the thing thus unenforceable, and may be prejudicial to
value of the material. transformed as his said title, an action may be brought to
own, indemnifying remove such clod or to quiet the title.
the owner of the An action may also be brought to
material for its value. prevent a cloud from being cast upon title
Except: Material more to real property or any interest therein.
precious than
transformed thing. Title to real property refers to that upon which
ownership is based.
Option 1: Appropriate To be indemnified. Plaintiff in action for quiet title dies, should it be
the new thing to dismissed? No. Its a quasi in rem suit.
himself, indemnifying Defendants defenses: prescription, lack of
the builder for his jurisdiction of court
work. Appropriate the same
after indemnity for Cloud on title
Option 2: Demand material. Semblance of title, either legal or
indemnity for the equitable, or a claim or a right in real
material. property, appearing in some legal from, but
Good faith Bad faith which is in fact, invalid or which would be
Option 1: Appropriate Loses his work. No inequitable to enforce
the work to himself right to indemnity. Requisites
without paying i. Instrument, record, claim,
indemnity. (Damages encumbrance or proceeding
also?) Pay for the materials which is apparently valid or
and damages. effective,
Except: When for ii. Such instrument is in truth and in
artistic or scientific fact, invalid, ineffective, voidable
reasons, the thing has or unenforceable, or has been
a value considerably extinguished or terminated, or
higher than the has been barred by extinctive
material. The owner of Must pay indemnity prescription
the material cannot and damages. iii. Such instrument may be
appropriate the work. prejudicial to said title

Option 2: Demand Action to quiet title

indemnity for material Requisites:
plus damages. i. Plaintiff or complainant has a
legal or an equitable title to, or
interest in the real property
Art 475 In the preceding articles, subject of the action
sentimental value shall be duly ii. The deed, claim or proceeding
appreciated. claimed to be casting cloud on his
title must be shown to be, in fact,
Adjunction, mixture and specification invalid or inoperative despite its
distinguished prima facie appearance of validity
Adjunction Mixture or legal efficacy
At least two things At least two things
Action to quiet title Action to remove a
Component parts retain Things mixed may or cloud on title
or preserve their nature may not retain their Purpose to put Removal of a
respective original an end to possible
nature troublesome foundation for a
Accessory follows Co-ownership results litigation in future hostile
principal respect to the claim
property involved Preventive action
Remedial action to prevent a future
CHAPTER THREE: QUIETING OF
involving a cloud on the title
TITLE present adverse 2nd paragraph of
claim Art 476

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Mickey Ingles
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Ad Majorem Dei Gloriam
PROPERTY NOTES
1st paragraph of
Art 476
An action to quiet title includes an action to
remove a cloud of title.
Nature of action
Quasi in rem
Judgment is conclusive only between the
parties
The res, the subject-matter of the
controversy, is within the courts
jurisdiction, and it is because of that
circumstance that the court is able to
adjudicate
Not essential that the court acquire
jurisdiction of the person of the defendant
Benefits from allowing actions
Task of court is to determine the respective
rights of the parties so that the
complainant and those claiming under him
may forever free from any danger of
hostile claim (Rumarate case)
Affords prompt and adequate method to
remove cloud on title
Promotes improvement of property
To what kind of property does this action
apply?
Real property, which may refer to either
the title or only an interest therein
(usufruct, servitude, lease record, etc)
Not to personal property
o But, they may be applied to
personalty under exceptional
circumstances with respect to
certain types of property which
partake of the nature of
real property (vessels,
motor vehicles,
certificates of stocks), or
treated to some extent
as realty because of
registration requirements
for ownership
transactions affecting
them (chattel mortgage)
Prescriptibility of action
1. If plaintiff in possession, it does not
prescribe. An action to quiet title brought
by a person who is in possession of the
property is imprescriptible.
2. If plaintiff not in possession, he must
invoke his remedy within the proper
prescriptive period. Ten years if in good
faith, 30 years if in bad faith.
Art 477 The plaintiff must have legal or
equitable title to, or interest in the real
property which is the subject matter of the
action. He need not be in possession of
said property.
Mickey Ingles
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+
Title and possession of the plaintiff
Plaintiff must have a legal or equitable title
or an interest in the real property which is
the subject matter of the action
o Legal title may consist in full
ownership or in naked ownership
o If plaintiff has beneficial interest in
the property (such as a
beneficiary in a trust), he has
beneficial title
o Interest in property is any interest
short of ownership, like the
interest of a mortgagee or a
usufructuary
If plaintiff is not in possession, he may also
bring one of the three actions mentioned in
addition to the action to quiet title
In order to afford complete relief to the
parties in action to quiet title, the court,
without thereby converting the action from
quieting of title into accion publiciana, may
determine,:
o Incidentally the ownership,
o The stats of the legal title to the
property
o Right to the possession thereof
Art 478 There may also be an action to quiet
title or remove a cloud therefrom when the
contract, instrument or other obligation has
been extinguished or has terminated, or has
been barred by extinctive prescription.
Two cases when action allowed
An action to quiet title may be maintained:
1. When the contract, instrument, or other
obligation has been extinguished or
terminated (right of the defendant has
been extinguished by the happening of a
condition subsequent)
2. When the contract, instrument or other
obligation has been barred by extinctive
prescription (as where plaintiff has
possess in bad faith the property publicly,
adversely and uninterruptedly for 30 years)
or Art 479 The plaintiff must return to the
defendant all benefits he may have received
from the latter, or reimburse him for
expenses that may have redounded to the
plaintiffs benefit.
Obligation of plaintiff to return or reimburse
The purpose of the action to quiet title is
solely
o to remove the cloud on the
plaintiffs title or
o to prevent a cloud from being cast
upon his title, and not to obtain
any other benefit
Plaintiff is bound to return to the defendant
all the benefits he may have received form
the latter or reimburse him for the
expenses incurred on the property which
has redounded to the plaintiffs benefit
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PROPERTY NOTES
(less of course, any damage which he
suffered by reason of the defendant)
Art 480 The principles of the general law on
the quieting of title are hereby adopted
insofar as they are not in conflict with this
Code.
Art 481 The procedure for quieting of title or
the removal of a cloud therefrom shall be
governed by such rules of court as the
Supreme Court shall promulgate.
CHAPTER FOUR: RUINOUS
BUILDINGS AN TREES IN DANGER
OF FALLING
Art 482 If a building, wall, column or any
other construction is in danger of falling,
the owner shall be obliged to demolish it or
to execute the necessary work in order to
prevent it from falling.
If the proprietor does not comply
with this obligation, the administrative
authorities may order the demolition of the
structure at the expense of the owner, or
take measures to insure public safety.
If a building, wall, column or other
construction is in danger of falling, the
owner has the duty to either:
o Demolish it, or
o Repair it.
In case he doesnt, the administrative
authorities, in the exercise of police power,
may order the demolition of the structure,
or take measures to insure public safety
Recognition of the limitation of the owners
rights in the use and enjoyment of his
property
o Sic utere tuo ut alienum non
laedas. Use your property as
not to injure others
Art 483 Whenever a large tree threatens to
fall in such a way as to cause damage to the
land or tenement of another or to travelers
over a public or private road, the owner of
the tree shall be obliged to fell and remove
it; and should he not do so, it shall be done
at his expense by order of the
administrative authorities.
Owner of the tree may be compelled to fell
and remove a threatening tree, and should
he fail to do so, the work shall be ordered
done at his expenses by the administrative
authorities
TITLE III CO-OWNERSHIP
ART 484 There is co-ownership whenever
the ownership of an undivided thing or right
belongs to different person.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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In default of contracts, or of special
provisions, co-ownership shall be governed
by the provisions of this Title.
What is co-ownership?
As a manifestation of ownership, it is that
form of ownership which exists whenever
an undivided thing or right belongs to
different persons
As a right, it has been defined as the right
of common dominion which two or more
persons have in a spiritual or ideal part of
a thing which is not materially or physically
divided
Requisites
i. Plurality of owners
ii. Object of ownership must be an
undivided thing or right
iii. Each co-owners right must be limited
only to his ideal share of the physical
whole
Characteristics of co-ownership
1. Two or more co-owners
2. Single object which is not materially or
physically divided, over which and his
ideals share of the whole, each co-owner
exercises ownership, together with the co-
owners
3. No mutual representation by the co-
owners
4. Exists for the common enjoyment of the
co-owners
5. No distinct legal personality
6. Governed first by the contract of parties
a. otherwise, by special legal
provisions
b. in default of such provisions, by
this Title
Ownership of a co-owner
Ownership of whole and over his aliquot
share
Each owner is at the same time absolute
owner of his own ideal but definite share
which determines his rights and
obligations in the co-ownership
Every co-owner, jointly with the other co-
owners, is the owner
i. of the whole, and over the whole
he exercises the right of
dominion, and
ii. he is at the same time the owner
of an aliquot portion which is truly
abstract because until division is
effected such portion is not
concretely determined
Disputed portions owned already concretely
determined
No co-ownership when the different
portions owned by different people are
already concretely determined and
separately identifiable, even if not yet
technically described
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Example: When northern half of land owner generally bind the

belongs to buyer, southern half No mutual partnership
belongs to seller representation Distribution of
Distribution of profits is subject
Sources of co-ownership profits must be to stipulation of
1. Contract (two persons share in paying proportional to the partners
purchase price) the respective
2. Law (easement in party walls, absolute interests of the Dissolved by
community of property) co-owners death or
3. Succession (in the case of heirs of Not dissolved by incapacity
undivided property) death
4. Testamentary disposition or donation inter Agreement to There may be
vivos (testator prohibits partition of the agreement as to
keep the thing
property) any definite term
undivided for a
5. Fortuitous event or by chance (commixtion without limit set
period of more
or confusion by accident) by law
than ten years is
6. Occupancy (two folks catch a wild animal
void (although it
in the jungles of Borneo)
may be extended
by a new
Co-ownership Joint Ownership agreement)
Each co-owner, No abstract share
together with the ownership by the Co-ownership Easement
others, is the co-owners, the Each co-owner Precisely a
owner of the right of the joint
has a right of limitation on the
whole undivided tenants being
dominion over right of dominion
thing or right but inseparable
the whole
at the same time
property and
of his own ideal
over his Right of dominion
part thereof Not permitted to
undivided share is in favor of one
Can dispose of dispose of his Right of or more persons
his share without share or interest
ownership rests and over two or
the consent of the in the property
solely on each more different
other without the
and every co- things
consent of others
owner over a
Survivors are If joint tenant
single object
subrogated to the dies, his
rights of the ownership dies Case doctrines
deceased with him
The property regime of parties to a
immediately upon
bigamous marriage is governed by Art 148
the death of the
of the Family Code which provides that all
latter Disability of a
properties acquired by the parties out of
Disability of a co- joint tenant inures their actual joint contribution of money,
owner does not to the benefit of property, or industry shall be governed by
inure to the the others for the rules on co-ownership. If there is no
benefit of the purposes of contribution from either or both of the
others prescription spouses, there can be no co-ownership.
(Acre v Yuttikki - aw yeah, what a name.)
Co-ownership Partnership
May be created Can be created Art 485 The share of the co-owners, in the
without only by a benefits as well as in the charges, shall be
formalities of a contract, express proportional to their respective interests.
contract or implied Any stipulation in a contract to the contrary
No juridical or Distinct juridical shall be void.
legal personality personality The portions belonging to the co-
Purpose is Purpose to obtain owners in the co-ownership shall be
collective profits presumed equal, unless the contrary is
enjoyment of the proved.
thing Unless
Co-owner can authorized, a Presumption: Proportional to their respective
dispose of his partner cannot interests
share without the dispose and Does not apply to co-ownership based on will
consent of the substitute another or by donation.
others, transferee partner in his
automatically place Art 486 Each co-owner may use the thing
becoming a co- Partner can owned in common, provided he does so in

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Mickey Ingles
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PROPERTY NOTES
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.
Limitations on co-owners right to use
1. Must be n accordance with the purpose for
which the co-ownership is intended
Resort to the agreement
In absence thereof, it is to be
understood that the thing is
intended for that use for which it
is ordinarily adapted according to
its nature
Co-owners are free to change the
purpose of the co-ownership by
agreement, express or implied
o However, mere
tolerance does not
change purpose
2. Must not injure the interest of the co-
ownership
3. Must not prevent the co-owners from using
it according to their rights
Art 487 Anyone of the co-owners may bring
an action in ejectment.
Action in ejectment
Any co-owner can bring, in behalf of
himself, and the other co-owners an action
in ejectment affecting the co-ownership
o Forcible entry, unlawful detainer,
recovery of possession, recovery
of ownership
May be brought against strangers and
even against a co-owner
o Only purpose of an action against
a co-owner who takes exclusive
possession and asserts exclusive
ownership of the property is to
obtain recognition of the co-
ownership
An adverse decision in the action is not
necessarily res judicata with respect to the
other co-owners not being parties to the
action
o Exception: where it appears that
the action was instituted in their
behalf with their express or
implied consent, or
o The rights in the co-ownership
are derived from the title of their
predecessors-in-interest found by
the court to be invalid or
inexistent
Art 488 Each co-owner shall have a right to
compel the other co-owners to contribute to
the expenses of preservation of the thing or
right owned in common and to the taxes.
Anyone of the latter may exempt himself
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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from this obligation by renouncing so much
of his undivided interest as may be
equivalent to his share of the expenses and
taxes. No such waiver shall be made if it is
prejudicial to the co-ownership.
Obligation to contribute to expenses of
preservation and to taxes
The expenses of preservation of the thing
or right owned in common and the amount
of taxes due thereon should be borne by
all
A co-owner who advanced them has a
right to demand reimbursement from the
others in proportion to their respective
interests in the co-ownership
Refers only to necessary expenses
Useful expenses are not covered, unless
such were incurred with the consent of the
others
Expenses for pure luxury are not also
refundable, not being for preservation
Renunciation by a co-owner of his share in the
co-ownership
Renunciation need not be total
The co-owner need only renounce or give
up in favor of the other co-owners so much
of this undivided share as may be
equivalent to his share of expenses and
taxes
Example?
Art 489 Repairs for preservation may be
made at the will of one of one of the co-
owners, but he must, if practicable, first
notify his co-owners of the necessity for
such repairs. Expenses to improve or
embellish the thing shall be decided upon
by a majority as determined in Article 492.
Necessity for agreement on expenses
Acts or decisions affecting the ting owned
in common may be grouped into
o Acts of preservation (Art 489)
o Acts of administration (Art 492)
o Acts of alteration (Art 491)
Repairs for preservation
o A co-owner has the right to
compel the other co-owners to
contribute to the expenses of
preservation, maintenance or
necessary repairs of the thing or
right owned in common, and to
the taxes, even if incurred without
the knowledge of other co-owners
or prior notice to them, in view of
the nature of expenses
o Co-owner must, if practicable,
first notify the co-owners of the
necessity for the repairs
If impracticable or where
the repairs are very
urgent and the other co-
owners are in remote
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PROPERTY NOTES
places and cannot be
reached, the notice may
be dispensed with
o The lack of notice, even if
practicable, would not exempt the
other co-owners from the
obligation to contribute to the
expenses. But the co-owner who
advanced them has the burden of
proving that they were properly
incurred.
Art 490 Whenever the different stories of a
house belong to different owners, if the
titles of ownership do not specify the terms
under which they should contribute to the
necessary expenses and there exists no
agreement on the subject, the following
rules:
1. the main and party walls, the roofs
and the other things used in
common, shall be preserved at the
expense of all the owners in
proportion to the value of the story
belonging to each;
2. Each owner shall bear the cost of
maintaining the floor of his story;
the floor of the entrance, front door,
common yard and sanitary works
common to all shall be maintained
at the expense of all the owners pro
rata;
3. The stairs from the entrance to the
first story shall be maintained at
the expense of all the owners pro
rata, with the exception of the
owner of the ground floor; the
stairs from the first to the second
story shall be preserved at the
expense of all, except the owner of
the ground floor and the owner of
the first story; and so on
successively.
Applies if the titles of ownership do not
specify the terms thereof or there exists no
agreement on the subject
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 ot the co-owners is clearly
prejudicial to the common interest, the
courts may afford adequate relief.
Necessity of consent of other co-owners for
alterations
Alteration contemplates a change made by
a co-owner in the thing owned in common
which involves:
o Change of the thing from the
state or essence in which the
others believe it should remain; or
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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o Withdrawal of the thing from the
use to which they wish it to be
intended; or
o Any other transformation which
prejudices the condition or
substance of the thing or its
enjoyment by the others.
Alteration is not limited to material or
physical changes
o Includes any act of ownership by
which a real right or encumbrance
is imposed on the common
property, such as servitude,
registered lease, lease of real
property for more than one year,
mortgage, pledge
NB: Unanimous consent of all the co-
owners, not a mere majority, is necessary
even if the alteration would prove
beneficial because alteration is an act of
ownership and not of mere administration
o Consent may be expressed or
implied
Liability for alteration: the co-owner who
makes such alteration without the express
or implied consent of the other co-owners
acts in bad faith because he does so as if
he were the sole owner
o He loses what he has spent
o Obliged to demolish the
improvements done, and
o Liable to pay for loses and
damages the community property
or the other co-owners may have
suffered
Art 492 For the administration and better
enjoyment of the thing owned in common,
the resolutions of the majority of the co-
owners shall be binding.
There shall be no majority unless
the resolution is approved by the co-owners
who represent the controlling interest in the
object of the co-ownership.
Should there be no majority, or
should the resolution of the majority be
seriously prejudicial to those interested in
the property owned in common, the court,
at the instance of an interested party, shall
order such measures as it may deem
proper, including the appointment of an
administrator.
Whenever a part of the thing
belongs exclusively to one of the co-
owners, and the remainder is owned in
common, the preceding provisions shall
apply only to the part owned in common.
Rules for acts of administration and better
enjoyment
Acts of management of the common
property
They contemplate acts or decisions for the
common benefit of all the co-owners and
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PROPERTY NOTES
not for the benefit of only one or some of
them
While alteration is more or less permanent,
acts of administration have transitory
effects and have for their purpose the
preservation, preparation and better
enjoyment of the thing and which do not
affect its essence, nature or substance
NB: Majority rule prevails.
o The majority consists of co-
owners who represent the
controlling interest in the object of
the co-ownership.
o The majority likewise decides the
expenses to improve or embellish
the common property. Notice
must be given to the minority
unless it is impracticable to do so.
If there is no majority or the resolution of
the majority is seriously prejudicial to the
interests of the other co-owners, the court,
at the instance of an interested party, may
take such measures as it may deem
proper
o Examples of prejudicial acts:
Resolution calls for a
substantial change of
the thing
Authorizes leases,
loans, and other
contracts without the
necessary security
Upholds the continued
employment of an
administrator who is guilt
of fraud or negligence in
his management
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.
Rights of each co-owner
1. Full ownership of his part, that is, his
undivided interest or share in the common
property
2. Full ownership of the fruits and benefits
pertaining thereto
3. May alienate, assign or mortgage his ideal
interest or share independently of the
other co-owners
4. May even substitute another person in the
enjoyment of his part, except when
personal rights are involved
A co-owner is given the legal right of
redemption in case the shares of all the
Mickey Ingles
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other co-owners or any of them are sold to
a third person (not a co-owner)1
o Harry, Ron and Neville were co-
owners of a parcel of land. Harry
sold his share to Draco. Ron and
Neville may redeem the share
from Angel. If only Ron exercises
the right, he shall pay only a
reasonable price. Subject to
reimbursement from Neville, as it
is a preservation expense.
o If they both want to exercise the
right, they may only do so in
proportion to the share they may
respectively have in the thing
owned in common.
A co-owner may exempt himself from the
obligation to contribute to the expenses of
preservation of the thing or right owned in
common and to the taxes by renouncing
so much of his interest as may be
equivalent to his share of the expenses
and taxes
Sale or mortgage of common property
Undivided portion
o A co-owner is free to dispose of
his pro indiviso share and of the
fruits and other benefits arising
from that share but the transferee
does not acquire an specific or
determinate physical portion of
the whole, his right being limited
to the portion which may be
allotted to him upon the partition
of the property
Definite portion
o The fact that a deed of sale
appears to convey a definite or
segregated portion of the property
under co-ownership that is still
undivided does not per se render
the sale a nullity
o The sale is valid subject only to
the condition that the interests
acquired by the vendee must be
limited to the part that may be
assigned to the co-owner-vendor
in the division upon the
termination of the co-ownership
o The sale affects only his
proportionate or abstract share in
the property owned in common,
subject to the results of the
partition, but not those of the
1
Art 1620 A co-owner of a thing may exercise the
right of redemption in case the shares of all the other
co-owners or of any of them, are sold to a third
person. If the price of the alienation is grossly
excessive, the redepmtioner shall pay only a
reasonable one.
Should two or more co-owners desire to exercise the
right of redemption they may only do so in proportion
to the share they may respectively have in the thing
owned in common.
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other co-owners who did not
consent to the sale
o There may be a valid sale of a
definite portion of the property co-
owned even before actual
partition where the rule of
estoppel apples (co-owners didnt
object when seller pointed a
portion out to a potential buyer)
Whole property
o Even if a co-owner sells the
whole property as his own, or
without the consent of ther other
co-owners, the sale is valid only
insofar as his ideal quota is
concerned unless the sale is
authorized by the other co-
owners
o A sale of the entire property by
one co-owner will only transfer
the rights of said co-owner to the
buyer, thereby making the buyer
a co-owner of the property
o Recourse of co-owners when
their consent was not secured:
action for partition
Where personal rights are involved
A co-owner may substitute another in the
enjoyment of his undivided interest in the
co-ownership except when personal rights
are involved
Personal right a right which cannot be
transferred because it affects the personal
relations of the co-owners with one
another
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 terms 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
co-owner or co-heir against his co-owners
or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.
Termination of co-ownership
Co-ownership may be terminated in
different ways, as follows
1. Consolidation or merger in only one of
the co-owners of all the interests of
the others;
2. Destruction or loss of the property co-
owned
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
3. Acquisitive prescription in favor of a
third person, or a co-owner who
repudiates the co-ownership
4. Partition, judicial or extrajudicial
5. Termination of the period agreed upon
or imposed by the donor or testator, or
of the period allowed by law
6. Sale by the co-owners of the thing to a
third person and the distribution of its
proceeds among them
Right of a co-owner to demand partition
Partition is the division between two or
more persons of real or personal property
which they own in common so that each
may enjoy and possess his sole estate to
the exclusion of and without interference
from the others
Co-owner ahs the right to demand at any
time partition of the thing owner in
common, insofar as his share is concerned
for no co-owner shall be obliged to remain
in the co-ownership
Action to demand partition is
imprescriptible or cannot be barred by
laches, absent a clear repudiation of the
co-ownership by a co-owner clearly
communicated to the other co-owners
The actual possession and enjoyment of
several portions of the common property
by some of the co-owners does not of itself
provide proof that the property has already
been partitioned and co-ownership
terminated.
o A co-owner cannot, without the
conformity of the other co-owners
or judicial decree of partition,
adjudicate to himself in fee simple
a determinate portion of the
property owned in common as his
share theirein, to the exclusion of
the others
Exceptions to the right to demand partition
1. When the co-owners have agreed to keep
the thing undivided for a certain period of
time, not exceeding ten years
o Period stipulated exceeds ten
years would be void insofar as
the excess is concerned
2. When the partition is prohibited by donor
or testator for a certain period not
exceeding twenty years
3. When the partition is prohibited by law
o Conjugal property, etc
4. When partition would render the thing
unserviceable for the use for which it is
intended
5. When another co-owner has possessed
the property as exclusive owner and for a
period sufficient to acquire it by
prescription
Prescription in favor of or against a co-owner
Prescription does not run in favor or
against a co-owner or co-heir
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Co-ownership is a form of a trust, with
each owner being a trustee for each other.
Where, however, a co-owner or co-heir
repudiates the co-ownership, prescription
begins to run from the time of repudiation
(requisites)
i. He had performed unequivocal
acts of repudiation of the co-
ownership amounting to an ouster
of the beneficiary or the other co-
owners
ii. Such positive acts of repudiation
have been made known to the
beneficiary or other co-owners
iii. Evidence thereon is clear,
complete and conclusive in order
to establish prescription without
any shadow of doubt; and
iv. Possession is open, continuous,
exclusive and notorious
Examples of specific acts which are considered
as acts of repudiation
Filing by a trustee of an action in court
against the trustor to quiet title to property
Action for reconveyance of land based on
implied or constructive trust
Cancellation of title in the name of the
apparent beneficiaries and application for
a new certificate of title in his
(administrator/trustee) name
Art 495 Notwithstanding the provisions of
the preceding article, the co-owners cannot
demand a physical division of the thing
owned in common, when to do so would
render it unserviceable for the use for which
it is intended. But the co-ownership may be
terminated in accordance with Article 498.
Art 496 Partition may be made by
agreement between the parties or by
judicial proceedings. Partition shall be
governed by the Rules of Court insofar as
they are consistent with this Code.
Purpose and effect of partition
Partition has for its purpose the
separation, division and assignment of the
thing held in common among those to
whom it may belong.
After partition, the portion belonging to
each co-owner has been identified and
localized, so that co-ownership, in its real
sense, no longer exists
Action for partition
Two phases:
o Determine whether there is
indeed a co-ownership
o Determine how the property is to
be divided
The issue of ownership or co-ownership
must first be solved in order to effect a
partition of properties
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
An action for partition will not lie if the
claimant has no rightful interest over the
subject property
How partition effected
May be effected extrajudicially pursuant to
an agreement
May be effected judicially by judicial
proceedings under Rule 69 of the Rules of
Court
o An action for partition is in the
nature of an action quasi in rem
Application of the Statute of Frauds
The Statute of Frauds does not apply to
partition because it is not legally deemed a
conveyance or a sale of property resulting
in change of ownership but simply a
segregation and designation of that part of
the property which belongs to each of the
co-owners
Oral partition is valid and enforceable
where no third persons are involved
o In cases of oral partition, the
actual possession of one of the
property is evidence that there
was indeed oral partition.
o In an oral partition under which
the parties went into possession,
exercises acts of ownership, or
otherwise partly performed the
partition agreement, equity will
confirm such partition and in a
proper case, decree title in
accordance with the possession
in severalty
Art 497 The creditors or assignees of the
co-owners may take part in the division of
the thing owned in common and object to
its being effected without their concurrence.
But they cannot impugn any partition
already executed, unless there has been
fraud, or in case it was made
notwithstanding a formal opposition
presented to prevent it, without prejudice to
the right of the debtor or assignor to
maintain its validity.
The law does not expressly require that
previous notice of the proposed partition
be given to the creditors and assignees.
But as they are granted the right to
participate in the partition, they have also
the right to be notified thereof. In the
absence of notice, the partition will not be
binding on them.
Rules:
o If no notice is given, the creditors
or assignees may question the
partition already made;
o If notice is given, it is their duty to
appear and make known their
position; they may concur with the
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proposed partition or object to it;
and
o They cannot impugn a partition
already executed or implemented
unless:
There has been fraud,
whether or not notice
was given, and whether
or not formal opposition
was presented, or
The partition was made
notwithstanding that
formal opposition was
presented to prevent it,
even if there has been
no fraud.
Debtor or assignor has always the right to
show the validity of the partition.
Art 498 Whenever the thing is essentially
indivisible and the co-owners cannot agree
that it be allotted to one of them who shall
indemnify the others, it shall be sold and its
proceeds distributed.
Although the thing cannot be physically
divided, the co-ownership may
nevertheless be terminated in accordance
with the above provision pursuant to the
rule in Art 494 by adjudication of the thing
to one of the co-owners who shall
indemnify the others or by its sale with the
proceeds thereof divided among the co-
owners
Sale may be private, public, and
purchases may be a co-owner or a third
person
Art 498 applies when:
o Thing indivisible
o Co-owners cant agree that it be
allotted to one of them, who shall
indemnify the others
o So, ibenta na lang!
Art 499 The partition of a thing owned in
common shall not prejudice third persons
who shall retain the rights of mortgage,
servitude, or any other real rights belonging
to them before the division was made.
Personal rights pertaining to third persons
against the co-ownership shall also remain
in force, notwithstanding the partition.
Third persons, refer to all those with real
rights, such as mortgage and servitude
over the thing owned in common or with
personal rights against the co-owners who
had no participation whatever in the
partition
Art 500 Upon partition, there shall be a
mutual accounting for benefits received and
reimbursements for expenses made.
Likewise, each co-owner shall pay for
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
damages caused by reason of his
negligence or fraud.
Art 501 Every co-owner shall, after partition,
be liable for defects of title and quality of
the portion assigned to each of the other
co-owners.
What are the obligations of the co-owners upon
partition? (ARIW)
1. Mutual accounting for the benefits
received (because the fruits and other
benefits of the thing belong to all the co-
owners)
2. Mutual reimbursement for expenses
(necessary expenses, taxes, etc)
3. Indemnity for damages caused by reason
of negligence or fraud
4. Reciprocal warranty for defects of title or
quality of the portion assigned to a co-
owner (land allotted to a co-owner belongs
to a third party, or the property is of inferior
quality)
a. Atty Abrenica said that in practice,
the remedy in this situation is to
divide the remaining property and
just give it to the one prejudiced
THE CONDOMINIUM ACT
A condominium is an
o Interest in real property consisting
of
A separate interest in a
unit in a residential,
industrial, or commercial
building, and
An undivided interest in
common directly or
indirectly in the land on
which it is located and in
other common areas of
the building.
Two important documents: Master Deed
and Declaration of Restrictions
Foreigners can own up to 40% of the
entire condominium corporation (so if the
condominium has 100 units, foreigners
can own up to 40 units)
Project means the entire parcel of real
property divided or to be divided in
condominiums, including all structures
thereon
Common areas (meaning the entire
project excepting all units separately
granted or held or reserved) are owned by
the condominium corporation
Private units (meaning the a part of the
condo project intended for any type of
independent use or ownership) are owned
by the unit owners
o Unit owners are shareholders in
the condominium
o If you sell your unit to someone
else, you lose your status as a
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PROPERTY NOTES
shareholder in the condominium
corporation
Condominium Certificate of Title is whats
given (as opposed to a OCT or TCT)
TITLE V POSSESSION
CHAPTER ONE
POSSESSION AND THE KINDS
THEREOF
Art 523 Possession is the holding of a thing
or the enjoyment of a right.
Concept of possession
As a distinct legal concept, possession is
the holding of a thing or the enjoyment of a
right with the intention to possess in ones
own right
Ownership and possession distinguished
There is ownership when a thing pertaining
to one person is completely subjected to
his will in a manner not prohibited by law
and consistent with the rights of others. It
confers certain right to the owner (right to
enjoy the thing owned and the right to
exclude other persons from possession
thereof)
On the other hand, possession is defined
as the holding of a thing or the enjoyment
of a right. To possess means to actually
and physically occupy a thing with or
without a right.
Possession may be in the concept of an
owner or in the concept of a holder.
A person may be declared owner but he
may not be entitled to possession. (As in
when the possession is in the hands of a
tenant)
A judgment for ownership does not
necessarily include possession as a
necessary incident.
Just as possession is not a definite proof
of ownership, neither is non-possession
inconsistent with ownership.
What are the elements of possession?
1. Holding or control of a thing or right
Possession always implies the
element of corpus or occupation,
whether in ones own name or another
(except in cases in Art 537)
In other words, there must be
possession in fact
2. With intention to possess
the intention and the will to possess
are inferred from the fact that the thing
is under the control of the alleged
possessor, however, the existence of
the animus possidendi is always
subject to contradiction (when in fact
the person does not in fact exercise
such power of control and does not
intend to do so)
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Insane and demented persons cannot
acquire possession as they are
incapable of understanding their
actions, therefore, the animus
possidendi cannot be present
3. In ones own right
Possession may be in ones own
name or that of anothers (by himself
or by an agent)
In the first case, the possession may
be in the concept of owner or in the
concept of a holder of a thing with
ownership pertaining to another
In the second case, the possession is
exercised by the owner or holder thru
his agent
In both cases, the possession of the
owner or holder is by virtue of his right
as such owner or holder
What are the relations created by possession?
Possession is characterized by two
relations:
1. Possessors relation to the property
itself this assumes that the
possessor exercises some degree of
control more or less effective over the
object.
2. Possessors relation to the world
aside from the power of control over
the object, the possessor must also
have the ability to exclude others from
his possession. A customer who holds
and examines a piece of jewelry in the
presence of the seller may be said to
have only custody, not possession, of
the jewelry.
Forms or degrees of possession
1. Possession without any title whatever
Mere holding or possession without
any right or title at all, such as that of
a thief or squatter
2. Possession with a juridical title
Predicated on a juridical relation
existing between the possessor and
the owner (or one acting in his behalf)
of the thing but not in the concept of
owner, such as that of a lessee,
usufructuary, depositary, agent, etc
3. Possession with a just title
Possession of an adverse claimant
whose title is sufficient to transfer
ownership but is defective, such as
when the seller is not the true owner
or could not transmit his rights thereto
to the possessor who acted in good
faith
4. Possession with a title in fee simple
Possession derived from the right of
dominion or possession of an owner.
This is the highest degree of
possession.
Nature of possession
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PROPERTY NOTES
1. As an act
Simply the holding of a thing or the
enjoyment of a right with the intention
to possess in ones own right
2. As a fact
When there is holding or enjoyment,
then possession exists as a fact. It is
the state or condition of a person
having property under his control, with
or without right
3. As a right
Refers to the right of a person to that
holding or enjoyment to the exclusion
of all others having better right than
the possessor. It may be:
o Jus possidendi, or right to
possession which is
incidental to and included in
the right of ownership; or
o Jus possessionis or right of
possession independent of
and apart from the right of
ownership.
Possession as a fact
1. The face of possession gives rise to
certain rights and presumptions.
Thus a person has a right to be
respected in his possession, and
should he be disturbed therein, he
shall be protected or restored to said
possession.
A possessor has in his favor the
presumption that his possession is
lawful that he is the owner or has
been given the right of possession by
the owner. He who would disturb a
possessor must show either
ownership or a better possessory
right.
2. Possession is not a definitive proof of
ownership nor is non-possession
inconsistent therewith. Possession,
however, may create ownership either by
occupation or by acquisitive prescription.
Classes of possession
1. Possession in ones own name or in the
name of another (Art 524)
2. Possession in the concept of owner or
possession in the concept of holder (Art
525), and
3. Possession in good faith or possession in
bad faith (Art 526)
Extent of possession
1. Actual possession
Occupancy in fact of the whole or at
least substantially the whole. With
land, it consists in the manifestation of
acts of dominion over it of such a
nature as a party would naturally
exercise over his property.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
Literally, to possess means to actually
and physically occupy a thing with or
without a right.
2. Constructive possession
Occupancy of part in the name of the
whole under such circumstances that
the law extends the occupancy to the
possession of the whole.
Doctrine of constructive possession
Possession in the eyes of the law does not
mean that a man has to have his feet on
every square meter of ground before it can
be said that he is in possession.
The general rule is that the possession
and cultivation of a portion of a tract of
land under claim of ownership of all is
constructive possession of all.
o There are qualifications to this
rule, and one of them is that
relating to the size of the tract in
controversy with reference to the
portion actually in possession of
the claimant.
Art 524 Possession may be exercised in
ones own name or in that of another.
Name under which possession may be
exercised
An owner or a holder may exercise his
possession in his own name or through
another.
In the same way, possession may be
acquired by the same person who is to
enjoy it or by one acting for another (Art
532)
1. In ones own name
o When in ones own name, the fact
of possession and the right to
such possession are found in the
same person, such as the actual
possession of an owner or a
lessor of land.
2. In the name of another
o When possession is in the name
of another, the one in actual
possession is without any right of
his own, but is merely an
instrument of another in the
exercise of the latters
possession, such as possession
of an agent, servant or guard.
Possession in anothers name
may be:
Voluntary, when
exercised by virtue of an
agreement, or
Necessary or legal,
when exercised by virtue
of law, such as the
possession in behalf of
incapacitated persons.
Physical or material,
when the possessor is a
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PROPERTY NOTES

mere custodian of the This takes place when the

property and has no possessor, by his actions, is
independent right or title considered or is believed by other
to retain or possess the people as the owner, regardless
same as against the of the good or bad faith of the
owner (like the possession.
possession of money It is possession under a claim of
received by a teller for ownership or title by one who is
the bank), or the owner himself or one who is
Juridical, when the not the owner but claims to be
possession gives the and acts as the owner.
transferee a right over 2. Possession in the concept of holder
the thing which the This takes place when the
transferee may set up possessor of a thing or right holds
against the owner, such it merely to keep or enjoy it, the
as the possession of an ownership pertaining to another
agent who receives the person.
proceeds of sales of It is possession not under a claim
goods delivered to him
of ownership, the possessor
in agency by his
acknowledging in another a
principal.
superior right which he believes
to be of ownership, whether this
Case doctrines
be true or not, or his belief be
In the grammatical sense, to possess right or wrong.
means to have, to actually and physically A person may be a lessor
occupy a thing, with or without a right. Two
although he is not the owner of
things are paramount in possession
the property leased. In lease, only
o there must be occupancy,
the temporary use and
apprehension or taking, and enjoyment, not the ownership of
o there must be intent to possess the property is transferred.
(animus possidendi). (Yu v
Pacleb) Possession in concept of both owner and
Possession always includes the idea of holder or in neither
occupation. It is not necessary that the It is possible that a person may exercise
person in possession should himself be possession both in the concept of owner
the occupant. The occupancy can be held and in the concept of holder.
by another in his name. without A distinction must be borne in mind
occupancy, there is no possession. (Yu v between possession of the thing itself and
Pacleb) possession of the right to keep or enjoy
the thing.
o Rights are possessed in the
Art 525 The possession of things or rights
concept of owner. Thus, the
may be had in one of two concepts: either
lessee possesses the thing
in the concept of owner, or in that of the
leased in the concept of holder,
holder of the thing or right to keep or enjoy
and the right of lease in the
it, the ownership pertaining to another
concept of owner.
person.
The agent, parent and other legal
Concept in which possession may be had representatives possess neither in the
Concept, as contemplated in the provision, concept of owner nor holder. They possess
in the name of another.
does not mean the opinion, attitude or
belief of the possessor, but of the others,
Case doctrines
generally in view of the circumstances
Possession is:
which precede and accompany the
possession. o open when it is patent, visible,
Thus, possession in the concept of owner apparent, notorious and not
is distinguished from possession in good clandestine.
faith. o continuous when uninterrupted,
This kind of possession is also referred as unbroken and not intermittent or
occasional.
to adverse possession that may ripen into
o exclusive when the adverse
ownership under Article 540.
possessor can show exclusive
Possession may be had in one of two
dominion over the land and an
concepts:
appropriation of it to his own use
1. Possession in the concept of owner
and benefit
(en concepto de dueno)

37
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
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o notorious when it is so
conspicuous that it is generally
known and talked off by the public
or the people in the
neighborhood.
Use of land is adverse when it is open and
notorious. (Republic v Imperial Credit
Corporation)
While a tax declaration by itself is not
sufficient to prove ownership, it may serve
as sufficient basis for inferring possession.
(Rep v ICC)
Tax declarations and receipts can only be
the basis of a claim of ownership through
prescription when coupled with proof of
actual possession. (Heirs of Cabal v
Cabal)
However, tax declarations and receipts are
not conclusive evidence of ownership. At
most, they constitute mere prima facie
proof of ownership or possession of the
property for which the taxes have been
paid. In the absence of actual public and
adverse possession, the declaration of the
land for tax purposes does not prove
ownership. (Cequena v Bolante)
Art 526 He is deemed a possessor in good
faith who is not aware that there exists in
his title or mode of acquisition any flaw
which invalidates it.
He is deemed a possessor in bad
faith who possesses in any case contrary to
the foregoing.
Mistake upon a doubtful or difficult
question of law may be the basis of good
faith.
Define possessor in good faith and in bad faith
A possessor in good faith (Buena fe) is
one who is not aware that there exists in
his title or mode of acquisition any flaw
which invalidates it.
A possessor in bad faith (mala fe) is one
who possesses in any case contrary to the
foregoing; he is aware that there exists in
his title or mode of acquisition a flaw which
invalidates it.
This article presupposes that the there
exists a flaw in the title or mode of
acquisition of the possessor who is either
aware or not aware of it.
If there is no flaw, there can be no issue
regarding good or bad faith.
Good faith is always presumed, and upon
him who alleges bad faith on the part of
the possessor rests the burden of proof.
The distinction is importance principally in
connection with the receipt of fruits and the
payment of expenses and improvements
and the acquisition of ownership by
prescription.
The distinction is immaterial in the exercise
of the right to recover under Article 539
which speaks of every possessor.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
The good or bad faith is necessarily
personal to the possessor but in the case
of a principal and any person represented
by another, the good or bad faith of the
agent or legal rep will benefit or prejudice
him for whom he acts.
Requisites for possession in good faith or bad
faith
1. The possessor has a title or mode of
acquisition; (Art 712)
2. There is a flaw or defect in said title or
mode; and
3. The possessor is unaware or aware of the
flaw or defect or believes that the thing
belongs or does not belong to him.
A possessor in good faith becomes a
possessor in bad faith from the moment he
becomes aware that what he believes to
be true is not so.
If the flaw is in the title of the possessors
predecessor, and affects his own title, the
flaw exists in his own title unless he can
sustain his own independent of that of his
predecessor.
Concept of good faith
Good faith or the lack of it is a question of
intention, but in ascertaining the intention,
the courts are necessarily controlled by the
evidence as to the conduct and outward
acts by which alone the inward motive may
be determined.
Good faith or the want of it, is not a visible,
tangible fact that can be seen or touched
but rather a state or condition of mind
which can only be ascertained by actual or
fancied tokens or signs.
The essence of bona fides or good faith
lies in:
o The honest belief in the validity of
ones right,
o ignorance of a superior claim, and
o absence of intention to overreach
another, or to defraud or to seek
an unconscionable advantage.
(also the doctrine of Heirs of
Cabal)
Good faith must rest on a colorable right in
the possessor beyond a mere stubborn
belief in ones title.
One is considered a possessor in good
faith if he is not aware that there exists in
his title or mode of acquisition any flaw
which invalidates it.
Basically, its honesty of intention and
absence of malice.
Concept of bad faith
It is the opposite of good faith.
It imputes a dishonest purpose to do
wrong or cause damage.
It contemplates a state of mind
affirmatively operating with furtive design
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PROPERTY NOTES
or some motive of self-interest of ill-will for
ulterior purposes.
Mistake upon a doubtful or difficult question of
law
The phrase mistake upon a doubtful or
difficult question of law refers to the
honest error in the application of the law or
interpretation of doubtful or conflicting
legal provisions or doctrines.
It is different from ignorance of the law.
Manresa says that gross and inexcusable
ignorance of the law may not be the basis
of good faith, but excusable ignorance
may be such basis if it is based upon
ignorance.
Dean Capistrano says that excusable
ignorance as a basis of good faith was
rejected by the Code Commission.
Case doctrines
The possessor with a Torrens Title who is
not aware of any flaw in his title which
invalidates it is considered a possessor in
good faith and his possession does not
lose this character except in the case and
from the moment his Torrens Title is
declared null and void by final judgment of
the Courts. (Dizon v Rodriguez)
The defense of having purchased the
property in good faith may be availed of
only where registered land is involved and
the buyer had relied in good faith on the
clear title of the registered owner. (Daclag
v Macahilig)
Art 527 Good faith is always presumed, and
upon him who alleged bad faith on the part
of a possessor rests the burden of proof.
Presumption of good faith
This article establishes the presumption of
good faith; it does not say that good faith
exists, but that it is presumed.
The presumption is just because
possession is the outward sign of
ownership. It is to be presumed that the
right of the possessor is well-founded.
Every person is presumed to be honest
until the contrary is shown.
But note that for the purposes of
prescription, just title must be proved; it is
never presumed.
Art 528 Possession acquired in good faith
does not lose this character except in the
case and from the moment facts exist which
show that the possessor is not unaware
that he possesses the thing improperly or
wrongfully.
Cessation of good faith during possession
Possession which begins in good faith is
presumed to continue in good faith until
Mickey Ingles
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the possessor acquires knowledge of facts
showing a defect or weakness in his title.
The law speaks of facts in place of the
word acts, the former being broader than
the latter. Thus, it is immaterial whether the
facts from which bad faith can be
deduced involve acts of the possessor
himself or of some other person or any
extraneous evidence. But the existence of
the facts mentioned in the article must be
proved.
Bad faith begins or good faith is
interrupted from the time the possessor
becomes aware that the he possesses
the thing improperly or wrongfully, not
from the time possession was acquired.
In the absence of other facts showing the
possessors knowledge of defect in his
title, good faith is interrupted from the
receipt or service of judicial summons.
o From the service of judicial
summons, there exists an act
which the possessor knows that
his right is not secure, that
someone disputes it, and that he
may yet lose it; and if the court
orders that restitution be made,
that time determines all the legal
consequences of the interruption,
the time when the possession in
good faith ceases to be so before
the law.
o The filing of a case alleging bad
faith on the part of a vendee
gives cause or cessation of good
faith.
Case doctrines
When a contract of sale is void, the
possessor is entitled to keep the fruits
during the period for which it held the
property in good faith, which good faith
ceases when an action to recover
possession of the property is filed against
him and he is served summons therefor.
(DBP v CA)
Art 529 It is presumed that possession
continues to be enjoyed in the same
character in which it was acquired, until the
contrary is proven.
Continuity of the character of the possession
The character or possession (good faith or
bad faith) is presumed to continue until the
contrary is proved
No one can, by his sole will nor by the
mere lapse of time, change the cause of
his possession.
Presumption on the continuance of possession
There are other presumption aside from
Articles 527 and 529 affecting possession,
namely:
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PROPERTY NOTES
1. Uninterrupted possession of
hereditary property (Art 533)
2. Possession with just title (Art 541)
3. Possession of movables with real
property (Art 542)
4. Exclusive possession of common
property (Art 543)
5. Continuous possession (Art 544)
6. Uninterrupted possession (Art 561),
and
7. Possession during intervening period
(Art 1138)
Case doctrines
Possession, to constitute the foundation of
a prescriptive right, must be possession
under a claim of title, that is, it must be
adverse. (Bogo-Medellin v CA)
An acknowledgment of the easement is an
admission that the property belongs to
another. It gives the holder of the
easement an incorporeal interest on the
land but grants no title thereto. (Bogo v
CA)
Mere material possession of land is not
adverse possession as against the owner
and is insufficient to vest title, unless such
possession is accompanied by the intent
to possess as an owner. (Bogo v CA)
Art 530 Only things and rights which are
susceptible of being appropriated may be
the object of possession.
Object of possession
To be the object of possession, the thing or
right must be susceptible of being
appropriated.
There are more things susceptible of
appropriation than there are things within
the commerce of men (i.e. those that can
be acquired by prescription).
o With respect to res nullius
(property without owner), they
can be possessed because theya
re capable of being appropriated
but hey cannot be acquired by
prescription which presupposes
prior ownership in another. For as
long as a thing is res nullius, it is
not within the commerce of men.
o Property of public dominion
cannot also be the object of
prescription. The same is true of
common things but both may be
the object of possession.
CHAPTER 2
ACQUISITION OF POSSESSION
Art. 531. Possession is acquired by the
material occupation of a thing or the
exercise of a right, or by the fact that it is
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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subject to the action of our will, or by the
proper acts and legal formalities
established for acquiring such right. (438a)
Ways of acquiring possession
To be considered in possession, one need
not have actual or physical occupation of a
thing all times. There are three ways of
acquiring possession, namely:
1. By the material occupation or exercise
of a right;
2. By the subjection of the thing or right
to our will; and
3. By proper acts and legal formalities
established for acquiring such right of
possession.
The modes of acquiring ownership can be
seen in Article 712.
Material occupation or exercise of right
1. With respect to things the law requires
material occupation as one of the modes
of acquiring possession.
2. With respect to rights since rights are
intangible and cannot logically be
occupied, what is acquired is the exercise
of a right. For example, possession of a
servitude of way, which is a right, is
acquired by the exercise of the right (by
passing over the servient land)
Material occupation by delivery
The material occupation of a thing as a
means of acquiring possession may take
place by actual or constructive delivery.
Constructive delivery includes:
1. Tradicion brevi manu which takes
place when one already in possession
of a thing by a title other than
ownership continues to possess the
same under a new title, that of
ownership.
2. Tradicion constitutum possessorium
which happens when the owner
continues in possession of the
property alienated not as owner but in
some other capacity, such as that of
lessee, pledgee, or depositary.
Subject of the action of will
The second method of acquisition is so
broad in scope that it practically covers all
means of acquiring possession.
What the law contemplates is a distinct
cause of acquiring possession and not
merely an effect.
It refers more to the right of possession
than to possession as a fact.
Examples of which are these kinds of
constructive delivery:
1. Tradicion longa manu, which is
effected by the mere consent or
agreement of the parties, as when the
vendor merely points to the thing sold
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PROPERTY NOTES
2. Tradicion simbolica, which is effected
by delivering an object such as a key
where the thing sold is stored or kept
Proper acts and legal formalities
This last method of acquiring possession
refers to acquisition by virtue of a just title
such as when property is transmitted by
succession, donation, contract, or
execution of a public instrument, or when
possession is given by the sheriff to the
highest bidder at a public auction, or
pursuant to a writ of execution.
Unless there is a stipulation to the
contrary, the execution of a sale thru a
public instrument shall be equivalent to the
delivery of the thing. But there is no
delivery notwithstanding the execution of
the instrument, where the purchaser
cannot have the enjoyment and make use
of the thing sold because such enjoyment
and use are opposed or prevented by
another.
Under Article 538, possession as a fact
cannot be recognized at the same time in
two different personalities except in the
cases of co-possession
A sale with pacto de retro transfers the
legal title to the vendee, and in the
absence of an agreement to the contrary,
carries with it the right to the possession of
the property sold.
Case doctrines
Possession alone is not sufficient to
acquire title to alienable lands of the public
domain because the law requires
possession AND occupation.
Possession is broader than occupation
because it includes constructive
possession. When the lad adds the word
occupation, it seeks to delimit the all
encompassing effect of constructive
possession. Ones possession must not be
a mere fiction. Acutla possession of a land
consists in the manifestation of acts of
dominion over it of such a nature as a
party would naturally exercise over his own
property. (Ong v Republic)
Possession cannot be acquired through
force or violence. To all intents and
purposes, a possessor, even if physically
ousted, is still deemed the legal possessor.
(Cequena v Bolante)
Art. 532. Possession may be acquired by
the same person who is to enjoy it, by his
legal representative, by his agent, or by any
person without any power whatever: but in
the last case, the possession shall not be
considered as acquired until the person in
whose name the act of possession was
executed has ratified the same, without
prejudice to the juridical consequences of
negotiorum gestio in a proper case. (439a)
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By whom possession acquired
Possession may be acquired:
1. Personally or by the same person who
is to enjoy it;
2. Thru an authorized person or by his
legal representative or by his agent,
and
3. Thru an unauthorized person or by
any person without any power or
authority whatever.
Acquisition of possession through another
Possession acquired by a person
personally or thru another may be
exercised by him in his own name or in
that of another. But minors and other
incapacitated persons need the assistance
of their legal representatives to exercise
the rights arising from possession.
If a person authorized to acquired
possession for another acted beyond his
powers, the principal is not bound unless
the latter ratifies the act of acquisition.
The exception is when a person voluntarily
manages the property or business of
another. In such case, the strangers
(gestors) possession takes effect even
without ratification by the owner of the
property or business.
Case doctrines
Art. 533. The possession of hereditary
property is deemed transmitted to the heir
without interruption and from the moment
of the death of the decedent, in case the
inheritance is accepted.
One who validly renounces an
inheritance is deemed never to have
possessed the same. (440)
Acquisition of possession through succession
The rights to the succession are
transmitted from the moment of the death
of the decedent.
From that moment, each of his heirs
becomes the undivided owner of the whole
estate left with respect to that portion
which might be adjudicated to him.
The inheritance may be accepted or
repudiated.
There is no doubt that an heir can sell
whatever right, interest or participation he
may have in the property under
administration, subject to the result of said
administration.
In case the inheritance is accepted, the
possession of the hereditary property is
deemed transmitted by operation of law to
the heir without interruption and from the
moment of death of the decedent.
In this inheritance is validly renounced, the
heir is deemed never to have possessed
the same.
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PROPERTY NOTES
See book for examples.
Art. 534. On who succeeds by hereditary
title shall not suffer the consequences of
the wrongful possession of the decedent, if
it is not shown that he was aware of the
flaws affecting it; but the effects of
possession in good faith shall not benefit
him except from the date of the death of the
decedent. (442)
Effects of bad faith of decedent on heir
If the decedent was in bad faith, the heir
shall not suffer the consequences of the
wrongful possession of the latter because
bad faith is personal to the decedent and
is not deemed transmitted to the heirs.
The heir suffers the consequences of such
possession only from the moment he
becomes aware of the flaws affecting the
decedents title.
See book again for examples.
Case doctrines
A possessor in bad faith should not
prejudice his successors-in-interest. Bad
faith is personal and intransmissible.
(Escritor v IAC)
Art. 535. Minors and incapacitated persons
may acquire the possession of things; but
they need the assistance of their legal
representatives in order to exercise the
rights which from the possession arise in
their favor. (443)
Acquisition and exercise of rights of possession
by minors and incapacitated persons
The persons referred to in the provision
are unemancipated minors and other
persons who have no capacity to act like
spendthrifts, deaf-mutes who cannot read
and write, those under civil interdiction,
etc.
Things here are limited to corporeal things
only.
This article refers principally but not
exclusively to material occupation.
Incapacitated persons may acquire
property or rights by prescription either
personally or through their parents,
guardians or legal reps. Once possession
of a thing is acquired by such persons,
there is born the right of possession. In the
exercise of this right, they need the
assistance of their legal reps.
Art. 536. In no case may possession be
acquired through force or intimidation as
long as there is a possessor who objects
thereto. He who believes that he has an
action or a right to deprive another of the
holding of a thing, must invoke the aid of
the competent court, if the holder should
refuse to deliver the thing. (441a)
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Recourse to the courts
Every possessor has a right to be
respected in his possession. The lawful
possessor may use such force as may be
reasonably necessary to repel or prevent
invasion or usurpation of his property.
This article applies to one who believes
himself the owner of real property. If he
takes justice into his own hands, he is a
mere intruder; and he can be compelled to
return the property in an action for forcible
entry and must suffer the necessary and
natural consequences of his lawlessness.
A party who can prove prior possession,
whatever may be the character of the
possession, has the security that entitles
him to recover such possession or to
remain on the property even against the
owner himself until he is lawfully ejected by
accion publiciana or accion reivindicatoria.
Art. 537. Acts merely tolerated, and those
executed clandestinely and without the
knowledge of the possessor of a thing, or
by violence, do not affect possession. (444)
Acts which do not give rise to possession
The acts mentioned do not affect
possession, i.e. the person in possession
does not lose the same nor does the
person who results to them acquire it. In
other words, the true possessor is deemed
to have enjoyed uninterrupted possession.
o Force or intimidation as long as
there is a possessor who objects
thereto, such as by suit of forcible
entry. The rule does not apply if
the possessor makes no
objection, withdraws his objection
or takes no action whatsoever
after initially objecting to the
deprivation.
o Acts executed clandestinely and
without the knowledge of the
possessor which mean that the
acts are not public and unknown
to the possessor or owner.
o Acts merely tolerated which do
not refer to all kinds of tolerance
on the part of the owner or
possessor in view of the use of
the word merely; it means
permission, express or tacit, by
virtue of which the acts of
possession are performed.
Hence, it is simply a question of
whether permission was given or
not.
Possession of another by mere tolerance
is not adverse and no matter how long
continued, cannot ripen to ownership by
prescription.
The mere silence or failure to take any
action will not be construed as
abandonment of rights on the part of the
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PROPERTY NOTES
real possessor. It is, of course, for the
courts to decide whether there has been
an abandonment or not.
Possession by tolerance is lawful but
becomes illegal when, upon demand to
vacate by the legal owner, the possessor
refuses to comply with such demand.
Art. 538. Possession as a fact cannot be
recognized at the same time in two different
personalities except in the cases of co-
possession. Should a question arise
regarding the fact of possession, the
present possessor shall be preferred; if
there are two possessors, the one longer in
possession; if the dates of the possession
are the same, the one who presents a title;
and if all these conditions are equal, the
thing shall be placed in judicial deposit
pending determination of its possession or
ownership through proper proceedings.
(445)
Possession as a fact at the same time in two
different personsalities
The word personalities is not
synonymous to persons. For example, in
co-ownership, there are two or more
persons, but there is only one personality.
Possession as a fact may exist at the
same time in two or more distinct
personalities, but as a general rule, the law
will recognize only one as the actual or
real possessor.
The exception is provided in the cases of
co-possession, such as co-ownership,
where the property is possessed at the
same time in common by the co-owners
also; and possession where the property is
possessed at the same time by two
persons, one in the concept of owner and
the other, in the concept of holder.
In co-possession, there is no conflict of
interests of claims among the parties.
Preference of possession
Article 538 applies whether the property is
real or personal. In case a dispute arises
regarding the fact of possession, the order
of preference is as follows:
1. The present or actual possessor shall
be preferred
2. If there are two possessors, the longer
in possession;
3. If the dates of possession are the
same, the possessor with a title; i.e.
right or document evidencing his right
to support his possession; and
4. If all the above are equal, the fact of
possession shall be judicially
determined, and in the meantime, the
thing shall be placed in judicial
deposit.
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CHAPTER 3
EFFECTS OF POSSESSION
Art 539 Every possessor has a right to be
respected in his possession and should he
be disturbed therein he shall be protected in
or restored to said possession by the
means established by the laws and the
Rules of Court.
A possessor deprived of his
possession through forcible entry may
within ten days from the filing of the
complaint present a motion to secure from
the competent court, in the action for
forcible entry, a writ of preliminary
mandatory injunction to restore him in his
possession. The court shall decide the
motion within thirty days from the filing
thereof.
Rights of every possessor
Every possessor, whether in the concept of
owner of in the concept of holder, is given the
following rights:
1. Right to be respected in his possession;
2. Right to be protected in or restored to said
possession by legal means should he be
disturbed therein; and
3. Right to secure from a competent court in
an action for forcible entry the proper writ
to restore him in his possession (Art 428)
The mere possession of a thing is
sufficient to insure respect to the
possessor while no other person appears
to show and prove a better right.
To all intents and purposes, a possessor
even if physically ousted as through force
and violence, is still deemed the legal
possessor.
The fact, however, that a person was never in
prior physical possession of a land is of no
moment where he has a Torrens Title over the
property as prior physical possession is
necessary only in forcible entry cases.
Reasons for protection
1. To aid criminal law (by preserving the
peace. Order is best secured by protecting
a possessor and leaving the true owner to
seek his remedy in a court of law)
2. As part of the law of tort (these rights of
action are given in respect of the
immediate and present violation of the
rights of the possessor independently of
his rights of property)
3. As part of the law of property (law does not
always known that the possession in
question is unlawful. It would be unjust to
cast on every man whose possession is
disturbed the burden of proving a flawless
title)
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Remedies of persons deprived of possession
(see discussions in Art 428)
1. forcible entry or unlawful detainer
2. accion publiciana
3. accion reivindicatoria
4. replevin or manual delivery of personal
property
In forcible entry and unlawful detainer
cases, subject to some exceptions, the
immediate execution of the judgment in
favor of the plaintiff is a matter of right and
mandatory.
Considering that the only issue in
ejectment is that of rightful possession,
damages that could be recovered are
those which the plaintiff could have
sustained as a mere possessor, or those
caused by the loss of the use and
occupation of the property, and not the
damages which he may have suffered but
which have no direct relation to his loss of
material possession.
Issuance of a writ of preliminary mandatory
injunction
In forcible entry actions, the plaintiff must
present within ten days from the filing of
the complaint a motion to secure from the
competent court, a writ of preliminary
mandatory injunction to restore him in his
possession
In unlawful detainer cases where an
appeal is taken, the motion shall be filed
within ten days from the time the appeal is
perfected, if the high court is satisfied that
the lessees appeal is frivolous or dilatory,
or the lessors appeal is prima facie
meritorious.
In an appeal from a lower court in an
ejectment case, the issue of ownership
should not be delved into, for an ejectment
action lies even against the owner of a
property.
Prior peaceful possession of plaintiff required in
forcible entry action
Where a dispute over possession arises
between two persons, the person first
having actual possession, as between
them, is the one who is entitled to maintain
the action for forcible entry.
The main issue is possession de facto,
independently of any claim of ownership or
possession de jure that either party may
set forth in his pleadings, and an appeal
does not operate to change the nature of
the original action
Even a mere applicant of public land who
is in occupation and in peaceful
possession thereof can file an action for
forcible entry
Question of ownership is unessential and
should be raised by the defendant in an
appropriate action
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o Judgment rendered in an action
for forcible entry shall not bar an
action between the same parties
respecting the title to the land or
building
o The court has competence to
resolve the issue of ownership
but only to determine the issue of
priority of possession, as its
decision does not bind the title or
affect the ownership of the
property involved (any
pronouncement on ownership is
provisional)
The purpose of the law is to protect the
person who has actual possession
The plaintiff in an action for forcible entry
and detainer cannot succeed when it
appears that, as between himself and the
defendant, the latter had possession
antedating his own; and to ascertain this, it
is proper to look on to the situation as it
existed before the first act of spoliation
occurred
Legal right of prior possessor is not an
issue
o If the plaintiff can prove prior
possession, he may recover
possession even against the
owner himself.
o If he cant prove prior
possession, he has no right of
action even if he should be the
owner himself.
In case of controverted right, the law
requires the parties to preserve the status
quo until one or the other of them sees fit
to invoke the decision of a court upon the
question of possession and/or possession
A forcible entry or unlawful detainer is not
suspended, abated, barred or affected by
actions filed in the RTC which do not
involve physical or de facto possession
Conditions under which action for forcible entry
will lie
Wrongful entrance by one not in
possession
o The trespasser does not have to
institute a state of war. The act of
going on the property and
excluding the lawful possessor
therefrom necessarily implies the
exertion of force over the
property, and this is all that is
necessary. Under the law,
entering upon the premises by
strategy or stealth is equally as
obnoxious as entering by force.
o The words by force, intimidation,
threat, etc include every situation
or condition under which one
person can wrongfully enter upon
real property to exclude another,
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PROPERTY NOTES
who has prior possession
therefrom. (Banes case)
Wrongful exclusion of prior possessor
o The foundation of the action is
really the forcible exclusion of the
original possessor by a person
who has entered without right.
Art 540 Only the possession acquired and
enjoyed in the concept of owner can serve
as a title for acquiring dominion.
Possession as basis for acquiring ownership
Possession acquired and enjoyed in the
concept of owner may ripen into ownership by
means of prescription.
1. As holder
Cannot be the basis of prescription
So with possession acquired through
force or intimidation (Art 536), merely
tolerated or which is not public and is
unknown to the present possessor
(Art 537)
2. As equitable mortgage
Constructive possession over the land
cannot ripen into ownership as it
cannot be said to have been acquired
and enjoyed in the concept of owner
3. As claimant under a possessory
information title (meh)
4. As claimant under a certificate of title
Mere possession cannot defeat the
title of a holder of a registered Torrens
title to real property
But the true owner of the property may
be defeated by an innocent purchaser
for value notwithstanding the fraud
employed by the seller (forger) in
securing his title
Generally, a forged deed is a nullity
and conveys no title. However, there
are instances when such a document
may become the root of a valid title.
As when the certificate of title was
already transferred from the name of
the true owner to the forger, and while
it remained that way, the land was
subsequently sold to an innocent
purchaser for value (land titles!)
5. As possessor of forest land (not possible!)
Mere tax declarations of ownership do not
vest or prove ownership of the property in
the declarant nor are even sufficient to
sustain a claim for possession over a land,
in the absence of actual possession of the
same.
They are merely an indicum of a claim of
ownership
Nevertheless, they are good indicia of
possession in the concept of owner
Payment of realty tax coupled with actual
possession in the concept of owner is one
of the most persuasive and positive
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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indicia, which shows the will or desire of a
person to possess with claim of ownership
or to obtain title to the land or property
Case doctrine
In order than an action for recovery of
possession may prosper, it is
indispensable that he who brings the
action fully proves not only his ownership
but also the identity of the property
claimed, by describing the location, area
and boundaries thereof. Insufficient
identification of the portion of land claimed
in absolute ownership cannot ripen into
ownership. (Serina v Caballero)
Art 541 A possessor in the concept of
owner has in his favor the legal
presumption that he possesses with a just
title and he cannot be obliged to show or
prove it.
Possessor in concept of owner presumed with
just title
Just title does not always mean a
document or a written instrument
Title is that upon which ownership is based
Actual or constructive possession under
claim of ownership raises the disputable
presumption of ownership. In other words,
a possession is presumed ownership until
the contrary is shown.
A possessor is presumed to have a just
title, and he cannot be obliged to show or
prove it.
o Reason? To protect the owner
from inconvenience, otherwise,
he will always have to carry his
titles under his arms to show
them to whoever who wants to
see it
NB: Presumption of just title does not
apply in acquisitive prescription. Adverse
possessor must prove his just title.
Burden of proving just title
The onus probandi is on the plaintiff who
seeks the recovery of property
A person who is not, in fact, in possession
cannot acquire a prescriptive right to a
land by the mere assertion of a right
therein. Where the possessor is really the
owner, the fact that a third person
questions his right does not impair said
right.
An owner and possessor whose title is true
and valid cannot be required to show that
his possession is or has been adverse as
against a new claimant who has neither
title nor possession.
What are the different kinds of title?
1. Titulo verdadero y valido or true and valid
This is the title presumed in this
provision
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Sufficient to transfer ownership
without need of possessing the
property for the period necessary for
acquiring title by prescription
2. Titulo justo or just title
For the purposes of prescription, there
is just title
o When the adverse claimant came
into possession of the property
through one of the modes
recognized by law for the
acquisition of ownership or other
real rights,
o but the grantor was not the owner
or could not transmit any right
For prescription, just title must be
proved, it is never presumed.
It must be remembered that the
burden of proving the status of a
purchaser in good faith lies upon him
who asserts that status. It is not
sufficient to invoke the ordinary
presumption of good faith, that is, that
everyone is presumed to have acted
in good faith, since the good faith that
is here essential is integral with the
very status that must be established.
(Aguirre v CA)
3. Titulo colorado or colorable title
One which a person has when he
buys a thing in good faith, from one
who is not the owner but whom he
believes to be the owner
The just title required for acquisitive
prescription is titulo Colorado
4. Titulo putativo or putative title
One which a person believes he has
title but in fact he has not because
there was no mode of acquiring
ownership
As when one is in possession of a
thing in the mistaken belief that it had
been bequeathed to him
Whats the difference between titulo Colorado
and titulo verdadero y valido? In Colorado,
there is a need for prescription to transfer
ownership. In true and valid title, there is no
need for prescription, ownership is transferred
once the mode of transfer has been perfected.
(Be it by sale, donation, succession, etc).
Case doctrine
In order that a co-owners possession may
be deemed adverse to the cestui que trusti
or the other co-owners, the following
elements must concur:
1. That he has perfomrmed unequivocal
acts of repudiation amounting to an
ouster of the beneficiary or the other
co-owners
2. That such positive acts of repudiation
have been made known to the
beneficiary or the other co-owners
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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3.
That the evidence thereon must be
clear and convincing (Aguirre v CA)
Art 542 The possession of real property
presumes that of movables therein, so long
as it is not shown or proved that they
should be excluded.
Possession of real property presumed to
include movables
Article 542 refers to material possession
only of things, not rights
Possession may be in the concept of
owner, of holder, in ones own name or in
anothers, or in good faith or in bad faith
It is normal that movables which are found
in an immovable belong to the possessor
of the latter
If the building is occupied by the lessee,
we can suppose the same with respect to
him because in this case, the possessor is
the lessee
Again, this is a mere presumption.
Art 543 Each one of the participants of a
thing possessed in common shall be
deemed to have exclusively possessed the
part which may be allotted to him upon the
division thereof, for the entire period during
which the co-possession lasted.
Interruption in the possession of the whole
or a part of a thing possessed in common
shall be to the prejudice of all the
possessors. However, in case of civil
interruption, the Rules of Court shall apply.
Exclusive possession of previous co-owner
deemed continuous
Article 543 speaks of co-possession of a
thing, not of co-ownership
Nevertheless, its principle is applicable to
co-possession of a real right
Co-possession can be over a thing or a
right
All participants of a thing possessed in
common constitute only one personality
and the personality ceases when there is a
partition.
From that moment of cessation, the
personality of each participant begins.
Each co-possessor is deemed (not merely
presumed!) to have possessed exclusively
and continuously during the period of co-
possession the part assigned to him in the
division.
The effects of the division retroact to the
commencement of the co-possession.
But the division shall be without prejudice
to the rights of creditors.
Harry, Ron, and Hermione have been co-
possessors in the concept of owners of a 15
hectare parcel of land until they divided the
property equally on the 8th year. If on the 4th
year after the division, Draco claims ownership
of the portion allotted to Harry, Harry can assert
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PROPERTY NOTES
title by acquisitive prescription through
possession for 10 years, for he is deemed to
have possessed his portion exclusively and
continuously for a period of 12 years.
Interruption in possession of the thing
Both the benefits and the prejudices that
might have taken place during the co-
possession shall attach to each of the co-
participants
Prescription obtained by a co-possessor
shall benefit the others
Interruption in the possession of the whole
or part of a thing shall be to the prejudice
of all the possessors.
Possession is interrupted for purposes of
prescription either
o Naturally (when through any
cause it should cease for more
than 1 year)
o Civilly (when the interruption is
produced by judicial summons to
the possessor)
In civil interruption, only
those possessors served
with judicial summons
are affected.
For civil interruption to
take place, the
possessor must have
received judicial
summons.
When will summons not
be deemed to have been
issued and shall not give
rise to interruption?
1. If it should be void
for lack of legal
solemnities, or
2. If the plaintiff should
desist from the
complaint or should
all the proceedings
to lapse, or
3. If the possessor
should be absolved
from the complaint.
A notice for adverse
claim does NOT
interrupt prescription
(Heirs of Arzadon-
Crisologo v Ranon)
Interruption must refer to the whole thing
itself or part of it and not to a part or right
of a co-possessor.
In a co-possession, there is only one thing
and many possessors. If the right of a co-
possessor is contested, he alone shall be
prejudiced.
With respect to the thing, the prejudice
shall be against all.
Art 544 A possessor in good faith is entitled
to the fruits received before the possession
is legally interrupted.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Natural and industrial fruits are
considered received from the time they are
gathered or severed.
Civil fruits are deemed to accrue
daily and belong to the possessor in good
faith in that proportion.
Art 545 If at the time the good faith ceases,
there should be any natural or industrial
fruits, the possessor shall have a right to a
part of the expenses of cultivation, and to a
part of the net harvest, both in proportion to
the time of possession.
The charges shall be divided on the
same basis by the two possessors.
The owner of the thing may, should
he so desire, give the possessor in good
faith the right to finish the cultivation and
gathering of the growing fruits, as an
indemnity for his part of the expenses of
cultivation and the net proceeds; the
possessor in good faith who for any reason
whatever should refuse to accept this
concession, shall lose the right to be
indemnified in any other manner.
The fruits of a thing generally belong to the
owner (Art 441) but a possessor in good
faith is entitled to the fruits received until
good faith ceases and bad faith begins.
Legal interruption of possession in good
faith takes place upon service of judicial
summons to the possessor.
o All fruits that the possessor may
receive from the time that he is
summoned, or when he answers
the complaint, must be delivered
or paid by him to the owner or
lawful possessor.
Whenever there is cessation of good faith
in the eyes of the law, whether by reason
of the filing of a complaint or not,
possession in good faith should be
deemed legally interrupted from such
cessation and not merely from the service
of judicial summons.
When the owner or possessor with a better
right comes along, when he becomes
aware that what he had taken for granted
is at least doubtful, and when he learns the
grounds in support of the adverse claim,
good faith ceases.
Possessor in bad faith is not entitled to the
fruits. He has the duty to reimburse the
fruits received including that which the
legitimate possessor could have received.
The right of the possessor in good faith is
limited to the fruits, referring to natural,
industrial and civil fruits (Art 441). Other
things (building) belong to the owner of the
land.
When fruits considered received
1. For natural and industrial fruits from the
time they are gathered or severed. Fruits
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PROPERTY NOTES

gathered before legal interruption belong expenses for

to the possessor in good faith. cultivation
2. For civil fruits their accrual, not their Second: (because by
actual receipt, shall determine when they To allow right of
are considered received at the time the possessor accession,
good faith is legally interrupted. They are to stay in all fruits
deemed to accrue daily and belong to the possessio belong to
possessor in good faith in that proportion. n until owner
after all without need
Kinds of Fruits Possesso Possessor in fruits are to pay
r in Good Bad Faith gathered indemnity)
Faith (which
1. Civil fruits Entitled to Not entitled shall Must pay
fruits from to fruits. serve as damages as
start of the reasonable
possessio Must pay indemnity rent for the
n until damages as for term of
legal rental from expenses) possession
interruptio time
n possession
started until Proportionate division of fruits and expenses
possession Art 545 does not apply when the
is finally possessor is in bad faith, the fruits are civil,
defeated or the fruits are natural or industrial but
2. Natural/Indust they have been gathered or severed when
rial Fruits good faith ceases
A possessor in bad faith has no right
a. Gathered Right to Must whatsoever to the fruits, gathered or
retain account for pending, except only necessary expenses
fruits fruits and for gathered fruit (Art 443, 449). Since civil
return value fruits are produced day by day, Art 545
of: does not apply to them.
fruits In the case of fruits already gathered at
actually the time good faith ceases, it is Art 544
received, that is applicable.
and fruits If there are pending natural and industrial
which the
fruits at the time good faith ceases, the two
legal
possessors shall share in the expense of
possessor
cultivation and the charges (expenses
could have
made not on the property itself but on
received
account of it, such as taxes, interest on
with due
mortgages) in proportion to the time of
care and
possession.
diligence.
They will also share on the fruits in
b. Pending Must pay proportion to the time of possession as
damages as well.
Owner reasonable What if there are no fruits or the fruits are
has 2 rent for the less than expenses?
options: term of o If there is no net harvest because
possession. there are no fruits or the fruits are
First: Pro- less than the expenses, art 545
rating But entitled wont apply. If the fruits are
(based on to necessary merely insufficient, the same
period of expenses for should be divided in proportion to
possessio preservation, their respective expenses.
n) cultivation, o No fruits? Each should bear his
between and own expenses subject to the right
possessor gathering of of the possessor in good faith to
and fruits. be refunded for necessary
owner of: expenses under Art 546, unless
expenses, the owner of new possessor
net No rights, exercises his option referred to
harvest not even above.
and reimbursem
charges ent of

48
Mickey Ingles
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PROPERTY NOTES

Art 546 Necessary expenses shall be expenses options:

refunded to every possessor; but only the
possessor in good faith may retain the thing Option 1:
until he has reimbursed therefore. reimburseme
Useful expenses shall be refunded nt of either
only to the possessor in good faith with the (a) amount
same retention, the person who has spent or (b)
defeated him in the possession having the increase in
option of refunding the amount of the value with
expenses or of paying the increase in value right of
which the thing may have acquired by retention with
reason thereof. full payment.

Art 547 If the useful improvements can be Option 2: To

removed without damage to the principal allow
thing, the possessor in good faith may possessor to
remove them, unless the person who remove
recovers the possession exercises the provided no
option under paragraph 2 of the preceding substantial
article. damage or
injury is
Art 548 Expenses for pure luxury or mere caused
pleasure shall not be refunded to the Luxurious Owner has 2 Owner has 2
possessor in good faith; but he may remove expenses options: options:
the ornaments with which he has
embellished the principal thing if it suffers Option 1: to Option 1: to
no injury thereby, and if his successor in allow allow
the possession does not prefer to refund possessor to possessor to
the amount expended. remove remove
ornaments if ornaments if
Art 549 The possessor in bad faith shall the principal the principal
reimburse the fruits received and those suffers no suffers no
which the legitimate possessor could have injury injury
received, and shall have a right only to the
expenses mentioned in paragraph 1 of Option 2: to Option 2: to
Article 546 and in Article 443. The expenses retain the retain the
incurred in improvements for pure luxury or ornament by ornament by
mere pleasure shall not be refunded to the refunding the refunding
possessor in bad faith, but he may remove amount spent the value of
the objects for which such expenses have for the the
been incurred, provided that the thing ornament ornament at
suffers no injury thereby, and that the lawful the time
possessor does not prefer to retain them by owner enters
paying the value they may have at the time into
he enters into possession. possession
(which
Expenses Possessor in Possessor in means
Good Faith Bad Faith depreciated
Necessary Entitled to Entitled to value)
Expenses reimburseme reimbursem Deterioration/l No liability Always liable
nt ent oss unless due to whether
Right of No right of fraudulent before or
retention retention; intent or after service
pending full must vacate negligence of judicial
reimburseme property after service summons,
nts (recourse is of judicial for any
to file summons cause, even
collection fortuitous
case) event.
Liable for
damages as
reasonable Necessary expenses are made for the
rent for preservation of the thing of those which
period of seek to prevent the waste, deterioration, or
possession loss of the thing; or those without which
Useful Owner has 2 No rights the thing would deteriorate or be lost.

49
Mickey Ingles
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Ad Majorem Dei Gloriam
PROPERTY NOTES
Useful expenses are expenses which add
value to a thing, or augment its income.
Luxurious expenses are expenses not
necessary for the preservation of a thing
nor do they increase its productivity
although they add value to the thing, but
are incurred merely to embellish the thing
and for the convenience or enjoyment of
particular possessors.
Case doctrine
A possessor in bad faith is entitled to be
reimbursed for her expenses in restoring a
house to its original condition after it had
been partly damaged by fire, because
such expenses are necessary, and under
546, are to be refunded even to
possessors in bad faith.
A builder in bad faith, under 449, is not
entitled to reimbursement. But 449 is a
rule of accession, which is not applicable
where a new house was not built on the
land of another but only repairs were made
on a house that had been partly destroyed
by fire. This latter case comes under 546
which provides for the refund of necessary
expenses to every possessor. (Cosio v
Palileo)
Art. 550. The costs of litigation over the
property shall be borne by every possessor.
(n)
Art. 551. Improvements caused by nature or
time shall always insure to the benefit of the
person who has succeeded in recovering
possession. (456)
Improvements caused by nature or time
Article 551 covers all the natural
accessions mentioned in Articles 457 to
465 which must follow the ownership of the
principal thing, and generally, all
improvements that are not due to the will
of the possessor.
The former possessor got the benefits
from the property during his possession. It
is but just that the improvements
mentioned which take place after the
possession is recovered inure to the owner
or lawful possessor. Hence, he should not
pay for them.
Art. 552. A possessor in good faith shall not
be liable for the deterioration or loss of the
thing possessed, except in cases in which it
is proved that he has acted with fraudulent
intent or negligence, after the judicial
summons.
A possessor in bad faith shall be
liable for deterioration or loss in every case,
even if caused by a fortuitous event. (457a)
Art. 553. One who recovers possession
shall not be obliged to pay for
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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improvements which have ceased to exist
at the time he takes possession of the thing.
(458)
Improvements which have ceased to exist
The improvements referred to were
enjoyed by the possessor alone.
Having ceased to exist, the owner or lawful
possessor who came too late cannot
benefit from them. But he is liable for
necessary expenses even if the thing for
which they were incurred no longer exists.
Necessary expenses are not considered
improvements.
Art. 554. A present possessor who shows
his possession at some previous time, is
presumed to have held possession also
during the intermediate period, in the
absence of proof to the contrary. (459)
Presumption of possession during intervening
period
This article contemplates a situation where
a present possessor is able to prove his
possession of a property at a prior period
but not his possession during the
intervening period.
He is presumed to have possessed the
property continuously without interruption,
unless the contrary is proved.
The presumption is useful for purposes of
prescription.
Art. 555. A possessor may lose his
possession:
1. By the abandonment of the thing;
2. By an assignment made to another
either by onerous or gratuitous
title;
3. By the destruction or total loss of
the thing, or because it goes out of
commerce;
4. By the possession of another,
subject to the provisions of Article
537, if the new possession has
lasted longer than one year. But the
real right of possession is not lost
till after the lapse of ten years.
(460a)
Modes of losing possession
This provision applies to both real and
personal property except no. 4 which
obviously refers only to personal property
(obvious raw eh, sabi ni de Leon. Yabang
naman niya). The next article is expressly
made applicable only to movables.
What is abandonment?
Abandonment is the voluntary renunciation
of all rights which a person has over a
thing thereby allowing a third person to
acquire ownership or possession thereof
by means of occupancy.
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The abandoner may be the owner or a
mere possessor but the latter obviously
cannot abandon ownership which belongs
to another. (obviously raw!)
Since abandonment involves the
renunciation of a property right, the
abandoner must have a right to the thing
possessed and the legal capacity to
renounce it.
An owner of property cannot be held to
have abandoned the same until at least he
has some knowledge of the loss of its
possession or of the thing, and a thing
cannot be considered abandoned under
the law until the spes recuperandi (hope of
recovery) is gone and the animus
revertendi (intention to return) is finally
given up.
By voluntary abandonment, a thing
becomes without a owner or possessor
and is converted into res nullius and may
thus be acquired by a third person by
occupation.
Abandonment which converts the thing
into res nullius can hardly apply to land.
Castellano v Francisco stated that
abandonment requires:
1. A clear and absolute intention to
renounce a right or a claim or to
abandon a right or property, and
2. An external act by which that intention
is expressed or carried into effect.
The intention to abandon implies a
departure, with the avowed intent of never
returning, resuming or claiming the right
and the interest that have been
abandoned. (Castellano v Francisco)
Assignment?
Assignment is understood to mean the
complete transmission of the thing or right
to another by any lawful manner.
It may be onerous or by gratuitous title.
The effect is that he who was the owner or
possessor is no longer so.
Abandonment is always gratuitous.
Destruction, total loss, or withdrawal from
commerce
Destruction or total loss covers not only
that which is caused voluntarily or
intentionally but also that which is caused
by accident.
A thing is lost when it perishes, or goes out
of commerce, or disappears, etc. (Art
1189)
Possession of another for more than one year
This refers to possession de facto (as a
fact or material possession) and not de
jure (legal right or real right of possession)
After one year, the former possessor can
no longer bring any action for forcible entry
or unlawful detainer.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Possession by mere tolerance even for
over a year does not affect possession de
facto.
After 10 years, the possessor or owner
may bring an accion publiciana or
reivindicatoria to recover possession de
jure unless he is barred by prescription.
Recovery by lawful owner or possessor
Possession may also be lost when it is
recovered from the person in possession
by the lawful owner in a reivindicatory
action or by the lawful possessor in an
action to recover the better right of
possession.
Art. 556. The possession of movables is not
deemed lost so long as they remain under
the control of the possessor, even though
for the time being he may not know their
whereabouts. (461)
Loss of possession of movables
The possession of movables shall be
deemed lost when they cease to be under
the control of the possessor either becaue:
o They have come into the
possession of a third person; or
o Although, they have not been
taken by another,
The possessor has
completely no idea of
their whereabouts or
location (the pet rat has
been missing for
sometime; or
Even if known, they
cannot be recovered,
whether as a matter of
fact (an unopened box of
pastillas has been
dropped in a deep lake)
or of law (a movable lost
by prescription).
Possession is not lost by the mere fact that
the possessor does not know for the time
being the precise whereabout of a specific
movable when he has not given up all
hope of finding it (like a ring misplaced or
lost in particular vicinity). In this case, the
possessor has not lost his legal right to the
object.
o He retains his juridical control of
the thing which remains in his
patrimony.
Art. 557. The possession of immovables
and of real rights is not deemed lost, or
transferred for purposes of prescription to
the prejudice of third persons, except in
accordance with the provisions of the
Mortgage Law and the Land Registration
laws. (462a)
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Loss of possession of immovables and real
rights with respect to third persons
Third persons are not prejudiced except in
accordance with the provisions of the
mortgage law and the registration law.
Against a recorded title, ordinary
prescription of ownership or real rights
shall not take place to the prejudice of a
third person, except in virtue of another
title also recorded and the time shall begin
to run from the recording of the latter.
Art. 558. Acts relating to possession,
executed or agreed to by one who
possesses a thing belonging to another as
a mere holder to enjoy or keep it, in any
character, do not bind or prejudice the
owner, unless he gave said holder express
authority to do such acts, or ratifies them
subsequently. (463)
Possessory acts of a mere holder
The possessor referred to in this article is
the same possessor mentioned in Article
525.
Acts relating to possession of a mere
holder do not bind or prejudice the
possessor in the concept of owner unless
said acts were previously authorized or
subsequently ratified by the latter.
Possession may be acquired for another
by a stranger provided there be
subsequent ratification. (Art 532)
Art. 559. The possession of movable
property acquired in good faith is
equivalent to a title. Nevertheless, one who
has lost any movable or has been
unlawfully deprived thereof may recover it
from the person in possession of the same.
If the possessor of a movable lost
or which the owner has been unlawfully
deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its
return without reimbursing the price paid
therefor. (464a)
Right of possessor who acquires movable
claimed by another
If the possession of a movable property
who acquired in bad faith, no right thereto
is acquired by the possessor. The property
may be recovered by the true owner or
possessor without reimbursement.
If the acquisition was in good faith, here
are the rules:
o Possession in good faith of a movable
is presumed ownership. It is
equivalent to title. This is known as
the doctrine of irrrevindicability. No
further proof is necessary.
o The possessors title, however, is not
absolute. It is equivalent to title but is
not title itself. It is merely presumptive
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
because it can be defeated by the true
owner.
These are the two exceptions to the
general rule of irrevindicability. An owner
can recover in these two instances:
1. When one has lost the movable,
or
2. When one has been unlawfully
deprived.
He may recover without
reimbursement. But if the thing
was sold at a public sale, the
owner must reimburse the buyer.
These are the exceptions to the
exceptions. Even when an owner has lost
or has been unlawfully deprived, he still
cannot recover in these instances:
1. When the sale is made at
merchants stores, fairs or
markets.
2. When the owner of the movable
is, by his conduct, precluded from
denying the sellers authority to
sell;
3. Where the law enables the
apparent owner to dispose of the
movables as if he were the true
owner thereof
4. Where the sale is sanctioned by
statutory or judicial authority
5. Where the seller has a voidable
title which has not been avoided
at the time of the sale to the
buyer in good faith for value and
without notice of the sellers
defect of title (remember CLV!)
6. Where recovery is no longer
possible because of prescription
7. Where the possessor becomes
the owner of the thing in
accordance with the principle of
finders keepers
Case doctrines
Non-payment does not void a sale. It is
perfected upon the meeting of the minds.
Hence, ownership shall pass from the
vendor to the vendee upon the actual or
constructive delivery of the thing sold. It
does not constitute unlawful deprivation of
personal property. It is a mere voidable
sale, and unless it is avoided before the
execution of the second sale, then the
second sale is valid. (EDCA v Santos)
Purchaser in good faith of a chattel or
movable property is entitled to be
respected and protected in his possession
as if he were the true owner thereof until a
competent court rules otherwise. In the
meantime, as the true owner, the
possessor in good faith cannot be
compelled to surrender possession nor to
be required to institute an action for the
recovery of the chattel. (Edu v Gomez)
A third party who acquired in good faith a
stolen vehicle and registered it in his own
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name cannot lawfully refuse to return it to
the true owner and insist upon
reimbursement before delivery. (Aznar v
Yapdiangco stealing equals unlawful
deprivation)
The owner of a ring pledged to a
pawnshop by one to whom he has
entrusted it to be sold on commission can
recover it from the pawnshop. (Dizon v
Suntay)
Art. 560. Wild animals are possessed only
while they are under one's control;
domesticated or tamed animals are
considered domestic or tame if they retain
the habit of returning to the premises of the
possessor. (465)
Possession of animals
Animals may be:
1. Wild or animals living in a state of
nature independently of and without
the aid and care of man (great white
shark, ornate wobbegong, brazilian
slug)
2. Domesticated or tamed, or animals
which are wild or savage by nature but
have been subdued and made use of
by man and become accustomed to
live in a tamed condition (tiger ni
Chavit)
3. Domestic or tame, or any of the
various animals which live and are
born and reared, under the control
and care of man, lacking the instinct to
roam freely (dog, cat, carabao, cow)
Wild animals may be the object of hunting.
They are possessed only if they are under
ones control. Possession of wild animals
are lost when they regain their freedom or
come under anothers control.
Domesticated animals are possessed if
they habitually return to the premises of
the possessor.
Art. 561. One who recovers, according to
law, possession unjustly lost, shall be
deemed for all purposes which may
redound to his benefit, to have enjoyed it
without interruption. (466)
This article applies to both possession in
good faith as well as to possession in bad
faith, but only if beneficial to the possessor
(like for purposes of prescription)
The recovery of possession must be
according to law through legal means;
otherwise, the benefit of continuous and
uninterrupted possession during the
intervening period cannot be invoked.
TITLE VI - USUFRUCT
CHAPTER ONE: USUFRUCT IN
GENERAL
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Art. 562. Usufruct gives a right to enjoy the
property of another with the obligation of
preserving its form and substance, unless
the title constituting it or the law otherwise
provides. (467)
What is usufruct?
1. A right to enjoy the property of another with
the obligation of preserving its form and
substance
2. Right to enjoy the property of another
temporarily, including both the jus utendi
and jus fruendi, with the owner retaining
the jus disponendi
3. In essence, usufruct is nothing else but
simply allowing one to enjoy anothers
propery
What are the characteristics of usufruct?
1. It is a real right of use and enjoyment,
(whether registered or not in the Registry
of Property. Registering will affect and bind
third persons)
2. Of Temporary duration;
3. Transmissible; and
4. May be constituted on real or personal
property, consumable or non-consumable,
tangible or intangible, the ownership of
which is vested in another
A person cannot create a usufruct over his
own property and at the same time retain
ownership of the same
A usufruct is essentially jus in re aliena,
and to be a usufructuary of ones own
property is in law a contradiction in terms
and a conceptual absurdity
The essential requisite of usufruct is the
right to enjoy the property of another
The usufructuary is entitled to all the fruits
of the property with the obligation to
preserve its form and substance
However, the obligation of the usufructuary
to preserve is only accidental for the law or
the will of the parties may modify or even
eliminate it
Two classifications based on whether or
not impairment of object is allowed:
1. Normal, perfect or regular invovlves
non-consumable things which the
usufructuary can enjoy without altering
the form or substance, through they
may detoriorate or diminish by time or
by use
2. Abnormal, imperfect, irregular or
quasi-usufruct involves things which
would be useless to the usufructuary
unless they are consumed or
expended, such as money, grain,
liquors, etc
Usufruct Lease
Nature of Real Personal
right
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Creator of Owner of May not be b. With a term (may be

right agent the owner suspensive or resolutory)
Origin May be by law, By contract c. Conditional (may be
by contract, by suspensive or resolutory)
will of testator, 4. As to subject matter
or by a. Over things (tangible
prescription property)
Extent of All the fruits Certain uses b. Over rights (intangible
enjoyment and all the only (those property which are not
uses and stipulated) intransmissible)
benefits of the
entire property Art. 565. The rights and obligations of the
(generally) usufructuary shall be those provided in the
Cause More or less Active owner title constituting the usufruct; in default of
passive owner or lessor who such title, or in case it is deficient, the
who allows the makes the provisions contained in the two following
usufructuary to lessee enjoy Chapters shall be observed. (470)
enjoy the
object In case of conflict between the will of the
Repairs and Usufructuary to Lessee not person creating the usufruct and the Civil
taxes pay generally code, the former prevails.
under the
obligation to CHAPTER TWO
pay taxes or RIGHTS OF THE USUFRUCTUARY
undertake
repairs Art. 566. The usufructuary shall be entitled
to all the natural, industrial and civil fruits of
the property in usufruct. With respect to
hidden treasure which may be found on the
Art. 563. Usufruct is constituted by law, by land or tenement, he shall be considered a
the will of private persons expressed in acts stranger. (471)
inter vivos or in a last will and testament,
and by prescription. (468) Classifications of the rights of the usufructuary
Creation of usufruct 1. As to the thing and its fruits
Usufruct may e classified according to how it is a. To receive the fruits of the
created into: property in usufruct and half
1. Legal, or that created or declared by law of the hidden treasure he
2. Voluntary, or that created by will of the accidentally finds on the
parties (an act inter vivos or an act mortis property
causa) b. To enjoy any increase which
3. Mixed or that acquired by prescription the thing in usufruct may
acquire through accession
Art. 564. Usufruct may be constituted on the c. To personally enjoy the thing
whole or a part of the fruits of the thing, in in usufruct or lease it to
favor of one more persons, simultaneously another
or successively, and in every case from or d. To make on the property in
to a certain day, purely or conditionally. It usufruct such improvements
may also be constituted on a right, provided or expenses he may deem
it is not strictly personal or intransmissible. property and to remove the
(469) improvements provided no
damage is caused to the
Kinds of usufruct defined property
Usufruct may be e. To set-off the improvements
1. As to extent of object he may have made on the
a. Total (constituted on the property against any damage
whole of a thing) to the same
b. Partial (constituted only on a f. To retain the thing until he is
part of a thing) reimbursed for advances for
2. As to number of beneficiaries extraordinary expenses and
a. Simple (only one) taxes on the capital
b. Multiple (several 2. As to the usufruct itself
usufructuaries) a. To alienate (or mortgage) the
i. Simultaneous, or right of usufruct except
ii. Successive parental usufruct
3. As to effectivity or extinguishment b. In a usufruct to recover
a. Pure property or a real right, to

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bring the action and to oblige
the owner thereof to give him
proper authority and
necessary proof, and
c. In a usufruct of part of a
common property, to
exercise all the rights
pertaining to the co-owner
with respect to the
administration and collection
of fruits or interests from the
property
3. As to advances and damages
a. To be reimbursed for
indispensable extraordinary
repairs made by him in an
amount equal to the increase
in value which the property
may have acquired by
reason of such repairs
b. To be reimbursed for taxes
on the capital advanced by
him, and
c. To be indemnified for
damages caused to him by
the naked owner.
The usufructuary is given the right to enjoy
the property in usufruct and he is entitled
to the fruits. The usufructuary has the right
to receive all the fruits except:
a. where the usufruct is
constituted only on a part of
the fruits of a thing or
b. where there is an agreement
to the contrary.
The naked owner retains and can exercise
all the rights as owner over the property
limited only by the right of enjoyment of the
usufructuary.
Products which when taken from the
property diminishes its substance are not
to be treated as fruits. They form part of
the capital and belong to the naked owner,
and not to the usufructuary in the absence
of a contrary intent between the parties.
The usufructuary is not entitled to any
hidden treasure because its not
considered as fruits. However, as a
stranger, he is entitled to if he is the
finder.
Art. 567. Natural or industrial fruits growing
at the time the usufruct begins, belong to
the usufructuary.
Those growing at the time the
usufruct terminates, belong to the owner.
In the preceding cases, the
usufructuary, at the beginning of the
usufruct, has no obligation to refund to the
owner any expenses incurred; but the
owner shall be obliged to reimburse at the
termination of the usufruct, from the
proceeds of the growing fruits, the ordinary
expenses of cultivation, for seed, and other
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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similar expenses incurred by the
usufructuary.
The provisions of this article shall
not prejudice the rights of third persons,
acquired either at the beginning or at the
termination of the usufruct. (472)
Right of the usufructuary to pending natural
and industrial fruits
This article does not apply to civil fruits.
For fruits growing at the beginning of
usufruct, they belong to the usufructuary
who is not bound to refund to the owner
the expenses of cultivation and production
incurred.
o However, in case the expenses
were incurred by innocent third
persons, the usufructuary under
Art 443, pursuant to the last
paragraph of Art 567, has the
obligation to pay the expenses
made.
For fruits growing at the termination of the
usufruct, they belong to the owner but he
is bound to reimburse the usufructuary the
ordinary cultivation expenses out of the
fruits received.
Manresa opines that if at the termination of
the usufruct, force majeure should prevent
the usufructuary from gathering the fruits,
said fruits shall belong to him and not the
naked owner.
Art. 568. If the usufructuary has leased the
lands or tenements given in usufruct, and
the usufruct should expire before the
termination of the lease, he or his heirs and
successors shall receive only the
proportionate share of the rent that must be
paid by the lessee. (473)
Art. 569. Civil fruits are deemed to accrue
daily, and belong to the usufructuary in
proportion to the time the usufruct may last.
(474)
Lease by the usufrucutary
The usufructuary may lease the property in
usufruct to another.
If the usufrcut should expire before the
termination of the lease, the usufructuary
or his heirs and successors are entitled
only to the rents corresponding to the
duration of the usufruct. The rents for the
remaining period of the lease belong to the
owner.
Art. 570. Whenever a usufruct is constituted
on the right to receive a rent or periodical
pension, whether in money or in fruits, or in
the interest on bonds or securities payable
to bearer, each payment due shall be
considered as the proceeds or fruits of
such right.
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Whenever it consists in the
enjoyment of benefits accruing from a
participation in any industrial or commercial
enterprise, the date of the distribution of
which is not fixed, such benefits shall have
the same character.
In either case they shall be
distributed as civil fruits, and shall be
applied in the manner prescribed in the
preceding article. (475)
Usufruct constituted on certain rights
Every benefit or payment shall be
considered and distributed as civil fruit of
such right.
Payment and benefits that accrue after the
termination of the usufruct belong to the
owner.
The date when the benefits accrue
determines whether they should belong to
the usufructuary or to the owner. Art 570
applies whether or not the date of
distribution of benefits is fixed.
Case doctrine
A stock dividend is considered civil fruit
and belongs to the usufructuary. (Bachrach
v Seifert)
Art. 571. The usufructuary shall have the
right to enjoy any increase which the thing
in usufruct may acquire through accession,
the servitudes established in its favor, and,
in general, all the benefits inherent therein.
(479)
Extent of rights of usufructuary
The usufructuary is generally entitled to all
the benefits that the thing in usufruct can
give including any increase by accession
and servitudes established in his favor.
Reason is that usufruct covers the entire
jus fruendi and jus utendi.
Art. 572. The usufructuary may personally
enjoy the thing in usufruct, lease it to
another, or alienate his right of usufruct,
even by a gratuitous title; but all the
contracts he may enter into as such
usufructuary shall terminate upon the
expiration of the usufruct, saving leases of
rural lands, which shall be considered as
subsisting during the agricultural year. (480)
Transactions by the usufructuary
with respect to the thing in usufruct, he
may lease it even without the owners
consent but not being the owner, the
usufructuary cannot alienate, pledge or
mortgage the thing itself. He may sell
future crops subject to the rule that those
ungathered at the time when the usufruct
terminates belong to the owner.
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when the things given in usufruct cannot
be used without being consumed or were
appraised when delivered, the
usufructuary may dispose of them.
With respect to the right of usufruct, since
the usufructuary is the owner of the right
itselt, he may alienate, pledge or mortgage
it, even by gratuitous title.
o But the legal usufruct of the
parent over his or her
unemancipated children cannot
be alienated, pledged, or
mortgaged for the right is
personal and intransmissible
burdened as it is by important
obligations of the parent for the
benefit of the children.
o A usufruct given in consideration
of the person of the usufructuary
to last during his lifetime is also
personal, and therefore,
intransmissible.
o As a rule, all contracts entered
into by the usufructuary shall
terminate upon the expiration of
the usufruct or earlier, except
rural leases which continue
during the agricultural year.
Case doctrine
A usufructuary of rents, as a corollary to
the right to all the rents, to choose the
tenant, and to fix the amount of the rent,
necessarily has the right to choose himself
as the tenant, provided that the obligations
he has assumed towards the owner of the
property are fulfilled. (Fabie v David)
Art. 573. Whenever the usufruct includes
things which, without being consumed,
gradually deteriorate through wear and tear,
the usufructuary shall have the right to
make use thereof in accordance with the
purpose for which they are intended, and
shall not be obliged to return them at the
termination of the usufruct except in their
condition at that time; but he shall be
obliged to indemnify the owner for any
deterioration they may have suffered by
reason of his fraud or negligence. (481)
Usufruct on things which gradually deteriorate
This article gives an instance of abnormal
usufruct because in the enjoyment of the
property the usufructuary cannot preserve
its form or substance.
Here the thing gradually deteriorates
through wear and tear or normal use.
The usufructuary is not responsible for the
deterioration due to wear and tear nor is
he required to make any repairs to restore
it to its formal condition. He needs only to
return the thing at the termination of the
usufruct in the condition it may be at that
time.
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The usufructuary is liable for damage
suffered by the thing by reason of his fraud
or negligence although such liability may
be set-off against the improvements he
may have made on the property.
The usufructuary does not answer for
deterioration due to a fortuitous event. He
is, however, obligated to make the ordinary
repairs needed by the thing.
Art. 574. Whenever the usufruct includes
things which cannot be used without being
consumed, the usufructuary shall have the
right to make use of them under the
obligation of paying their appraised value at
the termination of the usufruct, if they were
appraised when delivered. In case they were
not appraised, he shall have the right to
return at the same quantity and quality, or
pay their current price at the time the
usufruct ceases. (482)
Usufruct on consumable things
This is another instance of abnormal
usufruct because the thing in usufruct
cannot be used without being consumed,
like money (but thats really a simple loan,
where the usufructuary can deal with the
money as owner.)
The usufructuary shall have the right to
make use of the consumable thing.
At the termination of the usufruct, he must:
1. Pay its appraised valuel or
2. If there was no appraisal made, either:
a. Return the same quantity and quality,
or
b. Pay its current price at such
termination.
Art. 575. The usufructuary of fruit-bearing
trees and shrubs may make use of the dead
trunks, and even of those cut off or
uprooted by accident, under the obligation
to replace them with new plants. (483a)
Art. 576. If in consequence of a calamity or
extraordinary event, the trees or shrubs
shall have disappeared in such
considerable number that it would not be
possible or it would be too burdensome to
replace them, the usufructuary may leave
the dead, fallen or uprooted trunks at the
disposal of the owner, and demand that the
latter remove them and clear the land.
(484a)
Usufruct on fruit-bearing trees and shrubs
The usufructuary is given the right to make
use of dead trunks and those cut-off or
uprooted by accident but he must place
them with new plants because he has the
obligation to preserve the form or
substance of the property in usufruct.
Of course, the usufructuary has no
obligation to replace with new plants, the
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Ateneo Law 2012, updated: May 15, 2012
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dead trees or shrubs already existing at
the beginning of the usufruct.
Under article 576, the usufructuary is not
responsible for dead, fallen or uprooted
trunks caused by calamity or extra-
ordinary events. If it would not be possible
or be too burdensome to replace them, he
may demand that the owner remove them
and clear the land. He may use the trunks
but he is required to replace them with
new plants under Article 575.
If replacing the trunks could not be too
burdensome, the usufructuary must
replace them, whether or not he makes
use of them.
Art. 577. The usufructuary of woodland may
enjoy all the benefits which it may produce
according to its nature.
If the woodland is a copse or
consists of timber for building, the
usufructuary may do such ordinary cutting
or felling as the owner was in the habit of
doing, and in default of this, he may do so
in accordance with the custom of the place,
as to the manner, amount and season.
In any case the felling or cutting of
trees shall be made in such manner as not
to prejudice the preservation of the land.
In nurseries, the usufructuary may
make the necessary thinnings in order that
the remaining trees may properly grow.
With the exception of the
provisions of the preceding paragraphs, the
usufructuary cannot cut down trees unless
it be to restore or improve some of the
things in usufruct, and in such case shall
first inform the owner of the necessity for
the work. (485)
Usufruct on woodland and nurseries
The woodland may be a copse or may
consist of timber for building.
The usufructuary may fell or cut trees as
the owner was in the habit of doing or in
accordance with the customs of the place
as to manner, amount and season. In any
case, he must not prejudice the
preservation of the land.
The usufructuary cannot cut down trees
other than as mentioned above unless it
be for repair or improvement of the things
in usufruct but in such case, the owner
must be informed of the necessity for the
work.
In nurseries, the usufructuary may make
the necessary thinnings in order that the
remaining trees may properly grow.
Art. 578. The usufructuary of an action to
recover real property or a real right, or any
movable property, has the right to bring the
action and to oblige the owner thereof to
give him the authority for this purpose and
to furnish him whatever proof he may have.
If in consequence of the enforcement of the
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action he acquires the thing claimed, the
usufruct shall be limited to the fruits, the
dominion remaining with the owner. (486)
Usufruct of judicial action to recover
This article applies if the purpose of the
action is to recover real property or
personal property or real right over real or
personal property
The action may be instituted in the name
of the usufructuary (vs an agent who
institutes the action in the name of the
principal)
The usufructuary may oblige the owner to
give him the necessary authority to bring
the action
In case of favorable judgment, the usufruct
shall be limited to the fruits, with the naked
ownership belonging to the owner. With
the termination of the case, the usufruct of
the action comes to an end.
Art. 579. The usufructuary may make on the
property held in usufruct such useful
improvements or expenses for mere
pleasure as he may deem proper, provided
he does not alter its form or substance; but
he shall have no right to be indemnified
therefor. He may, however, remove such
improvements, should it be possible to do
so without damage to the property. (487)
What happens when a usufructuary makes
useful or luxurious expenses?
The usufructuary has the right to make
improvements, useful or luxurious, as he
may deem proper.
What are the rules?
1. He must not alter the form or
substance of the property,
2. He may remove the improvements
only if it is possible to do so without
damage to the property
3. He has no right to be indemnified for
the improvements if he does not
exercise his right to remove
o He cannot invoke the rights
of a possessor in good faith
in the concept of owner
4. If the improvements cannot be
removed without damage, he may set-
off the same against any damage
caused by him to the property (Art
580)
5. If the usufructuary does not wish to
exercise his right of removal, the
owner cannot compel him to remove
the improvements
6. If the usufructuary wishes to exercise
his right of removal, the owner cannot
prevent him by offering to reimburse
him
7. The usufructuarys right to remove the
improvements includes the right to
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destroy them provided no damage is
caused to the property
8. The right to remove is enforceable
only against the owner, but not against
a purchaser in good faith to whom a
clean title has been issued
o Right to remove the
improvements should be
annotated on the certificate
of title, so that it can be
enforced against third parties
Case doctrines
By express provision of law, the
usufructuaries do not have the right to
reimbursement for improvements they may
have introduced on the property. If the rule
on reimbursement or indemnity were
otherwise, then the usufructuary might
improve the owner out of his property.
(Moralidad v Pernes)
Art. 580. The usufructuary may set off the
improvements he may have made on the
property against any damage to the same.
(488)
Right to set-off improvements
This article presupposes that
o the improvements have increased
the value of the property and
o the damage to the same was
caused through the fault of the
usufructuary.
If the damage exceeds the value of the
improvements, the usufructuary is liable
for the difference as indemnity
If the value of the improvements exceeds
the damage, he may remove the portion of
the improvements representing the excess
in value if this can be done without injury
to the property, otherwise, the excess in
value accrues to the owner.
Art. 581. The owner of property the usufruct
of which is held by another, may alienate it,
but he cannot alter its form or substance, or
do anything thereon which may be
prejudicial to the usufructuary. (489)
Rights and obligations of the naked owner
The naked owner may alienate the
property in usufruct because the title
(dominium directum) remains vested in
him.
He may construct works, make
improvements, or make new plantings on
the property in usufruct.
The alienation by the naked owner cannot
affect the usufruct which is registered or
known to the transferee.
The naked owner, however, cannot:
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o alter the form or substance of the appraisal of the movables and a description
property, or of the condition of the immovables;
o do anything thereon which may (2) To give security, binding himself to fulfill
cause a diminution in the value of the obligations imposed upon him in
the usufruct, or accordance with this Chapter. (491)
o be prejudicial to the rights of the
usufructuary, Classifications of obligations of the
otherwise, he shall be usufructuary
liable for damages. 1. Those before the usufruct begins
The naked owner must: a. Make an inventory of the
property, which shall contain
o Respect leases of rural lands by
an appraisal of the movables
the usufructuary for the balance
and a description of the
of the agricultural year (Art 572)
immovables
o Reimburse him for advances
b. Give security
made for extraordinary repairs 2. Those during the usufruct
(Art 594), and a. Take care of the property (Art
o Reimburse him for taxes on the 589)
capital (Art 597) b. To replace with the young
thereof animals that die or
are lost in certain cases
Art. 582. The usufructuary of a part of a when the usufruct is
thing held in common shall exercise all the constituted on flock or herd
rights pertaining to the owner thereof with of livestock (Art 591)
respect to the administration and the c. To make ordinary repairs (Art
collection of fruits or interest. Should the 592, par 1)
co-ownership cease by reason of the d. To notify the owner of urgent
division of the thing held in common, the extraordinary repairs (Art
usufruct of the part allotted to the co-owner 593)
shall belong to the usufructuary. (490) e. To permit works and
improvements by the naked
Usufruct of part of common property owner not prejudicial to the
In case a co-owner gives the usufruct of usufruct (Art 595)
his share to a person, the usufructuary f. To pay annual taxes and
shall exercise all the rights pertaining to charges on the fruits (Art
the co-owner regarding the administration 596)
and the collection of the fruits or interest g. To pay interest on taxes on
from the property capital paid by the naked
The usufructuary shall be bound by the owner (Art 597)
partition made by the owners of the h. To pay debts when the
undivided property although he took no usufruct is constituted on the
part in the partition but the naked owner to whole of a patrimony (Art
whom the part held in usufruct has been 598)
allotted must respect the usufruct. i. To secure the naked owners
or courts approval to collect
Case doctrine credits in certain cases (Art
A partition made by the owners of land is 599)
binding upon a person who has a j. To notify the owner of any
usufructuary right in an undivided part of prejudicial act committed by
the land, although the latter took no part in third persons (Art 601)
the partition of the property. k. To pay for court expenses
The right of the usufructuary is not affected and costs regarding usufruct
by the division but it is limited to the fruits (Art 602)
of the said part allotted to the co-owner. 3. Those at the termination of the usufruct
(Pichay v Querol) a. To return the thing in usufruct
to the naked owner unless
CHAPTER 3 there is a right of retention
(Art 612)
OBLIGATIONS OF THE b. To pay legal interest for the
USUFRUCTUARY time that the usufruct lasts,
on the amount spent by the
Art. 583. The usufructuary, before entering owner for extraordinary
upon the enjoyment of the property, is repairs (Art 594) and the
obliged: proper interest on the sums
(1) To make, after notice to the owner or his paid as taxes by the owner
legitimate representative, an inventory of all (Art 597), and
the property, which shall contain an
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c. To indemnify the naked
owner for any losses due to
his negligence or of his
transferees. (Art 589-590)
Obligation to make an inventory
1. Previous notice to be given.
In the making of the inventory, the
concurrence of the naked owner is not
required.
Note that the law says legitimate, not
legal representative
2. Expenses of inventory
Borne by the usufructuary
3. Form of inventory
Article 583 does not provide for the
form of inventory. It may be contained
in a private document.
However, a public instrument is
necessary to affect third persons
when there are immovables.
4. Contents of inventory
The inventory shall contain
o an itemized list and
o an appraisal of the movables and
o description of the condition of the
immovables.
The movables must be appraised
because they are subject to greater
danger of loss and deterioration.
Both kinds must be properly identified.
Failure to make an inventory? Usufruct not
extinguished, maybe owner can demand it.
Are there instances where obligation to make
inventory is excused? Yes. See Art 585.
Obligation to give security
The purpose of giving security is to insure
the fulfillment by the usufructuary of the
obligations imposed upon him
Law does not specify the kind of security
that should be given
Failure to give security? See Art 586.
Art. 584. The provisions of No. 2 of the
preceding article shall not apply to the
donor who has reserved the usufruct of the
property donated, or to the parents who are
usufructuaries of their children's property,
except when the parents contract a second
marriage. (492a)
When obligation to give security not applicable
This article contains the legal exceptions to
the obligation of the usufructuary to give
security in two cases:
o To the donor who has reserved
the usufruct of the property
donated
o To the parents who are
usufructuaries of their childrens
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parents, except when the parents
contract a second marriage
Art. 585. The usufructuary, whatever may be
the title of the usufruct, may be excused
from the obligation of making an inventory
or of giving security, when no one will be
injured thereby. (493)
When obligation to make inventory or to give
security excused
The usufructuary may be excused from the
obligation in the following cases:
1. Where the naked owner renounces or
waives his right to the inventory or
security
2. Where the title constituting the
usufruct relieves the usufructuary from
the obligation;
o Is frequently true in usufructs
constituted by a last will and
testament or by a deed of
donation in view of the trust
which the testator or donor
has in the usufructuary
3. Where the usufructuary asks that he
be exempted from the obligation and
no one will be injured thereby.
o The usufructuary may apply
to the courts for relief in case
the naked owner refuses to
grant the exemption where,
for example, the usufruct is
over the right to receive a
periodic income or pension
Art. 586. Should the usufructuary fail to give
security in the cases in which he is bound
to give it, the owner may demand that the
immovables be placed under
administration, that the movables be sold,
that the public bonds, instruments of credit
payable to order or to bearer be converted
into registered certificates or deposited in a
bank or public institution, and that the
capital or sums in cash and the proceeds of
the sale of the movable property be
invested in safe securities.
The interest on the proceeds of the
sale of the movables and that on public
securities and bonds, and the proceeds of
the property placed under administration,
shall belong to the usufructuary.
Furthermore, the owner may, if he
so prefers, until the usufructuary gives
security or is excused from so doing, retain
in his possession the property in usufruct
as administrator, subject to the obligation to
deliver to the usufructuary the net proceeds
thereof, after deducting the sums which
may be agreed upon or judicially allowed
him for such administration. (494)
Effects of failure to give security, when required
On rights of owners: Where the obligation
to give security or to file a bond is not
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excused or exempted, the failure of the
usufructuary to comply with the same
entitle the naked owner for his protection
o to demand that immovables be
placed under administration or
receivership,
o movables be sold,
o instruments of credit be
registered or deposited in a bank
or public institution
o capital or sums in cash and the
proceeds of the sale of the
movable be invested in safe
securities.
On rights of usufructuary: Until he gives
the proper security, the usufructuary
cannot enter upon the possession and
enjoyment of the property. He may not
collect any matured credits nor invest
capital in usufruct without the consent of
the owner or judicial authorization.
The failure to give security does not
extinguish the right of usufruct. Hence, the
usufructuary may alienate his right to the
usufruct
This article only speaks of security (it
would seem that the failure of the
usufructuary to make an inventory, when
not excused, does not have the same
effect as when security is not given.)
Art. 587. If the usufructuary who has not
given security claims, by virtue of a promise
under oath, the delivery of the furniture
necessary for his use, and that he and his
family be allowed to live in a house included
in the usufruct, the court may grant this
petition, after due consideration of the facts
of the case.
The same rule shall be observed
with respect to implements, tools and other
movable property necessary for an industry
or vocation in which he is engaged.
If the owner does not wish that
certain articles be sold because of their
artistic worth or because they have a
sentimental value, he may demand their
delivery to him upon his giving security for
the payment of the legal interest on their
appraised value. (495)
Sworn undertaking in lieu of security ( caucion
juratoria)
This article applies when the usufructuary
who is under obligation to give security
cannot afford to do so and no one is willing
to give security for them
For humanitarian considerations, the court
may allow the usufructuary to enjoy the
property upon taking an oath to take care
of the property and retain it until the
termination of the usufruct in lieu of giving
the security
The usufructuary must first ask the naked
owner to grant him the rights mentioned,
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and should the latter refuse, he may resort
to the courts
Articles with artistic or sentimental value
may not be sold. The owner may demand
their delivery to him if he gives security to
the usufructuary for the payment of the
legal interest on their appraised value.
Art. 588. After the security has been given
by the usufructuary, he shall have a right to
all the proceeds and benefits from the day
on which, in accordance with the title
constituting the usufruct, he should have
commenced to receive them. (496)
Retroactive effect of giving security
This article applies where the usufructuary
who is required to give security gives the
security after the commencement of the
usufruct
Failure to give the needed security may
deprive the usufructuary of the right to
enjoy the possession of the property in
usufruct
However, once the security is give, he is
entitled to all the proceeds and benefits of
the usufruct accruing from the day on
which he should have commenced to
receive them, from the day the usufruct
commenced according to its title.
Art. 589. The usufructuary shall take care of
the things given in usufruct as a good
father of a family. (497)
Obligation to take care of the property
Includes the making of ordinary repairs
needed by thing given in usufruct
Care required is that of a good father of a
family (ordinary diligence)
But diligence should not be less than that
required by the circumstances
Usufructuary is liable for damages suffered
by the property due to his fault and
negligence
Art. 590. A usufructuary who alienates or
leases his right of usufruct shall answer for
any damage which the things in usufruct
may suffer through the fault or negligence
of the person who substitutes him. (498)
Liability for fault or negligence of substitute
The usufructuary may alienate or lease his
right
However, he shall be liable to the owner
for any damage which the property in
usufruct may suffer through the fault or
negligence (also fraud or willful acts) of the
substitute without prejudice to his right of
action against the latter
Art. 591. If the usufruct be constituted on a
flock or herd of livestock, the usufructuary
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shall be obliged to replace with the young o The defects requiring ordinary
thereof the animals that die each year from repairs must have occurred
natural causes, or are lost due to the during the usufruct, whether with
rapacity of beasts of prey. or without the fault of the
If the animals on which the usufruct usufructuary.
is constituted should all perish, without the The usufructuary is not liable for
fault of the usufructuary, on account of deterioration resulting from wear and tear
some contagious disease or any other not due to his fraud or negligence, unless
uncommon event, the usufructuary shall the deterioration could have been
fulfill his obligation by delivering to the prevented or arrested by ordinary repairs
owner the remains which may have been and he failed to make them without valid
saved from the misfortune. reason.
Should the herd or flock perish in
part, also by accident and without the fault Art. 593. Extraordinary repairs shall be at
of the usufructuary, the usufruct shall the expense of the owner. The usufructuary
continue on the part saved. is obliged to notify the owner when the
Should the usufruct be on sterile animals, it need for such repairs is urgent. (501)
shall be considered, with respect to its Art. 594. If the owner should make the
effects, as though constituted on fungible extraordinary repairs, he shall have a right
things. (499a) to demand of the usufructuary the legal
interest on the amount expended for the
Usufruct on a flock or herd of livestock time that the usufruct lasts.
The usufructuary has the duty to make Should he not make them when they are
replacement although the death of the indispensable for the preservation of the
animals is due to natural causes. But the thing, the usufructuary may make them; but
replacement is to be made only from the he shall have a right to demand of the
young produced so that if there are no owner, at the termination of the usufruct,
young or the number of the young is less the increase in value which the immovable
than that of the animals that died, the may have acquired by reason of the repairs.
usufructuary has no duty to replace or to (502a)
fill up the difference.
No duty to replace provided the Duty of owner to pay for extraordinary repairs
usufructuary is without fault (2nd and 3rd Law does not impose an obligation on the
paragraphs). Even if the partial loss is due naked owner or the usufructuary to make
to the fault of the usufructuary, the usufruct extraordinary repairs on the property in
continues with the remainder. Bad use usufruct. It is optional for them to make
does not extinguish the usufruct (Art 603), sure repairs or not.
but the owner may bring the necessary Payment for extraordinary repairs:
action for the protection of his rights. o Those required by the wear and
If the animals are sterile, and they cannot tear due to the natural use of the
be replaced by the young thereof, the thing but not indispensable for its
usufruct shall be treated as constituted on preservation OR those required
fungible things. In such case Art 574 by the deterioration of or damage
applies. the thing caused by the
exceptional circumstances but not
Art. 592. The usufructuary is obliged to indispensable for its preservation:
make the ordinary repairs needed by the The owner cannot be
thing given in usufruct. compelled to make
By ordinary repairs are understood them. If he should make
such as are required by the wear and tear them, they shall be at his
due to the natural use of the thing and are expense since they are
indispensable for its preservation. Should made on his property but
the usufructuary fail to make them after he shall a right to
demand by the owner, the latter may make demand of the
them at the expense of the usufructuary. usufructuary who is
(500) benefited by the repairs,
legal interest on the
Obligation to make ordinary repairs amount expended during
The usufructuary is bound to make the the duration of the
repairs referred to without the necessity of usufruct.
demand from the owner The usufructuary may
o The owner may make them at the make them but he is not
expense of the usufructuary, only entitled to indemnity
should the latter fail to make them because they are not
after demand has been made needed for the
upon him. preservation of the thing.
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o Those required by the The owner has no right to demand legal

deterioration of or damage to the interest on his expenses because they
thing caused by exceptional were voluntarily incurred by him
circumstances and are The owner may even alienate his property
indispensable for its preservation: or make changes thereon as long as he
It is also optional upon doesnt impair the right of the usufructuary.
the owner or the
usufructuary to make the Case doctrine
repairs or not. If the In a case where the usufruct was over the
owner should make the land, and the owner built buildings on the
repairs, they shall be at land, and the usufructuary was demanding
his expense. the rents of the buildings as part of the
If made by the usufruct, the Court held that the
usufructuary, he shall usufructuary was not entitled to the rents
have the right to demand of the building. The usufructuarys
of the owner the argument that Article 571 was applicable
payment of the increase (right to enjoy any increase by accession)
in value of the was wrong because such accession is
immovable by reason of limited to buildings erected on the land of
the repairs at the another and does not contemplate a
termination of the situation where the owner himself erected
usufruct provided the the buildings. (Gaboya v Cui)
following are present: However, the usufructuary was entitled to
He notified the reasonable rental for the portion of the
owner of the land occupied by the building because the
urgency of the construction of the building had reduced
repairs the area of the land and to that extent
The owner diminished the value of the usufruct.
failed to make However, like said above, since the
the repairs usufruct was reserved over the land alone,
The repair is the usufructuary was not entitled to the
necessary for rents of the building itslef.
the
preservation of Art. 596. The payment of annual charges
the property and taxes and of those considered as a lien
The usufructuary has the right of retention on the fruits, shall be at the expense of the
even after the termination of the usufruct usufructuary for all the time that the
until he is reimbursed for the increase in usufruct lasts. (504)
value of the property caused by
extraordinary repairs for preservation (Art Art. 597. The taxes which, during the
612) usufruct, may be imposed directly on the
o Increase in value is the difference capital, shall be at the expense of the
between the value of the property owner.
before the repairs were made and If the latter has paid them, the usufructuary
the value after the repairs were shall pay him the proper interest on the
completed sums which may have been paid in that
character; and, if the said sums have been
Art. 595. The owner may construct any advanced by the usufructuary, he shall
works and make any improvements of recover the amount thereof at the
which the immovable in usufruct is termination of the usufruct. (505)
susceptible, or make new plantings thereon
if it be rural, provided that such acts do not Liability for charges and taxes
cause a diminution in the value of the Usufructuary must pay the annual charges
usufruct or prejudice the right of the and taxes which are imposed, and,
usufructuary. (503) therefore, are a lien upon the fruits during
the term of the usufruct.
Construction, improvements and plantings by Are real property taxes imposed on the
owner fruits or on the capital? On the capital.
The owner has the right to do the works Taxies levied on the capital must be paid
mentioned provided the value of the by the naked owner but he has right to
usufruct is not prejudiced demand from the usufructuary the proper
Any increase in the value of the usufruct interest on the sums paid.
due to the improvements will inure to the If the taxes were advanced voluntarily by
benefit of the usufructuary for he is entitled the usufructuary he is entitled to be
to the use and fruits of the property reimbursed therefor at the termination of

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the usufruct with the right of retention until
paid.
Art. 598. If the usufruct be constituted on
the whole of a patrimony, and if at the time
of its constitution the owner has debts, the
provisions of Articles 758 and 759 relating
to donations shall be applied, both with
respect to the maintenance of the usufruct
and to the obligation of the usufructuary to
pay such debts.
The same rule shall be applied in case the
owner is obliged, at the time the usufruct is
constituted, to make periodical payments,
even if there should be no known capital.
(506)
Where usufruct convers entire patrimony
Art 598 applies to a
o universal usufruct or one which
covers the entire patrimony of the
owner, and
o at the time of its constitution, by
donation or any other acts inter
vivos, he has debts, whether
secured or unsecured, or is
bound to make periodical
payments even if, in the latter
case, there should be no known
capital
The liability of the usufructuary for the
debts of the naked owner is the same as
that of the donee under 758 and 759
o when there is a stipulation for the
payment by the usufructuary of
the debts of the owner, the former
is liable only for the debts
contracted by the latter before the
constitution of the usufruct
o in the absence of stipulation, the
usufructuary shall be responsible
only when the usufruct was
created in fraud of creditors
Art. 599. The usufructuary may claim any
matured credits which form a part of the
usufruct if he has given or gives the proper
security. If he has been excused from giving
security or has been able to give it, or if that
given is not sufficient, he shall need the
authorization of the owner, or of the court in
default thereof, to collect such credits.
The usufructuary who has given
security may use the capital he has
collected in any manner he may deem
proper. The usufructuary who has not given
security shall invest the said capital at
interest upon agreement with the owner; in
default of such agreement, with judicial
authorization; and, in every case, with
security sufficient to preserve the integrity
of the capital in usufruct. (507)
Usufruct of matured credits
if the usufructuary has given sufficient
security, he may claim matured credits
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forming part of the usufruct, collect them,
and use and invest, with or without
interest, the capital he has collected, in
any manner he may deem proper
if he
o has NOT given security, or
o that given is not sufficient, or
o he has been excused from giving
security,
he may collect the
credits and invest the
capital which must be at
interest, with the consent
of the naked owner or
approval of the court.
The credits which
constitute the capital
belong to the naked
owner but the
usufructuary has the
right to use and invest
them, and to receive the
interest therefrom.
In every case, the investment of the capital
must be with sufficient security to preserve
its integrity
Art. 600. The usufructuary of a mortgaged
immovable shall not be obliged to pay the
debt for the security of which the mortgage
was constituted.
Should the immovable be attached
or sold judicially for the payment of the
debt, the owner shall be liable to the
usufructuary for whatever the latter may
lose by reason thereof. (509)
Usufruct of mortgaged immovables
The usufruct is particular, constituted by
will or by acts inter vivos, whether by
onerous or gratuitous title
If the usufruct is universal, the liability of
the usufructuary to pay for the mortgage is
governed by Art 598.
The owner may validly mortgage the
property in favor of a third person. The
debt must be paid by the owner.
The usufructuary may mortgage his right
of usufruct which is a real right
Art. 601. The usufructuary shall be obliged
to notify the owner of any act of a third
person, of which he may have knowledge,
that may be prejudicial to the rights of
ownership, and he shall be liable should he
not do so, for damages, as if they had been
caused through his own fault. (511)
Obligation to notify owner of prejudicial acts by
third persons
Art 601 speaks of any act which may be
prejudicial to the rights of ownership, not
merely of the naked ownership
A usufructuary has the duty to protect the
owners interest
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However, where the act affects
possession, although this is in the
usufructuary, he should notify the owner
because the latter has an interest in
defending it.
The usufructuary is also obliged to notify
the owner before making an inventory of
the property and of the need of urgent
repairs.
Case doctrine
A usufructuary has the duty to protect the
owners interests a usufruct gives a right
to enjoy the property of another with the
obligation of preserving its form and
substance, unless the title constituting it or
the law otherwise provides. (NHA v CA)
Art. 602. The expenses, costs and liabilities
in suits brought with regard to the usufruct
shall be borne by the usufructuary. (512)
Obligation to pay for judicial expenses and cost
Since they are in connection with litigation
over possession affecting the rights of the
usufructuary, it is just that they are borne
by him.
If the litigation involves only the naked
ownership, the owner should assume
them.
CHAPTER 4
EXTINGUISHMENT OF USUFRUCT
Art. 603. Usufruct is extinguished:
(1) By the death of the
usufructuary, unless a contrary intention
clearly appears;
(2) By the expiration of the period
for which it was constituted, or by the
fulfillment of any resolutory condition
provided in the title creating the usufruct;
(3) By merger of the usufruct and
ownership in the same person;
(4) By renunciation of the
usufructuary;
(5) By the total loss of the thing in
usufruct;
(6) By the termination of the right of
the person constituting the usufruct;
(7) By prescription. (513a)
How is a usufruct extinguished?
1. Death of the usufructuary (unless contrary
intention clearly appears)
2. Expiration of period or fulfillment of
condition
3. By merger of the usufruct and ownership
in the same person
4. By renunciation of the usufructuary
5. By the total loss of the thing
6. Termination of right of owner (refers to the
right of the person constituting the
usufruct, not to a condition imposed upon
the usufruct itself)
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7. By prescription (acquisitive prescription by
the use of a third person, not the use by
the usufructuary)
8. Other causes (annulment or rescission of
the contract)
Case doctrines
Although the owner expressly authorized
the usufructuaries to occupy a portion of
her property as long as they like, the
usufruct may be considered terminated by
other modes or instances of
extinguishment, such as the fulfillment of
any resolutory condition provided in the
document creating the usufruct. (Moralidad
v Spouses Pernez)
The 30-year limitation on usufruct under
the Old Spanish Civil Code does not apply
to trusts. (Palad v Governor of Quezon
Province)
Art. 604. If the thing given in usufruct
should be lost only in part, the right shall
continue on the remaining part. (514)
To extinguish a usufruct, the loss must be
total, except as provided in Art 607 to 609
If the loss in only partial, the usufruct
continues with the remaining part. But if
the partial loss may be so important as to
be considered total loss, the courts shall
determine.
Art. 605. Usufruct cannot be constituted in
favor of a town, corporation, or association
for more than fifty years. If it has been
constituted, and before the expiration of
such period the town is abandoned, or the
corporation or association is dissolved, the
usufruct shall be extinguished by reason
thereof. (515a)
The ordinary life of a corporation is 50
years. Unlike a natural person, a
corporation or association may be
extended indefinitely. Public policy frowns
upon perpetual usufruct.
The fifty-year limitation does not apply to
trusts.
Art. 606. A usufruct granted for the time that
may elapse before a third person attains a
certain age, shall subsist for the number of
years specified, even if the third person
should die before the period expires, unless
such usufruct has been expressly granted
only in consideration of the existence of
such person. (516)
Exception here is when the usufruct has
been expressly granted only in
consideration of the existence of the third
person
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Art. 607. If the usufruct is constituted on
immovable property of which a building
forms part, and the latter should be
destroyed in any manner whatsoever, the
usufructuary shall have a right to make use
of the land and the materials.
The same rule shall be applied if
the usufruct is constituted on a building
only and the same should be destroyed. But
in such a case, if the owner should wish to
construct another building, he shall have a
right to occupy the land and to make use of
the materials, being obliged to pay to the
usufructuary, during the continuance of the
usufruct, the interest upon the sum
equivalent to the value of the land and of
the materials. (517)
Where usufruct of land and building, and
building destroyed
The destruction of the building terminates
the usufruct on the building but no the
usufruct on the land
The usufructuary is still entitled to use the
land and in place of the building, the
materials thereof. (Partial loss)
The usufructuary can insist on the use of
the land and the materials for the
remainder of the term of the usufruct as
the right is granted him by law as against
the wish of the owner to construct another
building. While the usufruct on a building
does not expressly include the land on
which it is constructed, the land should be
deemed included, for while there can be
land without a building, there can be no
building without land.
The naked owner shall pay legal interest
on insurance received if it has not been
used in the construction of another
building during the whole period of the
usufruct. But he may, if he desires, relieve
himself of this encumbrance by turning
over the money to the usufructuary so that
he may use it subject to the obligation to
return the amount to the naked owner after
his death as provided in article 612.
Where usufruct on building only and it is
destroyed
Same rule applies although the usufruct
does not cover the land for the simple
reason that the use of the building
necessarily involves the use of the land
But, the owner is given the preferential
right to construct another building, occupy
the land and make use of the material
even against the objection of the
usufructuary
The only right of the usufructuary is to
receive during the continuance of the
usufruct, legal interest on the value of the
land of the materials.
Case doctrines
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A life usufruct constituted on the rentals of
the fincas situadas located at a certain
place includes the rentals both on the
building and the land on which it is
erected, because the building can not exist
without the land. Hence, the usufruct is not
extinguished by the destruction of the
building, for under the law usufruct is
extinguished only by the total loss of the
thing subject of the encumbrance. (Vda de
Albar v Carandang)
Art. 608. If the usufructuary shares with the
owner the insurance of the tenement given
in usufruct, the former shall, in case of loss,
continue in the enjoyment of the new
building, should one be constructed, or
shall receive the interest on the insurance
indemnity if the owner does not wish to
rebuild.
Should the usufructuary have
refused to contribute to the insurance, the
owner insuring the tenement alone, the
latter shall receive the full amount of the
insurance indemnity in case of loss, saving
always the right granted to the usufructuary
in the preceding article. (518a)
Payment of cost of insurance
Neither the owners nor the usufructuary is
under obligation to insure the property in
usufruct. Should they do so, and
o The usufructuary shares with the
owner in insuring the property, the
usufructuary shall continue to
enjoy the new building to be
constructed, or if the owner does
not wish to rebuild, the
usufructuary shall receive the
legal interest on the insurance
proceeds which will go to the
owner.
o The usufructuary refuses to
contribute to the insurance, and
so the owner pays it alone, the
owner gets the full insurance
indemnity in case of loss, the right
of the usufructuary being limited
to the legal interest on the value
of the land and of the materials.
The article is silent where the usufructuary
alone pays the insurance, or where both
share in the payment thereof, as to the
proportion of their contribution to the
insurance.
Art. 609. Should the thing in usufruct be
expropriated for public use, the owner shall
be obliged either to replace it with another
thing of the same value and of similar
conditions, or to pay the usufructuary the
legal interest on the amount of the
indemnity for the whole period of the
usufruct. If the owner chooses the latter
alternative, he shall give security for the
payment of the interest. (519)
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Art. 610. A usufruct is not extinguished by
bad use of the thing in usufruct; but if the
abuse should cause considerable injury to
the owner, the latter may demand that the
thing be delivered to him, binding himself to
pay annually to the usufructuary the net
proceeds of the same, after deducting the
expenses and the compensation which may
be allowed him for its administration. (520)
Expropriation of thing in usufruct
The expropriation of the thing does not
extinguish the usufruct.
Article 609 allows the substitution of the
thing by an equivalent thing.
If the thing in usufruct is expropriated for
public use, the naked owner is given the
option:
o to replace it with another thing of
the same value and of similar
conditions, or
o to pay to the usufructuary the
legal interest on the amount of
indemnity for the whole period of
the usufruct.
In the latter case, the
owner shall give security
for the payment of the
interest.
Effect of bad use
Bad use of the thing in usufruct does not
extinguish the right of the usufructuary
whether there is security or not. The
usufruct continues.
But if the bad use causes considerable
injury to the owner, not to the thing itself,
the owner is given the right to demand that
the thing be delivered to him, binding
himself to pay annually to the usufructuary
the net proceeds of the same, after
deducting the expenses and the
compensation which may be allowed him
for its administration.
This is true where the usufructuary has not
given any security or the security given is
insufficient especially if the owner has no
property.
The second part of the provision can
hardly apply where there is sufficient
security for no considerable injury could
possible be caused to the owner.
Art. 611. A usufruct constituted in favor of
several persons living at the time of its
constitution shall not be extinguished until
death of the last survivor. (521)
Usufruct in favor of several persons
Usufruct is extinguished by the death of
the usufructuary unless a contrary
intention appears.
The usufruct is not extinguished until the
death of the last survivor. As the usufruct
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continues, the rights of any usufructuary
who dies shall accrue to the surviving
usufructuaries.
o The only exception is when the
title constituting the usufruct
provides otherwise as where the
usufruct is constituted in a list and
will and testament and the
testator makes a contrary
provision.
Art. 612. Upon the termination of the
usufruct, the thing in usufruct shall be
delivered to the owner, without prejudice to
the right of retention pertaining to the
usufructuary or his heirs for taxes and
extraordinary expenses which should be
reimbursed. After the delivery has been
made, the security or mortgage shall be
cancelled. (522a)
Obligation of usufructuary to return the thing
upon termination of the usufruct
Upon the termination of the usufruct, it is
the duty of the usufructuary to return the
property to the naked owner.
The usufructuary is expressly granted the
right of retention until he is reimbursed for
the amount of taxes levied on the capital
and for the increase in value caused by
extraordinary repairs.
He has no right to reimbursement for
useful improvements.
TITLE VII EASEMENTS OR SERVITUDES
CHAPTER ONE
EASEMENTS IN GENERAL
SECTION ONE DIFFERENT KINDS OF
EASEMENTS
Art. 613. An easement or servitude is an
encumbrance imposed upon an immovable
for the benefit of another immovable
belonging to a different owner.
The immovable in favor of which
the easement is established is called the
dominant estate; that which is subject
thereto, the servient estate. (530)
Easement or servitude defined
Easement or servitude has been defined
as a real right constituted on anothers
property, corporeal and immovable, by
virtue of which the owner of the same has
to abstain from doing or to allow
somebody else to do something on his
property for the benefit of another thing or
person.
The definition in this article is not
complete, being limited to real easement.
In view of the next article which refers to
personal easement, the term may be
defined as an encumbrance imposed upon
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an immovable for the benefit of another There can be no easement without a

immovable belonging to a different owner burden on an estate for the benefit of
or for the benefit of a community or one or another immovable belonging to a different
more persons to whom the encumbered owner or of a person or group of persons.
estate does not belong by virtue of which The dominant estate cannot be the
the owner is obliged to abstain from doing servient estate at the same time.
or to permit a certain thing to be done on It is not essential that the benefit be very
his estate (whew.) great, it being sufficient that there is a
determinate use or utility in favor of a
Easement and servitude distinguished dominant estate over an estate belonging
1. It is said that easement refers to the right to another.
enjoyed by one, and servitude, the burden
The important thing is that it exists and can
imposed upon another.
be exercised.
2. The two terms are used synonymously in
the Civil Code although it is more partial to On the other hand, the benefit should not
easement. be so great as to be inconsistent with the
general right of ownership of a person,
Characteristics of easement amounting to a taking of his property.
1. It is a real right but will affect third persons
only when duly registered; Easement Lease
2. It is enjoyed over another immovable, Real right, whether Real right only when it
never on ones own property; registered or not, and is registered, or when
3. It involves two neighboring estates, the whether it is real or its subject is real
dominant to which a right belongs and the personal property and the
servient upon which an obligation rests; duration exceeds one
4. It is inseparable from the estate to which it year
is attached and, therefore, cannot be Imposed only on real May involve real or
alienated independently of the estate (Art property personal property
617) Limited right to the Limited right to both
5. It is indivisible for it is not affected by the use of real property of the possession and
division of the estate between two or more another but without use of anothers
persons (Art 618) the right of property (exclusive
6. It is a right limited by the needs of the possession (without possession)
dominant owner or estate, without any exclusive
possession; possession or
7. It cannot consist in the doing of an act occupation)
unless the act is accessory in relation to a
real easement; and Easement Usufruct
8. It is a limitation on the servient owners Imposed only on real May involve real or
rights of ownership for the benefit of the property personal property
dominant owner; and therefore, it is not Limited to a particular Includes all the uses
presumed. or specific use of the and fruits of the
servient estate property
Easement gives the holder an incorporeal Non-possessory right Right of possession in
right on the land but grants no title thereto. over an immovable an immovable or
Therefore, an acknowledgment of the movable
easement is an admission that the Not extinguished by As a rule,
property belongs to another. the death of the extinguished by the
dominant owner death of the
Easement established only on immovable usufructuary
Easements cannot be imposed on Both usufruct and easement are real
personal property but only on immovable rights, whether registered or not, and are
(which must be understood in its common transmissible.
and not in its legal sense).
What the law treats of are not immovables Case doctrines
as defined by the Civil Code but only those The power of eminent omain
which are so by their nature (are really encompasses not only the taking of title to
incapable of being moved) such as lands, and possession of the expropriated
roads, buildings, and constructions property but likewise covers even the
adhering to the soil. imposition of a mere burden upon the
owner of the condemned property. Where
Nature of benefit to dominant estate the nature of the easement practically
Easement can exist only when the servient deprives the owners of the propertys
and dominant estates belong to different normal beneficial use, notwithstanding the
owners. fact that the expropriator only occupies the
sub-terrain portion, it is liable to pay not
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merely an easement fee but rather the full
compensation for land. (NPC v Ibrahim)
Art. 614. Servitudes may also be
established for the benefit of a community,
or of one or more persons to whom the
encumbered estate does not belong. (531)
Classifications of easement
1. As to recipient of benefit
a. Real when the easement is
in favor of another
immovable (Art 613); or
b. Personal when it is in favor
of a community or of one
more persons (Art 614).
Thus, it maybe public or
private.
2. As to its source
a. Voluntary when the
easement is established by
the will or agreement of the
parties or by a testator (Art
619);
b. Legal when it is imposed
by law either for public use or
in the interest of private
persons (Art 637-687); or
c. Mixed when it is created
partly by will or agreement
and partly by law.
3. As to its exercise
a. Continuous see Article 615;
or
b. Discontinuous
4. As to whether or not its existence is
indicated
a. Apparent; or
b. Non-apparent
5. As to the duty of servient owner
a. Positive see Article 616; or
b. negative
Real and personal servitudes
A servitude may be established for the
benefit:
1. of a particular estate and
consequently, for its owner; (real or
predial)
2. of a person or group of persons
without being the owner or owners of
a dominant estate. (personal)
Unlike a real easement, personal
easement does not require two
immovables. An example of a personal
easement is a right of way granted to
certain persons and their family, friends,
servants, and jeeps. The servitude is for
the benefit alone of the persons
enumerated and not a predial servitude
that inures to the benefit of whoever owns
the dominant estate. Hence, the owner of
the servient estate may refuse to extend
the said easement to the successors-in-
interest of the persons for whose benefit
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the servitude exists. (Jabonete v
Monteverde)
Public and private easements
Personal easements may be:
1. Public, if it is vested in the public at
large or in some class of
indeterminate individuals (like the right
of the public to a highway over a land
of private ownership)
2. Private, if it is vested in a determinate
individual or certain persons (like a
right of way vested in the owner of
one parcel of land over an adjoining
parcel of land)
Case doctrines
When a person is allowed to construct his
house on the land of another to facilitate
his gathering of fruits, this would be in the
nature of a personal easement under
Article 614. (Alcantara v Reta)
Art. 615. Easements may be continuous or
discontinuous, apparent or non-apparent.
Continuous easements are those
the use of which is or may be incessant,
without the intervention of any act of man.
Discontinuous easements are
those which are used at intervals and
depend upon the acts of man.
Apparent easements are those
which are made known and are continually
kept in view by external signs that reveal
the use and enjoyment of the same.
Nonapparent easements are those
which show no external indication of their
existence. (532)
Continuous and discontinuous easements
For an easement to be continuous, it is not
necessary that the use be incessant; it is
sufficient that the use may be so.
o Examples are the right to support
a beam on anothers wall which
really exists continuously and the
right of aqueduct which may be
used only on certain days
depending on the need for water
but which is continuous since its
use does not depend upon the
intervention of man.
An example of discontinuous servitude is
the right of way which is used at intervals
because it is physically impossible that
man shall continually poass over the way.
The easement itself, whether continuous
or discontinuous, exists continuously
whether it is being used or not, but its
exercise may be continuous or
discontinuous, or there may be no
exercise at all.
The distinction lies in the fact that in
continuous easements, the exercise or
enjoyment can be had without the
intervention of man while in discontinuous
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easements, such exercise or enjoyment
requires the intervention of man.
In both easements, the benefit and burden
exists from the moment the easements are
created.
Case doctrine
Easements are either continuous or
discontinuous according to the manner
they are exercisd, not according to the
presence of apparent signs or physical
indications of the existence of such
easements. Thus, an easement is
continuous if its use is, or may be,
incessant without the intervention of any
act of man, like the easement of drainage;
and it is discontinuous if it is used at
intervals and depends on the act of man,
like the easement of right of way. (Bogo-
Medellin v CA)
Apparent and non-apparent easements
For an apparent easement, it is not
necessary that its sign be seen; it is
sufficient if it may be seen or known on
inspection.
o The sign or signs may be
encountered in the dominant or
servient estate, according to the
circumstances.
An example of a non-apparent easement
is a right of way when there is no indication
of its existence.
A right of way is apparent when there is a
visible road or path to show its exercise.
In general, negative easements are non-
apparent.
Art. 616. Easements are also positive or
negative.
A positive easement is one which
imposes upon the owner of the servient
estate the obligation of allowing something
to be done or of doing it himself, and a
negative easement, that which prohibits the
owner of the servient estate from doing
something which he could lawfully do if the
easement did not exist. (533)
Positive and negative easements
A positive easement is one which imposes
upon the owner of the servient estate the
obligation of allowing something to be
done or of doing it himself.
o Example: the easement of which
the right of way which imposes
upon the owner of the servient
estate the duty to allow the use of
said way.
A negative easement is that which
prohibits the owner of the servient estate
from doing something which he could
lawfully do if the easement did not exist.
o Example: easement of light and
view whereby the owner of the
servient estate is prohibited from
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obstructing the passage of light. It
may also be positive depending
upon the manner by which it is
exercised.
When the opening or window is made on
anothers wall (wall of servient estate) or
on a party wall, the easement acquired is
positive because the owner of the wall
allows the servitude to burden his wall.
If the window is through ones own wall
(wall of the dominant estate) which does
not extend over anothers property
(servient estate), the easement is
negative.
Case doctrines
Restrictive covenants are not, strictly
speaking synonymous with easements,
but a case of servitudes or burdens,
sometimes characterized to be negative
easements or reciprocal negative
easements. Negative easement is the
most common easement created by
covenant or agreement whose effect is to
preclude the owner of the land from doing
an act, which, if no easement existed, he
would be entitled to do. (Fajardo v
Freedom to Build)
Courts generally view restrictive covenants
with disfavor, but still sustain them where
the covenants are reasonable, not contrary
to law, or not in restraint of trade. If the
covenant aims to promote aesthetics,
health, and privacy or to prevent
overcrowding, then the covenant must be
sustained.
A suit for equitable enforcement of a
restrictive covenant can only be made by
one for whose benefit it is intended. It is
thus not normally enforceable by one who
has no right nor interest in the land for the
benefit of which the restriction has been
imposed. Thus, developer of a subdivision
can enforce restrictions, even as against
remote grantees of lots, only if he retains
part of the land. (Fajardo v Freedom)
Art. 617. Easements are inseparable from
the estate to which they actively or
passively belong. (534)
Quality of inherence or inseparability
Servitudes are inseparable from the estate
to which they actively or passively belong,
being accessory things whose very
existence depends upon the principal thing
(immovable).
Hence, they are intransmissible in the
sense that they cannot be alienated or
mortgaged independently of the estate.
An easement cannot be the object of
usufruct because it has no existence
independent of the immovable to which it
attaches.
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If the dominant estate is alienated, such
alienation carries with it also the
easements established in its favor even if
they are not annotated as an
encumbrance on the certificate of title.
An easement is extinguished or cut-off,
however, by the registration of the servient
estate under the Torrens system without
the easement being annotated on the
corresponding certificate of title. A
registered owner or subsequent purchaser
of registered land holds his certificate of
title free from all encumbrances except
only those noted in said certificate and the
statutory liens.
o But if the existence of an
easement was known to the
transferee or grantee of the
servient estate, such knowledge
is equivalent to registration.
Case doctrines
A vendee on real property on which a
servitude or an easement of right of way
exists does not acquire the right to close
that servitude to prevent the neighboring
estates from using it. (Solid Manila v Bio
Hong)
Art. 618. Easements are indivisible. If the
servient estate is divided between two or
more persons, the easement is not
modified, and each of them must bear it on
the part which corresponds to him.
If it is the dominant estate that is
divided between two or more persons, each
of them may use the easement in its
entirety, without changing the place of its
use, or making it more burdensome in any
other way. (535)
Quality of indivisibility
Easement as a right is indivisible.
Accordingly, the partition between two or
more persons of either the servient or
dominant estate does not affect the
existence of the servitude which continues
in its entirety.
If the servient estate is divided, each new
owner must bear the easement but only
with respect to the part corresponding to
him.
If the dominant estate is divided, each
owner can exercise the whole easement
over each of the servient estates subject to
the condition that the place of easement
shall not be changed and the easement
shall not be more burdensome.
o A person entitled to a right of way
may do whatever is necessary to
make it convenient for his use but
he cannot deviate therefrom. The
easement is not considered made
more burdensome by the mere
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increase in the owners of the
dominant estates.
Art. 619. Easements are established either
by law or by the will of the owners. The
former are called legal and the latter
voluntary easements. (536)
Legal and voluntary easements
This article gives the two kinds of
easements according to source.
The courts cannot impose or constitute
any servitude where none existed.
They can only declare its existence if in
reality it exists by law or by the will of the
owners.
There are no judicial easements.
Voluntary easements must be recorded in
the Registry of Property in order not to
prejudice third persons.
SECTION TWO - MODES OF
ACQUIRING EASEMENTS
Art. 620. Continuous and apparent
easements are acquired either by virtue of a
title or by prescription of ten years. (537a)
Modes of acquiring easements
1. By title. All easements.
a. Continuous and apparent
easements (Art 620)
b. Continuous and non-
apparent easements (Art
622)
c. Discontinuous easements,
whether apparent or non-
apparent
2. By prescription of ten years only
continuous and apparent easements
3. By deed of recognition (Art 623)
4. By final judgment
5. By apparent sign established by the owner
of two adjoining estates (Art 624)
Acquisition by title or prescription
Only continuous and apparent easements
may be acquired either by virtue of a title
or by prescription in 10 years.
By title, it refers to the juridical act which
gives birth to the easement, such as law,
donation, contract and will of the testator.
This article fixes ten years as the period of
prescription, regardless of good faith or
bad faith of the possessor and whether or
not he has just title.
The general rules on prescription do not
apply, the only requirement being that
there be adverse possession of the
easement for ten years.
Case doctrines
Prescription as a mode of acquisition
requires the existence of the following:
2. Capacity to acquire by prescription
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3. Thing capable of acquisition by
prescription
4. Possession of the thing under certain
conditions
Under claim of title (en concepto
de dueno)
Possession not merely tolerated
by owner
5. Lapse of time provided by law
(National Power Corp v Campos)
Art. 621. In order to acquire by prescription
the easements referred to in the preceding
article, the time of possession shall be
computed thus: in positive easements, from
the day on which the owner of the dominant
estate, or the person who may have made
use of the easement, commenced to
exercise it upon the servient estate; and in
negative easements, from the day on which
the owner of the dominant estate forbade,
by an instrument acknowledged before a
notary public, the owner of the servient
estate, from executing an act which would
be lawful without the easement. (538a)
Computation of the prescriptive period
If the easement is positive, the period is
counted from the day on which the owner
of the dominant estate began to exercise it
o From the day a window was built
in a party wall
If the easement is negative, from the day
on which a notarial prohibition was made
on the servient estate
Under article 622, non-apparent
easements may not be acquired by
prescription. Negative easements are
essentially non-apparent. However, article
621 provides the prescriptive period for
negative easements. The notarial
prohibition may be taken as making the
easement apparent, and therefore,
prescriptible.
Computation in case of easement of light and
view
If made on ones own wall and the wall
does not extend over the property of
another, the easement is negative
because the owner is merely exercising his
inherent right of dominion and not an
easement.
o The servient owner cannot close
it up; otherwise he will be liable
for trespass.
o But the negative easement is not
automatically vested. The owner
must make the prohibition
required upon the proprietor of
the adjoining land or tenement to
prevent him from obstructing the
light and view.
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o If the latter consents to such
prohibition and the period fixed by
law expires, the easement will be
acquired by prescription. There is
no true easement for as long as
the right to prohibit its exercise
exists.
If made through a party wall or on ones
own wall which extends over the
neighboring estate, the easement acquired
is positive because the owner of the latter
estate who has a right to close it up allows
an encumbrance on the property.
o The period of prescription shall be
counted from the time of the
opening of the window.
Art. 622. Continuous non-apparent
easements, and discontinuous ones,
whether apparent or not, may be acquired
only by virtue of a title. (539)
Acquisition only by title
Continuous and apparent easements are
the only easements that can be acquired
by prescription because they are the only
ones the possession of which fulfills two
important requisites required by law for
prescription possession be public and
continuous.
The easements mentioned in Art 622 may
be acquired by title, not by prescription
because their possession or exercise is
either not public (non-apparent) such as
easement of lateral and subjacent support,
or it is public but not continuous or
uninterrupted (discontinuous), like a right
of way if there is a visible path.
However, for legal purposes, the easement
of aqueduct shall be considered as
continuous and apparent, although it is not
really so.
Art. 623. The absence of a document or
proof showing the origin of an easement
which cannot be acquired by prescription
may be cured by a deed of recognition by
the owner of the servient estate or by a final
judgment. (540a)
Art. 624. The existence of an apparent sign
of easement between two estates,
established or maintained by the owner of
both, shall be considered, should either of
them be alienated, as a title in order that the
easement may continue actively and
passively, unless, at the time the ownership
of the two estates is divided, the contrary
should be provided in the title of
conveyance of either of them, or the sign
aforesaid should be removed before the
execution of the deed. This provision shall
also apply in case of the division of a thing
owned in common by two or more persons.
(541a)
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Alienation by same owner of two estates with
sign of existence of servitude
This contemplates a situation where two
estates between which there exists an
apparent sign (like a window or road) of an
easement belong to the same owner.
What the law requires is that the sign
indicates the existence of a servitude
although there is no true servitude there
being only one owner
In case the owner alienates either of them
or both with the result that the ownership
thereof is divided, the easement shall
continue unless the contrary has been
stipulated in the title of conveyance of
either of them or the sign removed before
the execution of the deed
o The existence of the apparent
sign is equivalent to a title if no
objection has been made by the
servient owner for an implied
contract that the easement should
be constituted is deemed to exist
between the new owners
o The dominant owner can oppose
the owner of the servient estate
from doing anything which would
be inconsistent with his obligation
to respect the easement
If the lots are owned by
two different owners, a
notarial prohibition
should be effected (Atty
Abrenica)
This article applies in case of the division
of a common property by the co-owners as
the effect is the same as an alienation, or
there is only one estate and a part thereof
is alienated.
This article is not applicable in case the
two estates or portions of the same estate
remain or continue to be in the same
owner after alienation or partition
Case doctrine
Where two adjoining estates were formerly
owner by just one person who introduced
improvements on both, such that the wall
of the house constructed on the first estate
extends to the wall of the camarin on the
second estate; and at the time of the sale
of the first estate, there existed on the wall
of the house, doors and windows (which
serve as passages for light and view),
there being no provision in the deed of
sale that the easement of light and view
will not be established, the case is covered
by 624.
The existence of doors and windows on
the aforesaid wall of the house is
equivalent to a title that characterizes its
existence.
But while the law declares that the
easement is to continue, the easement
actually arises for the first time only upon
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alienation of another estate, inasmuch as
before that time there is no easement to
speak of, there being but one owner of
both estates. (Gargantos v Tan Yanon)
Art. 625. Upon the establishment of an
easement, all the rights necessary for its
use are considered granted. (542)
Rights granted by easement
All easements carry with them all the rights
necessary for their use and exercise
Since these accessory rights or accessory
easements exist solely by virtue of and for
the use of the servitude which can be
considered as the principal one, they
cease upon the termination of the
servitude
Art. 626. The owner of the dominant estate
cannot use the easement except for the
benefit of the immovable originally
contemplated. Neither can he exercise the
easement in any other manner than that
previously established. (n)
Immovable to be benefited by easement, and
manner of its exercise
The rule in the first sentence is just
because if the owner of the dominant
estate is allowed to use the servitude for
the benefit of other adjoining lands
subsequently acquired, or for others, that
would make the easement more onerous
and beyond the intention of the parties
If the easement has been constituted in
general terms, only the rights which are
reasonably necessary and convenient for
the use contemplated and would case the
least burden to the servient estate are
granted.
Where the purpose of the easement or the
manner of its exercise is defined by the
title creating it, the exercise of the
easement must be consistent with such
purpose or manner
SECTION THREE RIGHTS AND
OBLIGATIONS OF THE OWNERS OF
THE DOMINANT AND SERVIENT
ESTATES
Art. 627. The owner of the dominant estate
may make, at his own expense, on the
servient state any works necessary for the
use and preservation of the servitude, but
without altering it or rendering it more
burdensome.
For this purpose he shall notify the owner
of the servient estate, and shall choose the
most convenient time and manner so as to
cause the least inconvenience to the owner
of the servient estate. (543a)
What are the rights of the dominant owner?
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1. Exercise all the rights necessary for the
use of the easement
2. Make on the servient estate all works
necessary for the use and preservation of
the servitude
3. Renounce the easement if he desires to
exempt himself from the contribution to
necessary expenses
4. Ask for mandatory injunction to prevent
impairment of his of the easement
What are the obligations of the dominant
owner?
1. Cannot alter the easement or render it
more burdensome
2. Notify the servient owner of works
necessary for the use and preservation of
the servitude
3. Choose the most convenient time and
manner in making the necessary works as
to cause the least inconvenience to the
servient owner
4. Contribute to the necessary expenses if
there are several dominant estates in
proportion to the benefits derived from the
works
What are the rights of the servient owner?
1. Retain the ownership of the portion of the
estate on which the easement is
established
2. Make use of the easement, unless there is
an agreement to the contrary
3. Change the place or manner of the use of
the easement, provided it be equally
convenient
What are the obligations of the servient owner?
1. Cannot impair the use of the easement
2. Contribute to the necessary expenses in
case he uses the easement, unless there
is an agreement to the contrary
Right of the dominant owner to make
necessary works
Right granted by 627 is subject to the
following conditions:
1. Works shall be at his expense and are
necessary for the use and
preservation of the servitude
2. They do not alter or render the
servitude more burdensome;
3. The dominant owner, before making
the works, must notify the servient
owner, and
4. They shall be done at the most
convenient time and manner as to
cause the lease inconvenience to the
servient owner
Case doctrine
(Goldcrest v Cypress Gardens)
Art. 628. Should there be several dominant
estates, the owners of all of them shall be
obliged to contribute to the expenses
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referred to in the preceding article, in
proportion to the benefits which each may
derive from the work. Any one who does
not wish to contribute may exempt himself
by renouncing the easement for the benefit
of the others.
If the owner of the servient estate
should make use of the easement in any
manner whatsoever, he shall also be
obliged to contribute to the expenses in the
proportion stated, saving an agreement to
the contrary. (544)
Obligation to contribute to expenses of
necessary works
This article contemplates several dominant
estates.
All the owners shall share the expenses in
proportion to the benefits derived by each
estate from the works and not in proportion
to their respective interests. The benefits
shall be presumed equal in the absence of
any agreement or proof to the contrary.
The easement of right of way ordinarily
gives the same benefit
An owner may exempt himself from
contributing to the expenses by
renouncing the easement in favor of the
others.
What about the servient owner? Well, he
shall be obliged to contribute to the
expense except when there is a stipulation
to the contrary, should he make use of the
easement in any manner whatsoever. If he
bound himself to bear the cost of the work,
he may free himself form the obligation by
renouncing his property to the dominant
owner (Art 693)
Art. 629. The owner of the servient estate
cannot impair, in any manner whatsoever,
the use of the servitude.
Nevertheless, if by reason of the
place originally assigned, or of the manner
established for the use of the easement, the
same should become very inconvenient to
the owner of the servient estate, or should
prevent him from making any important
works, repairs or improvements thereon, it
may be changed at his expense, provided
he offers another place or manner equally
convenient and in such a way that no injury
is caused thereby to the owner of the
dominant estate or to those who may have a
right to the use of the easement. (545)
Obligation of servient owner not to impair
servitude
The servient owner may abstain from
constructing works or performing any act
which will impair, in any manner
whatsoever, the use of the servitude.
An injunction lies at the instance of the
dominant owner to prohibit the servient
owner from impairing the use of the
servitude
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Right of servient owner to change place or
manner of easement
While the servient estate cannot impair the
use of the servitude, he may change at his
expense the place or manner for its use
provided the following requisites are
present:
1. The place or manner has become
very inconvenient to him or prevents
him from making important works
thereon;
2. He offers another place or manner
equally convenient; and
3. No injury is caused by the chance to
the dominant owner or to whoever
may have a right to the use of the
easement.
Art. 630. The owner of the servient estate
retains the ownership of the portion on
which the easement is established, and may
use the same in such a manner as not to
affect the exercise of the easement. (n)
Right of servient owner to use easement
The servient owner preserves his
dominion over the portion of his estate on
which the easement is established
This is true although the indemnity
consists of the value of the land occupied
and the amount of the damage to the
servient estate (Art 649)
He may use the easement subject to the
condition that he does not impair the rights
of the dominant owner.
Case doctrine
When the trial court found that the
persons right to continue to use the septic
tank ceased upon the subdivision of the
land and its subsequent sale to different
owners who do not have the same
interest, the Supreme Court said that this
is contrary to law. (Tanedo v Bernad)
SECTION FOUR MODES OF
EXTINGUISHMENT OF EASEMENTS
Art. 631. Easements are extinguished:
(1) By merger in the same person of
the ownership of the dominant and servient
estates;
(2) By nonuser for ten years; with
respect to discontinuous easements, this
period shall be computed from the day on
which they ceased to be used; and, with
respect to continuous easements, from the
day on which an act contrary to the same
took place;
(3) When either or both of the
estates fall into such condition that the
easement cannot be used; but it shall revive
if the subsequent condition of the estates or
either of them should again permit its use,
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unless when the use becomes possible,
sufficient time for prescription has elapsed,
in accordance with the provisions of the
preceding number;
(4) By the expiration of the term or
the fulfillment of the condition, if the
easement is temporary or conditional;
(5) By the renunciation of the owner
of the dominant estate;
(6) By the redemption agreed upon
between the owners of the dominant and
servient estates. (546a)
What are the modes of extinguishment of
easements?
1. By merger
It is not necessary that it be with
respect to the full extent of the
tenement but only with respect to that
part affected by the servitude or that
part for the benefit of which the
servitude was established
The merger must be absolute and
complete in one and the same person
and not by virtue of other real rights
less than full ownership. (where the
merger is temporary, as when it is
subject to a resolutory condition, there
is only a suspension but not an
extinguishment of the servitude.)
If the servient owner becomes a co-
owner of the dominant estate, there is
no merger for he has acquired only a
part interest therein.
If the dominant sells a retro the whole
immovable to the servient, the
easement is not extinguished but only
suspended. The servitude is revived
when the dominant redeems the
property.
What if the dominant sells absolutely
to the servitude, buys it back, then
sells it to a third person. There is no
revival here because it was already
unconditionally extinguished by the
sale of the property to the servient.
But if the sale to servient by dominant
was rescinded or annulled, there is no
extinguishment by merger.
2. By non-user for ten years
This mode is applicable only to
easements that have been in use and
later abandoned, for one cannot
discontinue using what one has never
used
Some legal easements (natural
drainage) may be extinguished by
non-user, but only with respect to the
actual form or manner in which they
had been exercised, and the right or
the power to claim the exercise of
legal easements does not prescribe,
as occurs especially in the case of the
right of way and easement of
aqueduct. (Francisco v Paez)
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If the easement is discontinuous (right sufficient for the purpose although it

of way), the period of ten years shall may constitute non-use. A clear case
be computed from the day it ceased to of implied waiver is the act of covering
be used. up a window by the dominant owner
If continuous (natural drainage), from and yet this act does not ipso facto
the day on which an act contrary to extinguish the easement, but only
the same took place (like construction serves to make the starting point for
of a dam which blocks natural prescription. (Francisco v Paez)
drainage) Where the easement is in favor of a
The non-use must be voluntary on the particular group of persons, the
part of the dominant owner and not voluntary renunciation thereof by
due to fortuitous events beyond his some of them will not affect the right
control unless the non-use is due to of the others.
the impossibility of use under no 3 6. By redemption
Whats the basis? Well, its it must be by virtue of an agreement
presumptive renunciation. between the owners of the dominant
o So, the proof of non-user and servient estates under which the
must be undubitable servitude would be extinguished
particularly where the 7. By other causes
easement is perpetual in Annulment, rescission, abandonment,
character because of its etc
annotation in the Torrens Registration of the servient estate
title. Thus, the mere non-use under the Torrens system without the
of a passageway by the easement being annotated in the title
dominant owner who has
gained direct access to Some case doctrines
another way does not Alienation of the dominant and servient
extinguish the easement of estates to different persons is not one of
right of way. In the absence the grounds for extinguishment of the
of any evidence that could easement. (Tanedo v Bernad)
point to mutual agreement to Absent a statement abolishing or
the discontinuance of the extinguishing the easement, then the
easement annotated on the easement is continued by operation of law.
title, its continued existence (Tanedo v Bernad)
must be upheld An easement is perpetual in character
The use by a co-owner of the when it is annotated on all the transfer
dominant estate benefits all the other certificates of title issued. Since there is no
co-owners and prevents prescription evidence that would point to a mutual
as to them. agreement between any of the parties with
3. Impossibility of use respect to the discontinuance or
When the condition of either or both of obliteration of the easement annotated on
the estates which makes impossible the titles, the continued existence of the
the use of the easement is easement must be upheld and respected.
irreparable, whether caused by (Benedicto v CA)
fortuitous events or not, the servitude NB: When the easement is a legal
is absolutely extinguished easement, it need not be annotated in the
o Otherwise, the impossibility title. A legal easement is one mandated by
of use merely suspends the law, constituted for public use or for private
servitude until such time interest and becomes a continuing
when it can be used again property right. It is inseparable from the
estate to which it belongs. So, theres no
4. By expiration of term or fulfillment of need to annotate in the title. (Villanueva v
resolutory condition Velasco)
5. By renunciation A voluntary easement of right of way, like
The renunciation or waiver must be any other contract, could be extinguished
specific, clear and express. only by mutual agreement or by
This is particularly true for renunciation of the owner of the dominant
discontinuous easements such as estate. As it is like any other contract, it is
right of way. generally effective between the parties,
The waiver must be at least such as their heirs and assigns, except in case
may be obviously gathered from where the rights and obligations arising
positive acts if not formal and from the contract are not transmissible by
solemn. The mere refraining from their nature, or by stipulation, or by
claiming the right, without any positive provision of law. (Unisource v Chung,
acts imply a real waiver, is not 2009)

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If there are easement or other rights
appurtenant to a parcel of registered land
which for any reason have failed to be
registered, such easement or rights shall
remain so appurtenant notwithstanding
such failure, and shall be held to pass with
the land until cut off or extinguished by the
registration of the servient estate or in any
other manner. An easement is cut off or
extinguished by the registration of the
servient estate under the Torrens system
without the easement being annotated on
the corresponding certificate of title,
pursuant to Sec 39 of Act 496
(Purugganan v Paredes)
o EXCEPTION: When the
person who registers the
servient estate has ACTUAL
knowledge that an easement
exists. (One cant rely on the
face of the title if one has
actual knowledge of facts
which should compel him to
do further investigation)
Art. 632. The form or manner of using the
easement may prescribe as the easement
itself, and in the same way. (547a)
Prescription of form or manner of using
easement
The form or manner (or mode) of using the
easement is different from the easement
itself or the right to exercise it
Both may be lost by prescription
Some legal easements, however, do not
prescribe but the form or manner of using
all easements including legal easements
may be lost or acquired by prescription
Art. 633. If the dominant estate belongs to
several persons in common, the use of the
easement by any one of them prevents
prescription with respect to the others.
(548)
Where dominant estate owned in common
Easements are indivisible
Hence, the use by a co-owner inures to the
benefit of all the other co-owners and
prevents prescription as to shares of the
latter
In other words, the use by a co-owner is
deemed to be used by each and all the co-
owners
CHAPTER 2
LEGAL EASEMENTS
SECTION ONE GENERAL
PROVISIONS
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Art. 634. Easements imposed by law have
for their object either public use or the
interest of private persons. (549)
What is legal easement?
Legal easements are easements imposed
or mandated by law, and which have for
their object:
o either public use or
o the interest of private properties
They become a continuing property right
Kinds of legal easements
1. Public legal easements or those for public
or communal use
2. Private legal easements or those for the
interest of private persons or for private
use, which include those relating to
a. Waters
b. Right of way
c. Party wall
d. Light and view
e. Drainage
f. Intermediate distances
g. Against nuisance
h. Lateral and subject support
Case doctrine
See Villanueva v Velasco cited in Art 631
Art. 635. All matters concerning easements
established for public or communal use
shall be governed by the special laws and
regulations relating thereto, and, in the
absence thereof, by the provisions of this
Title. (550)
Art. 636. Easements established by law in
the interest of private persons or for private
use shall be governed by the provisions of
this Title, without prejudice to the
provisions of general or local laws and
ordinances for the general welfare.
These easements may be modified
by agreement of the interested parties,
whenever the law does not prohibit it or no
injury is suffered by a third person. (551a)
Governing laws
1. Public legal easements they are
governed primarily by the special laws and
regulations relating thereto, and by the
Civil Code (634-687), inclusive.
2. Private legal easements
a. By agreement of the
interested parties provided it
is not prohibited by law or
injurious to a third person
b. In the absence of agreement,
by the provisions of general
and local laws and
ordinances for the general
welfare; and
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PROPERTY NOTES
c. In default of a and b, by
articles 634 to 687, inclusive
of the Civil Code.
Case doctrine
Where the land was originally public land,
and awarded by free patent with a
reservation for a legal easement of a right-
of-way in favor of the government, just
compensation need not be paid for the
taking of a part thereof for public use as an
easement of a right of way, unlike if the
land were originally private property. (NIA v
CA)
SECTION TWO EASEMENTS
RELATING TO WATERS
Art. 637. Lower estates are obliged to
receive the waters which naturally and
without the intervention of man descend
from the higher estates, as well as the
stones or earth which they carry with them.
The owner of the lower estate
cannot construct works which will impede
this easement; neither can the owner of the
higher estate make works which will
increase the burden. (552)
Legal easements relating to waters
1. Natural drainage (637)
2. Drainage of buildings (674)
3. Easement on riparian banks for navigation,
floatage, fishing, salvage, and towpath
(638)
4. Easement of a dam (639, 647)
5. Easement for drawing water or for
watering animals (640-641)
6. Easement of aqueduct (642-646)
7. Easement for the construction of a stop
lock or sluice gate (647)
Natural drainage of lands
This article imposes a natural easement
upon the lower estates which are obliged
to receive the waters which naturally and
without the intervention of man descend
from the higher estates, as well as the
stones or earth carried by the waters.
This easement is a continuous one and
may be extinguished by non-user for the
period of 10 years required by law. Thus, if
a dike was constructed by the servient
owner (an act contrary to the easement),
the action to destroy the dike is barred if
brought only after 1 years.
Duty of servient owner the owner of the
lower estate cannot construct works which
will impede this easement, such as walls,
ditches or fences, or a dam which blocks
the natural flow of the waters. The
dominant owner may demand their
removal or destruction and recover
damages. The servient owner may
construct works to regulate the flow of
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waters, but not those which will impede the
easement.
Duty of dominant owner the owner of the
higher tenement cannot make works which
will increase the burden. If the waters are
the result of artificial development, or are
the overflow from irrigation dams, or
proceed from industrial establishments
recently set up, the owner of the lower
estate shall be entitled to compensation for
his loss or damage.
o But the dominant owner is
not prohibited from cultivating
his land or constructing
works to regulate the descent
of the waters to prevent
erosion to his land and as
long as he does not impede
the natural flow of the waters
and increase the burden of
the lower estate, he is not
liable for damages.
Remember Remman v CA? The case with the
pig shit? It also said that tax returns per se
could not reflect the total amount of damages
suffered by a party, as income losses from a
portion of his property could be offset by any
profit derived from the rest of said property or
from other sources of income.
Art. 638. The banks of rivers and streams,
even in case they are of private ownership,
are subject throughout their entire length
and within a zone of three meters along
their margins, to the easement of public use
in the general interest of navigation,
floatage, fishing and salvage.
Estates adjoining the banks of
navigable or floatable rivers are,
furthermore, subject to the easement of
towpath for the exclusive service of river
navigation and floatage.
If it be necessary for such purpose
to occupy lands of private ownership, the
proper indemnity shall first be paid. (553a)
Public easements on banks of river
Banks of rivers and streams, whether they
are of public or private ownership, are
subject to easement of public use for:
1. Navigation
2. Floatage
3. Fishing
4. Salvage
5. With respect to estates adjourning
banks of navigable rivers, also to
easement of towpath.
If the land is of public ownership, there is
no indemnity; if of private ownership, the
proper indemnity shall first be paid before
it may be occupied. Riparian owners
cannot be required to subject their
property to the easement for the benefit of
the public without prior indemnity.
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The width of the zone subject to the
easement is 3 meters throughout the
entire length of the bank along its margin.
The easement established by Article 638
does not apply to canals or esteros.
Art. 639. Whenever for the diversion or
taking of water from a river or brook, or for
the use of any other continuous or
discontinuous stream, it should be
necessary to build a dam, and the person
who is to construct it is not the owner of the
banks, or lands which must support it, he
may establish the easement of abutment of
a dam, after payment of the proper
indemnity. (554)
Abutment of buttress of a dam
A person who needs to build a dam to
divert or take water from a river or brook
but is not the owner of the banks or lands
which must support the dam, may be
allowed the easement of abutment or
buttress of a dam (estribo de presa)
He must seek the permission of the owner,
and in case of the latters refustal, he must
secure authority from the proper
administrative agency which will conduct
the necessary investigation in which all
interested parties are given opportunity to
be heard. In establishing the easement,
the proper indemnity must be paid.
Where the construction of a dam is
unauthorized, the same can be considered
a private nuisance and may be lawfully
destroyed or removed by the injured
landowner or by any persona acting under
his directions.
Case doctrine
An easement of buttress can be imposed
by administrative authority with respect to
land lying adjacent to public or private
waters; but in such case it is required that
an investigation of record shall be made
before the easement of buttress is
decreed. The making of the investigation
of record is an essential prerequisite to the
exercise of the power. (Solis v Pujeda)
Art. 640. Compulsory easements for
drawing water or for watering animals can
be imposed only for reasons of public use
in favor of a town or village, after payment
of the proper indemnity. (555)
Art. 641. Easements for drawing water and
for watering animals carry with them the
obligation of the owners of the servient
estates to allow passage to persons and
animals to the place where such easements
are to be used, and the indemnity shall
include this service. (556)
Drawing water or watering animals
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This is a personal easement which
includes the accessory easement of
passage or right of way of persons and
animals to the place where the easement
is to be used.
Requisites are:
1. Must be imposed for reasons of public
use;
2. Must be in favor of a town or village;
and
3. Must be payment of proper indemnity.
Art. 642. Any person who may wish to use
upon his own estate any water of which he
can dispose shall have the right to make it
flow through the intervening estates, with
the obligation to indemnify their owners, as
well as the owners of the lower estates
upon which the waters may filter or
descend. (557)
Art. 643. One desiring to make use of the
right granted in the preceding article is
obliged:
(1) To prove that he can dispose of
the water and that it is sufficient for the use
for which it is intended;
(2) To show that the proposed right
of way is the most convenient and the least
onerous to third persons;
(3) To indemnify the owner of the
servient estate in the manner determined by
the laws and regulations. (558)
Art. 644. The easement of aqueduct for
private interest cannot be imposed on
buildings, courtyards, annexes, or
outhouses, or on orchards or gardens
already existing. (559)
Easement of aqueduct what is it?!
Easement of aqueduct is the right arising
from a forced easement by virtue of which
the owner of an estate who desires to avail
himself of water for the use of said estate
may make such waters pass through the
intermediate estate with the obligation of
indemnifying the owner of the same and
also the owner of the estate to which the
water may filter or flow.
The easement is provided in Article 642. It
gives the right to make water flow through
or under intervening or lower estates.
Requisites?
The person desiring to make use of the
easement must:
1. Prove that he has the capacity to dispose
of the water;
2. Prove that the water is sufficient for the
use intended;
3. Show that the proposed right of way is the
most convenient and the least onerous to
third persons; and
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4. Pay indemnity to the owner of the servient
estate.
But where the number of years
that have elapsed since the
easement had first come into
existence and the subsequent
changes in ownership of lots
involved would make it impossible
to present proof of indemnity to
the owner of the servient estate,
this requisite has been deemed to
be complied with. (Salazar v
Gutierrez)
The easement cannot be imposed over
buildings, courtyards, annexes or gardens
if the easement is for private interest.
Case doctrines
The Spanish Law of Waters allows the
creation of a compulsory easement of
aqueduct for the purpose of establishing or
extending an irrigation system, and there
is nothing to the contrary in the Civil Code.
The registration of the servient lot without
the corresponding registration of the
easement of aqueduct on the title cannot
summarily terminate it 30 years thereafter
where the original registered owner of the
servient lot allowed the easement to
continue in spite of such non-registration.
The least that can be said is that he either
recognized its existence as a compulsory
servitude on his estate or voluntarily
agreed to its establishment and
continuance. And subsequent purchasers
of the servient estate cannot capitalize on
the absence of annotation on the title
where they are aware of the existence of
the easement and likewise allowed it to
continue for 26 years after they acquired
title. (Salazar v Gutierrez)
Art. 645. The easement of aqueduct does
not prevent the owner of the servient estate
from closing or fencing it, or from building
over the aqueduct in such manner as not to
cause the latter any damage, or render
necessary repairs and cleanings
impossible. (560)
Right of owner of servient estate
The servient owner may close or fence his
estate, or build over the aqueduct so long
as no damage is caused to the aqueduct
or the necessary repairs and cleaning of
the same are not rendered impossible.
He can construct works he may deem
necessary to prevent damage to himself
provided he does not impede or impair, in
any manner whatsoever, the use of the
easement just like the owner of the lower
estate on which an easement of natural
drainage has been established. If he does
impair, the dominant owner may ask for
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the removal or destruction of such works
with a right to indemnity for damages.
Art. 646. For legal purposes, the easement
of aqueduct shall be considered as
continuous and apparent, even though the
flow of the water may not be continuous, or
its use depends upon the needs of the
dominant estate, or upon a schedule of
alternate days or hours. (561)
Easement considered as continuous and
apparent
For legal purposes, the easement is
considered continuous and apparent and
therefore, may be susceptible of
acquisitive prescription.
Art. 647. One who for the purpose of
irrigating or improving his estate, has to
construct a stop lock or sluice gate in the
bed of the stream from which the water is to
be taken, may demand that the owners of
the banks permit its construction, after
payment of damages, including those
caused by the new easement to such
owners and to the other irrigators. (562)
Construction of a stop lock or sluice gate
In Article 639, the purpose of building a
dam is to divert water from a river or
brook. Here, the purpose of the
construction is to take water for irrigation,
or to improve an estate.
In both cases, the construction is on the
estate of another and proper indemnity
has to be paid. Furthermore, no damage
must be caused to third persons.
Art. 648. The establishment, extent, form
and conditions of the servitudes of waters,
to which this section refers, shall be
governed by the special laws relating
thereto insofar as no provision therefor is
made in this Code. (563a)
SECTION THREE EASEMENT OF
RIGHT OF WAY
Art. 649. The owner, or any person who by
virtue of a real right may cultivate or use
any immovable, which is surrounded by
other immovables pertaining to other
persons and without adequate outlet to a
public highway, is entitled to demand a right
of way through the neighboring estates,
after payment of the proper indemnity.
Should this easement be
established in such a manner that its use
may be continuous for all the needs of the
dominant estate, establishing a permanent
passage, the indemnity shall consist of the
value of the land occupied and the amount
of the damage caused to the servient
estate.
In case the right of way is limited to
the necessary passage for the cultivation of
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the estate surrounded by others and for the
gathering of its crops through the servient
estate without a permanent way, the
indemnity shall consist in the payment of
the damage caused by such encumbrance.
This easement is not compulsory if
the isolation of the immovable is due to the
proprietor's own acts. (564a)
Art. 650. The easement of right of way shall
be established at the point least prejudicial
to the servient estate, and, insofar as
consistent with this rule, where the distance
from the dominant estate to a public
highway may be the shortest. (565)
Easement of right of way DEFINED!
Easement of right of way is the right
granted by law to the owner of an estate
which is surrounded by other estates
belonging to other persons and without an
adequate outlet to a public highway to
demand that he be allowed a passageway
throughout such neighboring estates after
payment of the proper indemnity.
Requisites of the easment (based on de Leon)
1. Claimant must be an owner of enclosed
immovable or one with real right
2. No adequate outlet to a public highway
3. Right of way must be absolutely necessary
4. The isolation must not be due to the
claimants own act
5. The easement must be established at the
point least prejudicial
6. There must be payment of proper
indemnity
Claimant must be an owner of enclosed
immovable or one with real right
Not only the owner but any person who by
virtue of a real right may cultivate or use
an immovable, may demand a right of way.
A usufructuary may demand a right of way.
1. A mortgagee is not entitled to demand
because it is necessary that the land
be cultivated or used by virtue of a
right like that of a usufruct
2. A mere lessee cannot demand the
legal servitude of way because his
action is against the lessor who is
bound to maintain him in the
enjoyment of the lease. However, if
the lessee registers the lease in the
Registry of Property, it becomes a real
right, and the lessee would then be
entitled to demand the right of way.
No adequate outlet to a public highway
Covers cases when there is absolutely no
outlet or access, or even when there is
one, the same is not adequate (like when
its dangerous, very costly, etc)
The owner of the servient estate cannot
obstruct the use of the easement if the
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
proposed new location for it is farther and
is not as convenient.
Right of way must be absolutely necessary
The right cannot be claimed merely for the
convenience of the owner of the enclosed
estate.
Owner must show that the compulsory
easement is absolutely necessary for the
normal enjoyment of his property. Even if
necessary but it can be satisfied without
imposing the servitude, the same should
not be imposed.
The easement can be established for the
benefit of a tenement with an inadequate
outlet, but not when the outlet is merely
inconvenient.
Isolation must not be due to the claimants own
act
If he constructs a permanent structure and
effectively blocks himself out from the
pubic highway, then he is stupid and he
will not be granted an easement.
The easement must be established at the point
least prejudicial to the servient estate
The shortest is not always the least
prejudicial.
The criterion of least prejudicial shall be
observed although the distance may not
be the shortest or is even the longest.
In other words, this is the TEST - the one
where the way is shortest and will cause
the least damage should be chosen.
o But if these two circumstances do
not concur in a single tenement,
the way which will cause the least
damage should be used, even if it
would not be the shortest.
Between a right of way
that will demolish a
house and another one
which will merely cut
down a tree (yet is a
longer route to the
highway), the latter shall
prevail.
The rule is different in eminent domain
proceedings wherein the grantee of the
power of eminent domain can choose as
he pleases, as long as it is not capricious
and wantonly injurious.
Proper indemnity
The right can be acquired only after the
proper indemnity has been paid.
If the passage is of continuous and
permanent nature (continuous for all the
needs of the dominant estate), the
indemnity consists of the value of the land
occupied plus amount of damages caused
to the servient estate; and
If it is temporary (limited to the necessary
passage for the cultivation of the enclosed
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estate and for the gathering of its crops
through the servient estate), indemnity
consists in the payment of the damage
caused to the servient estate.
Even if the easement is for a laudable
purpose, there is still a need for
compensation.
BUT
o Where the land was originally
public land, and awarded by free
patent and was registered with an
OCT and TCT with a reservation
for a legal easement of a right-of-
way in favor of the government,
just compensation need not be
paid for the taking of a part
thereof for public use as an
easement of a right of way, unlike
if the land were originally private
property. (NIA v CA)
What are the kinds of easements of right of
way?
1. Private, when it is established in favor of a
private person, such as the right granted in
Article 649; or
2. Public, when it is available in favor of the
community or the public at large.
Acquisition and extinguishment by prescription
The easement of right of way, being
discontinuous, cannot be acquired ny
prescription. It may be apparent, but it is
not a continuous easement.
De Leon gives some reasons why the
easement of right of way should be
considered as continuous in page 480 of
his book.
Case doctrines
Requisites of the easement (based on
Valdez v Tabisula; Lee, Villanueva; etc)
1. Claimant must be an owner of
enclosed immovable or one with real
right
2. Property is surrounded by other
immovables and has no adequate
outlet to a public highway
3. Proper indemnity must be paid
4. The isolation is not the result of the
owner of the dominant estates own
acts
5. The right of way claimed is at the least
prejudicial to the servient estate
6. To the extent consistent with the
foregoing rule, the distance from the
dominant estate to a public highway
may be the shortest.
The onus of proving the existence of these
requisites lies on the owner of the
dominant estate.
Requisites na naman! (based on Mejorada
v Vertudazo)
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1. The estate is surrounded by other
immovables and is without adequate
outlet to a public highway;
2. After payment of the proper indemnity
3. The isolation was not due to the
proprietors acts; and
4. The right of way claimed is at a point
least prejudicial to the servient estate.
One whose land is enclosed by the lands
of others at one acquires the right to
demand an easement of way to the
nearest street or road, but his failure to do
so does not constitute a renunciation of his
right nor does the right to demand such
easement prescribe under Article 631. The
right to demand a right of way is
imprescriptible. (Francisco v Paez)
Art. 651. The width of the easement of right
of way shall be that which is sufficient for
the needs of the dominant estate, and may
accordingly be changed from time to time.
(566a)
Width of the passage
It is the needs of the dominant property
which ultimately determine the width of the
passage, and these needs may vary from
time to time.
The easement established may thus be
changed or modified from time to time as
the subsequent needs of the dominant
estate may demand.
Art. 652. Whenever a piece of land acquired
by sale, exchange or partition, is
surrounded by other estates of the vendor,
exchanger, or co-owner, he shall be obliged
to grant a right of way without indemnity.
In case of a simple donation, the
donor shall be indemnified by the donee for
the establishment of the right of way. (567a)
Art. 653. In the case of the preceding article,
if it is the land of the grantor that becomes
isolated, he may demand a right of way after
paying a indemnity. However, the donor
shall not be liable for indemnity. (n)
Where land of transferor or transferee enclosed
These two articles are exceptions to the
requirement in Article 649 regarding the
payment of indemnity.
If the land transferred is surrounded by
other estates of the vendor, exchanger or
co-owner, the transferee is not obliged to
pay indemnity for the easement as the
consideration for the transfer is presumed
to include the easement without the
indemnity.
o If the right of way becomes
useless for some reason or
another, it is no longer than
transferors fault. Apply Article
642.
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o Article 652 is not applicable in
case of simple donation because
the donor receives nothing for his
property.
If it is the land of the grantor that becomes
isolated, he may demand a right of way
but shall be obliged to pay indemnity
unless the purchaser agreed to grant right
without indemnity.
o The donor shall not be liable for
indemnity as it is considered a
tacit condition of the donation.
Art. 654. If the right of way is permanent, the
necessary repairs shall be made by the
owner of the dominant estate. A
proportionate share of the taxes shall be
reimbursed by said owner to the proprietor
of the servient estate. (n)
Responsibility for repairs and taxes
This applies if the right of way is
permanent.
The servient owner retains ownership of
the passageway; hence, he pays all the
taxes.
The dominant owner is liable for the
necessary repairs and the proportionate
share of the taxes paid by the servient
owner, meaning the amount of taxes
corresponding to the portion on which the
easement is established.
Art. 655. If the right of way granted to a
surrounded estate ceases to be necessary
because its owner has joined it to another
abutting on a public road, the owner of the
servient estate may demand that the
easement be extinguished, returning what
he may have received by way of indemnity.
The interest on the indemnity shall be
deemed to be in payment of rent for the use
of the easement.
The same rule shall be applied in
case a new road is opened giving access to
the isolated estate.
In both cases, the public highway
must substantially meet the needs of the
dominant estate in order that the easement
may be extinguished. (568a)
Extinguishment of compulsory easement of
right of way
This applies to compulsory easement of
right of way.
The two causes of extinguishment are:
1. The joining of the isolated estate to
another abutting a public road, and
2. Opening a new road which gives
access to the estate.
The new outlet must be adequate.
The extinguishment is not automatic
because the law says that the owner of the
servient estate may demand that the
easement be extinguished, if he so
Mickey Ingles
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desires. So, the dominant owner cannot
ask for the return of the indemnity, if the
servient owner chooses to allow the
continuation of the easement.
The servient owner is not liable to pay
interest on the indemnity as the interest is
deemed to be payment for the use of the
easement.
Art. 656. If it be indispensable for the
construction, repair, improvement,
alteration or beautification of a building, to
carry materials through the estate of
another, or to raise therein scaffolding or
other objects necessary for the work, the
owner of such estate shall be obliged to
permit the act, after receiving payment of
the proper indemnity for the damage
caused him. (569a)
Temporary easement of right of way
This applies to a right of way which is
essentially temporary or transitory.
It is sufficient that great inconvenience,
difficulty, or expense would be
encountered if the easement was not
granted.
Temporary easement is allowed only after
the payment of the proper indemnity.
Case doctrine
The installation of electric power lines is a
permanent easement not covered by
Article 656. Article 656 deals only with the
temporary easement of passage.
(Preysler, Jr v CA)
Art. 657. Easements of the right of way for
the passage of livestock known as animal
path, animal trail or any other, and those for
watering places, resting places and animal
folds, shall be governed by the ordinances
and regulations relating thereto, and, in the
absence thereof, by the usages and
customs of the place.
Without prejudice to rights legally
acquired, the animal path shall not exceed
in any case the width of 75 meters, and the
animal trail that of 37 meters and 50
centimeters.
Whenever it is necessary to
establish a compulsory easement of the
right of way or for a watering place for
animals, the provisions of this Section and
those of Articles 640 and 641 shall be
observed. In this case the width shall not
exceed 10 meters. (570a)
Right of way for the passage of livestock,
watering places
The easements shall be governed by the
ordinances, regulations, and in their
absence, usages and customs of the
place.
Animal path max width: 75 meters
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Animal trail max width: 37.5 meters

For drawing waters and for watering
animals max width: 10 meters Art. 659. The existence of an easement of
o In the last case, they can be party wall is presumed, unless there is a
imposed only for reasons of title, or exterior sign, or proof to the
public use in favor of a town or contrary:
barrio and only after payment of (1) In dividing walls of adjoining
the proper indemnity. buildings up to the point of common
elevation;
(2) In dividing walls of gardens or
SECTION FOUR EASEMENT OF yards situated in cities, towns, or in rural
PARTY WALL communities;
(3) In fences, walls and live hedges
Art. 658. The easement of party wall shall be dividing rural lands. (572)
governed by the provisions of this Title, by
the local ordinances and customs insofar When is the existence of a party wall
as they do not conflict with the same, and presumed?
by the rules of co-ownership. (571a) 1. In dividing walls of adjoining buildings up
to the point of common elevation;
Whats an easement of party wall? 2. In dividing walls of gardens or yards
It refers to all those mass of rights and situated in cities, towns, or in rural
obligations emanating from the existence communities; or
and common enjoyment of wall, fence, 3. In fences, walls and live hedges dividing
enclosures or hedges, by the owners of rural lands.
adjacent buildings and estates separated
by such objects. The legal presumption is juris tantum; it
may be rebutted by a title or exterior sign
What is a party wall, what is its nature? or any other proof showing that the entire
A party wall is a common wall which wall in controversy belongs exclusively to
separates two estates, built by common one of the adjoining property owners.
agreement at the dividing line such that it
occupies a portion of both estates on Case doctrine
equal parts. A wall separating two adjoining buildings,
It is a kind of forced co-ownership in which built on the land on which one of these
the parties are prt-owners. buildings stands, is not a party wall when
Each owner owns part of the wall but it there is a drain along its top to carry away
cannot be separated from the other the water from the roof and eaves of the
portions belonging to the others. building belonging to the owner of the land
An owner may use a party wall to the on which the wall is erected; and also
extent of the portion on his property. Not when a part of the wall is covered by the
all common walls or walls in co-ownership roof of the said building, the construction
are party walls. (A wall built on a co-owned of which demonstrates that the wall
lot is a common wall, not a party wall.) belongs exclusively to the owner of the
building of which it forms part. (Lao v Heirs
Party Wall Co-ownership of Alburo)
The shares of the co- Shares of the co-
owners cannot be owners can be divided Art. 660. It is understood that there is an
physically segregated or separated exterior sign, contrary to the easement of
but they can be physically. Before party wall:
physically identified. such division, a co- (1) Whenever in the dividing wall of
owner cannot point to buildings there is a window or opening;
any definite portion of (2) Whenever the dividing wall is,
the property as on one side, straight and plumb on all its
belonging to him. facement, and on the other, it has similar
No such limitation None of the co- conditions on the upper part, but the lower
owners may use the part slants or projects outward;
community property (3) Whenever the entire wall is built
for his exclusive within the boundaries of one of the estates;
benefit (4) Whenever the dividing wall
Any owner may free Partial renunciation is bears the burden of the binding beams,
himself from allowed floors and roof frame of one of the
contributing to the buildings, but not those of the others;
cost of repairs and (5) Whenever the dividing wall
construction of a party between courtyards, gardens, and
wall by renouncing all tenements is constructed in such a way that
his rights thereto.
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the coping sheds the water upon only one
of the estates;
(6) Whenever the dividing wall,
being built of masonry, has stepping
stones, which at certain intervals project
from the surface on one side only, but not
on the other;
(7) Whenever lands inclosed by
fences or live hedges adjoin others which
are not inclosed.
In all these cases, the ownership of
the walls, fences or hedges shall be deemed
to belong exclusively to the owner of the
property or tenement which has in its favor
the presumption based on any one of these
signs. (573)
Exterior signs rebutting presumption
This article mentions some exterior signs
rebutting the presumption of a party wall.
The wall becomes the exclusive property
of the owner of the estate which has in its
favor the presumption based on any of the
above exterior signs.
The enumeration is merely illustrative, and
is not exclusive.
The exterior signs may contradict each
other. In such case, the court shall decide
the matter taking into consideration all the
circumstances.
o But in case of conflict between a
title evidencing ownership to a
wall and an exterior sign, the
former must prevail, for the latter
merely gives rise to an inference
of ownership.
Art. 661. Ditches or drains opened between
two estates are also presumed as common
to both, if there is no title or sign showing
the contrary.
There is a sign contrary to the part-
ownership whenever the earth or dirt
removed to open the ditch or to clean it is
only on one side thereof, in which case the
ownership of the ditch shall belong
exclusively to the owner of the land having
this exterior sign in its favor. (574)
Bitches or drains between two estates (hehe)
The deposit of earth or debris on one side
alone is an exterior sign that the owner of
that side is the owner of the ditch or the
drain.
Again, this is rebuttable.
Art. 662. The cost of repairs and
construction of party walls and the
maintenance of fences, live hedges,
ditches, and drains owned in common, shall
be borne by all the owners of the lands or
tenements having the party wall in their
favor, in proportion to the right of each.
Nevertheless, any owner may
exempt himself from contributing to this
Mickey Ingles
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charge by renouncing his part-ownership,
except when the party wall supports a
building belonging to him. (575)
Contribution to cost of repairs and construction
of party walls
The part-owners of the party wall shall
contribute to the cost in the proportion to
their respective interests.
o But if the cause of the repairs is
due to the fault of just one, then
he alone shall bear the costs.
Any owner may free himself from
contributing to the charge by renouncing
his rights in the party wall unless it actually
supports his building.
The renunciation will include the land on
which the party wall is constructed.
Art. 663. If the owner of a building,
supported by a party wall desires to
demolish the building, he may also
renounce his part-ownership of the wall, but
the cost of all repairs and work necessary
to prevent any damage which the
demolition may cause to the party wall, on
this occasion only, shall be borne by him.
(576)
Demolish that building! Demolish!
An owner may also renounce his part
ownership of a party wall if he desires to
demolish his building supported by the
wall.
He shall bear all the expenses of repairs
and work necessary to prevent any
damage which the demolition may cause
to the party wall.
Art. 664. Every owner may increase the
height of the party wall, doing at his own
expense and paying for any damage which
may be caused by the work, even though
such damage be temporary.
The expenses of maintaining the
wall in the part newly raised or deepened at
its foundation shall also be paid for by him;
and, in addition, the indemnity for the
increased expenses which may be
necessary for the preservation of the party
wall by reason of the greater height or
depth which has been given it.
If the party wall cannot bear the
increased height, the owner desiring to
raise it shall be obliged to reconstruct it at
his own expense and, if for this purpose it
be necessary to make it thicker, he shall
give the space required from his own land.
(577)
Art. 665. The other owners who have not
contributed in giving increased height,
depth or thickness to the wall may,
nevertheless, acquire the right of part-
ownership therein, by paying proportionally
the value of the work at the time of the
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acquisition and of the land used for its
increased thickness. (578a)
Increase the height of party wall!
An owner is given the right to increase the
height of a party wall subject to the
following conditions:
1. He must do so at his own expense;
2. He must pay for any damage which
may be caused thereby even if
damage is temporary;
3. He must bear the cost of maintaining
the portion added; and
4. He must pay the increased cost of
preservation of the wall.
He shall be obliged to reconstruct the wall
at his expense if it is necessary so that the
wall can bear the increased height, and if
additional thickness is required, he shall
provide the space therefore from his own
land.
The other owners cannot object to the
work as long as the above conditions are
complied with.
The owner who makes the addition
acquires ownership unless the other
owners pay proportionately the value of
the work at the time of the acquisition (not
the construction) and of the land used for
the walls increased thickness.
Art. 666. Every part-owner of a party wall
may use it in proportion to the right he may
have in the co-ownership, without
interfering with the common and respective
uses by the other co-owners. (579a)
Proportional use of party wall
If Tweet owns 2/3 of the party wall and
Plurk owns 1/3, Tweet may use the wall
(like inserting a beam) up to 2/3 of its
thickness, and Plurk can do the same up
to 1/3.
SECTION FIVE EASEMENT OF
LIGHT AND VIEW
Art. 667. No part-owner may, without the
consent of the others, open through the
party wall any window or aperture of any
kind. (580)
WHAT IS AN EASEMENT OF LIGHT?!?!
Easement of light (jus luminum) is the right
to admit light from the neighboring estate
by virtue of the opening of a window or the
making of certain openings.
WHAT IS AN EASEMENT OF VIEW?!?!
Easement of view (jus prospectus) is the
right to make openings or windows, to
enjoy the view through the estate of
another and the power to prevent all
constructions or works which would
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
obstruct such view or make the same
difficult.
It necessarily includes the easement of
light.
Making of opening through a party wall
A part-owner cannot exercise an act which
implies full ownership of the wall by
making use of all its thickness.
Remember, a window in the dividing wall
of buildings is an exterior sign which rebuts
the presumption that the wall is a party
wall. One part-owner may not, therefore,
make any window or opening of any kind
thru a party wall without the consent of the
others.
Art. 668. The period of prescription for the
acquisition of an easement of light and view
shall be counted:
(1) From the time of the opening of
the window, if it is through a party wall; or
(2) From the time of the formal
prohibition upon the proprietor of the
adjoining land or tenement, if the window is
through a wall on the dominant estate. (n)
Prescriptive period for acquisition of easement
of light and view
The easement of light and view is either
positive or negative.
When is it positive?
o It is considered positive if made
through a party wall or even if
made on ones own wall, if the
window is on a balcony or
projection extending over the
adjoining property.
o When a window is opened
through a party wall, an apparent
and continuous easement is
created from the time of such
opening. But there is no true
easement as long as the right to
prevent its use exists.
o The adjoining owner can order
the window closed within 10
years from the time of the
opening of the window.
When is it negative?
o It is considered negative if the
window is made through a wall on
the dominant estate.
o The 10-year period of prescription
commences from the time of the
formal prohibition (instrument
acknowledged by a notary public)
upon the adjoining owner.
o Before the expiration of the
prescriptive period, the window
exists by mere tolerance of the
adjoining owner who always
retains the right to have it closed
or to build an obstruction,
although the opening was made
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more than 10 years after he
decided to exercise his right.
The opening by Xyzal
was made in 1990 but
he made a formal
notarial demand
prohibiting Yeeyoo to
obstruct the view only in
1994, Yeeyoo may still
demand the closure of
the window in 2001.
Case doctrines
When the construction of windows and
balconies does not constitute an actual
invasion of the rights of another, but is a
lawful exercise of an inherent right, the
easement of light and view is negative.
(Fabie v Lichauco)
When a window is opened in a party wall,
the express or implied consent of the part
owner affords a basis for the acquisition of
a prescriptive title.
When a window is opened in the wall of a
neighbor, prescription commences to run
from the date of the opening of the
windows and ripens into title when the
specified time has elapsed without
opoosition on the part of the owner of the
wall. (Cortes v Yu Tibo)
Art. 669. When the distances in Article 670
are not observed, the owner of a wall which
is not party wall, adjoining a tenement or
piece of land belonging to another, can
make in it openings to admit light at the
height of the ceiling joints or immediately
under the ceiling, and of the size of thirty
centimeters square, and, in every case, with
an iron grating imbedded in the wall and
with a wire screen.
Nevertheless, the owner of the
tenement or property adjoining the wall in
which the openings are made can close
them should he acquire part-ownership
thereof, if there be no stipulation to the
contrary.
He can also obstruct them by
constructing a building on his land or by
raising a wall thereon contiguous to that
having such openings, unless an easement
of light has been acquired. (581a)
Openings at height of ceiling joists to admit
light
When the wall is not a party wall, the
owner may make an opening for the
purpose of admitting light and air, but not
for view. The restrictions are the following:
1. The size must not exceed 30 cm
square;
2. The opening must be at the height of
the ceiling joists or immediately under
the ceiling;
Mickey Ingles
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3. There must be an iron grating
imbedded in the wall; and
4. There must be a wire screen.
When the wall becomes a party wall, a
part-owner can order the closure of the
opening because no part-owner may make
an opening through a party wall without
the consent of the others. It can also
obstruct the opening unless an easement
of light has been acquired by prescription,
in which case the servient owner may not
impair the easement.
Case doctrine
If a house consists of more than one story,
each story may have the same openings
which are provided by law for one house.
The purpose of the law is to provide light to
the rooms and it is evident that the rooms
of the lower stories have a much need for
light as those of the top story. (Choco v
Santamaria))
When the house has been built, with two
meters of the dividing line (Art 670), no
other windows than those provided in this
article may be opened in its walls. (Saez v
Figueras)
Art. 670. No windows, apertures, balconies,
or other similar projections which afford a
direct view upon or towards an adjoining
land or tenement can be made, without
leaving a distance of two meters between
the wall in which they are made and such
contiguous property.
Neither can side or oblique views
upon or towards such conterminous
property be had, unless there be a distance
of sixty centimeters.
The nonobservance of these
distances does not give rise to prescription.
(582a)
Art. 671. The distance referred to in the
preceding article shall be measured in
cases of direct views from the outer line of
the wall when the openings do not project,
from the outer line of the latter when they
do, and in cases of oblique view from the
dividing line between the two properties.
(583)
Direct and oblique views
Article 760 requires a distance of:
o For direct view, 2 meters
o For oblique view, 60 cm
Article 761 provides the manner of
measuring the distance.
o For direct view from the outer
line of the wall when the openings
do not project; from the outer line
of the openings when they do
project
o For oblique view from the
dividing line
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An owner can build within the minimum
distance or even up to the dividing line
provided no window is opened except as
provided in Article 669.
When windows are opened, without
observing the required legal distances, the
adjoining owner has a right to have them
closed.
The non-observance of the distances does
not give rise to prescription.
o The mere opening of the windows
in violation of Article 770 does not
give rise to the servitude by
prescription.
o Its a negative easement
because the window is through a
wall of the dominant estate and
so prescription may still be
acquired after 10 years from the
time of notarial prohibition.
Art. 672. The provisions of Article 670 are
not applicable to buildings separated by a
public way or alley, which is not less than
three meters wide, subject to special
regulations and local ordinances. (584a)
Where buildings separated by a public way or
alley
The distance in 670 is not compulsory
where there is a public way or alley
provided that it is not less than 3 meters
wide.
Case doctrine
A private alley opened to the use of the
general public falls within the provision of
Article 672.
Art. 673. Whenever by any title a right has
been acquired to have direct views,
balconies or belvederes overlooking an
adjoining property, the owner of the
servient estate cannot build thereon at less
than a distance of three meters to be
measured in the manner provided in Article
671. Any stipulation permitting distances
less than those prescribed in Article 670 is
void. (585a)
Where easement of direct view has been
acquired
The word title as used in Article 673
refers to any of the modes of acquiring
easements (contract, will, donation or
prescription).
Whenever the easement of direct view has
been acquired by such title, there is
created a true easement, the owner of the
servient estate cannot build thereon at less
than a distance of 3 meters from the
boundary line.
The distance may be increased or
decreased by stipulation of the parties
provided that in case of decrease, the
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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minimum distance of 2 meters or 60 cm in
670 must be observed. If not, then its void.
SECTION SIX DRAINAGE OF
BUILDINGS
Art. 674. The owner of a building shall be
obliged to construct its roof or covering in
such manner that the rain water shall fall on
his own land or on a street or public place,
and not on the land of his neighbor, even
though the adjacent land may belong to two
or more persons, one of whom is the owner
of the roof. Even if it should fall on his own
land, the owner shall be obliged to collect
the water in such a way as not to cause
damage to the adjacent land or tenement.
(586a)
What is an easement of drainage of buildings?
Easement of drainage of buildings is the
right to divert or empty the rain waters
from the ones own roof or shed to the
neighbors estate either drop by drop or
through conduits.
Rainwater not to fall on land of another
This article does not really create a
servitude, it merely regulates the use of
ones own property by imposing on him the
obligation to collect its rain waters so as
not to cause damage to his neighbors,
even if he be a co-owner of the latter.
Its an exemption to Article 637 which
obliges lower estates to receive the waters
which naturally flow from higher estates.
Art. 675. The owner of a tenement or a piece
of land, subject to the easement of
receiving water falling from roofs, may build
in such manner as to receive the water
upon his own roof or give it another outlet
in accordance with local ordinances or
customs, and in such a way as not to cause
any nuisance or damage whatever to the
dominant estate. (587)
Easement to receive falling rainwater
This article deals not with a legal or
compulsory easement but with a voluntary
easement to receive rain water falling from
the roof of an adjoining building.
It is an application of Article 629.
Art. 676. Whenever the yard or court of a
house is surrounded by other houses, and
it is not possible to give an outlet through
the house itself to the rain water collected
thereon, the establishment of an easement
of drainage can be demanded, giving an
outlet to the water at the point of the
contiguous lands or tenements where its
egress may be easiest, and establishing a
conduit for the drainage in such manner as
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to cause the least damage to the servient
estate, after payment of the property
indemnity. (583)
Easement giving outlet to rainwater where
house surrounded by other houses
The legal easement of drainage may be
demanded subject to the following
conditions:
1. There must be no adequate outlet to
the rainwater because the yard or
court of a house is surrounded by
other houses;
2. The outlet to the water must be at the
point where egress is easiest, and
establishing a conduit for drainage;
and
3. There must be payment of proper
indemnity.
SECTION 7. INTERMEDIATE
DISTANCES AND WORKS FOR
CERTAIN CONSTRUCTIONS AND
PLANTINGS
Art. 677. No constructions can be built or
plantings made near fortified places or
fortresses without compliance with the
conditions required in special laws,
ordinances, and regulations relating
thereto. (589)
Constructions and plantings near fortified
places
This article establishes an easement in
favor of the State.
Art. 678. No person shall build any
aqueduct, well, sewer, furnace, forge,
chimney, stable, depository of corrosive
substances, machinery, or factory which by
reason of its nature or products is
dangerous or noxious, without observing
the distances prescribed by the regulations
and customs of the place, and without
making the necessary protective works,
subject, in regard to the manner thereof, to
the conditions prescribed by such
regulations. These prohibitions cannot be
altered or renounced by stipulation on the
part of the adjoining proprietors.
In the absence of regulations, such
precautions shall be taken as may be
considered necessary, in order to avoid any
damage to the neighboring lands or
tenements. (590a)
Construction of aqueduct, well, sewer, etc
Constructions which by reason of their
nature or products are dangerous or
noxious must comply with the distances
prescribed by local regulations and
customs of the place. Necessary protective
works must also be built/done by the
owner to avoid damage to neighbors.
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The prohibitions cannot be altered by
stipulations because of the underlying
public policy of safety.
Whut up, ang layo mo na! Go go go!
Art. 679. No trees shall be planted near a
tenement or piece of land belonging to
another except at the distance authorized
by the ordinances or customs of the place,
and, in the absence thereof, at a distance of
at least two meters from the dividing line of
the estates if tall trees are planted and at a
distance of at least fifty centimeters if
shrubs or small trees are planted.
Every landowner shall have the
right to demand that trees hereafter planted
at a shorter distance from his land or
tenement be uprooted.
The provisions of this article also
apply to trees which have grown
spontaneously. (591a)
Planting of trees (wow!)
This article establishes a negative
easement.
It provides the minimum distance of trees
and shrubs from the boundary line.
They shall be regulated first by local
ordinances; and then by the customs of
the place; and in default of both, this
interesting article.
In case of violation, a landowner shall
have the right to demand the uprooting of
the tree or shrub even if it has grown
spontaneously.
Art. 680. If the branches of any tree should
extend over a neighboring estate, tenement,
garden or yard, the owner of the latter shall
have the right to demand that they be cut
off insofar as they may spread over his
property, and, if it be the roots of a
neighboring tree which should penetrate
into the land of another, the latter may cut
them off himself within his property. (592)
Intrusions of branches or roots into neighboring
estates
In case of branches, the adjoining owner
must first demand that they be cut-off by
the tree owner insofar as they spread over
the formers property. If the tree owner
refuses, he may ask authority from the
court.
As to the roots, he may cut them off
himself if they penetrate into his land
without the necessity of giving notice to the
tree owner, because, by right of accession,
he has acquired ownership over them. It
actually constitutes a direct invasion on his
land (grabe naman.)
Art. 681. Fruits naturally falling upon
adjacent land belong to the owner of said
land. (n)
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Kung mahulog yung mangga ni Jhunjhun sa
lote ko, akin na ba yung mangga?
Yes. But the falling must occur naturally.
So I have no right to pick fruits still on
branches that extend over my land.
This is not based on occupation nor
accession, but by operation of law.
SECTION 8. EASEMENT AGAINST
NUISANCE
Art. 682. Every building or piece of land is
subject to the easement which prohibits the
proprietor or possessor from committing
nuisance through noise, jarring, offensive
odor, smoke, heat, dust, water, glare and
other causes.
Art. 683. Subject to zoning, health, police
and other laws and regulations, factories
and shops may be maintained provided the
least possible annoyance is caused to the
neighborhood.
The Code considers the easement against
nuisance as negative because the
proprietor or possessor is prohibited to do
something which he could lawfully do were
it not for the existence of the easement.
However, a nuisance involves any act of
ormission which is unlawful. So, these two
articles are more of a restriction on the
right of ownership than a true easement.
SECTION 9. - Lateral and Subjacent Support
(n)
Art. 684. No proprietor shall make such
excavations upon his land as to deprive any
adjacent land or building of sufficient lateral
or subjacent support.
Art. 685. Any stipulation or testamentary
provision allowing excavations that cause
danger to an adjacent land or building shall
be void.
Art. 686. The legal easement of lateral and
subjacent support is not only for buildings
standing at the time the excavations are
made but also for constructions that may be
erected.
Art. 687. Any proprietor intending to make
any excavation contemplated in the three
preceding articles shall notify all owners of
adjacent lands.
Proprietor prohibited from making dangerous
excavations
Support is lateral when the supported and
the supporting lands are divided by a
vertical plane.
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Ateneo Law 2012, updated: May 15, 2012
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Support is subjacent when the supported
land is above and the supporting land is
beneath it.
An owner, by virtue of his surface right,
may make excavations on his land, but his
right is subject to the limitation in Article
684 that he shall not deprive any adjacent
land or building of sufficient lateral or
subjacent support.
Any stipulation or testamentary provision
allowing excavations that violate Article
684 is void. The limitation applies not only
to existing buildings but also to future
constructions.
The notice required in Article 687 is
mandatory except where there is actual
knowledge of the proposed excavation.
The adjacent owner is entitled to injunctive
relief and to damages for violation of the
provisions.
CHAPTER 3
VOLUNTARY EASEMENTS
Art. 688. Every owner of a tenement or piece
of land may establish thereon the
easements which he may deem suitable,
and in the manner and form which he may
deem best, provided he does not
contravene the laws, public policy or public
order. (594)
Owner of land may constitute easement
Since easement involves an act of strict
dominium, only the owner or at least one
acting in his name and under his authority,
may establish a voluntary easement.
However, a beneficial owner may establish
a temporary easement consistent with his
right as such and subject to termination
upon the extinguishment of the usufruct.
Voluntary easements not contractual
Voluntary easements are not contractual in
nature, they constitute the act of the
owner.
Art. 689. The owner of a tenement or piece
of land, the usufruct of which belongs to
another, may impose thereon, without the
consent of the usufructuary, any servitudes
which will not injure the right of usufruct.
(595)
Where property held in usufruct
The owner of property in usufruct may
create easements thereon without the
consent of the usufructuary provided the
rights of the latter are not impaired.
Art. 690. Whenever the naked ownership of
a tenement or piece of land belongs to one
person and the beneficial ownership to
another, no perpetual voluntary easement
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PROPERTY NOTES
may be established thereon without the
consent of both owners. (596)
Creation of perpetual voluntary easement
A usufructuary may impose on the estate
held in usufruct a temporary easement.
Where the naked ownership and the
beneficial ownership of the estate belong
to different persons, and the easement is
perpetual (permanent right of way, etc), the
consent of both the naked owner and the
beneficial owner is required.
Art. 691. In order to impose an easement on
an undivided tenement, or piece of land, the
consent of all the co-owners shall be
required.
The consent given by some only,
must be held in abeyance until the last one
of all the co-owners shall have expressed
his conformity.
But the consent given by one of the
co-owners separately from the others shall
bind the grantor and his successors not to
prevent the exercise of the right granted.
(597a)
Imposition of easement on undivided property
The creation of a voluntary easement on
property owned in common requires the
unanimous consent of all the co-owners,
because it involves an act of alteration and
not merely an alienation of an ideal share
of a co-owner.
The consent may be given separately or
successively.
Once consent is given by a co-owner, the
same is binding upon him and his
successors unless his consent was
vitiated.
After the consent of the last of all of the co-
owners has been secured, it is not
necessary for him to give again his
consent.
Art. 692. The title and, in a proper case, the
possession of an easement acquired by
prescription shall determine the rights of
the dominant estate and the obligations of
the servient estate. In default thereof, the
easement shall be governed by such
provisions of this Title as are applicable
thereto. (598)
Rules governing voluntary easementsano
nga ba?
1. If created by title, such as contract, will,
etc, then by such title;
2. If created by prescription, by the form and
manner of possession of the easement
(see Art 632); and
3. In default of the above, by the provisions
of the Civil Code on easement.
Mickey Ingles
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Art. 693. If the owner of the servient estate
should have bound himself, upon the
establishment of the easement, to bear the
cost of the work required for the use and
preservation thereof, he may free himself
from this obligation by renouncing his
property to the owner of the dominant
estate. (599)
Where servient owner bound himself to bear
cost of maintenance of easement
This article applies only where the owner
of the servient estate bound himself to
bear the cost of the work required for the
use and preservation of the easement
He is bound to fulfill the obligation he has
contracted in the same way that such an
owner, should he make use of the
easement, is bound to contribute to the
works necessary for the use and
preservation of the servitude.
The servient owner may free himself from
his obligation by renouncing or
abandoning his property to the dominant
owner.
o The renunciation need not be
over the whole servient tenement,
but only on the portion thereof
affected by the easement (right of
way, etc). however, if the
easement affects the entire
servient estate (like natural
drainage), then the renunciation
must be total.
o In any case, it cannot be tacit or
implied; it must follow the form
required by law for transmission
of ownership of real property.
TITLE EIGHT
NUISANCE
Art. 694. A nuisance is any act, omission,
establishment, business, condition of
property, or anything else which:
(1) Injures or endangers the health
or safety of others; or
(2) Annoys or offends the senses;
or
(3) Shocks, defies or disregards
decency or morality; or
(4) Obstructs or interferes with the
free passage of any public highway or
street, or any body of water; or
(5) Hinders or impairs the use of
property.
What is the statutory definition of nuisance?
Nuisance is used to refer either to the
harm caused or that which causes harm,
or both
Negligence is not an essential ingredient
of a nuisance but to be liable for a
nuisance, there must be resulting injury to
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another in the enjoyment of his legal
rights.
Anything which: (IASOH)
1. Injures or endangers the health or
safety of others
2. Annoys or offends the senses
3. Shocks, defies or disregards decency
or morality
4. Obstructs or interferes with the free
passage of any public highway or
street, or any body of water
5. Hinders or impairs the use of property.
Distinguish nuisance from trespass
Nuisance consists of a use of ones own
property in such a manner as to cause
injury to the property or other right or
interest of another, and generally results
from the commission of an act beyond the
limits of the property affected
Trespass is a direct infringement of
anothers right of property
Where there is no actual physical invasion
of the plaintiffs property, the cause of
action is for nuisance rather than trespass.
An encroachment upon the space about
anothers land but not upon the land itself
is a nuisance, and not a trespass.
In trespass, the injury is direct and
immediate; in nuisance, it is consequential.
Distinguish nuisance from negligence
Nuisance Negligence
Basis of Regardless of Want of care
breach of the degree of
duty care or skill
Violation An absolute A relative duty,
of duty, the the failure to use
doing of an the degree of
act which is care required
wrongful in under particular
itself circumstances in
connection with
an act or
omission which is
not of itself
wrongful
Where the damage is the necessary
consequence of what the defendant is
doing, or is incident to the business itself
or the manner in which it is conducted, the
law of negligence has no application, and
the law of nuisance applies.
In fine, nuisance is wrongful in itself
because of the injury caused regardless of
the presence or absence of care, while
negligence creates liability because of
want of proper care resulting to anothers
injury.
Case doctrines
Noise becomes actionable only when it
passes the limits of reasonable adjustment
to the conditions of the locality and of the
needs of the maker to the needs of the
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Ateneo Law 2012, updated: May 15, 2012
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listener. Injury to a particular person in a
peculiar position will not render the noise
an actionable nuisance in the condition
of present living, noise seems inseparable
from the conduct of many necessary
occupations.
The test to determine noise as nuisance is
whether rights of property, health or
comfort are so injuriously affected by the
noise that the sufferer is subjected to a
loss which goes beyond the reasonable
limit imposed upon him by the condition of
living.
The determining factor when noise alone
is the cause of complaint is not its intensity
or volume, but it is that the noise is of such
character as to produce actual physical
discomfort and annoyance to a person of
ordinary sensibilities, rendering adjacent
property less comfortable and valuable.
(AC Enterprises v Frabelle)
A negligent or intentional act may
constitute a nuisance. Where, after
complaint and notice of damage, the
defendant continues to offend and refuses
to correct or discontinue the nuisance, it is
intentional.
Art. 695. Nuisance is either public or
private. A public nuisance affects a
community or neighborhood or any
considerable number of persons, although
the extent of the annoyance, danger or
damage upon individuals may be unequal. A
private nuisance is one that is not included
in the foregoing definition.
What is a public nuisance?
A public nuisance has been defined as
o the doing of or the failure to do
something that injuriously affects
safety, health or morals of the
public, or
o works some substantial
annoyance, inconvenience, or
injury to the public.
What is a private nuisance?
A private nuisance has been defined as
one which violates only private rights and
produces damage to but one or a few
personas, and cannot be said to be public.
Public Private
Affects Public at large, The individual
or such of or a limited
them as may number of
come in individuals only
contact with it
Remedies Indictable Actionable,
either for their
abatement or
for damages, or
both
A nuisance may be both public and private
in character. Hence, there are mixed
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PROPERTY NOTES

nuisances. It may violate public rights to of hearing before a

the injury of many, while producing special tribunal whether
injury to private rights to any extent beyond such a thing
the injury to the public. constitutes a
nuisance
What is a nuisance per se?
Nuisance per se is an act, occupation, or Case doctrines
structure which unquestionably is a The operation of bus terminals is a
nuisance at all times and under any legitimate business which, by itself, cannot
circumstances, regardless of location or be said to be injurious to the rights of
surroundings. property, health, or comfort of the
It is that which affects the immediate safety community. Unless a thing is nuisance per
of persons and property. (Telmo v se, it may not be abated via an ordinance,
Bustamante) without judicial proceedings. (Lucena v
It is a nuisance of itself because of its JAC Liner)
inherent qualities, productive of injury or The abatement of a nuisance without
dangerous to life or property without judicial proceedings is possible only if it is
regard to circumstance. a nuisance per se. A gas station is not a
Example: A house of prostitution. nuisance per se or one affecting the
immediate safety of persons and property.
What is a nuisance per accidens? Hence, it cannot be closed down or
It is an act, occupation, or structure, not a transferred summarily to another location.
nuisance per se, but which may become a (Parayno v Jovellanos)
nuisance by reason of circumstances, Injury must not be merely perceived, but
location, or surroundings. must be factual. (Parayno)
Example: raising of pigs in a house within
city limits. What is the doctrine of attractive nuisance?
One who maintains on his premises
Nuisance per Nuisance per dangerous instrumentalities or appliances
se accidens of a character likely to attract children in
In The thing Depends upon its play, and who fails to exercise ordinary
terms becomes a location and care to prevent children from playing
of proof nuisance as a surroundings, the therewith or resorting thereto, is liable to a
matter of law manner of its child of tender years who is injured
Its existence conduct or other thereby, even if the child is technically a
need only be circumstances. trespasser in the premises.
proved in any Proof of the act The reason is that the condition or
locatlity, and its appliance in question although its danger
without consequences is is apparent, is so enticing to children of
showing necessary. tender years as to induce them to
specific It must be shown approach or use it.
damages, and by evidence to be The attractiveness is an implied invitation
the right to a nuisance under to such children
relief is the law. EXCEPTION: is not applicable to bodies of
established by water, artificial or natural in the absence of
averment and some unusual condition or artificial feature
proof of the other than the mere water and its location.
mere act. o A swimming pool is not a
In May be Even the nuisance.
terms summarily municipal o A tank of water from an ice plant
of abated under authorities, under is not a nuisance as well.
action the undefined their power to (Hidalgo case)
law of declare and abate o What if Jollibee is in the middle of
necessity nuisances, would the swimming pool?!
not have the right Exercise due diligence.
to compel the Tanggalin yung bubuyog
abatement of a na yan!
particular thing or
act as a nuisance Art. 696. Every successive owner or
without reasonable possessor of property who fails or refuses
notice to the to abate a nuisance in that property started
person alleged to by a former owner or possessor is liable
be maintaining or therefor in the same manner as the one who
doing the same at created it.
the time and place

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Generally, only the creator of a nuisance is
liable for the damge resulting therefrom.
However, since the injurious effect of a
nuisance is a continuing one, every
successive owner or possessor of property
constituting a nuisance who fails or refuses
to abate it, has the same liability as the
original owner.
But of course, the new owenr must have
actual knowledge of the nuisance.
Art. 697. The abatement of a nuisance does
not preclude the right of any person injured
to recover damages for its past existence.
Are the remedies exclusive?
No.
The action to abate nuisance and the
action to recover damages are distinct
remedies either or both of which the
plaintiff may pursue at his election.
The two remedies are concurrent and not
exclusive.
The owner of property abated as a
nuisance is not entitled to compensation
unless he can show that the abatement is
unjustified.
Art. 698. Lapse of time cannot legalize any
nuisance, whether public or private.
General rule: The right to bring an action to
abate a public or private nuisance is not
extinguished by prescription. Lapse of time
cannot be relied upon to legalize a
nuisance, whether public or private.
Exception: See Art 631 (2) which expressly
prescribes that easements are
extinguished by obstruction and non-use
for ten years. (check book,P558)
Art. 699. The remedies against a public
nuisance are:
(1) A prosecution under the Penal Code or
any local ordinance: or
(2) A civil action; or
(3) Abatement, without judicial proceedings.
What are the remedies against a public
nuisance?
1. Prosecution under the Penal Code or any
local ordinance
2. A civil action
3. Abatement, without judicial proceedings.
These are not exclusive but cumulative.
All of them may be availed of by public
officers, and the last two, by private
persons, if the nuisance is especially
injurious to the latter.
Abatement without judicial proceedings
The summary abatement of nuisance
without judicial proceedings is recognized
and established even in the absence of
statute on the ground that the requirement
Mickey Ingles
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of preliminary formal legal proceedings
and a judicial trial would result in defeating
the beneficial object sought to be obtained.
Police power of the state includes the right
to destroy or abate by a summary
proceeding whatever may be regarded as
a public nuisance, subject to constitutional
limitations.
Property taken or destroyed for the
purpose of abating a nuisance is not taken
for public use, and there is accordingly no
obligation to make compensation for such
taking.
Art. 700. The district health officer shall take
care that one or all of the remedies against
a public nuisance are availed of.
Art. 701. If a civil action is brought by
reason of the maintenance of a public
nuisance, such action shall be commenced
by the city or municipal mayor.
Art. 702. The district health officer shall
determine whether or not abatement,
without judicial proceedings, is the best
remedy against a public nuisance.
What is the role of the district health officer and
others with respect to public nuisance?
The district health officer is charged with
the duty to see to it that one or all of the
remedies against a public nuisance are
availed of.
Article 702 does not empower the district
health officer to abate a public nuisance to
the exclusion of all other authorities. His
power is simply to determine whether or
not abatement, without judicial
proceedings, is the best remedy against a
public nuisance.
The action must be commenced by the city
or municipal mayor. But a private person
may also file an action if the public
nuisance is especially injurious to him.
Art. 703. A private person may file an action
on account of a public nuisance, if it is
specially injurious to himself.
Does a private person have a right to file action
on account of a public nuisance?
Certainly!
A private person may also file a civil action
if the public nuisance is especially injurious
to himself. In other words, the nuisance
becomes as to him a private nuisance
affecting him in a special way different
from that sustained by the public in
general.
In the absence of a showing of special or
unusual damages, differing from those
suffered by the general public, a cause of
action does not arise in favor of a private
individual
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An action may be maintained by one who a. He commits no breach of the

is not the sole or even a peculiar sufferer, if peace nor causes
his grievance is not common to the whole unnecessary injury, and
public, but is a common misfortune of a b. The procedure for
number or even a class of persons. extrajudicial abatement of
public nuisance prescribed in
Art. 704. Any private person may abate a 704 is complied with
public nuisance which is specially injurious
to him by removing, or if necessary, by Art. 707. A private person or a public official
destroying the thing which constitutes the extrajudicially abating a nuisance shall be
same, without committing a breach of the liable for damages:
peace, or doing unnecessary injury. But it is (1) If he causes unnecessary injury; or
necessary: (2) If an alleged nuisance is later declared
(1) That demand be first made upon the by the courts to be not a real nuisance.
owner or possessor of the property to abate
the nuisance; Is there liability for damages in case of
(2) That such demand has been rejected; extrajudicial abatement?
(3) That the abatement be approved by the Yeeeeeeees!
district health officer and executed with the A private or public officer may be held
assistance of the local police; and liable for damages.
(4) That the value of the destruction does The two grounds of which are:
not exceed three thousand pesos. a. Unnecessary injury
b. The alleged nuisance is later
What are the conditions for extrajudicial declared by the courts to be
abatement of a public nuisance? not a real nuisance.
The party injured may remove, and if
necessary, destroy thing which constitutes BOOK III
the nuisance without committing a breach
of the peace, or doing unnecessary
DIFFERENT MODES OF
damage. ACQUIRING OWNERSHIP
What should be done?
1. Demand be first made upon the owner PRELIMINARY PROVISION
or possessor of the nuisance
2. Demand must have been rejected Art. 712. Ownership is acquired by
3. Abatement be approved by the district occupation and by intellectual creation.
health officer and executed with the Ownership and other real rights
assistance of the local police over property are acquired and transmitted
4. The value of the destruction does not by law, by donation, by estate and intestate
exceed P3000. succession, and in consequence of certain
contracts, by tradition.
Art. 705. The remedies against a private They may also be acquired by
nuisance are: means of prescription. (609a)
(1) A civil action; or
(2) Abatement, without judicial What is mode?
proceedings. Mode is the specific cause which produces
them as the result of the presence of a
Art. 706. Any person injured by a private special condition of things, of the capacity
nuisance may abate it by removing, or if and intention of persons, and of the
necessary, by destroying the thing which fulfillment of the requisites established by
constitutes the nuisance, without law.
committing a breach of the peace or doing
unnecessary injury. However, it is What is title?
indispensable that the procedure for Title is the juridical act, right or condition
extrajudicial abatement of a public nuisance which gives the means to their acquisition
by a private person be followed. but which in itself is insufficient to produce
them.
What are the remedies against a private
nuisance?
1. Civil action In a contract of sale, the contract is the title
2. Abatement, without judicial proceedings. and tradition, as a consequence of sale, is
the mode.
In abating a nuisance, a person may even Sometimes, the mode is at the same time
go to the extent of destroying the damn the title (as in with succession)
thing which constitutes the nusicance
provided: Mode Title
Directly and Serves merely to give
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immediately produces the occasion for its 6. Art 1434

a real right acquisition or 7. Art 1456
existence
The cause The means Tradition as a mode of acquistion
Proximate cause Remote cause Tradition is a derivative mode of acquiring
Essence of the right The means whereby ownership and other real rights by virtue of
which is to be created that essence is which, there being intention and capacity
or transmitted transmitted on the part of the grantor and grantee and
the pre-existence of said rights in the
Contracts only constitute titles or rights to estate of the grantor, they are transmitted
the transfer or acquisition of ownership, to the grantee through a just title. (whut?)
while tradition or delivery is the mode of Requisites:
accomplishing the same. i. Pre-existence in the estate of the
grantor of the right to be
What are the different modes and titles of transmitted
acquiring ownership and other real rights? ii. Just cause or title for the
(OLDTIPS) transmission
1. Original modes or those independent of iii. Intention on the part of the
any pre-existing right of another person, grantor to grant and on the part of
namely: the grantee to acquire
a. Occupation (condition of iv. Capacity to transmit and to
being without known owner); acquire
and v. An act which gives it outward
b. Work which includes form, physically, symbolically or
intellectual creation (creation, legally
discovery, or invention) Purpose: non nudis pactis, sed traditione
2. Derivative modes or those based on a pre- dominia rerum transferuntur. Ownership is
existing right held by another person, transferred, among other means, by
namely: tradition. The delivery of a thing constitutes
a. Law (existence of required a necessary and indispensable requisite
conditions) for the purpose of acquiring the ownership
b. Donation (contract of parties) of the same by virtue of a contract.
c. Succession, estate and Kinds:
intestate (death) a. Real tradition
d. Tradition, as a consequence b. Constructive tradition
of certain contracts (contract i. Symbolic
of the parties), and ii. Tradition by public
e. Prescription (possession in instrument
the concept of owner) iii. Traditio longa manu
iv. Tradition brevi
The derivative modes are modes both for manu
the acquisition and transmission of v. Tradition
ownership and other real rights. The constitutum
transmission may involve a right in its possessorium
entirety, or only a part thereof (pledge, c. Quasi tradition
mortgage, usufruct). d. Tradition by operation of law
Registration is not a mode of acquiring
ownership, and other real rights but only a What do you actually deliver?
means of confirming the fact of their legal Ownership, possession and control of the
existence with notice to the world at large. subject matter.

Law as a mode of acquisition? What if the vendor points to the vendee a

When the Civil Code speaks of law as a
mode of acquisition, it refers to it as a
distinct mode or to those cases where the
law, independent of the other modes,
directly vest ownership of a thing in a
person once the prescribed conditions or
requisites are present or complied with.
Examples:
1. Hidden treasure
2. Art 445
3. River beds (Art 461)
4. Art 466
5. Art 681
certain house which he already sold to the
vendee, but there are security guards roaming
around the lot?
No tradition. (Ask Jaymie Reyes.)
Case doctrines
A stranger to the succession of a dead
person cannot conclusively claim
ownership over the subject lot on the sole
basis of the waiver document which
neither recites the elements of either a
sale, or a donation, or any other derivative
mode of acquiring ownership. (Acap v CA)

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PROPERTY NOTES
An affidavit not accompanied by any Requires an intent to
instrument showing the sale between a
purported vendor and vendee is not a
basis of ownership. (Heirs of dela Cruz v
Heirs of Quintos)
For lands of public domain, in order to Short duration
acquire it by prescription, there must be a
declaration of the State that its alienable By itself, cannot lead
and disposable and a positive act that
states that it is no longer needed for public
use. Only at that point will the counting for
prescription start. (Heirs of Malabanan)
TITLE ONE - OCCUPATION
Art. 713. Things appropriable by nature
which are without an owner, such as
animals that are the object of hunting and
fishing, hidden treasure and abandoned
movables, are acquired by occupation. (610)
What is the concept of occupation?
1. Defined as the appropriation of things
appropriable by nature which are without
an owner.
2. The seizure of things corporeal which have
no owner with the intention of acquiring the
ownership thereof.
What are the requisites of occupation?
1. Seizure of a thing
2. Must be corporeal personal property
3. Must be susceptible of appropriation by
nature
4. Must be without an owner
5. Must be an intention to appropriate
6. Requisites or conditions laid down by law
must be complied with
What constitutes seizure?
It is sufficient that there is an act of taking
possession, material holding not being
essential as long as the possessor
considers the thing as subjected to his
control or disposition
The thing must be corporeal personal
property without known owner (res nullius)
or abandoned by the owner. res
communes are not appropriable by nature.
The must be an intent to acquire
ownership, otherwise, the seizure would
not be appropriation in the legal sense, but
mere material holding.
Occupation Possession
Mode of acquiring Merely raises the
ownership presumption of
ownership when it is
exercised in the
concept of owner
Corporeal personal Any property
property
Requires that the May refer to property
object be without an owned by somebody
owner
Mickey Ingles
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Concept of mere
acquire ownership holder
May not take place May exist without
without some form of occupation
possession
Generally of longer
duration
May lead to another
to another mode of mode, which is
acquisition prescription
What are the ways by which occupation may
be effected?
1. By hunting and fishing
2. By finding of movables which never had
any owner
3. By finding of movables which have been
abandoned by the owner, and
4. By finding of hidden treasure
What about wild animals?
They are possessed only while they are
under ones control.
When is a thing abandoned, lost or taken by
force?
A thing is considered abandoned when the
spes recuperandi (expectation to recover)
is gone and the animo revertendi (intention
to have it returned) is finally given up by
the owner.
A thing has been lost or taken by force is
not ipso facto converted into a res nullius
so as to belong to the first person who
takes possession of the same without the
necessity of proving the mode of his
acquisition and it may thus be recovered
by the original owner.
Art. 714. The ownership of a piece of land
cannot be acquired by occupation. (n)
Land is not included among things that can
be the object of occupation the reason is
that when the land is without an owner, it
pertains to the state.
But, what about abandoned private land?
Art. 715. The right to hunt and to fish is
regulated by special laws. (611)
Do I have a right to hunt and fish?
No.
Strictly speaking, no one has a right to
hunt or fish.
The privilege to hunt or fish, however, may
be granted and regulated by law.
Art. 716. The owner of a swarm of bees shall
have a right to pursue them to another's
land, indemnifying the possessor of the
latter for the damage. If the owner has not
pursued the swarm, or ceases to do so
within two consecutive days, the possessor
of the land may occupy or retain the same.
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The owner of domesticated animals
may also claim them within twenty days to
be counted from their occupation by
another person. This period having expired,
they shall pertain to him who has caught
and kept them. (612a)
This article talks of domesticated, not
domestic animals.
With respect to domestic animals, he can
claim them even beyond twenty days from
their occupation unless there
abandonment on his part.
This article does not apply to a case where
a person has found a domestic animal and
kept it for a number of years not knowing
its owner.
A domesticated animal which has not
strayed or been abandoned cannot be
acquired by occupation by a person to
whose custody it was entrusted
The periods of two days and twenty days
are not periods of limitation, but conditions
precedent to recovery.
Art. 717. Pigeons and fish which from their
respective breeding places pass to another
pertaining to a different owner shall belong
to the latter, provided they have not been
enticed by some article of fraud. (613a)
This article does not refer to wild pigeons
and fish in a state of liberty or that live
naturally independent of man. Their
occupation is regulated by Art 715.
What is contemplated here are pigeons
and fish considered as domesticated
animals subject to the control of man in
private breeding places.
The pigeons and fish must change their
breeding place to another belonging to a
different owner.
Unless enticed by some artifice or fraud,
the shall belong to the owner of the
breeding place to which they shall have
transferred.
Art. 718. He who by chance discovers
hidden treasure in another's property shall
have the right granted him in article 438 of
this Code. (614)
Art. 719. Whoever finds a movable, which is
not treasure, must return it to its previous
possessor. If the latter is unknown, the
finder shall immediately deposit it with the
mayor of the city or municipality where the
finding has taken place.
The finding shall be publicly
announced by the mayor for two
consecutive weeks in the way he deems
best.
If the movable cannot be kept
without deterioration, or without expenses
which considerably diminish its value, it
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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+
shall be sold at public auction eight days
after the publication.
Six months from the publication
having elapsed without the owner having
appeared, the thing found, or its value, shall
be awarded to the finder. The finder and the
owner shall be obliged, as the case may be,
to reimburse the expenses. (615a)
Art. 720. If the owner should appear in time,
he shall be obliged to pay, as a reward to
is the finder, one-tenth of the sum or of the
price of the thing found. (616a)
See codal for rules. Fairly simple.
This article is based on the fact that one
who lost his property does not necessarily
abandon it. If there is no abandonment,
the lost thing has not become res nullius.
Paragraph 4 contemplates implied
abandonment.
Title II. - INTELLECTUAL CREATION
Art. 721. By intellectual creation, the
following persons acquire ownership:
(1) The author with regard to his
literary, dramatic, historical, legal,
philosophical, scientific or other work;
(2) The composer; as to his musical
composition;
(3) The painter, sculptor, or other
artist, with respect to the product of his art;
(4) The scientist or technologist or
any other person with regard to his
discovery or invention. (n)
Art. 722. The author and the composer,
mentioned in Nos. 1 and 2 of the preceding
article, shall have the ownership of their
creations even before the publication of the
same. Once their works are published, their
rights are governed by the Copyright laws.
The painter, sculptor or other artist
shall have dominion over the product of his
art even before it is copyrighted.
The scientist or technologist has
the ownership of his discovery or invention
even before it is patented. (n)
Art. 723. Letters and other private
communications in writing are owned by
the person to whom they are addressed and
delivered, but they cannot be published or
disseminated without the consent of the
writer or his heirs. However, the court may
authorize their publication or dissemination
if the public good or the interest of justice
so requires. (n)
Art. 724. Special laws govern copyright and
patent. (429a)
Title III. - DONATION
CHAPTER ONE
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NATURE OF DONATIONS
Art. 725. Donation is an act of liberality
whereby a person disposes gratuitously of
a thing or right in favor of another, who
accepts it. (618a)
Case doctrines
Concept of donation
In its generic sense, the term donation
includes all forms of gratuitous
dispositions.
The donation the article speaks of and
which is governed by Title Three is the
donation proper or the true (or real)
donation, or ordinary donation.
What is the nature and effect of donation?
Although Art 725 defines donation as an
act, it is really a contract, with all the
essential requisites of a contract.
It falls under contracts of pure
beneficence, the consideration being the
mere liberality of the benefactor.
The Civil Code considers donation not
among the contracts that transfer
ownership but as a particular mode of
acquiring and transmitting ownership.
As a mode of acquiring ownership,
donation results in an effective transfer of
title over the property from the moment the
donor is made aware of the acceptance by
the donee, provided that the donee is not
disqualified or prohibited by law from
accepting the donation.
Once accepted, it is generally considered
irrevocable, and the donee becomes
owner of property, except:
1. on account of officiousness,
2. failure of the donee to comply with the
charge imposed on the donation,
3. or ingratitude.
The effect of donation is to reduce the
patrimony or asset of the donor and to
increase that of the donee. Hence, the
giving of a mortgage or any other security
does not constitute a donation.
Requisites of donation
1. Donor must have capacity to make the
donation of a thing or right
2. Donative intent (animus donandi) or intent
to make the donation out of liberality to
benefit the donee
3. There must be delivery, whether actual or
constructive
4. Donee must accept or consent to the
donation.
In certain donations, the form prescribed
by law must be followed (See Art 748-749)
The subject matter of a donation may be a
thing or right. A person may be a donee
although he is incapacitated to enter into a
contract if he is not specially disqualified
by law to accept donations.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Not enough that the act is gratuitous, there
must be an intent to benefit the donee.
The acceptance or consent of the donee is
required because no once can be obliged
to receive a benefit against his will.
The essential elements of donation are as
follows:
o Essential reduction of the
patrimony of the donor
o Increase in the patrimony of the
donee
o The intent to do an act of liberality
or animus donandi (Heirs of
Florencio v Heirs of de Leon)
In order that the donation of an immovable
property may be valid, the deed of
donation must be made in a public
document. The acceptance must be in a
public document as well. (Heirs of
Florencio)
Registration of the deed in the Office of the
RD or in the Assessors Office is not
necessary for it to be considered valid and
official. Registration does not vest title. The
necessity of registration comes into play
only when the rights of third persons are
affected. Furthermore, the heirs are bound
by the deed of contracts executed by their
predecessors-in-interest. (Heirs of
Florencio)
A quitclaim is not a donation where those
who executed the same merely
acknowledged the ownership of and better
right over the lot by other persons. (Heirs
of Reyes v Calumpang)
Acceptance is necessary in a donation.
This applies to all kinds of donations
because the law does not make any
distinction. A donation mortis causa takes
effect only after the death of the donor,
consequently it is only after the latters
death that its acceptance maybe made.
(Vita v Montanano)
Prudent thing to do when drafting deeds of
donation: Place an acceptance clause. So,
if court considers it inter vivos, then it
would have been accepted. If court
considers it mortis causa, then the clause
would be a mere superfluity, still open to
the acceptance of the donee upon the
death of the donor. (Atty Abrenica)
The purpose of the formal requirement for
acceptance of a donation is to ensure that
such acceptance is duly communicated to
the donor. The actual knowledge by the
donor of the construction and existence of
the school building pursuant to the
condition of the donation fulfills the legal
requirement that the acceptance of the
donation by the donee be communicated
to the donor. (Republic v Silim)
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Art. 726. When a person gives to another a
thing or right on account of the latter's
merits or of the services rendered by him to
the donor, provided they do not constitute a
demandable debt, or when the gift imposes
upon the donee a burden which is less than
the value of the thing given, there is also a
donation. (619)
What are the kinds of donation?
1. As to taking effect:
a. Inter vivos or that which
takes effect during the
lifetime of the donor
b. Moris causa or that which
takes effect upon the death
of the donor
c. Propter nuptias or that by
reason of marriage
2. As to consideration
a. Pure or simple; or that the
cause of which is the pure
liberality of the donor in
consideration of the donees
merits
b. Remuneratory or
compensatory; or that which
is given out of gratitude on
account of the services
rendered by the donee to the
donor, provided they do not
constitute a demandable
debt
c. Modal or that which imposes
upon the donee a burden
(services to be performed in
the future) less than the
value of the gift
d. Onerous or that the value of
which is considered the
equivalent of the
consideration for which it is
given, or that made for a
valuable consideration, and
is thus governed by the rules
on oblicon
3. As to effectivity or extinguishment
a. Pure
b. Conditional
c. With a term
Tell me more about remuneratory donations
In this kind of donation, the motivating
cause is gratitude, acknowledgment of a
favor, a desire to repay for past services
A donation given for future services cannot
be remuneratory
It is necessary that the past services do
not constitute a demandable debt
o A debt is demandable when it can be
legally demanded or enforced by the
donee against the donor who has thus
an obligation to pay it. But a debt that
has been renounced is not a
demandable debt.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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What about gratuities and pensions?
While technically a gratuity is different from
a donation, in substance, they are the
same.
A gratuity is similar to a pension and is
essentially remunerative donation.
Tell me more about modal donations
In a modal donation, a burden (which is
necessarily future) less than the value of
the gift is imposed upon the donee.
If the burden is considered the equivalent
of the thing or right given, then its an
onerous donation.
The burden may consist in a real or
personal charge which is capable of being
valued in terms of money.
What are donations with mixed features?
Strictly speaking, remuneratory donations
are those which are given on account of
services rendered by the donee to the
donor.
Modal donations are conditional only in the
sense that a burden, charge, condition or
limitation is imposed y the donor but the
burden is not technically a condition in the
sense of an uncertain event upon which
the effectitivy or extinguishment of
donation is made to depend for it is really
a mere obligation imposed by the donor
upon the donee as a consideration
Actually, a modal donation has dual
nature, it is partly onerous and partly
simple the portion equivalent to the
burden is onerous and is governed by the
rules on obligations and contracts, while
the portion exceeding the value of the
burdens imposed, is simple and must
follow the form of donations.
Harry donates to Ron a parcel of land worth
300 galleons2 but Ron has to give another
parcel of land or perform some service worth
100 galleons, the transaction is onerous as the
100 galleons which must be in the form of a
contract of barter or exchange, and simple as
to the 200 galleons which must follow the form
of donations.
Case doctrines
An onerous donation is that which imposes
upon the donee a reciprocal obligation, or
to be precise, this is the kind of donation
made for a valuable consideration, the
cost of which is equal to or more than the
thing donated. (CJ Yulo v Roman Catholic
Bishop of San Pablo)
2
As of July 2006, the galleon-dollar exchange rate
was 1:16.72. It hasnt gone below 1:15 ever since.
Wala lang, boring ng property eh. Harry Potter na
lang.
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Since onerous donations are governed by the donee, unless the donor provides
the rules of contracts, the prescription otherwise. (n)
period is 10 years (based on a written
contract), and not the 4-year period based Inter vivos Mortis causa
on Article 764 (revocation must be brought Takes effect during Takes effect upon the
within 4 years from the non-compliance of the lifetime of the death of the donor
the conditions of the donation). (De Luna v donor, independently testator, so that
Abrigo) of his death, even if nothing is conveyed to
Remuneratory donation is one where the the actual execution or acquired by the
donee gives something to reward past or may be deferred until donee until said death
future services or because of future said death
charges or burdens, when the value of Made out of the Made in
said services, burdens or charges is less donors pure contemplation of his
than the value of the donation. (De Luna -> generosity death without the
this definition seems wrong as it includes intention to lose the
future charges, which are necessarily thing or its free
modal) disposal in case of
survival
Valid if the donor Void should the donor
Art. 727. Illegal or impossible conditions in survives the donee survive the donee
simple and remuneratory donations shall be Must follow formalities Must follow formalities
considered as not imposed. (n) of donations for the validity of a
will, otherwise void
Whats the effect of illegal or impossible Accepted by the Accepted only after
conditions? donee during his the donors death
Under Article 727, the illegal or impossible lifetime
condition in a simple or remuneratory Cannot be revoked Always revocable at
donation would be deemed not imposed except for grounds any time and for any
following the rule on testamentary provided by law (See reason before the
dispositions. The donation will be 760, 765) donors death
considered as simiple. (revocable ad nutum
If the donation is onerous (or modal, as to at the discretion of the
its onerous portion), the illegal or grantor)
impossible condition shall render it void. Right to dispose of Right is retained by
Being contractual in nature, the rule the property is the donor while he is
applicable would be that found in Article completely conveyed still alive
1183 (check codal, if divisible, only to the donee
condition will be void) Subject to donors tax Subject to estate tax

Case doctrine
The prohibition in the deed of
donation against the alienation of the
property for 100 years should be
declared as an illegal or impossible
condition within the contemplation of
Article 727. Consequently, such
condition shall be considered as not
imposed. No reliance may accordingly
be placed on said prohibitory
paragraph in the deed of donation.
(Archbishop of Manila v CA)
Art. 728. Donations which are to take effect
upon the death of the donor partake of the
nature of testamentary provisions, and shall
be governed by the rules established in the
Title on Succession. (620)
Art. 729. When the donor intends that the
donation shall take effect during the lifetime
of the donor, though the property shall not
be delivered till after the donor's death, this
shall be a donation inter vivos. The fruits of
the property from the time of the
acceptance of the donation, shall pertain to
Designation given to donations not conclusive
Did the donor intend to transfer ownership
of the property donated upon the
execution of the donation? If yes, then it is
inter vivos. If not, then, it is merely mortis
causa.
To take effect at the death of the creditor
does not automatically make it mortis
causa. Such statements must be
construed with the rest of the instrument.
Donations to be delivered after the donors
death
A distinction must be made between the
actual donation and the execution thereof
That the donation is to have effect during
the lifetime of the donor does not mean
that the delivery of the property must be
made during his life.
Article 729 speaks of donations in
praesenti which take effect during the
lifetime of the donor but the property shall
be delivered after the donors death.
Such are inter vivos although the subject
matter is not delivered at once, or the

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PROPERTY NOTES
delivery is to be made post mortem, which
is a simple matter of form and does not
change the nature of the act.
The fruits shall belong to the donee from
the time of acceptance unless otherwise
provided by the donor.
Instances
Why is it important to make a distinction
between inter vivos and mortis causa?
The distinction between a transfer inter
vivos and mortis causa is important as the
validity or revocation of the donation
depends upon its nature.
If the donation is inter vivos, it must be
executed and accepted with the formalities
prescribed by Articles 748 and 749, except
when it is onerous in which case the rules
on contracts apply.
If it is mortis causa, the donation must be
in the form of a will, with all the formalities
for the validity of wills, otherwise it is void
and cannot transfer ownership. Moreover,
mortis causa can be revoked any time
before the death of the donor. (Ganuelas v
Cawed)
What clauses are found in a deed of donation?
1. Habendum or warranty clause
(wherein grantor transfers
ownership)
2. Redendum or reservation clause
(wherein grantor reserves
something new to himself)
3. Acceptance clause
Case doctrines
It is a settled rule that the title given to a
deed of donation is not the determinative
factor which makes the donation inter
vivos or mortis causa.
In case of doubt, the conveyance should
be deemed donation inter vivos rather than
mortis causa, in order to avoid uncertainty
as to the ownership of the property subject
of the deed. (Puig v Penaflorida but see
book which cites the same case but says
the opposite)
Donations inter vivos are immediately
operative, even if the actual execution may
be deferred until the death of the donor.
Mortis causa, nothing is conveyed to the
grantee and nothing is acquired by the
latter, until the death of the grantor-
testator, the disposition being until then
ambulatory and not final. (Puig)
Acceptance clause is a mark that the
donation is inter vivos. Acceptance is a
requirement for donations inter vivos.
Donations moris causa are not required to
be accepted by the donees during the
donors lifetime. (Gestopa v CA)
A limitation on the right to sell during the
donors lifetime implied that ownership had
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
passed to the donees and donation was
already effective during the donors
lifetime. (Gestopa)
o Reiterated in Alejandro v
Geraldez: Condtion that donees
cannot sell during donors lifetime
to a third person the donated
property implies immediate
passage of ownership and,
therefore donation is inter vivos.
The reservation of lifetime usufruct
indicates that the donor intended to
transfer the naked ownership over the
properties, thus making it inter vivos.
(Gestopa)
Factors in determining whether a donation
is one of mortis causa:
1. It conveys no title or ownership to the
transferee before the death of the
transferor; or what amounts to the
same thing, that the transferor should
retain the ownership (full or naked)
and control of the property while alive;
2. The before his death, the transfer
should be revocable by the transferor
at will, ad nutum; but revocability may
be provided for indirectly by means of
a reserved power in the donor to
dispose of the properties conveyed;
and
3. That the transfer should be void if the
transferor should survive the
transferee (Maglasang v Heirs of
Corazon Cabatingan)
One of the decisive characteristics of a
donation mortis causa is that the transfer
should be considered void if the donor
should survive the donee (Maglasang)
Donations mortis causa must be executed
in accordance with the requisites on
solemnities of wills and testaments under
Articles 805 and 806 of the Civil Code
Art. 730. The fixing of an event or the
imposition of a suspensive condition, which
may take place beyond the natural
expectation of life of the donor, does not
destroy the nature of the act as a donation
inter vivos, unless a contrary intention
appears. (n)
Donation inter vivos subject to suspensive
condition
This article contemplates a situtation
where the donor intends the donation to
take effect during his lifetime but he
imposes suspensive condition which may
or may not take place beyond his lifetime.
The fact that the event happens or the
condition is fulfilled after the donors death
does not change the nature of the act as a
donation inter vivos.
The effect of the fulfillment of the
suspensvie condition is retroactive to the
making of the donation.
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EXCEPTION: when the donor really
intended that the donation should take
effect after his death. Thus, mortis causa.
Art. 731. When a person donates
something, subject to the resolutory
condition of the donor's survival, there is a
donation inter vivos. (n)
Donation inter vivos subject to a resolutory
condition
In these cases, the ownership of the
donated property is immediately
transferred to the donee upon perfection of
the donation once acceptance by the
donee is made known to the donor.
A donation subject to a resolutory
condition takes effect immediately but shall
become inefficacious upon the happening
of the event which constitutes the
condition.
Even if the donation is subject to the
resolutory condition of the donors survival,
the donation is still inter vivos.
o I will donate this land to you, but if
I survive World War III, I will get it
back. If I survive World War III,
the donation is rescinded. If I
dont make it, then it continues in
effect.
Art. 732. Donations which are to take effect
inter vivos shall be governed by the general
provisions on contracts and obligations in
all that is not determined in this Title. (621)
Art. 733. Donations with an onerous cause
shall be governed by the rules on contracts
and remuneratory donations by the
provisions of the present Title as regards
that portion which exceeds the value of the
burden imposed. (622)
Rules governing onerous donations or onerous
portions of donations
This article makes the rules of contracts
directly applicable to onerous donations
and to remuneratory donations as to the
onerous portion thereof
Onerous donations are donations for a
valuable consideration. They include those
purely onerous or those in which the
consideration is considered the equivalent
of the property donated and the modal but
only as regards that portion thereof
considered the equivalent of the value of
the burden imposed.
Remuneratory donations are true or simple
donations because the consideration is
really the liberality of the donor since the
services rendered by the donee do not
constitute a recoverable debt. However,
the special rules on revocation should not
apply to the portion of the donation
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
equivalent to the equitable value of the
services received by the donor.
The remuneratory donations referred to in
Article 733 are the modal donations or
those which impose upon the donee a
burden which is less than the value of the
thing given as regards that portion which
exceeds the value of the burden, it shall be
governed by the provisions on donations.
There is no burden imposed on
remuneratory donations. If a burden is
imposed, it becomes onerous as regards
the value of the burden.
Case doctrines
As onerous donations are governed by the
rules on contracts, for there to warrant a
revocation of the donation, there must be a
substantial breach of the conditions in the
deed. Mere casual breaches will not
warrant revocations. (CJ Yulo v RC
Bishop)
Considering that the donees acts did not
detract from the very purpose for which the
donation was made but precisely to
achieve such purpose (of the donation), a
lack of prior written consent of the donor
(which was a condition of the donation)
would only constitute casual breach of the
deed. (CJ Yulo)
Art. 734. The donation is perfected from the
moment the donor knows of the acceptance
by the donee. (623)
Perfection of donation
There is no donation without acceptance
by the donee.
Acceptance is indispensable because
nobody is obliged to receive a benefit
against his will.
Its absence makes the donation null and
void.
The acceptance must be made during the
lifetime of the donor and the donee.
Perfection takes place, not from the time of
acceptance by the donee, but from the
time it is made known, actual or
constructively, to the donor.
If the donation and acceptance are in the
same public instrument, signed by both
and in the presence of witnesses, the
donation is deemed already perfected
inasmuch as knowledge of the acceptance
is established by the instrument itself.
If acceptance was made in a separate
instrument, there must be proof that a
formal notice of such acceptance was
received by the donor, and in case the
donation involves immovable property,
noted in both the deed of donation and the
separate instrument embodying the
acceptance. (See Art 749)
What if there is revocation?
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If the donor revokes the donation before
learning of the acceptance by the donee,
there is no donation.
But once it is perfected, it cannot be
revoked without the consent of the donee
except:
1. Inofficiousness (Art 760)
2. Failure of the donee to comply with
the charges imposed in the donation
(Art 764)
3. Ingratitude (Art 765)
Is registration necessary?
As between the parties to the donation and
their assigns, it is not needed for its validity
and efficacy. (But it must be in a public
document for immovables!)
But for third parties to be bound, there
must be registration.
Case doctrines
The purpose of the formal requirement for
acceptance of a donation is to ensure that
such acceptance is duly communicated to
the donor. The actual knowledge by the
donor of the construction and existence of
the school building pursuant to the
condition of the donation fulfills the legal
requirement that the acceptance of the
donation by the donee be communicated
to the donor. (Republic v Silim)
CHAPTER 2
PERSONS WHO MAY GIVE OR RECEIVE A
DONATION
Art. 735. All persons who may contract and
dispose of their property may make a
donation. (624)
Capacity of donor to contract and dispose of
property
The donor must have both the capacity to
contract and the capacity to dispose of his
property in order that he may make a
donation.
Those who cannot give consent to a
contract cannot be donors; and donation
made by one who does not have the free
disposal of the thing donated and to
alienate it shall not be valid.
It is possible, however, for a person to
have capacity to contract but not the
capacity to dispose of property.
o Under the Family Code, every
donation between spouses during
the marriage shall be void except
moderate gifts on the occasion of
any family rejoicing.
prohibition applies also
persons living together as
husband and wife without a valid
marriage, or in illicit relations.
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Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
+
o Neither spouse may donate any
community property nor conjugal
partnership property without the
consent of the other, except
moderate donations for charity or
on occasion of family rejoicing or
family distress.
Can corporations make donations?
Yes. But they cant give donations to aid
any political party or candidate or for
purposes of partisan political activity.
Who are incapacitated to donate?
1. Minors
2. Insane or demented persons
3. Deaf-mutes who do not know how to write
4. Corporations (with regard to giving
donations to aid any political party)
5. Guardians and trustees (with regard to
property entrusted to them)
6. Spouses (to each other, except moderate
gifts)
7. A spouse (to others without the consent of
the other spouse, except moderate
donations)
Art. 736. Guardians and trustees cannot
donate the property entrusted to them. (n)
Donation by a guardian or trustee of wards
property
Generally, guardians and trustees cannot
be donors of their wards properties for the
simple reason that they are not the owners
of the same.
Exception: With respect to the trustee,
donation is permitted notwithstanding that
the trustee receives nothing in exchange
directly, if the donation is onerous and is
beneficial to the beneficiary.
Art. 737. The donor's capacity shall be
determined as of the time of the making of
the donation. (n)
Capacity of donor at time of making the
donation
The donation is perfected from the
moment the donor knows of the
acceptance by the donee.
However, this article seems to imply that
the donors capacity must exist at the time
of making the donation and not from the
time of knowledge by the donor of the
acceptance, that is, at the perfection of the
act
A juridical absurdity arises in case the
The donor has no capacity to act at the time
to the acceptance is conveyed to him. Since
legally, the donor cannot be said to have
knowledge of the acceptance, there can
be no perfection of the donation which
presupposes a meeting of the minds
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between the donor and the donee who are
both capacitated.
To avoid the apparent contradiction, the
phrase making of the donation should be
construed to mean perfection of the
donation
Hence, the donation would be valid,
although the donor was insane at the time
he signs the deed of donation or informs
the donee of the donation but sane when
he learns of the acceptance. The donor
may ask for annulment of the donation if
he so desires
The subsequent incapacity of the donor
does not affect the validity of the donation.
This is similar to the rule in succession.
Art. 738. Al those who are not specially
disqualified by law therefor may accept
donations. (625)
Capacity of the donee
Generally, all persons, whether natural or
artificial, may be donees.
A donee need not be sui juris, with
complete legal capacity to bind himself by
contract.
As long as he is not specially disqualified
by law, he may accept donations.
So, donations may be made to:
1. Incapacitated persons such as minors
and others who cannot enter into a
contract,
2. and also to conceived and unborn
children.
Art. 739. The following donations shall be
void:
(1) Those made between persons
who were guilty of adultery or concubinage
at the time of the donation;
(2) Those made between persons
found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer
or his wife, descendants and ascendants,
by reason of his office.
In the case referred to in No. 1, the
action for declaration of nullity may be
brought by the spouse of the donor or
donee; and the guilt of the donor and donee
may be proved by preponderance of
evidence in the same action. (n)
Donations void on moral grounds
This article declares null and void ab initio
the donations referred to.
What are the different void donations?
1. Between persons who were guilty of
adultery and concubinage at the time
of the donation
2. Between persons found guilty of the
same criminal offense, in
consideration thereof
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
3. Made to a public officer or his wife,
descendants and ascendants, by
reason of his office
4. Between spouses during the
marriage, except moderate gifts which
they may give each other on the
occasion of any family rejoicing (Art
87, Family Code)
5. Donations of community property by a
spouse without the consent of the
other, except moderate donations (Art
98, Family Code)
6. Donations of conjugal partnership
property by a spouse without the
consent of the other, except moderate
donations (Art 125, Family Code)
7. Donations to those provided for in
Article 740, in cross reference to Art
1027 and 1032.
8. Donations accepted by agents without
special authority to do so (Art 745)
9. Donations of immovables which dont
conform to the form prescribed in Art
749
Donations between persons guilty of adultery
and concubinage
The civil action for declaration of nullity
may be brought after the persons involved
have been found guilty by final judgment in
a criminal proceeding of adultery or
concubinage.
In view of the last paragraph, conviction for
adultery or concubinage in a criminal
action is not essential.
The guilt of the donor and the donee may
be proved by a mere preponderance of
evidence in a civil proceeding to nullify the
donation, alleging the adultery or
concubinage as the cause of action for the
declaration of nullity.
The donation is void, whether made before
or after the illicit relations, if given in
consideration thereof, either as
inducement or compensation.
What if the donation is given in
contemplation of the termination of the
relationship, is the donation still void?
o Since the purpose is praiseworthy,
good for all concerned, it should be
considered valid.
o This is particularly true when the
woman (donee) was a victim of deceit
by the man.
o However, where the illicit relation was
voluntary, and the donation was
demanded by the woman as a price of
the termination of their relationship,
the donation is void.
What if the concubine did not know that
the man she lived with was actually
married?
o Then she is not guilty of concubinage
and not disqualified from the donation.
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Donations between persons found guilty of the
same criminal offense
This rules presupposes prior criminal
conviction in a criminal action; hence proof
of guilty by mere preponderance of
evidence is not sufficient.
The donation here is remuneratory or
onerous. It is void whether made before or
after the commission of the crime if it is in
consideration thereof.
It is still void although the crime is not
carried out because it is based on an
unlawful cause.
Donations made to a pubic officer, by reason of
his office
Indirect bribery!
The guilt need not be established by proof
beyond reasonable doubt in a criminal
proceeding for bribery.
A civil action to declare the donation void
may be maintained by the proper party in
interest.
Donations made to persons other than
those mentioned are valid, unless, of
course, they are intended for the public
officer.
Art. 740. Incapacity to succeed by will shall
be applicable to donations inter vivos. (n)
Incapacity to succeed by will
This article expressly makes the provisions
on incapacity to succeed by will applicable
to donations inter vivos
Of course, they are also applicable to
donations mortis causa which are
governed by the law on succession
According to Art 1027, the following are
incapable of becoming donees:
1. The priest who heard the confession
of the donor during his last illness, or
the minister of the gospel who
extended spiritual aid to him during
the same period
2. The relatives of such priest or minister
of the gospel within the fourth degree,
the church, order, chapter, community,
organization, or institution to which
such priest or minister may belong
3. A guardian with respect to donations
given by a ward in his favor before the
final accounts of the guardianship
have been approved, even if the
donor should die after the approval
thereof; nevertheless, any provision
made by the ward in favor of the
guardian when the latter is his
ascendant, descendant, brother,
sister, or spouse, shall be valid
4. Any physician, surgeon, nurse, health
officer or druggist who took care of the
donor during his last illness
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
5. Individuals, associations, and
corporations not permitted by law to
inherit.
According to Art 1032, there are certain
people who are deemed incapable to
inherit by reason of unworthiness. The
donation made to a person who falls under
any of its provisions is valid if the donor
had knowledge of the act of unworthiness
or having known it subsequently, he should
condone the same in writing. Even in the
absence of pardon, the donation is not
subject to revocation because donations
may be revoked only for causes
mentioned in Articles 760, 764 and 765.
So, who are these people?
1. Parents who have abandoned their
children or induced their daughters to
lead a corrupt or immoral life, or
attempted against their virtue;
2. Any person who has been convicted
of an attempt against the life of the
testator, his or her spouse,
descendants, or ascendants;
3. Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for six years
or more, if the accusation has been
found groundless;
4. Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month,
unless the authorities have already
taken action; this prohibition shall not
apply to cases wherein, according to
law, there is no obligation to make an
accusation;
5. Any person convicted of adultery or
concubinage with the spouse of the
testator;
6. Any person who by fraud, violence,
intimidation, or undue influence
should cause the testator to make a
will or to change one already made;
7. Any person who by the same means
prevents another from making a will,
or from revoking one already made, or
who supplants, conceals, or alters the
latter's will;
8. Any person who falsifies or forges a
supposed will of the decedent.
Who are incapable of becoming donees?
1. Persons guilty of concubinage or adultery
at the time of donation (but only between
them)
2. Persons found guilty of the same criminal
offense, in consideration thereof (but only
between them)
3. Public officers, etc by reason of their office
4. Those mentioned in Art 1027
5. Those mentioned in Art 1032 (unworthy
people)
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Art. 741. Minors and others who cannot
enter into a contract may become donees
but acceptance shall be done through their
parents or legal representatives. (626a)
Ok, tell me more about donations to minors
and others without capacity to contact
Donation requires acceptance by the
donee.
If the donee is a minor or without capacity
to enter into a contract, the acceptance
must be made by the parents or legal
representative of the donee.
This is especially true if the donation is
onerous or imposes a charge or burden.
It is clear that the donee may not validly
accept a donation although it imposes no
burden.
In any case, when a formal or written
acceptance is required by the donor, such
acceptance must be made by the parents
or legal representative.
Art. 742. Donations made to conceived and
unborn children may be accepted by those
persons who would legally represent them
if they were already born. (627)
Can you donate to conceived and unborn
children?
Yes!
De Leon once again states the obvious by
saying, A conceived and unborn child
cannot accept a donation because it is not
yet a natural person.
The acceptance must be made by those
persons who would legally represent them
if they were already born.
Art. 743. Donations made to incapacitated
persons shall be void, though simulated
under the guise of another contract or
through a person who is interposed. (628)
Who are the incapacitated persons referred to
here?
They are those specially disqualified by
law to become donees, such as those in
Articles 739 and 740.
Donations to such persons are void even if
simulated under the guise of another
contract or through an intermediary.
Art. 744. Donations of the same thing to two
or more different donees shall be governed
by the provisions concerning the sale of the
same thing to two or more different
persons. (n)
Donations of the same thing to different donees
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
This article expressly makes applicable by
analogy the rules on sales3 of the same
thing to two ore more different vendees.
However, this article has had its sure of
criticism. See book.
Art. 745. The donee must accept the
donation personally, or through an
authorized person with a special power for
the purpose, or with a general and sufficient
power; otherwise, the donation shall be
void. (630)
Who must accept the donation?
1. The donee personally, or
2. An authorized person or an agent,
with a special power for the purpose,
or with a general and sufficient power
If not?
Then, the donation is void.
Does the parent of a minor need a special
power for the purpose of accepting a donation?
Probably not, a parent is not considered an
agent of a minor. They are considered legal
guardians. (But Im not sure.)
Art. 746. Acceptance must be made during
the lifetime of the donor and of the donee.
(n)
When should acceptance be made for inter
vivos?
A donation inter vivos takes effect during
the lifetime of the donor and the donee,
and to take effect, it must be accepted by
the donee.
Hence, acceptance by the donee (or his
representative) must be made during his
lifetime and that of the donor.
Even if the donation is made during their
lifetime, but the donor dies before the
acceptance is communicated to him, the
donation is not perfected.
How about for mortis causa?
Donations mortis causa are accepted only
after the donors death because they
partake of a will, and are governed by the
rules on succession.
If the acceptance was made before the
donors death, the donation mortis causa
although validly executed, cannot be given
3
Art. 1544. If the same thing should have been
donated to different donees, the ownership shall be
transferred to the person who may have first taken
possession thereof in good faith, if it should be
movable property. Should it be immovable property, the
ownership shall belong to the person acquiring it who
in good faith first recorded it in the Registry of Property.
Should there be no inscription, the ownership shall
pertain to the person who in good faith was first in the
possession; and, in the absence thereof, to the person
who presents the oldest title, provided there is good
faith.
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force and effect. Such acceptance is void.
(But is the donation void? Can there be a
subsequent acceptance after the death of
the donor?)
Art. 747. Persons who accept donations in
representation of others who may not do so
by themselves, shall be obliged to make the
notification and notation of which Article
749 speaks. (631)
When does this article apply?
1. When acceptance is made through the
parents, legal representative, or authorized
agent of the donee;
2. The property donated is immovable, and
3. The acceptance is not made in the same
deed of donation but in a separate public
instrument.
The requirement of notification of the
donor and notation in both instruments that
such notification has been made is
necessary for the validity and perfection of
the donation.
Art. 748. The donation of a movable may be
made orally or in writing.
An oral donation requires the
simultaneous delivery of the thing or of the
document representing the right donated.
If the value of the personal property
donated exceeds five thousand pesos, the
donation and the acceptance shall be made
in writing, otherwise, the donation shall be
void. (632a)
What are the rules for the formalities for
donations for movables?
When the value of property exceeds
P5000, the donation and the acceptance
must always be made in writing; otherwise
the donation is void, even if there is
simultaneous delivery of the thing.
o The donation and the acceptance
need not be made in a public
instrument, nor is it necessary that the
acceptance be made in the same
deed of donation.
When the value of property is P5000 or
less, it may be made orally or in writing.
o If made orally, there must be
simultaneous delivery of the thing or
of the document representing the right
donated, otherwise, the donation is
void. There must be acceptance which
may be oral or written. The receipt of
the delivery by the donee constitutes
implied acceptance.
o If made in writing, the donation is valid
although there is no simultaneous
delivery. Again, there must be
acceptance which may also be made
orally or in writing.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
In every case, the acceptance of the
donee must be made known to the donor
for perfection of a donation to take place.
Art. 749. In order that the donation of an
immovable may be valid, it must be made in
a public document, specifying therein the
property donated and the value of the
charges which the donee must satisfy.
The acceptance may be made in the
same deed of donation or in a separate
public document, but it shall not take effect
unless it is done during the lifetime of the
donor.
If the acceptance is made in a
separate instrument, the donor shall be
notified thereof in an authentic form, and
this step shall be noted in both instruments.
(633)
Formalities for donation of immovables
This article does not apply to onerous
donations since they are governed by the
laws of obligations and contracts
Donation of real property, which is a
solemn contract, is void without the
formalities stated in Article 749
So, what are the rules?
When donation and acceptance are in the
same instrument, the requirements are:
1. The donation must be in a public
document or instrument; and
2. The instrument must specify the
property donated and the charges, if
any, which the donee must satisfy.
When the donation and acceptance are in
separate instruments, the requirements
are:
1. The donation must be in a public
document or instrument;
2. The instrument must specify the
property donated and the charges, if
any, which the donee must satisfy
3. The acceptance by the donee must be
in a public document
4. It must be done during the lifetime of
the donor
5. The donor must be notified in
authentic form of the acceptance of
the donation in a separate instrument;
and
6. The fact that such notification has
been made must be noted in both
instruments.
o But see the Rep v Silim case
wherein the notification was not
noted in the instrument, but still,
the SC ruled that the donation
was valid.
The donation of real property in a private
instrument is null and void, and the donee
may not compel the donor to execute a
public instrument (1357) which applies
only when the contract or donation is valid
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PROPERTY NOTES
and enforceable. The donation cannot be
ratified.
Registration is not necessary for the
donation to be considered valid and
effective.
From the time the public instrument of
donation is simultaneously executed and
acknowledged by the donor and the
donee, the latter acquires the ownership of
the donated property, since the execution
of a public instrument of conveyance is
one of the recognized ways in which
tradition of immovable property may be
made, unless the contrary is expressed or
inferable from the terms of the deed.
Title to immovable property does not pass
from the donor to the donee by virtue of
donation until and unless it has been
accepted in public instrument and the
donor duly notified thereof.
Where the donation is on its face absolute
and unconditional, it is error to imply that
the possession or usufruct is excluded
from the donation or the donation is
subject to any charge or burden. The
absence in the deed of any reservation in
favor of the donor is proof that no such
reservation was ever intended considering
that under the law, a donation of
immovable by public instrument is required
to specify the value of the charges that
the donee must assume.
Case doctrines
The best or primary evidence of a donation
of real property is an authentic copy of the
deed of donation with all the formalities
required by Article 749. When a party
wants to prove the contents of a
documents, the best evidence is the
original writing itself.
Prior to the introduction of secondary
evidence, a party must establish the
existence and due execution of the
instrument, after which he must prove that
the document was lost or destroyed.
(DECS v Del Rosario)
Where the deed of donation fails to show
the acceptance, or where the formal notice
of the acceptance, made in a separate
instrument is not given to the donor or else
not noted in the deed of donation and in
the separate acceptance, the donation is
null and void. (Sumipat v Banga)
CHAPTER 3
EFFECT OF DONATIONS AND
LIMITATIONS THEREON
Art. 750. The donations may comprehend all
the present property of the donor, or part
thereof, provided he reserves, in full
ownership or in usufruct, sufficient means
for the support of himself, and of all
relatives who, at the time of the acceptance
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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of the donation, are by law entitled to be
supported by the donor. Without such
reservation, the donation shall be reduced
in petition of any person affected. (634a)
Reservation of sufficient means for support of
donor and relatives
A donor may donate all his present
property or part thereof provided he
reserves sufficient property in ownership or
in usufruct for the support of himself and of
all relatives who are entitled to be
supported by him at the time of the
perfection of the donation
Present property means property which
the donor can rightfully dispose of at the
time of the donation.
o The share in an existing
inheritance is present property
although the heir has not yet
entered into the possession of the
same.
The donation of present property without
the required reservation is not null and
void in its entirety; it is only subject to
reduction by the court on petition of the
party prejudiced by the donation the
donor himself, any dependent relative or
creditor of the donor.
The limitation applies to simple,
remunerative and modal donations but not
to onerous ones which are governed by
the law on obligations and contracts, nor to
donations mortis causa for they take effect
only after the donors death.
Donations propter nuptias cannot exceed
more than one-fifth of the present property
of the future spouses if in their marriage
settlements executed before the marriage,
they agree upon a regime other than the
absolute community of property.4
Case doctrines
When the dnor stated that she would
continue to retain the possession,
cultivation, harvesting and all other rights
4
Art. 82. Donations by reason of marriage are those which
are made before its celebration, in consideration of the
same, and in favor of one or both of the future spouses.
(126)
Art. 83. These donations are governed by the rules on
ordinary donations established in Title III of Book III of the
Civil Code, insofar as they are not modified by the following
articles. (127a)
Art. 84. If the future spouses agree upon a regime other than
the absolute community of property, they cannot donate to
each other in their marriage settlements more than one-fifth
of their present property. Any excess shall be considered
void.
Donations of future property shall be governed by the
provisions on testamentary succession and the formalities of
wills. (130a)
Art. 85. Donations by reason of marriage of property subject
to encumbrances shall be valid. In case of foreclosure of the
encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be
liable for the deficiency. If the property is sold for more than
the total amount of said obligation, the donee shall be
entitled to the excess. (131a)
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PROPERTY NOTES
and atrtributes of ownership she meant
only dominium utile, not the full ownership.
The words rights and attributes of
ownership should be construed ejusdem
generis with the preceding rights of
possession, cultivation and harvesting
expressly enumerated in the deed.
(Cuevas v Cuevas)
Art. 751. Donations cannot comprehend
future property.
By future property is understood
anything which the donor cannot dispose of
at the time of the donation. (635)
Donation of future property PROHIBITED!
Future property is anything which the
donor cannot dispose of at the time of the
donation. In other words, it is property that
belongs to others at the time the donation
is made and it is immaterial that it may
subsequently belong to the donor.
Nobody can dispose of that which does
not belong to him. Nemo emo.
Future inheritance cannot be donated
because it is future property but upon the
death of his predecessor, the inheritance
ceases to be future and consequently, may
be the object of donation even if the
properties constituting the inheritance
have not yet been delivered.
Property, the acquisition of which by the
donor depends upon the fulfillment of a
suspensive condition, may be donated
because, although the property may be as
to him still future property, the effects of
the fulfillment of the condition shall retroact
to the day of the constitution of the
contract.
Another reason is that the donor by
desisting to acquire a future property
donated would be revoking the donation
contrary to the rule that donations inter
vivos are irrevocable save for causes
provided by law.
Case doctrine
A donor cannot lawfully convey what is not
his property. Where a parcel of land was
the registered property of another, and the
donee failed to show how her donor
acquired it from the registered owner, it is
held that the donor has no right, title or
interest in said land which he could lawfully
convey.
Art. 752. The provisions of Article 750
notwithstanding, no person may give or
receive, by way of donation, more than he
may give or receive by will.
The donation shall be inofficious in
all that it may exceed this limitation. (636)
Amount of donation limited to what donor may
give by will
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Article 752 makes applicable to donations
the limitation on testamentary disposition
with respect to the amount thereof.
The limitation is really on the right of the
donor to give rather than on the right of the
donee to receive.
A person may not donate more than he
can give by will and a person may not
receive by way of donation more than what
the donor is allowed by law to give by will;
otherwise, the donation shall be inofficious
and shall be reduced with regard to the
excess.
The limitation applies where the donor has
forced or compulsory heirs. The purpose is
not to diminish the legitimes to which they
are entitled.
o But the limitation is enforceable
only after the death of the donor
because it is only then when it
can be determined whether or not
the donation is inofficious; by
contrasting its value with the net
value of the estate of the donor
deceased.
o The donation is valid during the
lifetime of the donor.
Art. 753. When a donation is made to
several persons jointly, it is understood to
be in equal shares, and there shall be no
right of accretion among them, unless the
donor has otherwise provided.
The preceding paragraph shall not
be applicable to donations made to the
husband and wife jointly, between whom
there shall be a right of accretion, if the
contrary has not been provided by the
donor. (637)
Donation to several donees jointly
The rules are as follows:
1. The donation is understood to be in
equal shares, unless the donor has
provided otherwise.
2. There shall be no right of accretion
among the donees, unless the donor
has otherwise provided.
3. If the donees are husband and wife,
there shall be aright of accretion, if the
contrary has not been provided by the
donor.
If there is no accretion among the donees,
one cannot accept independently for his
co-donee who is not present.
Art. 754. The donee is subrogated to all the
rights and actions which in case of eviction
would pertain to the donor. The latter, on
the other hand, is not obliged to warrant the
things donated, save when the donation is
onerous, in which case the donor shall be
liable for eviction to the concurrence of the
burden.
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PROPERTY NOTES
The donor shall also be liable for
eviction or hidden defects in case of bad
faith on his part. (638a)
Rights and actions
Here are the rules:
1. The donee is subrogated to all the
rights and actions which in case of
eviction would pertain to the donor
2. If the donation is simple or
remunerative, the donor is not liable
for eviction or hidden defects, becaue
the donation is gratuitous;
3. Even if the donation is simple or
remunerative, the donor is liable for
eviction or hidden defects in case of
bad faith on his part (knowingly
donating a chicken with avian flu) or
warranty is expressly stipulated; and
4. If the donation is onerous (modal
donation, according to de Leon), the
donor is liable on his warranty but only
to the extent of the burden.
Art. 755. The right to dispose of some of the
things donated, or of some amount which
shall be a charge thereon, may be reserved
by the donor; but if he should die without
having made use of this right, the property
or amount reserved shall belong to the
donee. (639)
Donation with right of donor to dispose of part
of object donated, reserved.
The donor may reserve the right to
dispose of some of the things or part of the
thing donated or some amount or income
thereof.
The donation is actually conditional, and
the condition is fulfilled if the donor dies
without exercising the right he reserved,
either by acts inter vivos or mortis causa.
Ron donates to Harry a house and an
apartment with the provision that Ron could sell
the house and give the rents (or a portion) of
the apartment for 5 years to Frank. The
donation of the house with a reservation of the
right to dispose should be considered mortis
causa, and therefore, must follow the
formalities prescribed for making a will. The
donation of the apartment is inter vivos.
Art. 756. The ownership of property may
also be donated to one person and the
usufruct to another or others, provided all
the donees are living at the time of the
donation. (640a)
Naked ownership and usufruct separately
donated
The donor may donate separately the
naked ownership (dominium directum) to
one person and the usufruct (dominium
utile) to another.
Mickey Ingles
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To be valid, the donee must be living at
the time of the donation, which is to be
understood to refer to the time of the
perfection of the donation.
A donation to a child who was not yet
conceived at the time it was made is void.
If the property donated is immovable, the
formalities for donations of real property
must be complied with.
Art. 757. Reversion may be validly
established in favor of only the donor for
any case and circumstances, but not in
favor of other persons unless they are all
living at the time of the donation.
Any reversion stipulated by the
donor in favor of a third person in violation
of what is provided in the preceding
paragraph shall be void, but shall not nullify
the donation. (614a)
Donation with provision for reversion
The donor may provide for reversion,
whereby the property shall go back to the
donor or some other person.
It may be validly established for any case
and circumstances.
If the revision is in favor of other persons,
they must be living at the time of the
donation.
Thus, a reversion in favor of an
unconceived child is void, but such nullity
shall not invalidate the donation. The
reversion which is merely an accessory
clause is simply disregarded.
Art. 758. When the donation imposes upon
the donee the obligation to pay the debts of
the donor, if the clause does not contain
any declaration to the contrary, the former
is understood to be liable to pay only the
debts which appear to have been previously
contracted. In no case shall the donee be
responsible for the debts exceeding the
value of the property donated, unless a
contrary intention clearly appears. (642a)
Art. 759. There being no stipulation
regarding the payment of debts, the donee
shall be responsible therefor only when the
donation has been made in fraud of
creditors.
The donation is always presumed
to be in fraud of creditors, when at the time
thereof the donor did not reserve sufficient
property to pay his debts prior to the
donation. (643)
Liability of donee to pay debts of donor
Here are the rules.
1. Where donor imposes obligation upon
the donee:
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PROPERTY NOTES
a. The donee is liable to pay
only debts previously
contracted;
b. He is liable for subsequent
debts only when there is a
stipulation to that effect; and
c. He is not liable for debts in
excess of the value of the
donation received, unless the
contrary is intended.
2. Where there is no stipulation
regarding the payment of debts
a. The donee is generally not
liable to pay the donors
debts;
b. He is responsible therefore
only if the donation has been
made in fraud of creditors
(which is always presumed
when at the time of the
donation the donor has not
left sufficient assets to pay
his debts)
c. He is not liable beyond the
value of the donation
received.
Ordinarily, the donee should not be made
liable to pay the donors debt beyond the
value of the thing donated.
Donation in fraud of creditors
Presumed in fraud when at the time
thereof the donor did not reserve sufficient
property to pay his debts prior to the
donation.
The creditors of the donor at the time of
the donation may exercise the subsidiary
right of rescission when they cannot in any
manner collect the claims due them
(accion pauliana) unless the property
donated has passed into the hands of a
third person in good faith for value. In the
latter case, the donee shall answer for
damages if he acted in bad faith.
Case doctrine
Requisites for an accion pauliana:
1. Credit prior to alienation, even if
demandable later
2. Debtor has made a subsequent
contract conveying a patrimonial
benefit to a 3rd person
3. The creditor has no legal remedy to
satisfy his claim
4. The act being impugned is fraudulent
5. The third person who received the
property conveyed, if is by onerous
title, has been an accomplice in the
fraud.
But remember that accion pauliana is
subsidiary.
CHAPTER 4
REVOCATION AND REDUCTION OF
DONATIONS
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Art. 760. Every donation inter vivos, made
by a person having no children or
descendants, legitimate or legitimated by
subsequent marriage, or illegitimate, may
be revoked or reduced as provided in the
next article, by the happening of any of
these events:
(1) If the donor, after the donation,
should have legitimate or legitimated or
illegitimate children, even though they be
posthumous;
(2) If the child of the donor, whom
the latter believed to be dead when he made
the donation, should turn out to be living;
(3) If the donor subsequently adopt
a minor child. (644a)
Grounds for revocation and reduction of
donation
1. Revocation affects the whole donation and
is allowed during the lifetime of the donor.
The grounds are:
a. Birth, appearance, or adoption of
a child (760);
b. Non-fulfillment of a resolutory
condition imposed by the donor
(764); and
c. Ingratitude of the donee. (765)
2. Reduction generally affects a portion only
of the donation (unless the donee has no
free portion left) and is allowed during the
lifetime of the donor or after his death. The
grounds are:
a. Failure of the donor to reserve
sufficient means for support of
himself or dependent relatives;
(750)
b. Failure of the donor to reserve
sufficient property to pay off his
existing debts (759);
c. Inofficiousness, that is, the
donation exceeds that which the
donor can give by will; (752, 771)
and
d. Birth, appearance, or adoption of
a child. (760)
A donation that has been duly perfected in
accordance with law should stand until
after its revocation should have been
asked and granted in the proper
proceeding.
Birth, appearance, or adoption of a child
This article applies to all donations inter
vivos. It does not apply:
a. to donations mortis causa for
they are revocable at will by the
donor (testator);
b. to onerous donations for they are
really contracts; and
c. to donations propter nuptias for
they are revocable only for the
causes provided in the Family
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PROPERTY NOTES

Code see Art 86 of the Fam The note says child, so the subsequent
Code5. appearance of a descendant, like a
It is applicable when the donor, at the time grandkid, would not revoke the donation
he made the donation, did not have any o But the donation may be reduced
child or descendant or erroneously thought under Article 771 as inofficious if
so; otherwise, Article 771 in relation to it impairs the legitime of the
Article 752 shall apply. descendant.
Every donation is subject to revocation or
reduction by the happening of any of the Adoption of a child
events mentioned which are in the nature The subsequent adoption of a minor child
of implied resolutory conditions. is also a ground for the revocation or
reduction of a donation.
Birth of a child Its an exception to the rule that a donation
Here, the donor had no child whether inter vivos shall be irrevocable by the
legitimate, legitimated, or illegitimate at the donor.
time of the donation, and thereafter, a child Again, the law says minor child; hence
was born even if posthumous. the adoption of a person of majority age
What if the child was already conceived although it is allowed in certain cases is
but not yet born, what provision should not a ground under No. 3.
apply, Article 760 or 771?
o It depends. Case doctrine
o If the donor was aware of such Revocation upon birth of a child and return
conception, Article 771. Hence, of property to donor are not self-operative
he cannot revoke the donation or self-executory. There is a need for
upon the birth of the child. judicial action. (Oracion v Juanillo)
o But, if he did not know of such
conception when he made the Art. 761. In the cases referred to in the
donation, the situation is similar to preceding article, the donation shall be
the appearance of an absent revoked or reduced insofar as it exceeds
child thought by the donor to be the portion that may be freely disposed of
dead. For purposes of the law, he by will, taking into account the whole estate
had no child. of the donor at the time of the birth,
The rule is that a appearance or adoption of a child. (n)
conceived child is
considered born for all Extent and basis of revocation or reduction
purposes favorable to it. Birth, appearance, or adoption of a child.
Since to consider the A person may not give by way of donation
child as already born more than he may give by will.
would make the The amount subject to revocation or
donation irrevocable and reduction is, therefore, the excess over the
would be unfavorable to portion that may be freely disposed of by
it, the subsequent birth will.
of the child should The basis of revocation or reduction is the
revoke or reduce the value of the whole estate of the donor at
donation. the time of the birth, appearance, or
adoption of a child, and not at the time of
Appearance of a child the death of the donor as in the case of
In this case, the donor had only one child inofficious donations under Article 771.
whom he believed to have already died at o To the value of the estate shall be
the time of the donation. added the value of the donation
at the time it was made because
it would have been still part of the
estate had not the donation been
5
Art. 86. A donation by reason of marriage may be revoked made.
by the donor in the following cases: The burden of proof is on the plaintiff-
(1) If the marriage is not celebrated or judicially declared void
ab initio except donations made in the marriage settlements, donor who must allege and establish the
which shall be governed by Article 81; requirements prescribed by law.
(2) When the marriage takes place without the consent of the In the case of inofficious donations.
parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in What is sought to be protected by Article
bad faith; 760 is only the prospective or presumptive
(4) Upon legal separation, the donee being the guilty spouse; legitime of the child because that is the
(5) If it is with a resolutory condition and the condition is only portion which cannot be disposed of.
complied with; If the donation does not exceed the free
(6) When the donee has committed an act of ingratitude as portion at the time of the birth,
specified by the provisions of the Civil Code on donations in
general. (132a) appearance, or adoption, there will be no
113
Mickey Ingles
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Ad Majorem Dei Gloriam
PROPERTY NOTES
revocation or reduction but it may still be
reduced under Article 771 if it cannot be
covered by the free portion computed as of
the time of the donors death.
Let us suppose Ron who was then childless,
donated a property worth P50 to Erin, a close
friend. Subsequently, a child was born to Ron
whose estate at the time was P30. His total
estate then including the value of the property
donated was P80.
Since the legitime of a legitimate child is of
the estate or P40, and therefore, the free
portion is also P40, the donation must be
reduced by P10.
But if the value of the estate was P70, the
donation is not revoked or reduced because it
does not exceed the free portion of P60 [(P70 +
50)/2].
However, should the estate of Ron be less than
P50, excluding the P50 donation, at the time of
his death (for example, P40), it shall be subject
to reduction to the extent that it is inofficious
(i.e. P50 P45 [(P50+P40/2) = P50) under
article 771.
Case doctrines
Donor has the burden to allege and
establish the requirements prescribed by
law for which the annulment or reduction
of the donation can be based. (Cruz v CA)
Art. 762. Upon the revocation or reduction
of the donation by the birth, appearance or
adoption of a child, the property affected
shall be returned or its value if the donee
has sold the same.
If the property is mortgaged, the
donor may redeem the mortgage, by paying
the amount guaranteed, with a right to
recover the same from the donee.
When the property cannot be
returned, it shall be estimated at what it was
worth at the time of the donation. (645a)
Obligation of donee upon revocation or
reduction
In case of revocation or reduction under
Article 760, the obligation of the donee
depends upon the situation of the property
donated.
o If the property affected is still in
his possession, he must return
the same.
o If he has sold the property, he
must give its value.
o If the property has been
mortgaged by him, and the donor
redeemed the mortgage, he must
reimburse the donor.
o If the property cannot be
returned, as when it ahs been lost
or destroyed, he must return its
value at the time of the perfection
of the donation.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
It is presumed that the price at which the
property is sold is its value.
o If the price is less than its actual
value, the donee is not liable for
the difference absent proof of bad
faith.
o When the property cannot be
returned, its value shall be
determined not as of the time of
the loss but as of the time of the
donation.
Art. 763. The action for revocation or
reduction on the grounds set forth in article
760 shall prescribe after four years from the
birth of the first child, or from his
legitimation, recognition or adoption, or
from the judicial declaration of filiation, or
from the time information was received
regarding the existence of the child
believed dead.
This action cannot be renounced,
and is transmitted, upon the death of the
donor, to his legitimate and illegitimate
children and descendants. (646a)
Prescription of action for revocation or
reduction
The donation is revoked ipso jure by
operation of law, by the happening of any
of the events mentioned in Article 760.
o Hence, it is not really essential
that an action be brought to
revoke the donation.
o BUT, the revocation is not self-
operative or self-executory.
If the donee should refuse to comply with
his obligation under Article 762, resort to
judicial action is necessary under Article
763. But since it is the law itself that
declares the revocation, the action is
strictly not an action to revoke but one to
have the court expressly declare the
revocation which has already taken place
by operation of law.
The period within which to bring the action
is 4 years. The time to start counting
depends upon the cause:
o Birth of the first child;
o From time of legitimation,
recognition or adoption; or
o From judicial declaration of
filiation
o From the time information was
received regarding the existence
of the child believed dead.
Not from the actual
appearance of the
absent child.
If the donor dies within the period, the
action is transmitted to his legitimate and
illegitimate children and descendants (not
the spouse or ascendants of the donor).
In case more than one cause or ground for
revocation or reduction concur, the period
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PROPERTY NOTES
of prescription must run from the earliest
cause.
Reduction of a donation upon the
allegation of impairment of legitime is not
controlled by a particular prescriptive
period for which reason the period shall be
governed under the ordinary rules of
prescription. Under Article 1144, the action
must be brought within 10 years from the
time the right of action accrues, which is
the death of the donor.
The action cannot be waived. (Compare to
the next article!)
Art. 764. The donation shall be revoked at
the instance of the donor, when the donee
fails to comply with any of the conditions
which the former imposed upon the latter.
In this case, the property donated
shall be returned to the donor, the
alienations made by the donee and the
mortgages imposed thereon by him being
void, with the limitations established, with
regard to third persons, by the Mortgage
Law and the Land Registration Laws.
This action shall prescribe after
four years from the noncompliance with the
condition, may be transmitted to the heirs
of the donor, and may be exercised against
the donee's heirs. (647a)
Failure to comply with conditions
A donation may be revoked in case of
failure of the donee to comply with any of
the conditions imposed by the donor upon
him.
The word conditions actually refers to
obligations, charges, or burdens imposed
by the donor; it may also refer to a
resolutory condition. Hence, what is
contemplated are onerous or modal
donations.
Of course, it implies that there is an
existing donation.
The condition must be fulfilled within the
period fixed by the donor.
o No period? The court shall
determine such period as may
have been contemplated by the
donor.
In case the donee fails to comply, the
property donated reverts to the donor,
along with the fruits of the property which
the donee may have received after having
failed to fulfill the condition.
If the property has been alienated or
mortgaged, the alienation or mortgage
shall be void SUBJECT to the rights of
innocent third persons under registration
laws who may have taken the property
donated without notice of the condition
imposed. (Public policy baby!)
In case of non-fulfillment by the donee of
any of the conditions imposed by the
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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donor, the donation shall be revoked at the
instance of the donor.
o But, the donor may instead file for
an action of specific performance
to compel the donee to comply
with the conditions.
The action must be brought within 4 years
from the non-compliance with the condition
it can only be brought by the donor or his
heirs against the donees heirs (compare
to Articles 769 and 770).
The death of the donor or the donee does
not bar the action to revoke for failure of
the donee to comply with the conditions,
provided the prescriptive period has not
yet expired.
Unlike the action for revocation or
reduction under Article 763, the action may
be waived because the condition is purely
contractual in nature.
Is court action necessary?
In any case, a court action is necessary if
the donee refuses to return the property or
to comply with the conditions.
The deed of donation, however, may
provide that violation of any of its
conditions shall cause the automatic
rescission of the contract. In such case,
upon the violation, the donation is
automatically revoked, without need of a
judicial declaration.
o Except where the donee denies
the donors right to rescind, in
which case, judicial intervention is
necessary to determine whether
or not the rescission is proper.
In the absence of an agreement in the
donation providing of an automatic
rescission, a judicial declaration revoking
said donation will be necessary.
Case doctrines
When land is donated on several express
conditions, acceptance by the donee will
be understood to include all of the
conditions not umistakably rejected.
(Barreto v Manila)
When the donee has entered into
possession of the property, effect will be
given to the donation according to the
terms of the offer and acceptance,
although the formal deed has not been
executed. (Barreto)
If there is no fulfillment with the resolutory
condition, the donation may now be
revoked and all rights which the donee
may have acquired under it shall be
deemed lost and extinguished. (Central
Phil University v CA)
Article 764 does not apply to onerous
donations because onerous donations are
governed by the rules of Contracts. Hence,
the prescription period is 10 years, not 4
years. (De Luna v Abrigo)
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o While courts are given the power
to fix the duration when the
condition is to be fulfilled when
none is given, if the facts show
that a reasonable period has
already been allowed the donee
to avail of the opportunity to
comply with the condition, then
the courts will no longer give the
donee a period. (Central Phil Uni)
o The legal possibility of bringing
the action begins with the
expiration of a reasonable
opportunity of the donee to fulfill
what has been charged upon it by
the donor. (Sec of Education v
Heirs of Dulay)
Nothing in law prohibits parties from
entering into an agreement that violation of
the terms of the contract would cause
cancellation thereof even without court
intervention.
o In cases like these, judicial
intervention is necessary not for
purposes of obtaining a judicial
declaration rescinding a contract
already deemed rescinded but in
order to determine whether or not
the rescission was proper. (De
Luna)
When the deed of donation expressly
provides for automatic rescission and
reversion of the property donated, the
rules on contract and the general rules on
prescription should apply, not 764. (Roman
Catholic Archbishop of Manila v CA)
o A donor cannot revoke the
donation on the grounds for non-
compliance of an impossible
condition. (Archbishop of Manila v
CA)
A declaration of petitoners absolute
ownership appears legally possible only
when the deed of donation is contextually
declared peremptorily revoked. (Dolar v
Barangay Lublub)
The act of selling property to a 3 rd party
cannot be considered as a valid act of
revocation of the deed of donation for the
reason that a formal case to revoke the
donation must be filed which speaks of an
action that has a prescriptive period of 4
years from non-compliance with the
condition. In this case, there was no
provision of automatic rescission, thus
placing the case within the ambit of Article
764. (Austria-Magat v CA)
When the donation is onerous and does
not fix a period to comply with the
condition, the courts should fix a period to
uphold the greatest reciprocity of rights. If
it is gratuitous, then they should not, to
uphold the least reciprocity of rights and
interests.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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Its important to determine whether or not
the donation is onerous or not so that we
know what law to apply.
Art. 765. The donation may also be revoked
at the instance of the donor, by reason of
ingratitude in the following cases:
(1) If the donee should commit
some offense against the person, the honor
or the property of the donor, or of his wife
or children under his parental authority;
(2) If the donee imputes to the
donor any criminal offense, or any act
involving moral turpitude, even though he
should prove it, unless the crime or the act
has been committed against the donee
himself, his wife or children under his
authority;
(3) If he unduly refuses him support
when the donee is legally or morally bound
to give support to the donor. (648a)
Revocation by reason of ingratitude of the
donee
Article 765 does not apply to donations
mortis causa and onerous donations.
A donation propter nuptias may be
revoked by the donor when the donee has
committed an act of ingratitude as
specified in Article 765.
The enumeration is exclusive and cannot
be enlarged.
The act of ingratitude must have been
committed by the donee himself because
the duty of gratitude is personal. An act
imputable to the husband or wife or the hot
mistress of the donee is not a ground for
revocation.
Offense against the donor, etc
Criminal conviction is not needed. It is
sufficient that the offense be proved by
mere preponderance of evidence in the
action for revocation.
If the offense is committed against a child
who is no longer under parental authority,
the donation cannot be revoked.
Imputation to donor of any criminal offense, etc
It is immaterial that the donee can prove
his accusation or substantiate his
testimony against the donor.
o The exception is when the crime
has been committed against the
donee himself, his wife or children
under his parental authority.
o The act involving moral turpitude
may not amount to a crime.
Refusal to support the donor
There are two requisites:
1. The refusal to support the donor
must be undue, that is, without
just reason; and
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PROPERTY NOTES
2. The donee must be legally or
morally bound to support the
donor.
Note that ingratitude extends beyond
failure to do a legal duty to support and
includes a moral duty to help. (donee is a
friend who is penniless and asks for help,
and the donor shuns her away like a
scorned lover.)
Case doctrine
All crimes which offend the donor show
ingratitude and are causes for revocation.
Any crime under the Revised Penal Code
is one involving moral turpitude. (Spouses
Romulo v CA)
Art. 766. Although the donation is revoked
on account of ingratitude, nevertheless, the
alienations and mortgages effected before
the notation of the complaint for revocation
in the Registry of Property shall subsist.
Later ones shall be void. (649)
Art. 767. In the case referred to in the first
paragraph of the preceding article, the
donor shall have a right to demand from the
donee the value of property alienated which
he cannot recover from third persons, or
the sum for which the same has been
mortgaged.
The value of said property shall be
fixed as of the time of the donation. (650)
Effect of revocation on prior alienations and
mortgages
If by non-compliance
In case of revocation of a donation by non-
compliance by the donee with any of the
conditions imposed, alienations and
mortgages made by the donee are void,
subject only to the rights of innocent third
persons. The donor can recover from the
donee:
o Only the value of the property donated
at the time of the perfection of the
donation, OR
o The sum for which it was mortgaged.
Recovery cannot be had against the third
person unless he acted in bad faith as when
had actual knowledge of the cause for
revocation or the filing of the action.
If by reason of ingratitude
If the revocation is by reason of
ingratitude, the alienations and mortgages
made by the donee before the complaint
for revocation is annotated in the Registry
of Property shall subsist or are valid. Later
alienations and mortgages shall be void.
The donor can recover the property
from the transferee or mortgagee.
The donation of land by Ron to Erin was made
on July 10. Erin sold the land to Tara on July
20. The act of ingratitude was done on July 30.
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
The complaint for revocation was annotated on
August 10. Thus, the sale to Tara is valid, and
the remedy of Ron is to recover from Eric the
value of the land at the time of the donation.
If the sale was made after August 10, the sale
is void and Ron can recover the land from Tara.
If the act of ingratitude was committed on July
20, the sale on July 30 and the complaint which
was filed on July 25 and was annotated on July
31, but at the time of the sale Tara was aware
of the act of ingratitude committed by Erin, or
the pending action by Ron, the sale should not
be considered valid because Tara acted in bad
faith, and so Ron can recover the land from
her.
Art. 768. When the donation is revoked for
any of the causes stated in Article 760, or
by reason of ingratitude, or when it is
reduced because it is inofficious, the donee
shall not return the fruits except from the
filing of the complaint.
If the revocation is based upon
noncompliance with any of the conditions
imposed in the donation, the donee shall
return not only the property but also the
fruits thereof which he may have received
after having failed to fulfill the condition.
(651)
Return by donee of the fruits of property
donated
The rules depend upon the cause of
revocation or reduction
o If the cause is:
the birth, appearance or adoption
of a child, or
ingratitude, or
inofficiousness of the donation
(because the donor did not
reserve sufficient means for
support), or
he donated more than he could
give by will, then
only the fruits
accruing from the
filing of the
complaint need be
returned.
It can be implied
that the donation
remains valid up to
the time of the filing
of the complaint.
If the cause is the non-fulfillment of any of
the conditions imposed in the donation, the
fruits must be returned from the time of the
breach of the condition. The donation shall
also return the property donated.
In case of inofficious donation which
exceeds the free disposal by will, the
donation takes effect during the lifetime of
the donor, the donee appropriates the
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PROPERTY NOTES
fruits, and the reduction may be asked
only after the donors death.
Art. 769. The action granted to the donor by
reason of ingratitude cannot be renounced
in advance. This action prescribes within
one year, to be counted from the time the
donor had knowledge of the fact and it was
possible for him to bring the action. (652)
Renunciation and prescriptive period of action
by reason of ingratitude
The action granted to the donor for
revocation by reason of ingratitude, like
the action based on the birth, appearance,
or adoption of a child cannot be renounced
in advance.
What the law prohibits is waiver, prior to
the commission of the act of ingratitude.
A past ingratitude can be the subject of a
valid renunciation because the
renunciation can be considered as an act
of magnanimity on the part of the donor.
The action prescribes
1. Within one year from the time the
donor had knowledge of the act of
ingratitude AND
2. It was possible for him to bring
the action.
To bar the action, the donee must show
proof that the one-year period has expired
and it was possible for the donor to
institute the said action within the same
period.
Art. 770. This action shall not be transmitted
to the heirs of the donor, if the latter did not
institute the same, although he could have
done so, and even if he should die before
the expiration of one year.
Neither can this action be brought
against the heir of the donee, unless upon
the latter's death the complaint has been
filed. (653)
Transmission of action for revocation
General rule: The action to revoke a
donation by reason of ingratitude is purely
personal to the donor and cannot, as a
rule, be transmitted to the heirs.
This is unlike the action for revocation
based on the birth, appearance or
adoption of a child and the action based
on non-compliance with the condition of a
donation.
However, the particular circumstances of
the case should be taken into account to
determine whether it was possible to bring
the action. Hence, the following exceptions
wherein the heirs of the donors can ask for
the revocation:
1. If the donee killed the donor, or
2. If the donor dies without having
known of the act of ingratitude, or
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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3. If a criminal case against the
donee was instituted by the
donor, but the donor dies before
he could bring the civil action for
revocation; or
4. If the action for revocation has
already been filed by the donor
before his death.
Action against heirs of donee
The heirs of the donee are not held
responsible for the acts of their
predecessor-donee. The act of ingratitude.
(The sins of the father are not the sins of
the son although, there are some
instances where we repeat the mistakes of
our parents. General rule? Learn.)
But if the donor has already filed the
complaint before the donees death, the
suit may be continued against his heirs.
Art. 771. Donations which in accordance
with the provisions of Article 752, are
inofficious, bearing in mind the estimated
net value of the donor's property at the time
of his death, shall be reduced with regard to
the excess; but this reduction shall not
prevent the donations from taking effect
during the life of the donor, nor shall it bar
the donee from appropriating the fruits.
For the reduction of donations the
provisions of this Chapter and of Articles
911 and 912 of this Code shall govern. (654)
Reduction of inofficious donations
Donations which are inofficious because
they are more than what the donor can
give by will shall be reduced with regard to
the excess upon the death of the donor,
after determining the net value of the
estate.
Thus, it follows that the donation is
effective during the lifetime of the donor
and so, the donee, as owner of the
property donated also becomes owner of
the fruits, although the donation should
appear inofficious.
For donations propter nuptias, they may
be reduced for being inofficious. Being
liberalities, they remain subject to
reduction for inofficiousness upon the
donors death, if they should infringe the
legitime of a forced heir.
The action to reduce the inofficious
donation must be brought within 5 years
from the time of the donors death.
For reduction of donations, the following
articles, quoted below shall govern:
Art. 911. After the legitime has been
determined in accordance with the three
preceding articles, the reduction shall be made
as follows:
(1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling,
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PROPERTY NOTES

if necessary, the devises or legacies made in
the will;
(2) The reduction of the devises or legacies
shall be pro rata, without any distinction
whatever. If the testator has directed that a
certain devise or legacy be paid in preference
to others, it shall not suffer any reduction until
the latter have been applied in full to the
payment of the legitime.
(3) If the devise or legacy consists of a usufruct
or life annuity, whose value may be considered
greater than that of the disposable portion, the
compulsory heirs may choose between
complying with the testamentary provision and
delivering to the devisee or legatee the part of
the inheritance of which the testator could
freely dispose. (820a)
Art. 912. If the devise subject to reduction
should consist of real property, which cannot be
conveniently divided, it shall go to the devisee
if the reduction does not absorb one-half of its
value; and in a contrary case, to the
compulsory heirs; but the former and the latter
shall reimburse each other in cash for what
respectively belongs to them.
The devisee who is entitled to a legitime may
retain the entire property, provided its value
does not exceed that of the disposable portion
and of the share pertaining to him as legitime.
(821)
estate of the deceased, but not against the
owners of the donated property.)
Renunciation of right to ask for reduction can
it be done?
The right to ask for the renunciation of
inofficious donations cannot be renounced
during the lifetime of the donor, ether by
express declaration or by consenting to the
donation.
773. If, there being two or more donations,
the disposable portion is not sufficient to
cover all of them, those of the more recent
date shall be suppressed or reduced with
regard to the excess. (656)
Reduction where there are two or more
donations
The subsequent donations shall first be
reduced and only if they are not sufficient
to cover the disposable portion should the
earlier ones be reduced also with regard to
the excess.
If the two donations were perfected at the
same time, the reduction should be
proportionate unless otherwise provided
by the donor.
Rules on revocation CHARTED!

Art. 772. Only those who at the time of the REVOCATI Birth, Non- Ingratitu
donor's death have a right to the legitime ON, based appearan complia de
and their heirs and successors in interest on ce, or nce with
may ask for the reduction or inofficious adoption conditio
donations. of a child n or
Those referred to in the preceding conditio
paragraph cannot renounce their right ns
during the lifetime of the donor, either by Time of Within 4 Within 4 Within 1
express declaration, or by consenting to the action years years year
donation. from birth from from the
The donees, devisees and legatees, of first non- time the
who are not entitled to the legitime and the child, or complia donor
creditors of the deceased can neither ask From his nce with had
for the reduction nor avail themselves legitimati the knowled
thereof. (655a) on, or conditio ge of
Adoption, n the fact
Persons entitled to ask for reduction who are or of the
they? From the But if its ingratitu
For the reduction of inofficious donations, judicial an de
1. those who at the time of the declaratio onerous
donors death have a right to the n of donation
legitime, and filiation, , within
2. their heirs, and or 10 years
3. succesors in interest. From from
The donor is not included, patay na siya receipt or non-
eh. The inofficiousness can only be info complia
determined after his death. regarding nce with
the the
Who may not ask for reduction? existence conditio
1. The donees, or of the n
2. The devisees, or child
3. The legatees, who are not entitled to the believed
legitime. dead
4. Creditors of the deceased. (The remedy of Transmissib Transmitt May be Generall
creditors is to file a claim against the ility of ed to transmitt y, the
119
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!
 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

action children ed to the action is suppor will

and donors not t
descenda heirs transmitt Time of Any Within Same The
nts of the and may ed to action time 10 as in action
donor be the heirs by the years first for
upon his exercise of the donor (Santos colum rescis
death d donor or by v Alana n sion
against nor can the case, must
the the relativ based be
donees action es on broug
heirs be filed entitle 1144) ht
against d to within
the heirs suppor Within 4
of the t 5 years years
donee during after from
Effect of Property Property Property the the the
revocation affected donated donated lifetim death perfec
shall be shall be shall be e of of the tion of
returned, returned returned the donor the
or its to the but donor (if donati
value if donor alienatio propter on, or
the and the ns and nuptias, at the
donee alienatio mortgag accordi latest,
has sold ns and e ng to from
the mortgag effected book) the
same, or es are before time
The void the the
donor subject notation credit
may to the of the or had
redeem rights of complai knowl
the innocent nt for edge
mortgage 3rd revocati of the
on the persons on in the donati
property, Registry on
with a of Transmi Not Transm Same Trans
right to Property ssibility transm itted to as in mitted
recover shall of issible the first to the
the subsist action as the donors colum credit
property duty to heirs as n ors
Liability for Donee Donee Same give the heirs
fruits shall shall as in suppor donatio or
return the return first t and n shall succe
fruits the fruits column the be ssors-
accruing which right to reduce in-
from the he may receiv d as intere
filing of have e are regards st
the received person the
complaint after al in excess
having nature at time
failed to of the
fulfill the donors
conditio death
n Effect of Reduc Takes Same Prope
revocati ed to effect as in rty
Rules on reduction CHARTED! on the during first affect
extent the colum ed
REDUC Failure Inofficio Birth, Fraud neces lifetime n shall
TION, of the usness appea again sary to of the be
based donor for rance, st provid donor return
on to being in or credit e subject ed by
reserv excess adopti ors suppor to the
e of what on of t reductio donee
sufficie the a child n only for the
nt donor upon benefi
means can his t of
for give by death the

120
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
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 +
Ad Majorem Dei Gloriam

PROPERTY NOTES

with credit
regard or
to the subjec
excess t to
the
rights
of
innoc
ent
third
perso
ns
Liability Donee Donee Donee Fruits
for fruits is appropr , as of the
entitle iates owner, proper
d to the appro ty
the fruits as priate affect
fruits owner s the ed
as of the fruits shall
owner propert of the also
of the y proper be
proper ty not return
ty affecte ed. In
donate d by case
d the the
reduct donee
ion, acted
but in bad
with faith
regard and it
to the shoul
exces d be
s, he impos
shall sible
be for
liable him to
only return,
for the then
fruits indem
from nify
the the
filing donor
of the s
compl credit
aint or for
dama
ges.

Happy the man who finds wisdom, the man

who gains understanding!-- Proverbs 3:13

Thus you may walk in the way of good men,

and keep to the paths of the just. For the
upright will dwell in the land, the honest will
remain in it; But the wicked will be cut off from
the land, the faithless will be rooted out of it.--
Proverbs 2:20-22

121
Mickey Ingles
Ateneo Law 2012, updated: May 15, 2012
Librat: No stamping please!