MEMORANDUM

To: Cayco, Senior Partner

CC: Magsalin, Senior Partner
From: Nina Joy L. Natividad
Date: October 21, 2017
Re: Easement and the doctrine of apparent sign

Question Presented I

Mr. Bong owns several properties in Pasig City. He decided to build a

condominium named Flores de Manila in one of his lots. To fund the project,
he obtained a loan from the National Bank (NB) secured by a real estate
mortgage over the adjoining property which he also owned. During
construction, he built three (3) pumps on the mortgaged property to supply
water to the condominium. After one (1) year, the project was completed and
the condominium was turned over to the buyers. However, Mr. Bong failed to
pay his loan obligation to NB. Thus, NB foreclosed the mortgaged property
where the pumps were installed. During the sale on public auction of the
mortgaged property, Mr. Simon won in the bidding. When Mr. Simon attempted
to take possession of the property, the condominium owners, who in the
meantime constituted themselves into Flores de Manila Inc. (FMI), claimed
that they have earlier filed a case for the declaration of the existence of an
easement before the Regional Trial Court (RTC) of Pasig City and prayed that
the easement be annotated in the title of the property foreclosed by NB. FMI
further claimed that when Mr. Bong installed the pumps in his adjoining
property, a voluntary easement was constituted in favor of FMI. Will the action
prosper?

Brief Answer

Probably yes. The action will prosper. Article 624 of the Civil code applies
to the case at bar which states that “ 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. ”

There was no manifestation that the sign of easement was removed at the
time of the auction, nor was there an agreement that the easement will be
terminated once the mortgaged property has been purchased by a third party.
Therefore, the entitlement of FMI to the easement subsists.

Legal Precedents

In the case of Tañedo v. Bernad G.R. No. L-66520, the court emphasized
that the alienation of the dominant and servient estates to different persons is
not one of the grounds for the extinguishment of an easement. On the contrary,
use of the easement is continued by operation of law as provided in Art 624
because no abolishment or extinguishment was provided in the mortgage or
the deed of absolute sale.

In Gargantos v CA G.R. No. L-14652 June 30, 1960, again, Art. 624
provides that when two adjoining estates were formerly owned by one person
who introduced improvements on both such that the wall of the house
contructed on the first estate extends to the wall of the warehouse on the
second estate; and at the time of the sale of the first estate, there existed on
the aforementioned wall of the house, doors, 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 apparent sign of
easement between the two estates is established as a title.

In Valisno v. Adriano G.R. No. L-37409, the existence of the irrigation

canal on Respondent’s land for the passage of water from the Pampanga
River to Honorata's land prior to and at the time of the sale of Honorata's land
to the plaintiff was equivalent to a title for the vendee of the land to continue
using it as provided in Article 624 of the Civil Code (Doctrine of Apparent Sign):
Article 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 he 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.
 Conclusion

It can be taken from the various jurisprudence presented herein that in a

situation where two estates between which there exists an apparent sign (e.g.
window, road) of an easement, belong to the same owner. (Technically, there
is really no easement since there is but one owner of both estates.) If the
owner alienates either or both the estates, resulting to ownership thereof being
divided – the easement shall continue, unless: (a) a contrary stipulation has
been made in the title or conveyance; or (b) the sign is removed before the
execution of the deed. The effect of the existence of an apparent sign of
easement is equivalent to title, if no objection has been made by the servient
owner because an implied contract that the easement should be constituted is
deemed to exist between the new owners. The dominant owner can oppose
the owner of the servient estate from doing things which would be inconsistent
with his obligation to respect the easement. (e.g. closing a passageway,
constructing a building which obstructs light and view). This division applies in
cases of division of a common property for it has the same effect as an
alienation. Article 624 of the Civil code of the Philippines or what is also known
as the Doctrine of Apparent Sign is not applicable when the two estates or
portions of the same estate remain or continue to be in the same owner after
alienation or partition.
 MEMORANDUM

To: Cayco, Senior Partner

CC: Magsalin, Senior Partner
From: Nina Joy L. Natividad
Date: October 21, 2017
Re: Ownership of items discovered from Usufruct and hidden treasure

Question Presented II

Jack a businessman, rents an office with a long lease. The lease

include the exterior walls and structure, and it also contains a repairing
covenant. One day Jack arrives at work to find a picture painted on his
exterior wall. Later Jill arrives, who works with Jack, notices the picture and
says, 'that's a Banksy, could be worth some cash.' Jack immediately
phones Tom, an art dealer, who confirms Jill's suspicion. Later that day
Tom phones to tell Jack he has a buyer. Tom removes the section of the
wall with the picture and ships to the buyer, who promises to pay Tom
Php10,000,000 on delivery. While Tom was removing the picture he
tripped on a mound of dirt by the wall. On uncovering it he discovered an
old wooden spoon that looked identical to the spoon in the news, which
had just been donated to the museum, as a priceless antiquity. Using case
law and relevant property law provisions of the Civil Code, explain if Tom
could be the owner of the painting and or, the spoon?

Brief Answer

Tom is neither the owner of the painting or the old wooden spoon. It is
Jack, who has usufructuary rights to the office that has a right to the
painting, provided he repair the damage caused by the removal of the
painting. As a third party who accidentally uncovered what appears to be a
 valuable artifact, Tom cannot still be considered to have rights over It but
he can be entitled to half of the profits of the spoon, having found the
“hidden treasure” under Article 438 of the New Civil Code which provides:
Requisites:
1. Discovery was made on the property of Another, or of the State or
any of its political subdivisions;
2. Made by Chance; and
3. He is not a Trespasser or Agent of the landowner.

Legal Precedents

Under Art. 562 of the New Civil Code, 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.
This means that Jack, with the usufructuary rights to the office, has a right
to the painting given he honor the repairing covenant, as agreed between
him and the owner. In order to consider this, the true nature of the painting
must be considered. Irrespective of its artistic value, the painting is painted
on property belonging, under the position set out above, the landlord.
Where an individual damages property that belongs to another, they cause
criminal damage to it.

As to the case of the wooden spoon, it will be governed by Art. 566,

which states that 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 land or tenement, he shall be
considered a stranger.

Conclusion

Ownership of the profits of the painting, will redound to Jack, who now has
usufructuary rights to the property, including the exterior walls and structure
given that the removal of the painting will in no way destroy the form and
substance of the property. The wooden spoon however, will belong to the
original owner of the property, as stated under Article 566 of the civil code, but
Tom will be entitled to half thereof, as the finder.

MEMORANDUM

To: Cayco, Senior Partner

CC: Magsalin, Senior Partner
From: Nina Joy L. Natividad
Date: October 21, 2017
 Re: Effects of Possesion and unlawful detainer

Question Presented

Spouses Magtanggol managed and operated a gasoline station on a 1,000

sq. m. lot which they leased from Francisco Bigla-awa. The contract was for a
period of three (3) years. When the contract expired, Francisco asked the
spouses to peacefully vacate the premises. The spouses ignored the demand
and continued with the operation of the gasoline station. One month after,
Francisco, with the aid of a group of armed men, caused the closure of the
gasoline station by constructing fences around it. Was the act of Francisco and
his men lawful? Why or why not?

Brief Answer

Probably yes. The act of Francisco and his men were technically unlawful,
Article 539 of the Civil Code of the Philippines reinforces that every possessor
has a right to be respected in his possession. Moreover, the articles provides
that a possessor deprived of his possession 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 (30) days
from the filing thereof. The rental law varies from country to country and with
that being said, it is a general rule that a lessor can’t evict someone
themselves. It’s against the law. There are steps and rules to be followed.
That’s why there is a need for an unlawful detainer.

Legal Precedents
 If one does not own the land he possesses, he has limited rights. He may
be ejected based on two types of legal action: (1) ejectment (i.e., forcible entry
or unlawful detainer) (accion interdictal); or (2) accion publiciana (or the
plenary action to recover the better right of possession).

An action for unlawful detainer and forcible entry must be filed within one
year from the date possession is lost (or the date the unlawful possession
started).The distinction between forcible entry and unlawful detainer is
premised on the nature of the possession. An action for forcible entry is
proper when the dispossession was by means of force, threat, intimidation,
strategy or stealth. An action for unlawful detainer, on the other hand, is
proper when the possession is originally lawful and turned unlawful upon the
expiration of the right to possess. Cases for ejectment are filed with the
Metropolitan or Municipal Trial Courts, and proceedings are summary in
nature.

Under Jurisprudece in the case of Spouses Esmaquel & Sordevilla vs.

Coprada G.R. No. 152423, it ruled that, as registered owners, petitioners have
the right to eject any person illegally occupying his property. This right is
imprescriptible and can never be barred by laches.

In Delos Reyes v. Spouses Odenes, the Court recently defined the nature
and scope of an unlawful detainer suit, as follows:
Unlawful detainer is an action to recover possession of real property from
one who illegally withholds possession after the expiration or termination of his
right to hold possession under any contract, express or implied. The
possession by the defendant in unlawful detainer is originally legal but became
illegal due to the expiration or termination of the right to possess. The
proceeding is summary in nature, jurisdiction over which lies with the proper
MTC or metropolitan trial court. The action must be brought up within one year
from the date of last demand, and the issue in the case must be the right to
physical possession

An accion publiciana, on the other hand, may be filed only after the
expiration of the one-year period, based on the same grounds as
ejectment, and may be filed only with the Regional Trial Courts. Proceedings
in this case require the full presentation of evidence.

There are additional requirements for eviction of urban settlers. Republic

Act No. 7279, or the Urban Development and Housing Act of 1992 (“R.A.
7279”) covers “all lands in urban and urbanizable areas, including existing
areas for priority development sites, and in other areas that may be identified
by the local government units as suitable for socialized housing.” Urban areas
are defined by law “as all cities regardless of their population density and to
municipalities with a population density of at least five hundred (500) persons
per square kilometer.”

Section 28 of R.A. 7279 allows the eviction of settlers and demolition of

structures (a) when persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and other
public places such as sidewalks, roads, parks, and playgrounds; (b) when
government infrastructure projects with available funding are about to be
implemented; (c) when there is a court order for eviction and demolition.

Under the same Section, eviction may be effected under the following
conditions: (1) Notice upon the affected persons or entities at least thirty (30)
days prior to the date of eviction or demolition; (2) Adequate consultations on
the matter of settlement with the duly designated representatives of the
families to be resettled and the affected communities in the areas where they
are to be relocated; (3) Presence of local government officials or their
representatives during eviction or demolition; (4) Proper identification of all
persons taking part in the demolition; (5) Execution of eviction or demolition
only during regular office hours from Mondays to Fridays and during good
weather, unless the affected families consent otherwise; (6) No use of heavy
equipment for demolition except for structures that are permanent and of
concrete materials; (7) Proper uniforms for members of the Philippine
National Police who shall occupy the first line of law enforcement and observe
proper disturbance control procedures; and (8) Adequate relocation, whether
temporary or permanent.

If the eviction is by way of a court order, relocation shall be undertaken by

the local government unit concerned and the National Housing Authority with
the assistance of other government agencies within forty-five (45) days from
service of notice of final judgment by the court. Should relocation not be
possible within the said period, financial assistance in the amount equivalent to
the prevailing minimum daily wage multiplied by sixty (60) days shall be
extended to the affected families by the local government unit concerned. It
must be noted that these requirements are imposed on government, and not
imposed on the private entity or individual asserting the right to possess.

Conclusion

The law protects possessors of real property, even those in bad faith -
sometimes to the chagrin of the actual owners of property. It is perpetually
argued by the aggrieved that one cannot occupy land that is not yours, and if
you do, this cannot give rise to any actionable right. The law should not be
taken in one’s hands and the law has already carefully laid down the procedure,
and compliance is the only way to proceed. Doing otherwise would be unlawful
and can be ground for prosecution.

MEMORANDUM

To: Cayco, Senior Partner

CC: Magsalin, Senior Partner
From: Nina Joy L. Natividad
Date: October 21, 2017
Re: Easements and its prescriptions

Question Presented
If an easement may be acquired through prescription over the following:
(A) Right of way (B) Watering of an animal (C) Lateral and subjacent support
(D) Light and view

Brief Answer

Among the four, only Light and View can be acquired through prescription.

In fine, an easement is an encumbrance imposed on an immovable, such

as real property, for the benefit of another immovable belonging to a different
owner. As provided by Art. 613, New Civil Code, the immovable in whose favor
the easement is established is called the dominant estate and the one subject
to the same, the servient estate. A positive easement imposes an obligation on
the owner of the servient estate to allow something to be done or of doing it
himself while a negative easement prohibits the servient owner from
something he could lawfully do if not for the easement, as stated by Art. 616 of
the same code.

As provided under Art. 668. of the New Civil Code, 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.

Legal Precedents

In Ronquillo V Roco G.R. No. L-10619, it was emphasized that easements

of right of way may not be acquired by prescription because it is not a
continuous easement. The easement of a right of way cannot be considered
continuous because its use is at intervals and is dependent on the acts of man.

Under 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. Furthermore, under Chapter II,
Article 5 and 6of P.D. 1067, otherwise known as the Water Code of the
Philippines, it can be inferred Watering of an Animal belong to the state and
therefore imprescriptible.

As for Lateral and subjacent support, in the case of Castro vs. Monsod
G.R. No. 183719, it talks about an owner, who, by virtue of his surface right,
may make excavations on his land, but his right is subject to the limitation that
he shall not deprive any adjacent land or building of sufficient lateral or
subjacent support. Between two adjacent landowners, each has an absolute
property right to have his land laterally supported by the soil of his neighbor,
and if either, in excavating on his own premises, he so disturbs the lateral
support of his neighbor’s land as to cause it, or, in its natural state, by the
pressure of its own weight, to fall away or slide from its position, the one so
excavating is liable. Here, it can be taken that Lateral and Subjacent support is
a discontinuous easement, which is used at interval and depend upon the acts
of man.

Conclusion

Under Art. 620. Continuous and apparent easements are acquired either
by virtue of a title or by prescription of ten years. Only continuous and apparent
easements (I.e., if they are continuous and at the same time apparent) may be
acquired by prescription, stated under the book of Edgardo L. Paras, Civil
Code of the Philippines Annotated, Seventeenth Edition. Article 622 provides
that continuous nonapparent easements, and discontinuous ones, whether
apparent or not, may be acquired only by virtue of a title. Therefore, only light
and view, which can be both continuous and apparent, can be prescriptible.